Swedlund v. Foster

CourtSupreme Court of South Dakota
Citation2003 SD 8,657 N.W.2d 39
Docket NumberNo. 21870.,21870.
PartiesDuane SWEDLUND and Ruth Swedlund, Plaintiffs and Appellees, v. Greg FOSTER, individually and in his official capacity as Custer County Sheriff; Roy Scherer, individually; Dan Engen, individually; Dave Baker, individually; Mike Rivers, individually; Jim Biesheuvel, individually; and Custer County, Defendants and Appellants.
Decision Date15 January 2003

Glen H. Johnson, Michael C. Loos of Johnson Eiesland Huffman and Clayborne, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

Donald P. Knudsen, James S. Nelson of Gunderson, Palmer, Goodsell and Nelson, Rapid City, South Dakota, Attorneys for defendants and appellants.

GORS, Acting Justice.

[¶ 1.] Duane and Ruth Swedlund (Swedlunds) sued Custer County Sheriff Greg Foster and five deputy sheriffs. Swedlunds claimed the law enforcement officers violated their civil rights under 42 U.S.C. § 1983. Swedlunds also brought state law tort claims for assault and battery, intentional infliction of emotional distress, false arrest, false imprisonment and trespass. The officers moved for summary judgment, claiming they were entitled to the protection of qualified immunity on Swedlunds' § 1983 claims and common law immunity on Swedlunds' state law tort claims. The trial court denied the motion. This Court granted the officers' petition for permission to take an intermediate appeal. We affirm.


[¶ 2.] Mike Tennyson (Tennyson) told Custer County Sheriff Foster (Foster) that he suspected Anita Swedlund (Anita) was embezzling money from his business. Foster assigned Deputy David Baker (Baker) to investigate, and Baker and Tennyson met the next day. Based on their conversation, Baker surmised that several missing checks from Tennyson's business might be found at the residence of Anita and her husband Lowell (hereinafter "Lowell and Anita's house"). Tennyson, who lived in the same area as Anita, supplied Baker with her rural route address and described Lowell and Anita's house as a grey two story farm house. Baker then verified the rural route box number with the post office.

[¶ 3.] With this information, Baker prepared an affidavit and request for a search warrant and submitted it to a circuit judge, who issued a warrant on August 1, 1999, to search Lowell and Anita's house. The search warrant provided the address and description of Lowell and Anita's house as follows: "RR1 Box 61D, Custer, SD 57730, Wind Song Valley Rd. A grey two story farm house."

[¶ 4.] Before executing the warrant, Foster sent Deputies Roy Scherer (Scherer) and Mike Rivers (Rivers) to locate ("scout") and photograph Lowell and Anita's house because Sheriff Foster wanted to make sure they had the right house. Deputy Dan Engen (Engen), who had previously been to Anita's house, gave Scherer the following directions: "You go down the road, down Wind Song Valley Road, and follow it to the end where it takes a sharp right. His house, Lowell Swedlund's house, is right on the corner. You can't miss it." They did.

[¶ 5.] The deputies did not take Wind Song Valley Road to the end where it takes a sharp right. Before they reached the end of the road, the deputies noticed a sign bearing the name "Swedlund" and a house in the distance. However, trees obscured the view of the house from where they parked their car. Nevertheless, the deputies concluded that they were at the right address and took photographs of the house from their parked vehicle. When developed, the photographs showed only trees and part of a door. Scherer, Engen and Biesheuvel later testified that the photographs were insufficient to properly identify the house because the only objects visible were trees and the front door. At the time the officers initially looked at the photographs, however, no officers questioned whether the scout team had photographed the correct house.

[¶ 6.] The deputies took pictures of the wrong house. The house that they photographed belonged to Lyle and Ruth Swedlund, Lowell's parents, who lived with their forty-eight year old, mentally retarded son, Duane. Lyle and Ruth's house was a bright red A-frame house, in contrast to Lowell and Anita's house, which was described in the search warrant as a "grey two story farm house." Lowell and Anita's house is located less than a half mile away on the same road; one can see Lyle and Ruth's house from Lowell and Anita's driveway. Disputed evidence exists that some of the deputies may have actually seen Lowell outside in his own yard while they were looking for Lowell and Anita's house.1

[¶ 7.] Based on previous experience with Anita, Foster was concerned that there might be people at Lowell and Anita's house who would be under the influence of drugs.2 Therefore, Foster decided to execute the warrant as a high-risk entry, using eight officers to execute the warrant. At approximately 7:40 p.m. four Custer County Sheriff Department patrol vehicles, and one Highway Patrol vehicle drove to what the officers assumed to be Lowell and Anita's house in order to search for the missing checks. As the officers drove up to Lyle and Ruth's house, Engen saw Lowell and Anita's house at the end of Wind Song Road and remarked to Biesheuvel, "There's Lowell's house right down there." Engen pointed to Lowell and Anita's house, which was visible to Biesheuvel. Engen then concluded that Lowell must have moved. When they arrived at Lyle and Ruth's house, neither Engen nor Biesheuvel said anything about Engen's comment concerning Lowell and Anita's house being located down the road.

[¶ 8.] Biesheuvel knocked on Lyle and Ruth's door three times,3 announced his purpose, waited and then opened the unlocked door. Duane was the only person in the house. He was sitting on a chair watching television and working on a jigsaw puzzle. With their guns drawn, the officers yelled at Duane to get down on the floor. Startled, Duane stood up from his chair and, unable to speak, started yelling and waving his arms. The officers did not know Duane was mentally retarded, and did not know why Duane would not get down on the floor. They claimed Duane's actions were consistent with someone under the influence of narcotics. Baker and Engen holstered their weapons and attempted to force Duane to the floor. Duane resisted, so Engen tried to spray Duane's eyes with pepper spray but hit Baker instead. Engen's second shot of pepper spray hit Duane right between the eyes. Duane continued to resist. The officers then physically forced Duane to his knees and placed a handcuff on one wrist. Duane managed to stand up, and Baker struck him on the right leg three or four times. Baker then forced Duane to his knees again. At this point Duane began crawling on the floor dragging several officers with him. Foster thought Duane was reaching for a pair of scissors, so Foster grabbed him by the belt and jerked him back. Duane kicked Foster in the stomach, and Foster struck Duane twice on the forearm. Duane was eventually handcuffed after a considerable struggle.

[¶ 9.] From Lowell and Anita's house, Lowell (Duane's brother) saw that several police vehicles were parked at his parents' house. Subsequently, Anita, Lowell and their daughter drove there to see what was happening. When they arrived, Lowell exited the vehicle and began asking the officers questions. Lowell was then handcuffed and put in the back seat of a patrol car. When Anita exited the car, they also handcuffed her, arrested her, and placed her in the back seat of a separate patrol car.

[¶ 10.] Meanwhile, Duane was removed from the house in handcuffs. He was red in the face and foaming at the mouth. Lowell asked why the officers were at his parents' house, and they responded that they had a warrant to search Lowell and Anita's house for missing checks. Lowell stated, "Don't you know what you're doing? Don't you know where you are at? This is my parents' house." Baker looked at the house, saw it was red, not grey, and knew they were at the wrong house. Scherer remarked, "You win some, you lose some." Foster ordered the handcuffs removed from Lowell and Duane. The officers left the premises with Anita handcuffed in the back seat of the patrol car. They never did search Anita and Lowell's house for the missing checks.

[¶ 11.] Duane and Ruth Swedlund sued Foster and five law enforcement officers4 under 42 U.S.C. § 1983 for violating their Fourth and Fourteenth Amendment Constitutional rights and for assault and battery, intentional infliction of emotional distress, false arrest, false imprisonment and trespass. The officers moved for summary judgment, claiming that they were entitled to qualified and common law immunity. The trial court denied the motion. This Court granted permission to take an intermediate appeal. The defendants appeal on the following issues:

1. Whether the officers are afforded qualified immunity from Swedlunds' § 1983 claims.
2. Whether the law enforcement officers are protected by common law immunity from Swedlunds' state law intentional tort claims.

[¶ 12.] The trial court found that the officers were not protected by either qualified or common law immunity. Immunity is a legal question to be decided by the court and is particularly amenable to summary judgment. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991); Hart v. Miller, 2000 SD 53 at 13, 609 N.W.2d 138, 143; Horne v. Crozier, 1997 SD 65 at 6, 565 N.W.2d 50, 52. Qualified immunity is not just a defense to liability but an entitlement not to stand trial or face the burdens of litigation. Therefore, immunity questions should be resolved as early as possible. Horne, 1997 SD 65 at 6, 565 N.W.2d at 52, citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 425 (1985). Otherwise, the protection of qualified immunity is effectively lost if there must be a...

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