GARETH HAMEN AND SHARLA HAMEN, Plaintiffs and Appellees, v. HAMLIN COUNTY, SOUTH DAKOTA, CHAD SCHLOTTERBECK, HAMLIN COUNTY SHERIFF, and SHERIFF‘S DEPUTIES JOHN DOE AND JOHN ROE, et al., individually (names unknown), Defendants and Appellants.
#28671-aff in pt & rev in pt-SRJ
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2021 S.D. 7. OPINION FILED 02/10/21
THE HONORABLE ROBERT L. SPEARS, Judge
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, HAMLIN COUNTY, SOUTH DAKOTA. ARGUED SEPTEMBER 30, 2019.
DAVID R. STRAIT of Austin, Hinderaker, Hopper, Strait & Benson LLP, Watertown, South Dakota, Attorneys for plaintiffs and appellees.
JAMES E. MOORE, JOEL E. ENGEL III of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendants and appellants.
[¶1.] Gareth and Sharla Hamen (the Hamens) filed a complaint against Hamlin County (the County), the Hamlin County Sheriff Chad Schlotterbeck (the Sheriff), and other John Doe deputies after the Hamens’ mobile home was damaged during the arrest of their son, Gary Hamen. The Hamens sought compensation for inverse condemnation and stated a separate claim for deprivation of constitutional rights under
Background
[¶2.] On June 9, 2016, at about 11:30 a.m., the Sheriff and Watertown Police Detective Chad Stahl stopped at Gareth Hamen‘s residence near Castlewood, South Dakota. They were looking for Gareth‘s son, Gary, who had outstanding arrest warrants for felony burglary and misdemeanor violations of a protection order. Police reports indicated that earlier that morning Gary had threatened to shoot himself and anyone he came into contact with. The Sheriff asked Gareth if Gary owned any guns. Gareth told him that he knew Gary owned a few, but he had never seen them.
[¶3.] Gary called Gareth while law enforcement was still at Gareth‘s house. The officers could overhear the conversation. Gary asked Gareth to pick him up because law enforcement was looking for him, and he stated that he needed a car to go to Canada or Mexico. Gareth did not tell Gary that the officers were present. Gareth asked Gary where he was, and Gary replied he was at Gareth‘s mobile home. The Hamens purchased the mobile home in 1997 for their daughter to live in, but later decided to fix it up and rent it out. It was located about 600 feet northwest of Gareth‘s house. Gareth allowed Gary to live in the mobile home when Gary was not working.
[¶4.] After learning of Gary‘s location, the Sheriff and Detective Stahl left Gareth‘s residence and went to the Sioux Rural Water Plant, approximately 1/2 mile south and 1/2 mile west of the mobile home. From their location, the officers observed Gary leave the mobile home but then walk back inside. At this time, the
[¶5.] Sergeant Kirk Ellis arrived with the Watertown SWAT team and set up a loose perimeter around the mobile home. However, law enforcement was unable to monitor all four sides of the mobile home. A drone was procured early in the search to survey the mobile home and the surrounding area, but the drone footage revealed no sign of Gary. Officers then tightened the perimeter around the mobile home and blocked the surrounding access roads. Sergeant Ellis parked an armored vehicle about forty yards from the residence and attempted to contact Gary through a PA system. There was no response.
[¶6.] While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary‘s cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.
[¶7.] Meanwhile, the Sheriff spoke with Gary‘s brother-in-law, Tim Hofwalt. Tim was married to Gary‘s sister, Julie Hofwalt. They lived on a farm within view of the mobile home. Tim reported that Gary, who appeared to be high, was at their home the previous night, and Tim gave Gary some food. Julie was sleeping while Gary was at the home. Tim told the Sheriff that Gary had a gun in a holster under his arm, but Tim did not see any other guns. After seeing the gun, Tim asked Gary to leave; and Gary obliged. During Tim‘s conversation with law enforcement, Tim claimed that he overheard voices on radio traffic stating that the mobile home had been cleared and that Gary was seen running near the river.
[¶8.] The Sheriff shared the information from Tim with the other law enforcement officers. The Sheriff also requested assistance from the Codington County Special Response Team (SRT) and Highway Patrol to further secure the area and ensure Gary did not make it to Castlewood. Then the Sheriff spoke with Gary‘s sister, Julie. Julie told law enforcement that she did not know that Gary had been to her home the previous night because she was asleep and had left early for work in the morning.
[¶9.] The SRT arrived, led by Codington County Sheriff Toby Wishard. The SRT brought in a second armored vehicle to clear the shelterbelt in search of Gary. During the search, the SRT located a suitcase containing male clothes, a bag with needles, a cell phone, and an empty gun case. Wishard and the Sheriff believed that the suitcase confirmed that Gary was armed and possibly using illegal substances. They agreed that the mobile home needed to be cleared to ensure Gary was not in it.
[¶10.] Before clearing the mobile home, Wishard and the SRT met Julie at her residence. The officers conducted a search of Julie‘s house and outbuildings for Gary. The officers were unable to access one padlocked outbuilding. Julie stated the officers “were calm and respectful and did not damage anything during the search.” Julie told an officer that Gary was likely hiding in the willows west of Gareth‘s house, where he liked to hide and play as a child. Following the search of the farm, an officer told Gareth that they were going to enter the mobile home, but they did not state their intention to remove doors and windows with the armored vehicles. Law
[¶11.] Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions of law enforcement on a police scanner as they attempted to locate Gary. He stated: “someone announced on the radio that they were ‘going back to the trailer,‘” to which another voice responded, “he‘s not in the trailer.” Troy claimed, “The first voice answered back saying they were going back anyway.”
[¶12.] Not long after, the Sheriff authorized SWAT and the SRT to breach doors and windows on the Hamens’ mobile home. According to Wishard‘s affidavit, the “tactical procedure [to secure the mobile home] is to create communication portholes in attempts to call out any subject or subjects that may be hiding inside.” If unsuccessful, gas munitions are used to flush out anyone inside. To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system. Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.
[¶13.] The Hamens filed a complaint against the County, the Sheriff, and other John Doe deputies for inverse condemnation under
[¶14.] The County and the Sheriff moved for summary judgment on both claims. The Hamens filed a cross-motion for summary judgment. Following a hearing, the circuit court granted summary judgment to the County. The court concluded there was nothing to establish that there was an official policy or custom on the part of the County approving or condoning the damage to the mobile home, and thus the County could not be liable. However, the court determined that genuine issues of material fact existed concerning the
- Whether damage caused by law enforcement during the arrest of an alleged fleeing felon is a compensable taking under
article VI, § 13 of the South Dakota Constitution . - Whether the Sheriff was entitled to qualified immunity on the Hamens’
§ 1983 claim.
Standard of Review
[¶15.] We review a grant or denial of summary judgment de novo. Thornton v. City of Rapid City, 2005 S.D. 15, ¶ 4, 692 N.W.2d 525, 528-29. “[W]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and established entitlement
[¶16.] “An appeal asserting an infringement of a constitutional right is also an issue of law to be reviewed under the de novo standard of review.” Benson v. State, 2006 S.D. 8, ¶ 39, 710 N.W.2d 131, 145 (citing State v. Dillon, 2001 S.D. 97, ¶ 12, 632 N.W.2d 37, 43). “Under the de novo standard of review, we give no deference to the circuit court‘s conclusions of law.” Id. (citing Sherburn v. Patterson Farms, Inc., 1999 S.D. 47, ¶ 4, 593 N.W.2d 414, 416). Similarly, whether qualified immunity protects officers is a question of law. Swedlund v. Foster, 2003 S.D. 8, ¶ 12, 657 N.W.2d 39, 45.
Analysis and Decision
1. Whether damage caused by law enforcement during the arrest of an alleged fleeing felon is a compensable taking under article VI, § 13 of the South Dakota Constitution.
[¶17.] The Hamens assert a claim for inverse condemnation, arguing they are entitled to compensation under the damages clause of
[¶18.] A party may seek compensation under the damages clause of
[¶19.] Our cases have only permitted recovery for damage or devaluation to private property when the government‘s action with respect to the property has been undertaken for public use. See, e.g., Schliem, 2016 S.D. 90, 888 N.W.2d 217; Rupert, 2013 S.D. 13, 827 N.W.2d 55; Krier v. Dell Rapids Twp., 2006 S.D. 10, 709 N.W.2d 841. The Court has denied “compensation when the state action complained of is labeled a manifestation of the
[¶20.] The Hamens acknowledge that law enforcement‘s actions in arresting Gary involved a police power function, but argue that law enforcement exceeded the legitimate exercise of its police power by unreasonably damaging their mobile home. In the Hamens’ view, they are entitled to compensation under
[¶21.] The Sheriff responds that “the issue is not the reasonableness of the officer‘s conduct, but whether the conduct constitutes a taking of private property for public use (by the authority of the state‘s power of eminent domain), or action to preserve the safety, health and general welfare of the public (by the authority of the state‘s police power).” He argues that
[¶22.] The Hamens initially argue that applying a reasonableness analysis to police power functions under
[¶23.] We have not previously considered whether the actions of law enforcement in damaging private property while apprehending a fleeing felon may, under any circumstance, create a right of compensation under the damages clause of
[¶24.] The California Supreme Court denied a claim under the damages provision of the California Constitution when a store owner filed an inverse condemnation action for property damage caused by law enforcement in apprehending a felony suspect.2 Customer Co. v. City of Sacramento, 895 P.2d 900, 901 (Cal. 1995). In Customer Co., law enforcement deployed tear gas in the store to flush a suspect out, causing extensive damage to the building and store inventory. Id. The court concluded, under
[¶25.] Similarly, in Sullivant v. City of Oklahoma City, the Oklahoma Supreme Court denied a claim for damages under the Oklahoma Constitution after law enforcement damaged an apartment unit while executing a search warrant.3 940 P.2d 220, 222 (Okla. 1997). The Sullivant court reasoned that “the provision, taken in its full context, clearly relates to condemnation proceedings, where real property is actually taken and used for a public project.” Id. at 224. “[T]he addition of the ‘or damaged’ language to the taking provision merely expanded the circumstances when a private owner may recover” for damage to adjacent property when a governmental action involves a public use or public work. Id. at 226.
[¶26.] In Eggleston v. Pierce County, the Washington Supreme Court denied a claim for damages under the Washington Constitution after a home was substantially damaged during the execution of a criminal search warrant.4 64 P.3d 618, 620 (Wash. 2003). Eggleston summarized its review of cases from other jurisdictions as follows:
Those courts rejecting takings claims based on police destruction of property have relied on the original understanding of the constitutions and the continuing vitality of the separate doctrines of eminent domain and police power. The courts that have found takings have been justifiably outraged by the destruction of real property owned by third
parties utterly unconnected with the alleged crime. . . . We decline to abandon the framework established by our constitution. The proper apportionment of the burdens and benefits of public life are best addressed to the legislature, absent a violation of a right held by an individual seeking redress under the appropriate vehicle.
Id. at 626 (citations omitted). Accord Brutsche v. City of Kent, 193 P.3d 110, 113 (Wash. 2008) (reaffirming Eggleston and rejecting a claim for damages when law enforcement used a battering ram to gain entry to the property). See also Lech v. Jackson, 791 F. App‘x 711, 714 n.6, 719 (10th Cir. 2019) (noting that the Colorado Takings Clause‘s interpretation is “essentially the same” as the U.S. Takings Clause and holding that “the damage caused in the course of arresting a fugitive on plaintiffs’ property was not a taking for public use, but rather it was an exercise of the police power“).
[¶27.] In contrast, the Iowa Supreme Court held in Kelley v. Story County Sheriff that a property owner may, in limited circumstances, seek compensation as a taking under the Iowa Constitution when law enforcement officers damage private property.5 611 N.W.2d 475 (Iowa 2000). The court determined the “point at which police power becomes so oppressive that it results in a taking is determined on a case-by-case basis[,]” and the applicable test is “essentially one of reasonableness[.]” Id. at 480. See also Brewer v. State, 341 P.3d 1107, 1114 (Alaska 2014) (declining to hold under the Alaska Takings Clause “that every valid exercise of the police power . . . results in a noncompensable taking“); Soucy v. State, 506 A.2d 288, 290 (N.H. 1985) (discussing under the New Hampshire Takings Clause that whether an exercise of police power goes “too far . . . must be determined under its own circumstances” rather than a categorical exception).
[¶28.] At least two states have allowed recovery by eminent domain for property damage caused by law enforcement during the execution of a warrant. In Wegner v. Milwaukee Mut. Ins. Co., the Minnesota Supreme Court upheld the right of a homeowner to seek compensation under the Minnesota Constitution when police damaged her property while apprehending a suspect.6 479 N.W.2d 38, 41 (Minn. 1991). The court did not address the “public use” language in the Minnesota Constitution, but stated that “simply labeling the actions of the police as an exercise of the police power ‘cannot justify the disregard of the constitutional inhibitions.‘” Id. at 40 (quoting Petition of Dreosch, 47 N.W.2d 106, 111 (Minn. 1951)).
[¶29.] Further, in Steele v. City of Houston, the Texas Supreme Court determined that a right to compensation existed under the Texas Constitution for a property owner whose property was damaged by law enforcement while apprehending three escaped convicts.7 603 S.W.2d 786, 791 (Tex. 1980). Rejecting the City‘s claim that it was exercising its police power, the Steele court broadly defined public use to include any intentional destruction of property by a governmental entity, including any “real
[¶30.] After reviewing the language of
[¶31.] A reading of the damages clause within the entirety of
a right to compensation under
[¶32.] Finally, there is no language in
2. Whether the Sheriff was entitled to qualified immunity on the Hamens’ § 1983 claim.
[¶33.] The Civil Rights Act of 1871, codified at
[¶34.] Sovereign immunity is not a defense to a
[¶35.] “[Q]ualified immunity is ‘an immunity from suit rather than a mere defense to liability[.]‘” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. Therefore, the United States Supreme Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation” because the immunity defense is “effectively lost if a case is erroneously permitted to go to trial.” Id. at 231-32, 129 S. Ct. at 815.
[¶36.] In analyzing qualified immunity, a court undertakes a two-step inquiry to determine (1) whether the facts viewed most favorably to the injured party “show the officer‘s conduct violated a constitutional right” and (2) whether the constitutional right was clearly established. Thornton, 2005 S.D. 15, ¶ 11, 692 N.W.2d at 530-31. “Whether qualified immunity can be invoked turns on the ‘objective legal reasonableness’ of the official‘s acts. [The] reasonableness of official action, in turn, must be ‘assessed in light of the legal rules that were clearly established at the time the action was taken.‘” Ziglar v. Abbasi, __ U.S. __, __, 137 S. Ct. 1843, 1866, 198 L. Ed. 2d 290 (2017) (internal citations omitted).
[¶37.] Since our decisions in Swedlund and Thornton, the United States Supreme Court has reinforced a high bar to meet the requirements of the second prong of qualified immunity, particularly when considering Fourth Amendment claims.
Under our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time. “Clearly established” means that, at the time of the officer‘s conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful. In other words, existing law must have placed the constitutionality of the officer‘s conduct beyond debate. This demanding standard protects all but the plainly incompetent or those who knowingly violate the law.
D.C. v. Wesby, __ U.S. __, __, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018) (internal citations and quotation marks omitted). See also Ziglar, __ U.S. at __, 137 S. Ct. at 1867 (“[I]f a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability.“).
[¶39.] The Sheriff argues that the circuit court erred in concluding that questions of fact existed on qualified immunity. He asserts that the court should have determined as a matter of law that no constitutional violations occurred, and even if a constitutional right was violated, the right was not clearly established. The Hamens respond that fact questions exist as to whether the Sheriff violated the Fourth Amendment by entering the mobile home to arrest Gary without a search warrant, consent, or exigent circumstances. The Hamens alternatively argue that the Sheriff used excessive force by unnecessarily damaging the mobile home in violation of the Fourth Amendment. The Hamens argue that both the unlawful entry and excessive force claims are violations of clearly established rights.
a. Legality of the warrantless entry into the Hamens’ mobile home.
[¶40.] “[I]t is well established that ‘searches and seizures inside a home without a warrant are presumptively unreasonable.‘” State v. Hess, 2004 S.D. 60, ¶ 22, 680 N.W.2d 314, 324 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980)). “Generally, this means that, with some specifically delineated exceptions, every law enforcement entry into a home for the purpose of search and seizure must be made with a warrant.” Id. (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)). Exigent circumstances “is one of the well-delineated exceptions.” State v. Fischer, 2016 S.D. 12, ¶ 13, 875 N.W.2d 40, 45. “Exigent circumstances will justify a warrantless entry into a home for the purpose of either arrest or search . . . when
there is an emergency: a situation demanding immediate attention with no time to obtain a warrant.” Hess, 2004 S.D. 60, ¶ 24, 680 N.W.2d at 325 (citations omitted).
[¶41.] In 1980, Payton v. New York created another exception to the warrant requirement for the search of a residence under the
[¶42.] Shortly after Payton, the United States Supreme Court held that in the absence of a search warrant or exigent circumstances, law enforcement may not enter the home of a third party to execute an arrest warrant on a suspect. Steagald v. United States, 451 U.S. 204, 216, 101 S. Ct. 1642, 1649-50, 68 L. Ed. 2d 38 (1981). In Steagald, law enforcement had an arrest warrant for a suspect and entered the home of a third party to look for the suspect. 451 U.S. at 204, 101 S. Ct. at 1643.
while the [arrest] warrant in this case may have protected [the suspect] from an unreasonable seizure, it did absolutely nothing to protect [the third party‘s] privacy interest in being free from an unreasonable invasion and search of his home. Instead, [the third party‘s] only protection from an illegal entry and search was the agent‘s personal determination of probable cause. In the absence of exigent circumstances, we have consistently held that such judicially untested determinations are not reliable enough to justify an entry into a person‘s home to arrest him without a warrant[.]9
451 U.S. at 220, 101 S. Ct. at 1648.
[¶43.] One court, addressing the rules created by Payton and Steagald, has described application of the cases as follows: “both Payton and Steagald treated the concept of residence as absolute and immutable, drawing a bright line around a third party‘s residence, while affording a lesser degree of protection to an arrestee‘s residence.” Commonwealth v. Romero, 183 A.3d 364, 390 (Pa. 2018). Another court has reconciled the cases around Payton‘s “reasonable belief” standard, holding that law enforcement‘s belief that a suspect resides and is present in a home is determinative.
Because officers may force entry into a home as long as they have a reasonable belief the suspect resides and is present there, but must have nothing short of a search warrant where the suspect is a guest in a third party‘s home, law enforcement‘s assessment of a suspect‘s residency is, in effect, a determination of the level of protection to which a dwelling is entitled.
United States v. Vasquez-Algarin, 821 F.3d 467, 473 (3d Cir. 2016). Thus, the reasonable belief threshold set out in Payton becomes “critical” because it “affects not only the homes of arrestees but also any [third party] home that could be mistaken for one.” Id.
[¶44.] Both Payton and Steagald must inform the reasonable belief standard. Id. Some courts have read the language from Payton and Steagald to require that “law enforcement armed with only an arrest warrant may not force entry into a home based on anything less than probable cause to believe an arrestee resides at and is then present within the residence.” Id. at 480. See also United States v. Hardin, 539 F.3d 404, 415-16 (6th Cir. 2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir. 2006); United States v. Gorman, 314 F.3d 1105, 1114–15 (9th Cir. 2002). Other courts have read Payton to require something less than probable cause. “[U]nder Payton, police officers entering a residence pursuant to an arrest warrant must demonstrate a reasonable belief that the
[¶45.] We conclude that, at a minimum, the Sheriff‘s warrantless entry into the mobile home required an objectively reasonable belief that Gary was living in and present in the home at the time of entry. See State v. Meyer, 1998 S.D. 122, ¶ 39, 587 N.W.2d 719, 727 (discussing Payton and the reasonable belief standard). See also Hess, 2004 S.D. 60, ¶ 21, 680 N.W.2d at 324. A “court must look at all of the circumstances present in the case to determine whether the officers entering the residence had a reasonable belief that the suspect resided there and would be found within” the home. Valdez, 172 F.3d at 1226. The question whether the warrantless entry was supported by an objectively reasonable belief that Gary was living in and present in the mobile home at the time of entry is a question of law for the circuit court. See Scott, 550 U.S. at 381 n.8, 127 S. Ct. at 1776 n.8 (holding that once the relevant set of facts are determined, the reasonableness of the officer‘s actions “is a pure question of law“).10 However, the ultimate resolution of this legal question is dependent upon a resolution of certain facts in this undeveloped record.
[¶46.] Undisputed facts in the existing record show that the Sheriff knew that the Hamens allowed Gary to stay in the mobile home when he was not working, and that Gary was present in the home at the time law enforcement first arrived. These facts support a reasonable belief that Gary was present in the mobile home. However, disputed facts exist concerning Gary‘s whereabouts after this initial contact with law enforcement. The Sheriff initially saw Gary exit and reenter the home shortly after he arrived. Later, after law enforcement had established a perimeter around the mobile home, there were at least two reported sightings of Gary outside the mobile home. Additionally, an officer, who had the last known communication with Gary during the search, reported that Gary sounded out of breath, as if he had been running, during their phone conversation. The Hamens also point to radio traffic from law enforcement that suggested law enforcement did not believe Gary was inside the mobile home and that the mobile home had been cleared.
[¶47.] The Sheriff‘s knowledge of these facts and how they fit into the timeframe of the events leading up to the entry are pertinent as to whether he had an objectively reasonable belief that Gary was inside the mobile home when law enforcement forcibly entered it. The facts concerning the entire sequence of events are not amenable to quick and concise narration. They unfolded over the course of five hours and involved officers from multiple
[¶48.] If the court concludes the Sheriff did not have an objectively reasonable belief that Gary was present in the mobile home at the time of entry, then the arrest warrant did not give law enforcement the authority to enter the home to search for him. In that event, law enforcement could not enter the home without a search warrant absent exigent circumstances. Because the Sheriff did not obtain a search warrant, we review whether he has identified undisputed facts in the record showing that exigent circumstances justified the warrantless entry.
[¶49.] Exigent circumstances to enter a home exist when law enforcement reasonably believes “that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect‘s escape.” Hess, 2004 S.D. 60, ¶ 25, 680 N.W.2d at 325. In the context of a search for a person to make an arrest, we have noted that “[e]xigent circumstances exist when there is an emergency, [and] the situation demands immediate attention and there is no time to get a warrant.” Meyer, 1998 S.D. 122, ¶ 23, 587 N.W.2d at 724 (noting a common example of such an exigency is when law enforcement is in “hot pursuit“). The considerations this Court has deemed to be “particularly relevant” include: “1. [t]hat a grave offense is involved; 2. that the suspect is reasonably believed to be armed; 3. that a clear showing of probable cause exists, including ‘reasonably trustworthy information,’ to believe that the suspect committed the crime involved; 4. that there is a strong reason to believe the suspect is on the premises; 5. that a likelihood exists that the suspect will escape; 6. that the entry, though not consented to, is made peaceably; and 7. time of entry.” Id.
[¶51.] We also conclude the Sheriff has failed to establish that he is entitled to summary judgment on the warrantless entry claim under the second prong for qualified immunity. This prong requires that existing law was so “clearly established . . . at the time of the officer‘s conduct” to “have placed the constitutionality of the officer‘s conduct beyond debate.” Wesby, __ U.S. at __, 138 S. Ct. at 589 (internal citations omitted). “To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law’ . . . [so that] every reasonable official would understand that what he is doing is unlawful.” Id.
[¶52.] “It is a basic principle of
b. Excessive force claim.
[¶53.] In the event the entry into the Hamens’ mobile home is ultimately determined to be lawful, then the Hamens’ alternative claim, whether excessive force was used, must be addressed. The Sheriff challenges the circuit court‘s denial of his motion for summary judgment on the excessive
[¶54.] The Hamens cite
[¶55.] The Hamens have not presented authority clearly establishing that the force used to enter the mobile home, under the circumstances presented to the Sheriff, was unreasonable under the
Specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. Use of excessive force is an area of the law in
which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue. . . . An officer cannot be said to have violated a clearly established right unless the right‘s contours were sufficiently definite that any reasonable official in the defendant‘s shoes would have understood that he was violating it.
Id. at 503. In the absence of excessive force precedents under similar circumstances, the Sheriff is entitled dismissal of the excessive force claim under the second prong of qualified immunity.
Conclusion
[¶56.] We reverse the circuit court‘s denial of summary judgment on the inverse condemnation claim and direct the entry of summary judgment dismissing this claim with prejudice as to the Sheriff and the County. On the Hamens’ § 1983 claims, we affirm the circuit court‘s denial of summary judgment on the Sheriff‘s qualified immunity for the unlawful entry claim, but we reverse the circuit court‘s denial of summary judgment on the Sheriff‘s qualified immunity on the excessive force claim. We remand the § 1983 claim against the Sheriff for further proceedings consistent with this opinion.
[¶57.] KERN, SALTER, and DEVANEY, Justices, and GILBERTSON, Retired Chief Justice, concur on Issue 1.
[¶58.] KERN, SALTER, and DEVANEY, Justices, concur on Issue 2a.
[¶59.] GILBERTSON, Retired Chief Justice, dissents on Issue 2a.
[¶60.] SALTER, Justice, concurs on Issue 2b.
[¶61.] GILBERTSON, Retired Chief Justice, concurs in result on Issue 2b.
[¶62.] KERN, and DEVANEY, Justices, dissent on Issue 2b.
[¶63.] MYREN, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.
KERN, Justice (concurring in part and dissenting in part).
[¶64.] I agree that our Constitution does not support an inverse condemnation claim for the property damaged in this case and join the majority opinion in reversing the circuit court‘s decision interpreting the damages clause under
[¶65.] However, I respectfully dissent from the majority‘s decision to dismiss the Hamens’ alternative claim for excessive use of force. In my view, we should instead affirm the circuit court‘s order denying the Sheriff‘s motion for summary judgment on this issue. This claim should also proceed to trial, where the jury can determine through special interrogatories any disputed issues of fact. The court can then resolve the questions of law.
[¶66.] “We review a [circuit] court‘s qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to [the plaintiff] and drawing all reasonable inferences
[¶67.] Regarding the § 1983 excessive force claim, as a starting premise, if the court determines on remand that the Sheriff‘s entry into the mobile home was unlawful, then the nature and extent of force used is immaterial. In such case, the Sheriff is liable to the Hamens’ for the damage caused by the entry. On the other hand, if the court, on remand, determines that the Sheriff lawfully entered the mobile home, the first prong of the Hamens’ excessive force claim requires an assessment of whether the Sherriff‘s use of force while executing the arrest warrant was objectively reasonable. I respectfully disagree with the majority‘s determination that the Sheriff is entitled to qualified immunity as a matter of law on this claim because under prong two, the use of force was not excessive under “clearly established” law. Upon review of the underlying facts in a light most favorable to the Hamens‘, existing precedent may have provided sufficiently clear guidance to law enforcement faced with the circumstances present here, such that summary judgment is improper.
[¶68.] Destruction of property does not necessarily violate the
[¶69.] “We determine whether a use of force was reasonable by balancing the nature and quality of the intrusion on the individual‘s
[¶70.] Although law enforcement had a warrant for Gary‘s arrest, they did not have a warrant to search the Hamens’ property. Regardless, even if law enforcement had a warrant to search the property, it is well established that “possession of a . . . warrant does not give the executing officers a license to proceed in whatever manner suits their fancy.” Hummel-Jones v. Strope, 25 F.3d 647, 650 (8th Cir. 1994) (citing Dalia, 441 U.S. at 257-58, 99 S. Ct. at 1693-94). “Whether a search is unreasonable by virtue of its intolerable intensity and scope must be determined by the particular facts of [each] case[.]” Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 1982) (citations omitted).
[¶71.] Here, even if we assume the Sheriff had an objectively reasonable belief that Gary had snuck back into the trailer such that the entry itself was lawful, there are nevertheless material issues of fact in dispute whether the force used to enter the trailer was necessary to execute the arrest warrant. See Ginter v. Stallcup, 869 F.2d 384, 388 (8th Cir. 1989) (citing and analyzing cases that consider under what circumstances force is necessary when executing a search warrant). For example, although there are allegations that Gary may have been armed and potentially mentally unstable, the Hamens have identified evidence supporting that, at the time of entry, Gary was not threatening the officers or communicating with them at all. Instead, the information known to law enforcement at the time suggested he was attempting to flee the area. They further presented evidence that, despite the lack of any immediate threat, law enforcement destroyed the Hamens’ deck, windows, wall, and front door to drill a sizable hole into the trailer for use as a “communication portal.” In the process, law enforcement also destroyed the septic system.
[¶72.] The nature and extent of the force used here is undisputed and well documented. A police drone circled above the scene, capturing some of the incident on video, and the officers involved prepared detailed reports of the episode. The first armored vehicle approached from the west side pulling the front stairs and deck away from the trailer. It then tore off the front door of the trailer with a ram, damaging not only the door but the floor and frame. The second armored vehicle drilled three portholes on the other side through windows and a sliding glass door, destroying the septic system in the process. Minutes later, the drone captured images of Gary walking in the river near the Hamens’ trailer.
[¶73.] Viewing the underlying facts in a light most favorable to the Hamens, it is questionable whether the use of “communication portals” of the sort made here were required given the small size of the trailer, particularly when considering that, up to the point of their decision to enter the trailer, law enforcement had been using a loudspeaker to attempt to communicate with Gary. Viewed in this light, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the burglary warrant at issue. See Tarpley, 684 F.2d at 9. Therefore, on the existing record, the Hamens have sufficiently established a violation of a constitutional right under the
[¶74.] Moving to the second prong, the United States Supreme Court has counseled against defining a clearly established right “at a high level of generality.” White v. Pauly, __ U.S. __, __, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017). Rather,
[¶75.] Assuming, however, that no precedent exists that is similar enough to apply to these facts, it is well established that there does not always need to be a case “directly on point for a right to be clearly established[.]” Kisela, __ U.S. at __, 138 S. Ct. at 1152. As the Supreme Court has reiterated on multiple occasions, analogous case law is not necessary in “obvious cases.” See D.C. v. Wesby, __ U.S. __, __, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018) (“[T]here can be the rare ‘obvious case,’ where the unlawfulness of the officer‘s conduct is sufficiently clear even though existing precedent does not address similar circumstances.“).14 Then Tenth Circuit judge, Neil Gorsuch, put it best when explaining that “some things are so obviously unlawful that they don‘t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing. Indeed, it would be remarkable if the most obviously unconstitutional conduct should be the most immune from liability only because it is so flagrantly unlawful that few dare its attempt.” Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015).
[¶76.] From an objective review of the record, this may be such a case. If we accept the Hamens’ version of the facts as true, the Sherriff‘s use of force rose to such a level of egregiousness that “every reasonable official would have understood that” the actions violated the Hamens’ constitutional rights. See Mullenix v. Luna, 577 U.S. 7, 11, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015). When the armored vehicles rolled away, they left behind structural damage to the Hamens’ trailer totaling $18,778.61. To repair it, the Hamens were required to replace multiple doors and windows, the septic system, the skirting, the deck, studs, and insulation.
[¶77.] There is often a great and justifiable need for law enforcement to make split-second decisions in tense, rapidly evolving circumstances and to employ appropriate equipment to protect themselves and the public while doing so. See Graham, 490 U.S. at 396, 109 S. Ct. at 1871-72. But unlike other cases where an extreme use of force was found to be reasonable, here, Gary was not barricaded inside the trailer with hostages, or shooting at law enforcement, or threatening to do so. See Ginter, 869 F.2d at 388. Moreover, law enforcement could have taken incremental steps to clear the trailer with the hope of communicating with Gary to urge him to come out peaceably, or they could have simply waited him out, rather than tearing apart the trailer absent an immediate threat. Insulating those who “knowingly violate the law[,]” has never been the purpose of the qualified immunity doctrine. Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
[¶79.] I agree with Chief Justice Jensen‘s writing on the first issue regarding inverse condemnation. However, I disagree with Chief Justice Jensen‘s and Justice Kern‘s analyses of qualified immunity. Both overlook that immunity is a question of law for a court, not a jury, to decide. See Swedlund, 2003 S.D. 8, ¶ 12, 657 N.W.2d at 45 (“Immunity is a legal question to be decided by the court . . . .“). The United States Supreme Court has repeatedly stated “qualified immunity is ‘an immunity from suit rather than a mere defense to liability . . . it is effectively lost if a case is erroneously permitted to go to trial.‘” Pearson, 555 U.S. at 231, 129 S. Ct. at 815 (quoting Mitchell, 472 U.S. at 526, 105 S. Ct. at 2808). “[W]e have made clear that the ‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that ‘insubstantial claims against government officials [will] be resolved prior to discovery.‘” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2, 107 S. Ct. 3034, 3039 n.2, 97 L. Ed. 2d 523 (1987)) (second alteration in original).
[¶80.] When resolving the issue of qualified immunity on summary judgment, “courts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.‘” Scott, 550 U.S. at 378, 127 S. Ct. at 1774 (quoting Diebold, Inc., 369 U.S. at 655, 82 S. Ct. at 994). Both the writings of Chief Justice Jensen and Justice Kern overlook this basic concept. Chief Justice Jensen acknowledges the existence of disputed facts, but then states, they should be “resolved either through discovery or, if disputed, by a fact finder.” Jensen, C.J., Majority Opinion at ¶ 47. Neither party‘s brief requests additional time for discovery. If the circuit court found the existence of disputed facts, it was to view the facts in a light favorable to the Hamens, and then rule on the issue of qualified immunity. It is a disservice to the doctrine to continue litigating while the question of qualified immunity remains.
[¶81.] The circuit court instead of deciding whether, as a matter of law, qualified immunity existed, punted the question to the jury. The conflicting writings today render immunity essentially worthless as
[¶82.] The circuit court should have resolved all factual disputes in favor of the Hamens, decided whether qualified immunity existed as a matter of law, and then either granted summary judgment or permitted the case to proceed to trial if it found immunity did not exist. As such, I would remand the issue of qualified immunity to the circuit court for it to render a decision on whether qualified immunity exists. Then, if the circuit court denies the Sheriff‘s motion for summary judgment, in turn denying immunity, the case may proceed to trial.
Notes
Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to § 6 of this article. No benefit which may accrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged. The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken.
The inclusion of a comma before the language “or damaged” does not render the damage clause independent from the language “taken for public use.” “Punctuation shall not control or affect the construction of any provision when any construction based on such punctuation would not conform to the spirit and purpose of such provision.”
Any law enforcement officer having authority to make an arrest may break open an outer or inner door or window of a dwelling house or other structure for the purpose of making the arrest if, after giving reasonable notice of his intention, he is refused admittance, and if:
- The law enforcement officer has obtained an arrest warrant; or
- Exigent circumstances justify a warrantless arrest.