*1 regenerating night in the counter (nomadic or the criminal
conspiracy?),
entrenched?), thing to be seized easily transferable or
(perishable holder?), the enduring utility place to its individually Mary JORDAN, and as G. (mere criminal forum of searched to be children; An of minor next friend operational convenience secure Williams, Plaintiffs-Appellants, gel base?).... (internal quotes and citations Id. at 923
omitted). al., Defendants, MURPHY, et Richard factors, information In these Affidavit cannot be considered the Hand correctly that the stale. Lancaster notes Williams; Lucas Nicole 1# indicates that CSI wit- Hand Affidavit Services, Defendants- Children Lancaster fire Sten machine nessed Appellees. in- gun years ago.” such “two stale, given formation is not that firearms No. 03-3148. Indeed, perishable Agent are not items. Appeals, United States Court
Hand noted affidavit that based Sixth Circuit. who personal experience, his “those own possess generally firearms maintain Aug. 2005. long periods them for of time.” Rehearing En Denied 2005. Banc Oct. Additionally, provided the information # 1 corroborates the information CSI provided # In the Hand Affida- by CSI 3.
vit, # 3 notes that he Lancas- CSI visited as
ter’s residence late as November only months prior
which was two January of the warrant on
issuance visit, During that CSI # 3 viewed guns,
Lancaster’s machine and Lancaster possessing fifteen of them.
admitted
Given the durable nature firearms
Lancaster’s admission to #3 No- CSI possessed machine
vember 2002
guns, such information is not stale for
purposes of the warrant.
III. reasons, dis-
For these we AFFIRM the sup-
trict court’s denial of motion
press evidence. *2 Penamon, Toledo, OH,
Alan for W. Plaintiffs-Appellants. Borell,
John A. M.P. Rodgers, Damian Toledo, Attorney, Prosecuting Office OH, for Defendants-Appellees. Before: SUHRHE and INRICH GIBBONS, Judges; Circuit LAWSON, Judge.* District INRICH, SUHRHE Judge. Circuit Plaintiffs-Appellants Mary Jordan and (“Plaintiffs”) Angel appeal court granting the order of district summary judgment favor Defendant- (‘Williams”) Appellee Nicole Williams * Lawson, Michigan, sitting by designation. M. Honorable David United Judge States District Eastern District been at that he had informed Williams Board the Lucas Children Services day and that (“LCCSB”) arising un- Jordan’s house earlier theories various filthy house was had observed that the For the reasons der federal state law. also informed follow, full of trash. He judgment AFFIRM the we *3 chil- several that had observed Williams the lower court. in the house. dren Background I. on allegedly knocked police The officers (“Jordan”) Mary born on was Jordan door, no an- receiving after the front but is of sixteen May and the mother to house enter the they proceeded swer at 2472 Law- children. She has resided fol- open door. Williams through an side Toledo, thirty for rence Avenue Ohio It is into the house. lowed the officers 10, 1998, April and her years. On Jordan not that the did se- police uncontroverted granddaughter, Angel then minor Williams the into to authorize cure warrant At (“Angel”), at Jordan’s house. were Williams stated her Jordan’s house. time, guard- acting legal Jordan was as of the that it consensus affidavit was Angel ian for and several other children. personnel at the scene that children in the approximately eight At o’clock in immediate Plaintiffs house were responded to a knock on morning, Jordan danger deplorable of condi- because Sergeant by the door Defendant Officer and that removal was tions of the house Murphy Richard of the Toledo Police Divi- prevent physical immediate necessary to Murphy investigating a sion. Officer was harm. filthy complaint that Jordan’s was house following alleges upon Williams He spoke and full of trash. with Jordan trash, the house she observed into porch on the front of the house while filth, very odor. Once inside the bad doorway. Angel stood It undis- house, pres- announced their the officers puted Murphy that Officer did not enter until she came ence and called for Jordan concluding his house and left after downstairs. The officers informed Jordan Although the conversation with Jordan. on they there to check the condi- were unclear, subject of conversation Jor- According tion children. deposition dan testified at her that Officer Williams, clothing the children and their carrying papers” Murphy was some “blue explain dirty. attempted to were going and that he was informed Jordan he to Jordan that her house was unsafe and help. to come back with some there. children should 10, 1998, at April approximately On Angel Jordan and refused to afternoon, twelve-thirty in the the LCCSB and, initially, least would not cooperate neglected report possible received a identity questions relating answer report children at Jordan’s residence. The upstairs went the children. officers apparently stated that the house was children while Jordan and retrieved the deplorable condition and that Jordan was stayed the first the door. on floor Williams, caring twenty-five children. Angel attempted stop Jordan and When Depart- a caseworker Assessment taking the children into LCCSB, in- assigned ment of the was custody, the officers arrested them both. vestigate report. custody taken into the The children were LCCSB, County the Lucas Williams went Jordan’s residence Ju- eventually placed and other them the Murphy where she met Officer venile Court custody other relatives. Murphy Toledo Police Officers. Officer alleges during acy they Jordan these events were dismissed because were not injury she suffered an to her knee when pled specificity. with As to the she was into railing by knocked claims, the district court concluded that officer attempting climb the stairs. She plead Plaintiffs failed to a federal claim alleges also pushed that another officer against respondeat the LCCSB because injured her into wall or door claims, superior apply does not such back. and that to qualified entitled immunity. 2, 2000, March
On Jordan filed a com- plaint in the Lucas Court of Com- district judgment court entered (Ohio) mon Pleas on behalf herself LCCSB, behalf Williams and the dis- *4 children, as next friend minor of the missing against the case them its entire- Williams, against Murphy, Officer and five ty. judgment The also all of dismissed additional officers of the De- Toledo Police Jordan’s state against law claims Officer partment, all in capacities. their individual officers, Murphy leaving and the other She sued complaint also the LCCSB. The § only the exception 1983 claim. With the asserted pursuant claims to U.S.C. claim, conspiracy Angel’s of the all claims 1983; § assault, state tort claims of bat- against the officers survived. On tery and imprisonment; false and a civil 22, 2002, plaintiffs November settled 5, 2000, conspiracy charge. On April their surviving against claims the remain- action was removed the United States ing stipulation. defendants a pursuant District Court for the Northern District of The district court dismissed the case with 6, 2000, Ohio. On November Jordan and 16, 2002, prejudice. On December the dis- filed an Angel complaint. amended judgment. trict a court entered final Jor- complaint asserted same claims as the Angel dan now appeal and the district original complaint Angel but named as an rulings court’s as Williams and the adult1 and minor chil- removed other LCCSB. plaintiffs. dren as 24, 2001, July On Williams and the II. of Standard Review moved summary judgment. LCCSB for This Court reviews the district court’s The Toledo par- Police Officers moved for grant summary judgment de novo. Ai- judgment tial pleadings on the as to the Tennessee, City Maynardville, lor v. claim of civil later conspiracy, and moved (6th Cir.2004) (citations F.3d omit- original to supplement their motion. On ted). judgment Summary proper when 19, 2001, November the district court no dispute there is as to a material issue of motions, granted concluding that Jor- moving fact party is entitled to assault, battery, dan’s claims of and false judgment as a matter of law. Fed. imprisonment by were barred statute 56(c). R.Civ.P. of limitations but Angel’s claims were not so barred because she had reached Analysis III. age majority. Additionally, following Appellants raise errors on court held that Ohio under law LCCSB 1) appeal: court whether district erred Williams were immune suits claims, summary judgment granting based on the state law and that no support grounds there was evidence to the Williams immu- nity involving claims. The based on civil a conspir- claims claims violation Angel eighteen 1. turned on November excused because may be to be tions nonetheless rights Fourth Amendment
of the know would not have case worker search and to reasonable free from warrantless law. clearly violating en- established “knock and announce” before she was officials Northville, 2) Township district court erred tering; whether the Brennan (6th Cir.1996). 1152, 1154 determining that LCCSB liability are immune from under right to be that for a explained haveWe Political Tort Liabili- Ohio Subdivision established, contours “[t]he 3) Act; court erred ty whether the district sufficiently that a rea- right must clear by pursued Jordan dismissing claims would understand sonable official theory conspira- Angel under civil right.” Bur- doing violates that what he 4) cy; district court erred and whether the 937, 942 Kiefer, chett v. summary judgment granting Cir.2002) (internal and citations quotations law and the on the state LCCSB omitted). objective legal reasonable- pursued Angel gen- tort claims because analyze requires ness us standard uine of material fact exist. issues posi- worker whether case Williams’s objectively tion would have understood §A. 1983 Claims *5 duty under an affirmative that she “was Plaintiffs claim district have from conduct.” Bills refrained such in granting court erred Williams Cir.1995) (6th Aseltine, 596, v. F.3d 52 603 immunity as to two related Fourth Amend Cureton, F.2d (citing Brandenburg v. 882 ment constitutional violations: a warrant- (6th Cir.1989)). 211, 215 a the knock- less search and violation of Qualified immunity rule. and-announce fact Under this scenario we believe if, despite available a constitutional viola hearing po- a case worker reasonable tion, right clearly was not established lice observations and conclusions officers’ at time of the actions. See defendants’ reasonably have understood that could Katz, 194, 201, 121 v. Saucier 533 U.S. physical an of there was imminent threat 2151, (2001). 150 272 The S.Ct. L.Ed.2d harm the inside home. children Jordan’s dispositive inquiry determining whether anonymous After the LCCSB received right it established is “whether tip, assigned investigate Williams would be clear to officer that reasonable was, fact, up caring whether Jordan his conduct was unlawful in the situation all own- twenty-five children-not her (citing Id. at 202 confronted.” Wilson deplorable Upon her amidst conditions. 603, 1692, Layne, 526 119 143 U.S. house, relied arrival Jordan’s Williams (1999)). L.Ed.2d 818 conclusion, on officers’ based Officer observations, qualified immunity anal- first-hand purposes Murphy’s For of children inside and that ysis, will assume that Plaintiffs’ Fourth there were we required immediate rights condition the house Amendment were violated.2 prevent ac- imminent physical thus intervention to issue becomes whether Williams’s 1230, Heck, (10th Cir.2003); Although Supreme nor F.3d 1240 Doe v. neither Court 492, Cir.2003); explicitly (7th this Court have held that the Fourth 509 See also 327 F.3d Walsh, does create a social worker Amendment F.Supp.2d (citing 240 at 746-47 Roska (see County Dep’t exception, v. Erie Walsh Peterson, Cir.2002), (10th 989 Servs., Family F.Supp.2d 759 Job 240 & vacated, Roska, F.3d Cir. 328 1230 (N.D.Ohio 2003)), have other circuits so held. (no 2003)) exception to the social worker Start, Inc., See Dubbs v. Head Amendment). strictures the Fourth Peterson, (10th Cir.2003); Roska v. grant harm. This conclusion was consistent with we affirm the district court’s of sum- mary judgment § the information Williams had on the received claims. through agency and was confirmed
the fact that the Lucas Juvenile B. Ohio Political Subdivision ultimately placed Court children in Liability Tort Act custody of other relatives. Police officers Appellants contend district where, why, made the decision as to summary court erred in granting judg- Only how to enter Jordan’s house. after ment to the LCCSB under they gained access did Williams follow the Ohio Political Tort Subdivision Liabili- them inside. ty § Act. See Ohio rev. code Ann. 2744.02 We believe that reasonable case work (West 2004). er under similar circumstances would have Act sets analy- forth three-tiered deferred to the officers’ conclusion. political sis for determining whether a sub- While we recognize agencies that state liability. division is immune See Ca- such as the have authority LCCSB Cleveland, City ter v. 83 Ohio St.3d enter a home and an endangered take (1998). First, 697 N.E.2d section custody “[plursuant child into to an order 2744.02(A) following general sets forth the of the court ...” and “[plursuant immunity: political rule of “[A] subdivision laws arrest” (Ohio rev. code damages is not hable in in a civil action for 2151.31(A)(1)-(2)), case workers are also death, injury, person or loss to or property duty under a to conduct their investiga allegedly any caused by act or omission of in cooperation tions with law enforcement political employee subdivision or an *6 officers.3 Law enforcement officers a have political subdivision connection with make, duty to and are accustomed to mak governmental proprietary or function.” ing, Fourth Amendment decisions. Case 2744.02(A)(1). tier, § Under the second workers should not have to guess second immunity a political afforded subdivi- decisions, particularly officers’ where the subject sion exceptions is to five listed in police have told them that children are in 2744.02(B). Cater, section 697 N.E.2d at physical danger. imminent Finally, 615. tier analy- under third Given Williams’s reasonable reliance on sis, immunity can if polit- be reinstated officers, police statutory duty successfully argue ical subdivision can investigate reports of and neglect, abuse one of the defenses contained section statutory duty cooperate and her with applies. 2744.03 Id.
the police, we conclude that a reasonable Immunity 1. LCCSB’s
case worker in position Williams’s would not have understood her actions as violat- undisputed It is here Therefore, ing established law.4 LCCSB falls the definition of a po- under Floyd, of the Section 2151.421 Ohio Revised Code 4. Cases such as Calabretta (9th Cir.1999), Erie public and Walsh v. agency states that "a children services Servs., Family hours, Dep't F.Supp.2d Job & investigate, twenty-four shall within 2003), (N.D.Ohio denied have social report suspected each known child qualified immunity. workers these neglect” abuse or child ”[t]he inves- present distinguishable cases are from the one tigation cooperation shall be made in with the because, both, social worker was in agency.” law enforcement rev. Ohio code ann. investigation used command of the 2151.421(F)(1) (West 2004). § case, entry. present to assist In entry. directed the right.” Ohio statutory constitutional next look to wheth- litical subdivision. We 2921.45(A). § Violation sec- that one of Plaintiffs can establish er kev. code first statutory applies. is a misdemeanor exceptions tion 2921.45 specific five 2921.45(B). claim notes, § Plaintiffs nei- Plaintiffs degree. the district court As complaint by nor mak- in their amended 2921.45 ther state violated section summary failing opposition in their suggest by ing a warrantless any exceptions apply judgment prior motion that presence knock and announce her Therefore, it is unneces- in this instance. entering. can
sary to
whether the LCCSB
address
person,
2911.21 states
“[n]o
Section
enti-
any
The LCCSB is
claim
defenses.
so,
...
to do
shall
privilege
without
immunity
2744.02.
under section
tled
on the land or
[kjnowingly enter or remain
of another.” Ohio
premises
Rev.Code
Immunity
2. Nicole Williams’s
2911.21(A)(1).
of the Ohio
section 2744.03
Under
Code,
employee
political
Revised
does
that section 2911.21
We conclude
also immune from
liabil
civil
subdivision
liability
general
it
apply
not
because
exceptions
following
ity unless one
impose
lia-
expressly
that does
statute
applies:
agree,
bility
particular group.
on a
We
(a)
omissions
employee’s
acts or
however,
since
applies
exception
that the
manifestly
scope of the
outside the
were
liability
expressly imposes
section 2921.45
official re-
employee’s employment or
namely
persons,
class of
upon particular
sponsibilities;
servants,
kind of
public
particular
for a
(b)
or omissions
employee’s
acts
ap-
the statute’s
activity.6 Regardless of
in bad
purpose,
were with malicious
however,
pre-
Plaintiffs cannot
plicability,
manner;
faith, or in wanton or reckless
imposes
it.
lia-
vail under
Section 2921.45
(c) Liability
imposed upon
is expressly
if
bility only
the constitutional violation
a section of
Revised
employee
quali-
“knowing.” As
stated
our
we
Code.5
immunity analysis,
undisputed evi-
fied
2744.03(A)(6).
*7
§
reasonably re-
dence reflects that Williams
(c)
Murphy’s
lied on
assessment
Officer
argue
exception
ap-
that
Plaintiffs
deplorable
and the
offi-
and
conditions
point to sections 2921.45
plies, and
entering
home
judgment
cers’
Jordan’s
2911.21 of the Ohio Revised Code. Section
servant,
proof
no
a warrant. Since there is
public
that
without
“[n]o
2921.45 states
office,
knowingly
or
that Williams
vio-
employment,
under color of his
record
rights,
con-
lated
Fourth Amendment
authority,
knowingly deprive, or
Plaintiffs’
shall
exception
a
have not established an
attempt
deprive any person
or
Plaintiffs
spire
to
02CA2832,
2744.03(A)(6)(c)
added);
Darby,
sis
No.
version of
5. The current
Ratcliff
that,
Dec.2,
(Ohio
liability
expressly im-
App.
”[c]ivil
states
C. Civil assault, battery or false arrest. Plaintiffs Law State Claims cite Williams’s into Jordan’s house allege Plaintiffs that the district They without warrant. claim that in dismissing court erred their civil con agreed Williams with the officers to spiracy claim. Angel alleges that the dis jointly possession enter the house take trict dismissing court erred in her inside, claims that, inside, of children once assault, for battery imprison and false brought Williams insisted the children be ment. Since Plaintiffs concede that her. They further claim that the al- engage any did not conduct assault, leged battery, and imprison- false assault, that battery, would constitute or ment occurred as a result of this insis- rather, imprisonment, false but contend tence. dispute regarding that there a factual already We have established
whether
conspired
she
with others to com
reasonably
Mur-
relied Officer
acts,
wrongful
analyze
mit these
we
both
phy’s
deplorable
assessment
condi-
conspiracy
claim and the state law
justified entry
tions
into the house without
together.
claims
We hold
there is no
warrant,
an assessment
that was later
linking
evidence
conspir
Williams to civil
confirmed when the Lucas
Juve-
assault,
acy
commit
battery
or false
placed
nile Court
the children
the custo-
imprisonment.
dy
other relatives. The record shows
law,
conspiracy
home,
Under Ohio
civil
is de
that once inside the
Williams re-
“
fined as a
‘malicious
combination
two mained on the first
near
floor
house
injure
persons
more
in per
go
another
the door and did not
upstairs. She
property,
way
competent
requested
children,
son or
in a
to check the
as was
alone,
resulting
one
duty, particularly
actual dam
her
infor-
”
ages.’ Kenty v.
provided
Transamerica Premium mation
and the
agency
fact
Co.,
Ins.
72 Ohio
initially
St.3d
650 N.E.2d
that Plaintiffs
to reveal
refused
(1995)
Century
(quoting
identity.
LeFort v.
the children’s
Plaintiffs have of-
Co.,
Realty
proof
insisting
21-Maitland
Ohio St.3d fered no
to see the
(1987)).
Thus,
assaults,
512 N.E.2d
children Williams undei'stood that
*8
contact,
establish a claim
civil
a
conspiracy,
physical
of
or arrests of Plaintiffs
“(1)
plaintiff
planned,
must show:
malicious combi were
that she intended the
(2)
(3)
nation;
manner,
persons;
injury
or more
act in such
that
two
to
a
or
she ac-
(4)
to person
property;
quiesced
any
existence of
subsequent police behavior
an
from
independent
carry
prop-
unlawful act
the actu
to
out such acts. That conduct
officers,
conspiracy.”
erly
al
&
Aetna Cas.
Sur. Co.
was attributed to the
if
(6th
Co.,
Therefore,
Leahey
anyone,
Const.
534
but not to Williams.
Cir.2000) (citation omitted). A “conspiracy
not
Plaintiffs have
established the ele-
degree
claim
pled
conspiracy.
must be
with some
of ments of
Since there is no
Williams,
specificity,
eonclusory
against
vague
allega
evidence
LCCSB
not
unsupported by
theory
respondeat supe-
that are
of
tions
material
liable under the
sufficient
disposition regarding
facts
not
a claim.”
our
the
will
to state
rior. Given
At the
minor children.
claim,
other
conspiracy
we
and several
Plaintiffs’
merits of
time,
legal guard-
acting as the
the
deter-
was
address
district court’s
Jordan
need not
grand-
minor children and
plead
did not
con-
ian for the
mination that Plaintiffs
May
born on
specificity.
daughter.
There-
Jordan was
with sufficient
spiracy
mother
fore,
is the
court’s decision
we affirm
district
was widowed
Law-
children,
at the
summary judgment
and has lived
grant
of
years.
conspiracy
on
for over
and the LCCSB
both
Avenue residence
rence
law claims.
Angel’s
claim and
state
eight
At
o’clock
approximately
10, 1998,
re-
Jordan
April
on
morning
Conclusion
IV.
defen-
to a knock on
door
sponded
above,
For
of the reasons set forth
all
Murphy of
Toledo
dant
Richard
Officer
judgment of the district
we AFFIRM the
Murphy was investi-
Department.
Police
court.
was
that the residence
gating
complaint
unsanitary.
spoke
He
with
unsafe and
LAWSON,
Judge, concurring
District
for
front
of the house
porch
on the
Jordan
dissenting in
part
part.
Angel
approximately ten minutes while
I
of the court
opinion
concur
doorway. Murphy
did
stood in
plaintiffs’
state
affirming
dismissal
concluding
after
the house and left
enter
I
because
believe
law claims.
it
Although
with
his conversation
Jordan.
genuine
presents
that the record
issue
clear from the record what
entirely
is not
fact
offi-
material
on whether
reasonable
discussed,
did
Jordan
individuals
two
that a warrant-
cer would have concluded
Murphy was
testify
deposition
at her
less
was lawful under the cir-
home
and that he
carrying
papers”
some “blue
confronted, I
cumstances Nicole Williams
before he left that he
informed Jordan
111(A)
dissent
section
court’s
get
help
more
and would be back.
going to
affirming
of the sec-
opinion
the dismissal
qualified
tion
claim
immuni-
based
twelve-thirty
af-
At
approximately
ty.
ternoon,
Ser-
the Lucas
Children
report
possible
vices Board received
I.
residence.
neglected children at Jordan’s
has
This court
held
that Jordan’s house was
report stated
immunity question requires
analysis
an
condition,
car-
in a
Jordan was
deplorable
proceeds through
steps
three
that are
children, and
ing
twenty-five
several
fact-intensive,
inquiry
calls for
since
win-
looking
seen
out the
children were
“in the
of the officer’s conduct
assessment
Williams,
Nicole
one
dows of
house.
Sample
v. Bai-
situation
confronted.”
case,
this
was the social
defendants
Cir.2005)
ley,
(quot-
Department
Assessment
worker
Katz,
194, 202, 121
ing
533 U.S.
Saucier
assigned
Services Board
Children
(2001)).
2151,
knocked on the door entering. before II. upon states her affidavit that house,
entering the
she observed trash and
Qualified immunity is an affirmative de-
filth
very
and smelled a
bad
It
odor.
fense
protects government
per-
actors
undisputed that a warrant was not ob-
forming discretionary
from
functions
liabil-
tained
to authorize the
of Jordan’s
ity for
damages
civil
when their conduct
home or the seizure of the children.
does “not violate
established statu-
tory or
rights
constitutional
of which a
house,
Once inside the
the officers an-
person
reasonable
would have known.”
presence
nounced their
and called for Jor-
800,
Fitzgerald,
818,
Harlow v.
457 U.S.
and Angel
they
dan
until
came downstairs.
(1982).
102 S.Ct.
523 violated, not clear- right, although was asserting the party most favorable argue that ly plaintiffs The vio- established. injury, officer’s conduct show that the Amendment the Fourth violated right. at 201 Williams lated a Id. constitutional in a war- participated she respects: in two dispute, are in that where the facts (noting unreasonable, and was rantless “a proper inquiry is whether violation police who with the she acted concert out a favorable view of could be made announce” rule. second, “knock and submissions”); if a violated the parties’ deciding found, assumed without majority The the court constitutional violation right was violated. that a constitutional party’s whether the proceeds determine analyze defense properly free from violation was right to be immunity, the “contours” of qualified at of the “clearly established” the time right must examined. public offi- be violation such that a reasonable it such. Ibid. cial would understand as expanded inquiry
This
has
into
court
A.
three-step sequential analysis,
at least
The
Amendment states
Fourth
immunity
when the
defense is
people
be secure
right
“[t]he
summary judgment
motion
raised
effects,
houses,
persons,
papers,
their
discovery
conduct-
brought after
has been
sei-
unreasonable searches and
against
ed,
Sample,
here.
409
at 696
as
See
F.3d
zures,
Payton
In
v.
shall not be violated.”
&n. 3.
1371,
York,
573,
63
445
100
New
U.S.
S.Ct.
First,
whether,
determine
we
based
(1980),
Supreme
Court
L.Ed.2d 639
law,
upon the
applicable
facts viewed
entry of the
“physical
that the
reasserted
light
plain-
most favorable
against
is the chief evil
which the
home
tiffs show that a constitutional violation
di-
wording of
Fourth Amendment is
Second,
has occurred.
we consider
“[bjecause
Id.
585. That is
rected.”
at
clearly
whether the violation involved a
right of a man to retreat into his own
‘the
right
constitutional
of which
established
from unreasonable
home and there
free
person
reasonable
would have known. governmental
intrusion’ stands
‘[a]t
Third,
plain-
we determine whether the
”
very core of the Fourth Amendment.’
has
tiff
offered sufficient evidence ‘to
Ramirez,
551, 558, 124
Groh v.
540 U.S.
allegedly
that what the
indicate
official
(2004)
1284,
(quot-
scribed
Katz v.
By
instances.
United
a law enforcement
or
officer
347, 357,
389
88
duly
U.S.
19 L.Ed.2d
authorized officer of the court
(1967).
In
person’s
the case of a
any
when
the following apply:
of
home, warrantless entries and searches
(a) There are
grounds
reasonable
are “presumptively
Pay
unreasonable.”
conduct, conditions,
believe that the
ton,
analyzed under the Fourth Amendment standard); reasonableness Roska rel. ex (2) arrest; Pursuant to the laws of Peterson, Roska v. F.3d (3) By a law enforcement officer or (10th Cir.2003) (holding that a warrantless duly authorized officer of the court entry by no-knock social workers violated any when following of the conditions the Fourth Amendment exigency absent present: are welfare); danger imminent to child’s Bro (a) 1000, 1010 County, kaw v. Mercer 235 F.3d There grounds are reasonable (7th Cir.2000) (holding that a child taken believe that the suffering child is by government out of a home officialwas injury illness or receiving and is not within meaning seized proper Fourth care ... and the child’s remov- Amendment); Williams, Tenenbaum al is necessary prevent immediate (2d Cir.1999) 193 F.3d 601-06 (analyz physical or threatened or emotional harm; ing by during seizure of a child State an abuse investigation under the Fourth (b) There grounds are reasonable Amendment); Floyd, Calabretta v. believe that the child is in immediate (9th Cir.1999) (stating that a danger from the child’s surroundings social worker must have a warrant to enter the child’s removal neces- a home to remove child absent consent sary prevent immediate or threat- Winburn, or exigency); Lenz v. harm; physical ened or emotional (11th Cir.1995) 1540, 1547 (stating that (c) grounds There are reasonable though even social intrusion worker’s parent, guardian, believe that a custo- welfare, motivated concern for child’s dian, or other household member of part any investigation, “and as the child’s household has abused or search falls within the ambit of Fourth neglected another child house- Amendment”). hold and to believe that the child is As previously, undisput- mentioned it is danger of immediate or threatened ed the police that neither Williams nor physical or emotional harm from that had officers obtained a warrant authoriz- person. ing entry They home. into Jordan’s
justified
on the basis of their
*12
525
Arizona, 437
Mincey
In
v.
Id. at 100.
the
unfit for children.
home was
belief
2408,
385,
Hope
536 U.S.
B.
(2002) (internal
2508,
must do more than demonstrate “the mere
identify
before en-
the
or
themselves
door
an
Rad
possibility”
exigency
that
exists.
in-
Nicole Williams
tering Jordan’s home.
362;
ka,
Jones,
F.2d
641
904
at
see also
the
knocked on the front
sists that
officers
objective
F.2d at 428-429. The test is an
open
an
side
entering through
door before
public official must be
one:
the
able
in the
stated that earlier
door.
Jordan
point
“specific
articulable facts”
Murphy knocked on the door
day, Officer
entry”
of the warrantless
“the moment
facts
it. The
she answered
are
reasonable, experienced
that would lead a
dispute as to whether
the officers and
officer to believe that someone inside
their
knocked and announced
dwelling required immediate assistance.
entering
presence
premises.
before
1158,
Morgan,
v.
743 F.2d
United States
(6th Cir.1984).
1162, 1163
clear-
knock-and-announce rule
Viewing
most
evidence
Amend-
ly
feature of Fourth
established
I
plaintiff,
favorable
do
believe
of
jurisprudence
ment
and is one measure
proof
exigen-
that there was
of
sufficient
searches and sei-
the reasonableness of
is,
cy
emergency resulting
an
Banks,
—that
States v.
540 U.S.
zures. United
conduct, conditions,
of
surroundings
or
31,
521,
36, 124
“it established law that
fourth amendment forbids the unan-
nounced, dwelling forcible of a circumstances”). exigent
absence of “This Court has that exigent determined circum- America, UNITED STATES of relieve stances officers of the knock-and- Plaintiff-Appellee, requirement announce ... ... when v. justified officers have a belief that some- one within is in peril bodily imminent Johnny KEYS, Defendant-Appellant. Dice, harm.” United States No. 03-6041. (6th Cir.2000) (citing United Finch, States Appeals, United States Court of Cir.1993)). entry, As with warrantless Sixth Circuit. of proof public burden is on the official Aug. exigent to show circumstances. Ibid. *15 The same require- facts excuse the obtain
ment to a warrant to enter house
may also support suspension
knock-and-announce rule. as noted,
previously in this case those facts dispute.
are in fact dispute That should
preclude a finding that the defendant was immunity
entitled liability alleged
for this constitutional violation.
III.
Because I believe when the facts light
are viewed most favorable to plaintiffs a constitutional violation has occurred,
been shown to have constitu- right
tional clearly established and which person
one of a reasonable would known, plaintiffs
have and the have offered
sufficient evidence to indicate that what
Ms. allegedly objectively did was
unreasonable estab- rights, respect-
lished constitutional I must
fully portion dissent from that the ma-
jority’s opinion that affirms the dismissal
of the plaintiffs’ section 1983 claim.