*1 5 U.S.C. minimum of $1000. ad the evidence inferences reasonable Hoelker, 552a(g)(4)(A). trial”); States v. United duced at Cir.1985) (“[prose 1422, 1426 F.2d veracity of doubt about may voice cutors taken the stand where has who
a defendant supported the record” are
such comments omitted)), (internal quotes L.Ed.2d Plaintiff-Appellee, O’BRIEN, Joseph J. v. AFFIRMED. RAPIDS; William CITY OF GRAND Ostapowicz,
Hegarty; Daniel Defendants-Appellants. No. 92-1549. Appeals, States Court United Sixth Circuit. 8, 1993.
Argued June 3,May 1994. Decided Randall, Milton HENSON Saundra Rehearing Suggestion for Rehearing and Plaintiffs-Appellants, July 1994.* Denied En Banc AND SPACE AERONAUTICS NATIONAL M. Julian
ADMINISTRATION Defendants-Appellees.
Earls, 92-4369.
No. Appeals, Court States
United Circuit.
Sixth
2,May RYAN, Judges, Circuit GUY and
Before: Judge.* MILES, District Senior
ORDER re- petition has received
The court peti- panel has reviewed
hearing. The opinion filed
tion and concludes
amended,
this case should language, appear- following
Accordingly, the para- the first full
ing at the conclusion hereby deleted: page
graph on damages prove not need to
Henson does statutory for a provides Act
because the * * Keith, J., rehearing Miles, grant for the reasons would Senior United A. The Honorable Wendell Judge Western District for the his dissent. States District stated in sitting by designation. Michigan, *2 F.Supp. See Also: . Attorney’s Office for the of Grand MI,
Rapids, Rapids, Grant J. Gruel briefed), (argued Thomas Richard Behm (briefed), Mills, Gruel, Plyman, Nims & *3 Rapids, MI, defendants-appellants. for Grand RYAN, Before: KEITH and Circuit JOINER, Judges; Senior District and Judge.** RYAN, Judge, delivered the Circuit JOINER, opinion of the court. Senior 23-30), (pp. Judge District delivered a separate concurring opinion as to II B Part opinion and delivered the court respect to discussed Part II C the issues KEITH, Judge Ryan to which dissents. 31), Judge (p. separate delivered a. Circuit opinion concurring part dissenting and part.
RYAN, Judge. Circuit brought Joseph Plaintiff O’Brien against U.S.C. 1983 action Rapids, Hegarty, Police Chief William Grand Ostapowiez, alleging and Officer Daniel Fourth the defendants violated his Amend- rights ment when searched his house used his and excessive force effect arrest. court entered district matter of law all three defendants on the basis court’s conclusion that violated O’Brien’s Fourth Amendment by authorizing search a warrantless of his appeal house. and The defendants raise following issues: 1) court Whether the district erred in ruling Fourth that O’Brien’s Amend- ment rights po- were violated when the physical “probes” lice conducted three warrant; without a O’Brien’s house 2) court Whether the district erred ruling Hegarty Ostapowiez qualified immunity; not entitled Dilley Dilley, (argued Fred Nancy L. MI, briefed), Dilley, Dilley Rapids, & plaintiff-appellee. 3) district court Whether the erred Walton, ruling Dep. City Atty. that the search was the Douglas
G. result custom, (briefed), practice, (briefed), .city policy, Margaret P. Bloemers ** Joiner, gan, sitting by designation. W. States The Honorable Charles United Eastern of Michi- District Court for the District
making weapons. liable for the constitu- their Johnson O’Brien to ordered drop weapon. yelled, tional violation. his my “Leave truck alone! Get out' of here!” He then We conclude the district court correct- retreated into his house and shut the door. ly that O’Brien’s Fourth ruled Amendment point O’Brien did anyone, the rifle at rights were violated when his house was verbally he did not threaten to use it. However, warrant. searched without a we conclude that the district court it erred when cover, After took officers Johnson determined that backup, called for and within a few seconds qualified immunity were not entitled to scene, other responded includ- it concluded as a matter of law that the (NPU). ing Neighborhood Patrol Unit custom, policy, search a result of *4 was The specially NPU officers are trained to practice. We shall therefore reverse the “barri-, manage involving “critical incidents” granting judgment district court’s order- for gunmen.” caded At request, Johnson’s Lieu- O’Brien and with remand instructions to en- Ostapowicz,1 tenant commander, the shift judgment ter in favor of the defendants. Police, Hegarty, the Chief of William had respond authorized the NPU to to the scene.
I. commander, Ostapowicz As shift became the scene commander of involving the situation 6,1987, On October court officer Bart Bak- Although O’Brien. responsible NPU was er of the 61st Rap- District Court Grand managing situation, for any action had to ids, Michigan, seize, attempted pursuant to to be authorized the scene commander. seizure, plaintiff a writ pick-up of O’Brien’s $34,000 satisfy judgment truck to civil that neighborhood evacuated the against had been entered O’Brien. The perimeter secured the around O’Brien’s parked truck was in the street in' front of negotiators house. Trained arrived at the requested O’Brien’s house. Officer Baker p.m. They scene at repeatedly 12:30 tried to police assistance because he was aware that a telephone, reach O’Brien via but O’Brien default had been entered Negotiators would not answer their calls. O’Brien as a result a lawsuit in which the attempted also through to communicate plaintiff in that case claimed that O’Brien bullhorn; however, respond. O’Brien did not intentionally yard. shot him in O’Brien’s Hegarty Chief arrived at the scene at 2:20 thereafter, Officer Dennis Rap- p.m., shortly Johnson the Grand left and returned at Department p.m. ids Police arrived in uniform p.m., to 5:00 At 4:05 O’Brien’s father at- assist tempted Officer Baker. Officer through Johnson to talk with his son knocked on the front and response back doors of bullhorn. Still there was no attempt O’Brien’s house in an nearly let O’Brien O’Brien. Officials tried six hours truck, O’Brien; however, know that Baker was about they to seize his to communicate with respond. Neighbors but O’Brien did not in- never informed that O’Brien he was under trial, formed Johnson that O’Brien was home Hegarty but arrest. At testified that he probably door, would not answer the any and was not sure that O’Brien had violated that- he was reclusive and. often laws acted those six hours for which he a.m., strange. approximately At During 11:50 could be arrested. the first six hours responded, stand-off, O’Brien had not police gathered Johnson instruct- of the information ed Officer Baker to history seize the truck. Johnson on O’Brien learned he had a front, guard stood on physical problems while a and mental and that he .lawn tow up truck was hooked past O’Brien’s truck. had been arrested in the for violent suddenly standing Johnson noticed subsequently any O’Brien behavior but was cleared doorway door, in his charges. behind the closed storm gathered by From the information carrying port position. police, Ostapowicz rifle arms concluded that O’Brien unstable, neighbor mentally tow truck driver and a ran unpredictable, for was very dangerous. cover while Officers Baker and Johnson drew captain by was a the time of trial. trying communicate with afternoon, police continued Ostapowicz and Chief By late They eventually gas used tear a re- O’Brien. and authorized developed him grenades attempt three in an to force out included the use of stun sponse plan house, talk. These allow an officer to see or at least “probes” that would According p.m., ap- to the defen- unsuccessful. At 8:43 efforts were the house. inside probes was the incident be- dants, purpose proximately nine hours after was the house acting Hegarty’s O’Brien orders to shoot to gan, ascertain where him. with kill, communicate order to better Lis shot in the neck Officer Stan did Hegarty later testified kitchen spotted Chief his silhouette after he required warrant was house, a search not believe ar- window. The entered depart- it was not the for the because placed him in an ambu- plaintiff, and rested a critical warrants while policy to seek ment’s spinal severed O’Brien’s lance. The bullet gunman involving a barricaded incident quadriplegic. him a cord and rendered Hegarty also testified progress. charged with crime as a O’Brien was not a search warrant need for there was no initial confrontation with Officer result of his need, nor did did not the officers because Johnson, charged attempted but he was intend, the house. to search and convicted of assault because murder *5 after he fired at the Hegarty the shots p.m., 4:25 Chief approximately At probe. probe p.m. the 5:55 the first Ostapowicz authorized Gary p.m., At 4:29 Officer O’Brien’s house. complaint against the filed a O’Brien chicken wire and pulled Ingalls back at the Rapids and several officers of Grand living room window. covered screen that scene, alleging pursuant claims to U.S.C. to the window frame applied mirrors He deprivation of his under the 1983for location attempt to determine O’Brien’s an Amendment, as well as state assault Fourth house, Ingalls could not see inside but alleged battery claims. O’Brien that his dirty. At window was house because the rights were violated Fourth Amendment sledge Ingalls used a ham- p.m., 5:25 Officer his house and when when the searched so that he part of the window mer to break force to effect his arrest. used excessive mirror living room with the could see into the subsequently complaint amended his O’Brien could hear the probe so that O’Brien Hegarty Captain Police Chief include the interior of Ingalls could view bullhorn. Ostapowicz. Jury trial commenced on Janu- probe, he through the but living room chief, 21, ary During O’Brien’s case 1992. could not see O’Brien. judgment matter court entered as a the trial to use the bullhorn continued negotiator A against Hegarty on of law Finally, ac- with O’Brien. to communicate search claim. The O’Brien’s unreasonable p.m. testimony, at 5:51 cording violated ruled that the defendants court “ yelling, T don’t want to responded, rights when Fourth Amendment ” p.m., Ingalls broke the go jail.’ At 5:55 physical probes of his they authorized three living room glass upper half of the from the obtaining a warrant.2 The house without approxi- fired response, O’Brien window. In Hegarty and Osta- court also concluded Later, police. He- mately shots at the ten qualified immuni- powicz not entitled to presented “no garty agreed that O’Brien ty At the close of the for their actions. any at time hostile threat physical, overt case, the trial court entered defendants’ door, 11:50, until he closed his against the judgment as a matter of law was fired.” 5:56 when the shot finding Rapids after that the munic- of Grand ipality’s policies caused the Fourth Amend- a shoot- p.m., At issued 6:27 Chief hours, ment violation. During the next two to-kill order. home, breaking his win- as well as that the three O’Brien's
2. The district court determined dows, a search house constituted a search and seizure of his of O’Brien's constituted meaning home; of the Fourth and seizure within the and seizure was un- and that the search Amendment; and house O’Brien's window ex- because no circumstances reasonable protected under the Fourth Amend- were ment; areas justify the warrantless search. isted to to see into the use of mirrors jury governing judgment court instructed the on The federal rule The district as a provides, matter of law remaining part, is- relevant as state and sues,3 argu- follows: parties closing made and the jury by jury deliberated almost three If party
ments. a trial has been verdict, fully so the court days respect but did not reach a heard with to an issue and day, legally That evidentiary declared a mistrial. same there is no sufficient parties partici- jury for a district court ordered the basis reasonable to have found party respect issue, for that pate in a settlement conference and sched- to that may grant judgment the court uled a new trial date. motion for against party as matter of law on magistrate judge presided A over the set- any claim ... that cannot under the con- parties agreed to tlement conference. The trolling law be maintained without a favor- pending, except settle all claims still finding able on that issue. claim that Fourth Amendment search 50(a)(1). judg- Fed.R.Civ.P. “Motions for subject granting of the three orders may ment a matter of law be made judgment O’Brien’s motions for as matter time before submission of the case to the city and He- of law defendants 50(a)(2). jury.” Fed.R.Civ.P. Ostapowicz. parties agreed garty and appeal This court’s that the defendants would those or- standard of review of a dismissed, judgment motion for ders. Settled claims were as a matter of law is identical to final on the Fourth Amendment the standard used the district Arn, April court. Marsh v. search claim was entered 937 F.2d (6th Cir.1991); Love, King subsequently The defendants filed their no- (6th Cir.), appeal. tice of Thus, *6 reviewing judgment a motion for aas II. law, matter of court weigh should not the 42 To succeed on a cause of action under evidence, credibility evaluate the of witness 1983, plaintiff a must establish that: U.S.C. es, or substitute its for that of the 1) deprived right by he was of a secured the rather, jury; this court must view the evi or federal Constitution laws of the United light party dence most favorable to the 2) States; by deprivation was caused a give whom the motion is made and law; person acting under color of state party that the benefit of all infer reasonable 3) deprivation pro occurred without due Irvine, Ky., ences. Lewis v. 899 F.2d of McDannel, cess of the law. Rhodes v. 945 (6th Cir.1990). 451, 454-55 This court should — (6th 117, 119 Cir.1991), F.2d “ granting affirm the of the motion ‘ifthere is -, 872, complete pleading proof absence of or (1992). dispute Defendants the district an issue or issues of material the cause court’s conclusion that O’Brien’s under action or where there are no controverted the Fourth Amendment were violated when upon of fact issues which reasonable men Rapids Depart officers of the Police ” Chippewa Valley could differ.’ Kitchen v. physical probes ment conducted of his three Sch., (6th Cir.1987) 1015 obtaining house without first warr search (quoting Corp. Regional Rockwell Int’l v. argue ant.4 also OH, Inc., Emergency Med. Serv. N.W. 688 they subject that are not to suit under sec Cir.1982)). F.2d 31 they enjoy qualified tion immu 1983 because nity, city argues while it that cannot be A. held liable under section 1983 because Fourth Amendment Violation O’Brien failed to establish that the constitu trial, Hegarty, Ostapowicz, tional violation was a result of an At and other practice policy. or officers involved with incident testified Namely, whether excessive force was used to 4. O'Brien’s claim that the used excessive force to effect his arrest was settled and is not effect O'Brien’s arrest. before us. by Ohio, Mapp house was surrounded within seizures states. See
that O’Brien’s confrontation with initial minutes of O’Brien’s 367 U.S. 6 L.Ed.2d S.Ct. no risk of his Court, and that there was According Supreme Johnson sur- once the house was escaping unnoticed protects Fourth Amendment [t]he indi- Furthermore, according to the of- rounded. privacy variety settings. vidual’s In testimony, concerned were not ficers’ privacy clearly the zone more none is any contraband. destruction of with the than defined when bounded the unam- and, perhaps, to disarm goal was Their biguous physical dimensions of an individu- officers, O’Brien, harm to without arrest al’s home —a zone that finds its roots in O’Brien, bystanders. innocent The dis- specific clear and terms: that the defendants failed to found trict court right people “The to be secure in upon facts which sufficient demonstrate their ... houses ... shall not be violated.” jury exigent cir- could find that reasonable language unequivocally That establishes any other reason existed to cumstances proposition very that core “[a]t [of search. justify the warrantless right the Fourth stands the Amendment] argue that the district defendants of a man retreat into his own home and ruling of law that as a matter court erred govern- there be free from unreasonable violated probes O’Brien’s house the three apply ment intrusion.” In terms According to the Amendment. the Fourth equally property and to to seizures of sei- defendants, thought they probable had persons, zures of the Fourth Amendment O’Brien after he confronted to arrest cause has drawn a firm at the entrance line rifle, and the three with the Officer Johnson circumstances, exigent the house. Absent probes were reasonable because warrantless may reasonably threshold be O’Brien, pursuit” in “hot police were crossed without a warrant. exigent cir- had created and because O’Brien in the by barricading himself cumstances York, Payton 589-90, v. New argues even if the house. O’Brien 1371, 1381-82, him, cause to the Fourth probable arrest had (citation (1980) omitted). Thus, “[i]t is a permit did not a warrantless Amendment principle of ‘basic Fourth Amendment law’ exigent house circum- of his absent search searches seizures inside home stances, no circumstances exist- *7 presumptively without a warrant are unrea justify the ed to intrusion. 1380; 586, at sonable.” Id. 100 S.Ct. at see provides: 499, 506, The Fourth Amendment Michigan Tyler, v. 98 436 U.S. S.Ct. 1942, 1948, (1978); gener 56 486 see right people to be secure L.Ed.2d effects, States, 347, houses, papers, ally and Katz v. United 389 persons, U.S. 88 their 507, (1967); sei- against searches and 19 unreasonable S.Ct. L.Ed.2d 576 Warden v. violated, zures, 294, 1642, be and no Hayden, shall not War- 387 U.S. 87 S.Ct. 18 issue, cause, (1967). upon probable but rants shall police 782 if L.Ed.2d Even have affirmation, by par- Oath or and supported probable suspect, cause to arrest warrant ticularly describing place to be the required police entry suspect’s for into the searched, persons things and the to be exigent there house unless are circumstances seized. requirement.5 that excuse the warrant Cool Const, 443, idge Hampshire, v. New 403 U.S. 474- amend. The Fourteenth IV. U.S. 75, 2022, 2042-43, incorporates 91 L.Ed.2d the Fourth Amend- S.Ct. 29 564 Amendment (1971). ment, and prohibiting searches unreasonable 3)when exigent police found court has circumstances immediate action neces-
5. This suspect's home in justify a warrantless arrest in a sary prevent vital the destruction of evi- following three instances: the escape or thwart of known dence the crimi- 1) pursuit of a the officers were in hot nals. fleeing suspect; Lewis, 1125, Jones v. 1130 Cir. 2) suspect represented immediate when the an 1989). public; arresting threat to the officers or the and
997
searches,”
dispute
Dewey,
594,
The defendants do
Donovan v.
452 U.S.
2534,
101
69
probes
constituted a warrantless
S.Ct.
L.Ed.2d 262
three
They argue
house.
search O’Brien’s
defendants,
According to
po
they
presumption
have overcome
probable
lice had
cause to believe O’Brien
search was unreasonable
their warrantless
an assault
committed
when he confronted
1) they
pursuit
were in hot
because
Johnson with the rifle and that it was thus
2)
O’Brien,
exigent circumstances
and
other
reasonable to conduct the
because the
existed.
police
pursuit
were in hot
of O’Brien. We
conclude, however,
circumstances,” something
pursuit”
that the “hot
“Exigent
of a
ex
“
art,
ception
apply
undisputed
does not
to the
term of
denotes the existence of
‘real
facts in this case. Officer Johnson chose not
consequences’”
serious
immediate
pursue
at
the initial confrontation
certainly
occur were a
officer to
would
”
“
backup
and instead
called
to surround the
‘postpone[
get
action to
a warrant.’
]
area,
Wisconsin,
740, 751,
thereby slowing
house and secure the
v.
466
104
Welsh
U.S.
(1984)
controlling
down
2091, 2098,
According
the action.
(quot
S.Ct.
80
451,
testimony,
States,
officers’
the house was
ing
v.
sur
McDonald United
335 U.S.
(1948)
rounded,
459-60,
191, 195,
O’Brien could not flee the scene
153
69 S.Ct.
93 L.Ed.
unnoticed,
(Jackson, J.,
officers did not fear the
concurring)).
phrase
has
Furthermore,
destruction
evidence.
Supreme
been understood
Court to
holding anyone hostage
O’Brien was not
comprise, generally,
separate sets of cir
two
1)
had
no action
taken
the officers dur
“the imminent destruction of
cumstances:
evidence,”
States,
ing
nearly
six hours between the time of
Wong
v.
vital
Sun United
471, 484,
407, 415,
probe.
the confrontation and the
if
Even
371 U.S.
83 S.Ct.
2)
agree
(1963),
might
reasonable fact finders
that the
L.Ed.2d
the “‘need to
pursuit
officers were
of O’Brien
protect
preserve
inju
life or avoid serious
”
area,
Arizona,
385, 392,
they
six hours as
took control of the
ry,’ Mincey v.
437 U.S.
(1978)
information,
gathered
developed
2408, 2413,
a re
98 S.Ct.
case,
(citation
sponse plan,
omitted),
under the facts of this
no
either
others,
reasonable fact finder would find that
Hayden,
themselves or of
U.S.
pursuit.
in hot
at 1646.
87 S.Ct.
’
Examples
“exigent
argue
circumstances” ex
The defendants also
that other
ceptions
“exigent
requirement
to the warrant
abound
circumstances” existed that excused
1)
Supreme
requirement.
Court case law:
warrant
The defendants
“automo
States,
exception,”
bile
Carroll v.
267 do not claim that immediate
action was
United
(1925); necessary
prevent
999 “ 41, reasonably have 107 should S.Ct. 3039-40. The official [n]or neither ‘knew will be “ action he took within his immune ‘if officers of compe- known that reasonable responsibility disagree’ would violate sphere of official tence could on whether the conduct affected, ... rights ... plaintiffs rights.” the constitutional violated the Gossman v. Allen, Cir.1991) 338, (6th malicious intention to took action with the 950 F.2d 341 (quot- 335, 341, a constitutional deprivation ing Malley Briggs, of cause v. 475 U.S. 106 Bibb, 349, (1986)). F.2d right_Robinson v. 840 S.Ct. (6th Cir.1988) (quoting Hegarty Wood v. Strick fact Ostapowicz may 350 The that and land, 308, 322, 992, 1001, subjectively exigent 420 U.S. have that believed cir- (1975)). question whether L.Ed.2d cumstances existed to warrant the search is by qualified immunity irrelevant; protected objective an official is the standard one of subjective good faith of does not turn on the reasonableness. rather, official; “objective it turns on the Qualified immunity Hegarty would protect actions, legal reasonableness” of his assessed Ostapowicz objective- if it suit were “clearly light legal rules that were conclude, ly reasonable for the officers to at the time the actions were established” had, given they the information that immedi- . Fitzgerald, 457 U.S. taken Harlow ate action to conduct the without first 2727, 2738-39, 818-19, 102 73 L.Ed.2d S.Ct. obtaining necessary is, a warrant was —that (1982). qualified To determine whether exigent that circumstances existed to excuse immunity protects Hegarty Ostapowicz,' their failure to obtain a warrant before enter- 1) inquire: whether O’Brien identi we must ing O’Brien’s residence. clearly right alleged established fied reject argument We out of hand the 2) violated; been and whether a reason have reasonably that the officers that believed position officer in the defendants’ able they pursuit they hot of O’Brien. If un should have known that his conduct was that, believed would not have waited rights. dertaken in violation of these See only four-and-a-half hours to act. Not Laccheo, Johnson v. Estate of was, pursuit, there no hot there for most of Cir.1991). afternoon, pursuit no at all.' We are right alleges to have been O’Brien satisfied that no reasonable officer in the clearly right violated was established: of Hegarty Ostapowicz circumstances of persons protected from a to be warrantless pursuit in hot would conclude he was exigent search of their unless circum house and, reason, for that excused from require police action. stances immediate obtaining a warrant. search arrest Thus, question the relevant before us is argue But also objectively whether an reasonable officer circum- reasonable officers their exigent circum would have believed stances, objectively assessing the circum- justify stances existed to the warrantless day, stances as existed that could con- light clearly search established law incident,” in clude that the “critical its totali- light possessed by of the information ty, excusing was an circumstance Creighton, Anderson v. defendants. agree. warrant.' We 3039-40, 635, 641, 107 97 L.Ed.2d perception With the infallible hindsight, we can now see there 20/20 determining objective le When probability might was a that O’Brien have gal portion qualified reasonableness indefinitely. remained inactive and hidden standard, immunity of im individual claims perception from But this was not the which munity analyzed fact-specific, must be on a objective we must assess the reasonableness case-by-case basis to determine whether Hegarty’s Ostapowicz’s action. plaintiffs clear were so ly alleged They gun- established when the misconduct had on their hands barricaded man, previously and wounded a was committed that the defen who had shot yard premis- position what citizen in the front of the same dants’ would understand that *10 They had rights. he did violated those See id. at 640- es. had been told that O’Brien 1000 They C. with a rifle. Johnson
assaulted Officer
armed,
unpre-
dangerous, and
he was
knew
City Policy, Custom,
Practice
Official
history
of violence
He had
dictable.
court also entered
as a mat-
The
neighbor-
immediate
The
problems.
mental
city
against
finding
after
that
ter of law
evacuated,
the house was
had
hood
been
violated as a result of
were
surrounded,
approaching, and
was
darkness
view,
city policy. My
are of the
brothers
whether the
concern about
there was the
expressed
Judge
separate opinion,
Joiner’s
permitted to return
neighbors should be
plaintiff
that the
has carried his burden of
was tense and
The situation
their homes.
showing
separately
I
that the
is
liable.
dramatic,
it was not unreasonable
agree and
in the
do not
therefore dissent
possibility
was a
of sud-
there
conclude that
liability
municipal
issue.
any
at the scene at
action
den and violent
Supreme
has
that munici
The
Court
held
moment.
palities
government
and other local
units are
among
persons
“included
those
to whom
clear that the officers were
think it is
We
applies.”
Department
1983
Monell
not,
law,
exigent circumstance
excused-
York,
New
Social Servs.
in-
obtaining a warrant before
grounds from
658, 690,
2018, 2035-36,
98 S.Ct.
U.S.
say
But we cannot
vading O’Brien’s house.
(1978). Consequently,
gov
local
officer, objectively assess-
that no reasonable
may
subject to suit for mone
ernments
be
situation,
that there
ing
could conclude
they
tary damages if
violate an individual’s
excusing the re-
exigent circumstances
were
rights.
municipality
The local
obtained. He-
quirement that a warrant be
entity
violating
an
for
constitu
is liable as
held to the
garty
Ostapowicz are not
rights only
responsible
tional
when
is
for
it
law scholar con-
of a constitutional
standards
violation,
committing the
not when the viola
exigent
vagaries of the
circum-
cerning the
solely by
employees.
tion was committed
its
requirement
exception to the warrant
stances
Cincinnati,
469,
Pembaur v.
They
po-
law.
Amendment
of Fourth
1292, 1298,
sure, dealing
licemen,
to be
command
superior
principle
respondeat
The
dangerous incident
potentially
with a
inapplicable
is
to section 1983
thus
actions.
neighborhood, that
of a residential
middle
municipal
prevail
Id. To
on a claim of
liabili
might
exploded
at
moment.
ty
have
under section
O’Brien must estab
1)
that,
law, exigent
deprived
circumstances did
lish:
that he
of a constitu
fact
2)
right;
municipality
tional
that the
had
dispositive. The officers’
not exist is not
3)
“policy”;
policy
was “the
devising
strategy
to deal with
conduct in
moving force” behind the constitutional viola
them,
dangerous incident
and the
before
Monell,
tion.
at
at
See
S.Ct.
exigent circum-
faced an
conclusion that
order-
excused a warrant before
stance
residence, was not
ing
probe of O’Brien’s
single
Supreme
Court has held that a
can,
objectively
should
by municipality’s policymaker
so
unreasonable
decision
circumstances,
liability
subjected
personal
for their
under certain
constitute
be
Pembaur,
“policy.”
475 U.S. at
carrying out their official duties.
actions in
municipality
A
S.Ct. at 1298-99.
liable
stand-off,
the circumstances
Given
only
an official’sunconstitutional action
possessed
light
of the information
that official is the one who has the “final
officers,
of reason-
we conclude that officers
authority
municipal policy
establish
assessing
objectively
competence,
able
ordered,”
481,106
respect
id. at
to the action
situation,
circum-
could believe
1299;
at
and the official has made “a
justified a warrantless search.
stances
deliberate choice to follow a course of action
Consequently,
alternatives,”
among
...
various
id.
qualified immunity and the
were entitled to
authority
1001
policy.
procedure
unless the offi
The
manual does not de-
policymaker
final
ployee a
suggests
and unreviewable
fine a “critical incident” but
that
decisions are final
cial’s
by
poli
official
suspect
not constrained
the
such incidents include “barricaded
and are
¶
City
X,
hostage
Feliciano v.
E
superior
of
officials.”
and
situations.”
cies
Part
(6th Cir.)
Cleveland,
655
manual states:
Praprotnik,
485
(citing City
St. Louis
premises
Probes of the incident
should be
915, 926,
99 L.Ed.2d
S.Ct.
upon
made
direction of the tactical com-
—
U.S.-,
(1988)),
only.
mander
Probes are-intended to col-
“Discretion
intelligence'
lect
arid must be
without
done
policymak-
not to be confused with
to act is
drawing
suspects.
attention of the
Two or
liability
authority;
municipal
results
ing
no
tactically
more
officers will conduct
trained
merely has
to act
where an official
discretion
probes
specifi-
the
at times and locations
municipality
liability
subjecting a
because
cally directed.
‘indistinguish
a situation would be
such
however,
provides
guidelines,
The manual
no
superior
liability.”
respondeat
able’
attempt
as to when officers should
to obtain
omitted).
(citation
Feliciano,
was not a
incidents,
testified,
respond to critical
also
he
discretionary
merely the
decision of He-
did,
that all officers on the
garty
Ostapowicz.
force have discretion to decide
to seek
when
policy
According
Ostapowicz,
al-
an official has “final
mak-
a warrant.
Whether
though
agreed
policy
no
ing authority”
question
of state and local
he
there was
is
Thus,
police department
practice
such final
law.
to determine whether
whether
official,
during
critical inci-
authority
particular
in a
seek search
is vested
warrants
statutes,
dent,
department
policy
to state and local
did not have
court must look
ordinances,
seeking
Hegarty and Osta-
regulations,
as well as to
warrants.
powicz
practice
Praprotnik,
or custom.
testified that
would have re-
local
Also,
quested
a warrant
the critical incident
U.S. at
obtaining warrant. The a search Rapids of the Grand was that all officers development of pro- a critical incident Department discretion to deter- Police have priorities cedure was of one the first for the cases, mine, whether to in individual seek a City Rapids Cap- of Grand in 1981. Retired warrant; thus, police, of who the chief was tain Frank Bolz of the New York Police super- acting command officer as the defacto Department, who was viewed as the national incident, had the same vising this discretion- authority management on the of critical inci- ary authority as other officers on the force to dents, was in hired to assist this endeavor. to seek a search warrant. determine whether Bolz was asked to review the draft of the procedure, apart.” and to “tear it The criti- evidence, Hegarty’s There is no aside from procedure cal incident did not mention the rank, suggest proceed to that the decision to necessity advisability obtaining of war- seeking without a warrant was taken because during management rants of a critical municipal policy of a of the existence not to incident. Bolz reviewed the manual and tes- do in of this character. so cases Because procedures “very, very tified that the Hegarty proceed decided to good. them, approved problems I no at all.” a warrant the exercise of their without discretionary authority, and not as a matter Rapids Department The Grand Police con- municipal policy, I of believe the court erred three-day training programs ducted judgment city. entering against staff, 1983 and 1984 for its command tactical personnel, negotiators involved in critical III. management. incident Bolz conducted this judgment AFFIRM the entered as a We training, although some officers also were against City matter law Grand regarding sent to other seminars critical inci- judgments Rapids, as to REVERSE He- management. dent Bolz testified he Ostapowicz, garty and and REMAND the police regarding instructed the cir- case with instructions to the district court to permitted cumstances under which are Hegarty Ostapowicz. enter for engage physical to break windows or in other incidents, during assaults on homes critical JOINER, Judge, Senior District teaching conjunction that such action is in concurring writing separately in Part II arrest, continuing with a and that the war- (qualified immunity), writing B for the requirement Payton rant set forth in v. New majority liability to York, (discussed Rapids in Part II C in (1980), apply. does Accord- Judge Ryan’s opinion). Bolz, ing to there is no need to seek a A B Judge I concur in Parts II warrant even when a critical incident lasts as Ryan’s thoughtful opinion. agree long I days. key that the as two Bolz testified that the Joseph requirement warrantless violated use the warrant is whether the rights, trying O’Brien’sFourth Amendment but also are to locate evidence to use suspect. probe conclude that the circumstances of this case The use of a protected by indicate that the officers are locate an individual in his home or to better qualified immunity. going These same circum- hear what is on in the home involves stances, however, “seizure,” lead me to conclude that neither a “search” nor even when Rapids of Grand is hable under break a window insert probe.1 1983 for the violation of O’Brien’s U.S.C.
1. Bolz further testified that a warrant was never 400 critical incidents the course of his sought career, incidents to he critical which negotiator ap- and was involved as a responded while still an active member of the proximately 285. responded approximately force. Bolz the limited confirmed his decisions these Bolz’ views on Consistent represented areas the final decisions of the Amendment’s warrant scope of the Fourth trial, Hegarty candidly city. argued At counsel requirement, Police Chief why county prosecutor, not the chief of regarding no warrant testified police, making had the final decision authori- using probes on O’Brien’s sought prior *13 ty regarding the circumstances under which house. sought. warrants should be This “dubious prose- the Q. You never conferred with claim,” court, by the as characterized trial attorney any time cuting and his staff by city, was never substantiated the and is taking place, events were before these Significantly, appeal. not advanced on the you? did trial, city did not contend at as it does now to, sir, it no need because A. There was appeal, on that because its charter identifies depart- in practice our was our routine manager city the as the individual with su- ment, practice, of this kind of to terms police per- pervision department, acquire a warrant. not search son, police, city’s and not the chief of the added.) Hegárty’s testimony is (Emphasis respect acquisition policymaker with to the point. He confirmed that unequivocal on this warrants. why sought was not reason a warrant the time; lack nothing to do with insufficient had II. prosecutor; lack of access to a personnel; focus, my I these salient facts as add With judge; any unavailability of a emer- the Judge Ryan’s support of Part II B of house, going on at O’Brien’s gency that was (cid:127) opinion my perception protection against fact that O’Brien had been other than the necessary component has become a terrorism suspect. a determined to be barricaded training given police officers. The Rather, during practice it was the routine problems posed by create a new terrorism acquire of critical incidents not course police training. In dimension this new explained that be- Hegarty further warrant. work, ability line officers’ kind of physical- there never intent cause was dangerous rapidly situ- react different house, ly and because the search the They ations is critical. must be to fol- able response, in a critical incident were involved training low their and the law. We as Hegar- for a warrant did'not exist. the need society perhaps expect, that law hope, and seeking ty’s for not a warrant reasons quickly resolve a enforcement officers can consistent with the the events at issue are death, injury or volatile situation without department’s general practice in these politically mo- that situation involves whether sought warrants were never dur- situations: or, sociopaths apparently was tivated as previous critical incidents ing the course of here, young a disturbed and isolated case out of an which themselves did arise man. attempt Ostrapowiez to execute a warrant. that, agreed generally while he with testified of the two individual defen- The actions Hegarty’s testimony, he did not believe that dants, Hegarty and Lieutenant Police Chief obtaining department policy of not had Captain Ostrapowiez, comported with Bolz’s during critical incidents. Accord-
warrants department’s teachings, well as the rou- as Ostrapowiez, guides law whether a ing to light In practice in such situations. tine sought, and member warrant should be each standard, objectively were their actions to seek a of the force has the discretion respect qualified immu- reasonable. With -that is neces- warrant if he determines one offi- nity, question is whether reasonable sary. Hegarty responded have as cers would that, light training, the police, Ostrapowiez did in of their Hegarty testified as chief of he specific chal- practices, and the by city department’s the final decision was vested incident which authority lenges posed circum- the critical making to determine the unreasonable involved. It was not warrants should be ob- stances under which re- tained, Ostrapowiez to have critical and the manner which the case, thus man- sponded they did in this procedure would be carried out. incident Serv., dating protected conclusion that are v. City Dep’t Monell New York Soc. 658, 694, immunity. Malley 2018, 2037-38, by qualified Briggs, 475 436 U.S. 98 S.Ct. (1978). 1092, 1096, L.Ed.2d 611 106 S.Ct. U.S.
L.Ed.2d 271
satisfy
policy
To
requirements
of Mo-
nell,
plaintiff
“identify
policy,
must
problem
policy, practice
was
policy
connect the
itself and show
Rapids.
of Grand
custom of the
Howev-
particular injury
that the
was incurred be
er,
liability
impose
will not
on the
we
policy.”
cause of the execution of that
Gar
policy, practice
who carried out that
or cus-
Memphis
Dep’t,
ner v.
Police
8 F.3d
tom,
policy,
of this case.
the facts
—
(6th Cir.1993),
-,
practice,
taught by
or custom
national
(1994)
(quot
authority
management
on the
of critical inci-
Wixom,
ing Coogan v.
*14
dents, person upon whom it
a
was not unrea-
Cir.1987).
Monell,
Under
a “custom”
rely.
response,
The
sonable to
officers’
legal
is a
permanent
institution that is
and
vary
policy, practice,
which did not
from the
established,
by
but is not authorized
writ-
custom,
qualified
entitles them to
immuni-
ten law....
Before a custom can be the
ty.
violation,
basis for a civil
the custom
permanent
must be “so
and well settled as
III.
usage’
constitute a ‘custom or
with the
force of law.”
Rapids is not
Grand
entitled to make
Cleveland,
Feliciano v.
law,
policy
that violates the
and then claim
—
Cir.),
-,
that it is not
liable because national author
(1993)
Monell,
(quoting
ity says
policy
legal.
city’s
that the
is
2036).
Reasonable officers warrantless situation, exceptional an such
search absent circumstances, violates the fourth Reasonable officers would
amendment. exigency no
agree in this situation existed.
Describing unacceptable outrageous by taken this case as “rea-
actions competency profes-
sonable” offends practiced overwhelming ma-
sionalism
jority Recog- across the nation. of officers overt,
nizing presented “no hostile O’Brien probable no
threat” and there was cause to crime, only
believe he committed unrea-
sonable and overzealous officers would ha- by surrounding persecute
rass and breaking its In
his home and windows. this
case, the officers’ refusal to obtain a warrant magistrate,
from a neutral and detached de- hours,
spite passing of several resembles self-righteous arrogance lynch of a mob.
Unfortunately, imagi- the officers’ overactive
nations, paranoia aggressive irrational
conduct incited a scenario which left O’Brien
paralyzed. precisely type It is of situa-
tion the fourth amendment is intended to
prevent. I would AFFIRM the therefore finding court’s that the officers
district qualified immunity.
not entitled to America,
UNITED STATES of
Plaintiff-Appellee, MANESS, Lee
Jessie Defendant-
Appellant.
No. 93-5867. Appeals,
United States Court Circuit.
Sixth March 1994.
Submitted May 4,
Decided