Robert Andrews v. Hickman County, Tennessee

SUTTON, Before GIBBONS and Circuit ADAMS, Judges; and Judge.* District * Adams, Ohio, The Honorable John R. sitting by designation. United States Judge District for the Northern District of initial referral was incor- provided GIBBONS, J., opinion delivered J., continued to contact refer- ADAMS, joined, rect. Davis court, D. in which address, the correct ent in an effort to find SUTTON, J., parts in all joined the correct ad- until the referent told her exception with the including judgment, day, 864-65), August 27. On that same SUTTON, dress (pp. J. Part IV. contacted in her office a new Davis was concurring in opinion separate delivered An- regarding conditions at the referent1 judgment. and in the part home, and instructed the refer- drews’ she OPINION call central DCS hotline in order ent to an official referral. This second to file GIBBONS, Circuit SMITH JULIA p.m. received at 11:38 referral was Judge. referral, priority three classified as Davis, Primm, Cynthia Kelly Defendants employee which indicates that DCS appeal and Paul Wade Wright, Monica make contact within three business should denying part court’s decision district days. summary judgment. motions for their the defen- court found The district address, a Finally possession in of valid immu- were not entitled dants supervisor with her who Davis conferred An- Patricia plaintiffs Dale and nity from day. Due told Davis to visit the home For the Amendment claim. drews’ Fourth guns of in presence to references to the reasons, AFFIRM the dis- we following follow-up the home in the conversations regarding defendant trict court’s decision referent, original the and because the with the decision Paul and REVERSE “late at visit was to be carried out site Primm, Davis, Wright. and respect with requested Davis law enforcement night,” making the visit. The to assist her I. Department dis- County Hickman Sheriffs defen- Deputy Kyle Chessor and patched A. Wade, who was at the time a dant Paul 12, 2008, Kel- August Defendant Around officer, to assist with the site visit. reserve Davis, for the ly an assessment worker Wade, County the Hickman According to of Ser- Department Children’s Tennessee requests for assis- officers receive DCS (“DCS”) Hickman Coun- who serves vices any further infor- unaccompanied by tance Tennessee, regard- a referral ty, received or a urgency the level of regarding mation that had been allegations of abuse ing threat code. Patricia Dale and lodged against plaintiffs coworkers, Accompanied by two DCS was classified a Andrews. The referral Wright, Monica Davis Cynthia A P2 Primm and “P2” referral. “Priority Two” or plain- the lot closer to parking a risk drove to that there is still referral indicates the Hickman in order to meet child, is “safe tiffs’ home the but the child of harm to officers officers. The uniformed employee County being” and a DCS for the time car, the in a marked and DCS arrived with the child within should make contact go- was Davis, however, the officers “what employees told was forty-eight hours. [they] going.” were ing on” and “where within the recom- not to make contact able he was seated that because the address Wade asserted period time because mended August 27. original referent on the records indicate 1. Davis's along with a new came to the office referent of speaking seat Officer While the officers were with passenger the Chessor’s “get outside, car he a whole lot of what was did Mr. Andrews Andrews Mrs. Davis, Primm, Wright going on.” to the presence alerted of the officers (“State Defendants”) followed the officers daughters. one her Mrs. Andrews then separate vehi- the Andrews’s home sergeant called the sheriffs office to cle. lawfully confirm that the officers were dis- sergeant patched. The informed her that question

At time of the events in the 27, 2008, needed to with the August speak Andrews in he one of the resided County daugh- four of Hickman to confirm legitimacy the of the visit. approximately offi- p.m., ters. At 8:30 Andrews headed Mrs. towards back State at the cers and Defendants arrived phone door the house hand the off to home with the Andrews’s marked sheriffs time, At one the officers. the same Mr. department leading way up vehicle entering Andrews was via house drive. back door to his wife ask to call the ser- geant. He working coming on a encountered his wife

Dale Andrews was outside trailer when the defendants arrived. The around the corner from the kitchen into officers, armed, who were State laundry the small room which into approached Defendants Mr. Andrews. opens. back door The claim Andrews Andrews, According to the the officers in- immediately Mr. Andrews was followed troduced Mr. themselves informed officer, an closely into house fol- that employees Andrews the DCS wanted lowed the three employees, DCS and speak to with him and interview the chil- officer, then another creating a “whoosh of “got dren. The officers little hostile” presence” “flooding” and into the home. with Mr. Andrews when he asked them to her, Finding the officers in front of Mrs. proving they show identification offi- were phone Andrews handed the one of to the cers. Mr. claims of Andrews that one the to sergeant officers order allow the to told him he officers that was not allowed legitimacy dispatch confirm the of the to to go unaccompanied back into house his the residence. The spoke officer with the family an officer.2 Because his had sergeant phone and returned the to Mrs. previously experienced an with encounter sergeant Andrews. The confirmed that an disguised individual who was aas the officers been accompany had sent to officer, explained Mr. Andrews that he employees. the DCS go get wanted to inside to his wife call a to of Wade’s account the entrance into the contact in the sheriffs office in order to home differs that from of the Andrews. confirm that the legitimately officers were Wade claims he remained outside the dispatched to the home. Given the late home while visit, Mr. Andrews went hour of the inside Mr. Andrews also wanted door, through the the back that both Mr. remain outside because he and outside, certain daughters was not if his in- Mrs. Andrews then came and were bathing. side entire accordingly party Andrews asked the walked around to the the officers to wait outside. front of the party house. The then en- initially 2. Mr. Andrews stated talking that he most believed did one, of the as the "dark-headed" that Wade was the one who did most of the and Wade testified that Officer Chessor's talking acknowledged but that he was assum- Thus, noticeably is darker hair than Wade's. ing identity the of the officer who made this likely it the Officer Chessor is officer During deposi- statement. the course of his spoke with who Andrews. tion, Mr. Andrews described the officer who door, acquiesced to the the front The Andrews then walk- through the house tered through, allowing who remained the State exception the Defendants with - stepped when he porch except go upstairs showing on the front them where the and going on for what inside and “watched kept Finally, in the food was kitchen. the stepping back out- minutes” before a few any weap- State Defendants asked to see side. home, the in the Andrews showed ons guns where and ammunition were them home, Defen- the the State

Once inside separate locked locations in the kept up control, not took and the officers did dants walk-through, the Following house. The Defen- any further orders. State give No State Defendants left home. offi- inter- opportunity to requested dants individually. charges against An- were filed the An- the children The cial view they permission referral, granted claim that as a drews drews result of the presence for the interviews because as assessment was closed “no services indi- they feared of the officers because It is undisputed cated.” the defen- if losing they their children were arrest dants did have a warrant. deny then request. Mrs. Andrews to separate Defendants led State B. they interview each

rooms where could 26, 2009, the August Andrews filed a On stepped outside The Andrews then child. § under 42 alleging lawsuit U.S.C. officers; joined by the they where were Fourth violations and Fourteenth stayed they that one with recall officer rights stemming from the on the while the other porch Mrs. Andrews surrounding the home visit on Au- events Mr. back Andrews officer went gust They brought 2008. also state- house. of process law claims for abuse and con- interviews, the At the conclusion of process. to commit abuse of The spiracy the Andrews State Defendants informed plaintiffs initially named as defendants conduct a walk- they needed to Primm, Davis, Kelly Cynthia and “Jane as- through part of the home as their Paul Doe” from and and John DCS point, At this the officers indi- sessment. County Doe from the Hickman Sheriffs they to leave for a shift cated that needed as County.3 as well Hickman Department, informed change. The State Defendants filed amended The Andrews later an com- they the were comfortable officers plaint Monica for substituting Wright Jane remaining unaccompanied, the house Doe.4 parties the left. acknowl- officers The 2009, 21, the State Defen- On October not the edge that the Andrews did ask filed motion to dismiss under Fed- dants the not property leave and did to 12(b)(6), eral Rule of Procedure Rule An- Civil object presence beyond Mr. granted part which was denied request stay the officers out- drews’s part by the court. The get went inside to his wife. district district side while he plaintiffs County Department the was dure 15. The court noted that 3. Hickman Sheriff's originally only knowledge also named as a defendant but a lack of had demonstrated subsequently the dismissed from suit. identity party the of a instead of the about concerning proper required par- "mistake plaintiffs sought 4. The also to substitute Offi- identity" necessary to ty's allow amend- Kyle for Doe the one- cer Chessor John after original to the date of the ment relate back year on the claims had statute of limitations 15(c)(1). complaint. See Fed.R.Civ.P. run, denied their motion but the district court Proce- to amend under Federal Rule Civil II. state-law claims court dismissed the against the State Defendants and held that grant We review a court of sum- district could not be State Defendants held mary judgment Equitable novo. de Life capacities money liable in their for official Poe, 1013, v. Soc’y Assurance 143 F.3d damages. Cir.1998). Summary judgment Defendants, 2010, In August the State if “there is no dis- appropriate genuine Wade, County filed and Hickman motions pute any as to material fact and the mov- summary for The judgment. district court judgment ant is entitled to as a matter of part granted denied the motions genuine dispute law.” 56. A Fed.R.Civ.P. part, leaving only § motions 1983 / as to a fact exists “if material the evidence against Fourth claims jury is such that a reasonable could return Wade.5 State Defendants and The individu- a verdict the nonmoving party.” for they al all defendants claimed were enti- Inc., Liberty Lobby, Anderson v. 477 U.S. immunity qualified plain- tled to from the 242, 248, 106 S.Ct. 91 L.Ed.2d tiffs’ constitutional claims. (1986). “properly supported To survive rejected The district first court summary judgment,” motion for non- State Defendants’ claim immu- moving party specific must “set forth facts nity from the Andrews’ Fourth Amend- showing a genuine that there is issue for ment claim. The court concluded that the (internal quotation trial.” Id. omit marks State Defendants were entitled to ted); Ze Matsushita Elec. Indus. Co. v. qualified immunity because “the right at 574, 587, nith Corp., Radio 475 U.S. established,” issue is and due to (1986). S.Ct. 89 L.Ed.2d 538 When “the absence of that an exception evidence considering summary judg a motion for requirement applies, the warrant and ment, all we must draw reasonable infer undisputed fact that the State Defen- ences in nonmoving party. favor of the dants entered plaintiffs’ and searched the Matsushita, 475 U.S. at property without a warrant.” Likewise, challenges 1348. to decisions Second, court the district denied Wade’s regarding qualified immunity by the made motion summary judgment for on the An- questions subject district court are of law drews’ Fourth Amendment claim. The Skeeter, to de Cherrington novo review. rejected argument court Wade’s that his (6th Cir.2003). intrusion into the home did not violate the

plaintiffs’ rights Fourth Amendment be- III. consensual, minimis, cause it was de Thus, not unreasonable. the district court grounds Wade support raises two his found that quali- Wade was not entitled to argument qualified immunity. of favor immunity. fied First, argues Wade his actions were not objectively light Both unreasonable in of Wade and the State Defendants timely interlocutory clearly filed Fourth appeals established challeng- ing rights facing district court’s denial of their because a reasonable officer quali- immunity fied claims. We address same factual scenario have would thought claims turn. exigent that consent or circum- Summary judgment conspiracy against 5. on the Andrews’ munic- cess and civil claims Wade ipal liability granted claim was in favor of summary judgment. were also on dismissed County. pro- Hickman state-law The abuse of

853 allegedly indicate that what the official justify entry into the applied stances objectively light unreasonable in Second, ac- did was asserts that his home. clearly established constitutional of the and did not rise to minimis tions were de rights.” of the Fourth of a violation the level argues he Accordingly,

Amendment. City Memphis, v. 621 F.3d Holzemer of that a improperly found district court (6th Cir.2010) 512, v. (quoting 519 Feathers had occurred. violation constitutional (6th Cir.2003)). 843, Aey, 319 F.3d 848 Thus, qualified immunity applies “unless A. clearly the official’s conduct violated es- immuni qualified of The doctrine Pearson, right.” tablished constitutional performing officials ty government shields 232, (citing 555 at 129 S.Ct. 808 U.S. liability “from for discretionary functions 635, 640, Creighton, Anderson v. 483 U.S. their conduct does damages civil insofar as (1987)). 3034, 107 S.Ct. 97 L.Ed.2d 523 statutory clearly not violate established inquiry right The into whether a of which a reasonable rights constitutional clearly established must be conducted was known.” Harlow v. would have person light specific “in context of the 800, 818, 102 457 S.Ct. Fitzgerald, U.S. Katz, 194, 201, v. 533 case.” Saucier U.S. (1982). 2727, “Qualified L.Ed.2d 396 73 (2001). 2151, 272 S.Ct. 150 L.Ed.2d immunity important balances two inter result, right As a contours of the “[t]he public to hold officials ac ests—the need sufficiently must be clear that a reasonable power irres they countable when exercise official would understand that what he is officials and the need to shield ponsibly right .... in the doing violates [and] harassment, distraction, liability from preexisting law the unlawfulness light of they perform their duties reason when Anderson, 483 at apparent.” must be U.S. Callahan, 223, ably.” Pearson v. 555 U.S. 640, 107 3034. Given the context- S.Ct. (2009). 808, 172 L.Ed.2d 565 inquiry, are specific nature of the there objective focuses on “the rea The doctrine to which a upon “limitations the extent conduct, an official’s as sonableness of may rely holdings court contexts clearly reference to estab measured being other than the one considered disruption law” to “avoid excessive lished principle that a has been demonstrate of permit the resolution government Civ. Serv. established.” Ohio summary many insubstantial claims on Seiter, Emps. Ass’n v. 858 F.2d Harlow, at judgment.” U.S. (6th Cir.1988). plaintiff The has the bur S.Ct. 2727. demonstrating den law review district court deci We time of the chal clearly established immunity follows: sions on as lenged Hughes City conduct. See Olmsted, First, Cir. upon we determine whether based North 1996). law, determining a con the facts viewed in When whether applicable the established, right clearly we plaintiff to the stitutional is light the most favorable Supreme first to decisions of the that a constitutional violation has look show Second, Court, then to our own decisions and those occurred. we consider whether circuit, courts within the and then a estab of the violation involved other Appeal. a to decisions of other Courts right constitutional of which lished Crouch, 1248, F.2d v. 872 person would have known. See Masters reasonable (6th Seiter, Cir.1989); 858 F.2d at Third, plain 1251-52 we determine whether the 1177. evidence “to tiff has offered sufficient

854 voking

B. See Bumper consent. v. North Carolina, 543, 548, 1788, 391 U.S. 88 S.Ct. question A threshold evaluat (1968); 20 Raybuck, L.Ed.2d 797 Tarter v. ing immunity a issue is whether (6th Cir.1984) (burden 977, 980 alleged the facts show that the officer’s claiming school official student consented right. conduct violated a constitutional search). to Saucier, 200, at See 533 U.S. 121 S.Ct. 2151. The protects approached Fourth Amendment Officer Wade Mr. Andrews against Chessor, unreasonable searches and sei Officer showed his identifi- Andrews, Supreme zures. The Court has recognized present cation to and was when “physical entry of the home is the Officer Chessor Andrews discussed against evil the wording chief which of the whether go Andrews could into house Fourth Amendment is directed.” to call sergeant verify United have his wife Ct., v. States Dist. United States 407 U.S. the officers were dis- legitimately 297, 313, 2125, patched. Although 92 S.Ct. 32 L.Ed.2d 752 Wade claims that he (1972). reason, For that exchange “searches and did not hear the between Ches- Andrews, seizures inside a home without a sor warrant when construed in the presumptively are light Andrews, unreasonable.” v. Groh most favorable as we Ramirez, 551, 559, 124 1284, 540 U.S. S.Ct. must at this stage, facts indicate (2004). Thus, 157 L.Ed.2d 1068 a Wade present warrant- when Mr. ex- Andrews less search or inside a by plained seizure home had to go he into house law enforcement officer violates and that the officers were not to follow Fourth an exception Amendment unless him. Although only recalls stepping Wade requirement applies. warrant See inside the front Andrews’ door while the Stuart, Brigham 403, City 398, v. 547 U.S. being set-up interviews were and conduct- 1943, (2006). 126 S.Ct. observing 164 L.Ed.2d 650 ed and the events few for a minutes, Mrs. Andrews recalls en- Wade It is clear that Wade entered tering through the house door back the Andrews’ home without a warrant. along with the State Defendants and Offi- Thus, Wade must demonstrate that an ex cer Viewing Chessor. the facts in favor ception to requirement the warrant applied Andrews, Wade entered af- the home in order to establish that there was no ter Mr. Andrews told him to out- remain constitutional violation. Wade argues first entry side. Such an into the home cannot that his entry into the Andrews’ home is justified be on the basis of consent. excused A search consent. conducted pursuant voluntarily obtained consent argues next if that even well-recognized exception consent, to the Fourth there was no this court should Amendment’s requirement. warrant find that exigent circumstances existed to Bustamonte, 218, Schneckloth v. entry U.S. make his into the home reasonable. 2041, (1973). 36 L.Ed.2d 854 Exigent can circumstances a war excuse The consent to must “voluntary, search be entry rantless into a home. Brigham See unequivocal, specific, intelligently given, City, U.S. 126 S.Ct. 1943 and uncontaminated (recognizing emergency duress coer exception); aid Columbus, cion.” v. Canipe, United States Ingram City F.3d 185 F.3d Cir.2009) (6th Cir.1999). (citing United A search without Worley, 380, States v. may exigent 385 warrant be excused due to Cir.1999)). The to burden establish that a suspect circumstances if is to believed exception the applies “pose[] is on the officer in- arresting an threat to immediate

855 public.” Ingram, may the 185 seizure be found reasonable and thus officers or excused due to the minor nature of the F.3d at 587. violation. The de rationale has minimis light the record in the most Viewing been in limited circumstances. recognized Plaintiffs, entered to the Wade favorable See, Jacobsen, e.g., v. 466 United States being home after asked to the Andrews’ 109, 125, 1652, U.S. 80 L.Ed.2d Although may Mr. Andrews wait outside. (1984). 85 cites Illinois v. McAr- Wade welcoming to the have less than offi- been thur, 326, 946, 121 148 U.S. S.Ct. Defendants, there no cers the State is and (2001), to claim support L.Ed.2d 838 his he an immediate suggestion posed that that his was and intrusion de minimis officers, the Defen- threat to the State However, reasonable. McArthur is or dants, family, his himself. We have distinguishable alleged from Wade’s con- exigent found circum- previously that temporary duct. McArthur involved the not exist when stances did seizure of an individual a trailer while and at a a fired call” resi- responded to “shots law enforcement officers obtained a search suspect inside a dence and observed a warrant. The officers had been told holding a appeared residence what be just the wife that individual’s she had seen made, no had been gun threats because question drugs individual hide nor committed in the officer’s a crime trailer he lived. Id. at which Saari, presence. States v. United An officer proceeded S.Ct. 946. then (6th Cir.2001). F.3d Wade did prevent reentering the individual from seeing Andrews make describe Mr. trailer for the two hours it took another movements, any menacing ges- furtive officer to a warrant. Id. obtain Unlike tures, threats, and Wade did not or verbal McArthur, officer in Wade Chessor possessed that Mr. a indicate Andrews pre- did not enter the home to Andrews’ Indeed, testimony weapon. Wade’s own quo serve the a status while warrant very that he had little informa- indicates sought. seeking had no intention of Wade (if any) original tion about the abuse refer- a preserving warrant or evidence when he any ral additional information received stepped In into the Andrews’ home. addi- when he DCS. Wade admits that tion, entry into home was not Wade’s met the State Defendants officer Chessor de either account or minimis. Under his parking got lot and the information Plaintiffs, he fully that entered the visit, he about the Andrews site did not home, Andrews’ unlike the officer in Mc- going hear much about what was on be- doorway Arthur who remained ob- in the seat of the passenger cause he was serving the individual when he was allowed Thus, unlikely car. it is that Wade knew to reenter trailer for and to cigarettes guns about Davis’s concerns about in the Further, phone. use the id. See Wade home, making likely it even less he rely cannot on cases such as States United a posed that Andrews threat could believe Jacobsen, 466 U.S. S.Ct. Chessor, employees, anyone the DCS (1984), 80 L.Ed.2d 85 which held that the record, else inside the home. On this a destruction of a small amount of cocaine jury reasonable could find Wade has during test of the was a field substance exigent not established circumstances. seizure, de because his violation minimis Finally, argues his ac an In- degree. invasion of different deed, qualify de and thus for Supreme tions were minimis even in Jacobsen the Court that, despite holding, an exception emphasized where conduct technical its ly “where of con- qualifies as warrantless search or more substantial invasions

856 stitutionally 1371). in- protected Payton, 586, interests are 445 U.S. at 100 S.Ct. volved, Thus, a warrantless search or dispositive inquiry seizure is is whether a unreasonable in the reasonable exigent absence of officer could have believed that 28, lawful, circumstances.” 466 U.S. at 125 n. 104 Wade’s warrantless search was light clearly 1652. The Payton S.Ct. Court cited established law. See Anderson, York, 573, 1371, 641, New 483 U.S. at 107 445 U.S. 63 S.Ct. 3034. (1980), An official will be immune if Steagald L.Ed.2d 639 v. United “officers of States, reasonable 204, 1642, competence disagree could 451 U.S. 101 S.Ct. 68 whether (1981), the conduct plaintiffs violated the support proposi- L.Ed.2d 38 rights.” tion, City Rapids, O’Brien v. suggesting Grand implicating that cases 990, (6th Cir.1994) 23 F.3d 999 (quoting in-home warrantless searches and arrests Allen, (6th 338, Gossman v. 950 F.2d appropriate are not for de argu- minimis Cir.1991) (internal quotation marks omit- ments. See id. ted)). warrantless, carried out a non- entry eonsensual into the Andrews’ home. Wade is qual therefore entitled to instructs, Payton As “the Fourth Amend- immunity ified from suit if it would be ment has drawn a firm line at the entrance objectively reasonable for an officer faced to the exigent house. Absent circum- with the same circumstances to conclude stances, may reasonably threshold not that the entry warrantless by was excused be crossed without a warrant.” 445 U.S. consent, the de minimis nature of the Viewing S.Ct. 1371. the record intrusion, or exigent circumstances. in the light Andrews, most favorable to the Addressing first, argument consent a violation of the Andrews’s Fourth presented the facts do not lend themselves right Amendment to be free from unrea- to a finding that a reasonable officer would sonable searches and seizures has been have thought that the agreed Andrews shown. entry by Here, the officers. An- Dale drews has testified that he explicitly told

C. the officers not to follow him into the step The next im house. dispute There is a between the munity analysis requires us to ask whether parties as to whether or not Wade heard right clearly was instruction; established at the however, this Wade admits time of the officer’s right conduct. The that he present during the conversa- be free from a warrantless in-home search tion with Mr. Andrews and that he re- clearly established the Fourth sponded to Mr. request Andrews’ for iden- Supreme Court case law Therefore, tification. viewing the facts in interpreting it: light “[without warrant or most plaintiffs, favorable to the consent, searches or seizures inside the reasonable officer would not have believed home are upheld only extraordinary ‘under that consent had been obtained after Dale circumstances,’ because ‘the freedom from Andrews explicitly told the officers to re- armed intrusions of the home outside the main outside. This conclusion is but- judicial process, without prior approval by tressed Mr. Andrews’ testimony that he judge magistrate ... is one of our told the “you’re not going my ” most basic civil Cummings liberties.’ v. house this time of night you’re ... Akron, (6th City walking in there” one of the officers after Cir.2005) (quoting United States v. “you Cham told him can’t go your back in house bers, Cir.2005); F.3d Thus, without me.” Andrews as- agreeing Andrews and the officers was at most un- that he was not serted this, friendly or tense and where there was entry Despite into his home. no weapon in possession, him visible Andrews’ nor “barging” right came after weapon any was a reference made to a Crediting An- the mud room. into violence, a reasonable officer would not sur- be account of the circumstances drews’ able to conclude that there an home, immedi- it rounding entry into the safety ate threat to officer sufficient to clear that a reasonable officer would not justify entering the home. have believed that consent to enter the agree given. home had been We Finally, argues Wade that a jury district court that a reasonable could reasonable officer would have found his did not have consent to find Wade entrance into the home a de minimis enter the home. give intrusion that does not to a rise However, constitutional violation. under ar Although he did not raise this law, clearly established the line has gument summary judg in his motion for been drawn at person’s door to a ment, argued appeal on that a rea Wade residence, may and an officer enter only sonable officer would have believed warrant, consent, with a or qualifying posed Dale Andrews an immediate threat exception to the warrant requirement Chessor, Deputy creating exigent thus Pay circumstances. See exigent under support circumstances to warrantless ton, 445 U.S. at 100 S.Ct. 1371. A lack entry. cites his claimed of Wade officer confronted reasonable with the knowledge presence about the basis for his circumstances before night Wade home, the fact that it was Andrews’ 27, 2008, August would not have as and the fact that Dale Andrews nighttime, walking sumed that into the Andrews’ agitated finding as a basis for appeared home would be a de minimis intrusion. In that his conduct was reasonable. es attempt There was no to secure the that, sence, argues op he because he was premises while a search warrant was information, limited he could erating with obtained, the de helped justify which the worst about the threat then assume minimis intrusion in McArthur. posed that Dale Andrews to Officer Ches 332-33, 121 U.S. at S.Ct. 946. Wade’s into the parties proceeded sor when the was de minimis entry only in the sense However, exigent invocation of home. this temporally it was limited and he to officer circumstances based on threat personally investiga did not conduct the safety support is without merit. To his However, tion inside the home. we circumstances, claim of must exigent Wade doubt that reasonable officer would be which, identify facts specific be able to likely may that he step conclude into inferences from combined with reasonable long a home without a warrant so as he facts, give to the conclusion that those rise stays quiet and draws little attention to appropriate. the warrantless intrusion was himself. Morgan, States v. See United (6th Cir.1984). Instead, Accordingly, we find because rea- argues that of his lack of informa sonable officer could not have believed that because light were lawful in tion a reasonable officer would have been Wade’s actions law, court notice that an immediate threat to established the district put on properly motion for sum- Deputy employees Chessor and the DCS denied Wade’s However, mary judgment grounds on the given existed. the facts of case, immunity. Dale where the interaction between

IV. State Defendants entered and searched the Andrews’ home without a warrant. The State Defendants also that contend Whether there was a constitutional viola- denying the district court erred in them tion thus turns whether the conduct at immunity. The State Defendants governed issue was by the Fourth Amend- argue that the have first Andrews failed to ment, so, and if whether it was reasonable carry their burden to establish that the despite the absence of a warrant. State Defendants are not entitled to immu- nity Second, for their actions. the State The argue State Defendants that argue Defendants that the district court while the Andrews have asserted facts that erred in that finding Murphy, Jordan v. true, “may taken as establish a formulation (6th Cir.2005), Fed.Appx. defined general claim,” of a Fourth Amendment the contours of the Fourth Amendment as they have failed to assert sufficient facts to applied to in social workers this circuit. establish that “a clear violation of the Finally, the State Defendants contend that Fourth Amendment as it applies to social ” if even the contours of the Fourth Amend- workers has occurred.... Although the ment applied as to social workers were any State Defendants do not cite authority established, they are still entitled contention, for their argument their seems qualified immunity they because acted imply that engaging social workers in reasonably. their statutorily investigative mandated

The functions are not respond argu- governed by Andrews the two same first, requirements ments: provide that Jordan of the Fourth does guidance apply as to to law application the of the enforcement officers or Fourth Amendment other state actors.6 If implication to social workers and other district court social decisions after workers are not state actors for purposes Amendment, Jordan have the the recognize declined to a social Fourth Supreme worker the exception to the Fourth Court has Amend- established that ment; and, second, the Fourth that the State Amendment’s Defen- restrictions on reasonably dants did not act unreasonable entering searches and seizures extend beyond and then well searching police: the the home. Court long spoken [T]he has of the

A. Fourth Amendment’s strictures as re- above, As discussed the Fourth Amend- imposed upon straints “governmental guarantees ment right is, to be free from “upon action”—that the activities of unreasonable searches by and seizures sovereign authority.” Accordingly, we Const, government officials. U.S. amend. have held the Fourth Amendment appli- parties IV. The do dispute cable to the activities of civil as well as shall, 6. The State any specif- Defendants do not cite entity person upon or is located cause provisions ic of the regarding Tennessee Code department shown of children’s ser- statutorily investigations mandated con- investigations neglect vices in of abuse or or However, ducted statutory DCS. one of the immediately, by sexual ... parte abuse ex abuse, provisions governing neglect, order, DCS persons charge direct the of such investigations provides sexual abuse that: places, any persons having facilities or re- care, If places, sponsibility supervision, admission to the facilities for the or in- treatment, persons homes of the entities struction or involved in or of the child ... permit care ... of the inspection child is denied or de- entrance for ... reason, layed any for chancery, premises.... circuit juvenile or county 37-5-512(b). court of the § where Tenn.Code Ann. being Because the in- to confirm that the monies were authorities.... criminal privacy per- interest, recipient interest used child’s dividual’s where security gov- “suffers whether the sonal entry program under the state ofwas investigate motivation is to ernment’s nature, a limited and consensual and the criminal laws or breaches violations of requirement to all applied recipients. Id. statutory stan- regulatory of other Although yet this court has not dards,” say it would be anomalous to definitively had occasion to address this private prop- and his that the individual issue, other courts have found that by the Fourth erty fully protected are Amendment governs Fourth entries and only when the individual is searches of homes made social workers. of criminal suspected behavior. See, e.g., Dep’t v. Texas Gates Protective of T.L.O., 325, 335, Jersey v. 469 U.S. New Servs., 404, Regulatory & 537 F.3d 420-24 (1985) (inter- 733, 720 105 S.Ct. 83 L.Ed.2d (5th Cir.2008) (holding Fourth Amendment omitted). Thus, presump- nal citations governs entry social worker into home to any to that appears tion be state officer investigate possible child abuse and consid operate should with the default under- ering rejecting special exception needs standing ap- that the Fourth Amendment context); Peterson, in the same Roska v. actions, plies specific excep- to her unless a (10th 1230, 1242, 328 F.3d 1249-50 Cir. requirements tion to the of the Fourth 2003) (holding that Fourth Amendment apply. Amendment has been found to governs social worker entry warrantless circuits, In other defendant caseworkers of a investigate search home to child unsuccessfully workers have and social at- noting welfare concerns but that lesser to tempted argue that Fourth Amend- Fourth Amendment might apply standard apply ment should their actions contexts, in social workers other entering investigate allega when homes possible application special excep needs See, e.g., tions child abuse. Calabretta tion for inspections warrantless of the 808, Floyd, v. 189 F.3d 816-18 Cir. safety aof child’s conditions when the child 1999); Servs., Dauphin Cnty. v. Good Soc. already sys is the children’s services (3d Cir.1989). 1087, 1094 In 891 F.2d Cal tem); Cnty., Wildauer v. Frederick 993 abretta, argument the Fourth (4th Cir.1993) (engaging F.2d 372 apply Amendment did not to social worker Fourth Amendment analy reasonableness investigations partially based on a sis, noting scrutiny that lesser applies but claim there should be a child welfare “investigative to non-criminal home visits” exception to the Fourth Amendment. The workers). presump social Given the James, argument Wyman invoked v. 400 governed by tion that actors are state 381, 27 U.S. L.Ed.2d 408 sanctity Fourth Amendment and of the (1971), Supreme where the Court held that Amendment, home under the Fourth we entry a a pursuant caseworker into home worker, agree social like other state dependent to a New York state aid to officers, governed by the Fourth program children was not a “search” requirement. Amendment’s warrant This term, meaning Fourth Amendment simply would mean that social workers Calabretta, support. for 189 F.3d at 816. consent, to obtain suffi would have have rejected Ninth argument, The Circuit this cir grounds exigent cient to believe distinguishing Wyman as a situation exist, qualify cumstances or under another receipt where a state was allowed to make requested recognized exception of a to the warrant re contingent welfare benefit grant entry quirement engaging on the for a search intended before warrantless qualified immunity entries and searches of homes. Alterna- if their conduct did not workers, officers, tively, clearly social like “violate statutory established rely upon they are entitled to information rights constitutional of which a reasonable officers, Harlow, person receive from other and are “insu- would have known.” liability Therefore, ... from civil in the event late[d] U.S. at 102 S.Ct. 2727. if upon violation, information relied defective.” even we find a [is] constitutional as Hardesty 646, here, Hamburg Twp., government official is still “entitled (6th Cir.2006). qualified immunity unless a reasonable officer would alleged know that con- [his] Given that the Fourth Amend duct violated a established federal apply ment’s strictures to social worker Coll., right.” Crockett v. Cumberland actions, the Andrews have asserted viola (6th Cir.2003). F.3d The State tion of right their constitutional to be free argue clearly Defendants that it was not from unreasonable searches unless an ex at established the time of their actions that ception requirement to the warrant is es may social workers a enter home with- Construing tablished. the in facts the out a warrant applicable exception or an to light Andrews, most favorable to the the requirement. the warrant Both the dis- State Defendants have not demonstrated trict court and the Andrews invoke Jor- that an exception require to the warrant dan, 145 Fed.Appx. to demonstrate ment applies. The State Defendants have it was clearly established that not directly argued that exigent circum requirement warrant applies to social stances existed or that the Andrews con workers and that the State Defendants instead, entry; sented to the argu their clearly violated a right. established ment focuses on the assertion that entry However, was reasonable. for the 1. same reasons that Wade could not invoke Supreme The Court has not expressly circumstances, exigent the State Defen held that the Fourth prohibi Amendment dants’ would also be unable to establish tion on warrantless searches of homes an exigency such to excuse their entrance apply does or does not to social workers into the home. There was no indication carrying investigations out regarding the once on the scene that the children were in Jordan, welfare of children. See 145 Fed. harm, imminent danger physical 2; Appx. at 517 n. Camreta v. referral Greene “priority was two” cf. and thus , —U.S.-, 2020, 2026-27, 179 harm, indicated no immediate risk of (2011) L.Ed.2d 1118 (dismissing appeal re there were no direct references to or visu garding alleged social worker’s violation of al sightings weapons or dangerous con moot). child’s Fourth rights as Moreover, ditions on property. Following the inquiry order of in outlined State Defendants did not directly obtain Masters, we must examine whether our home, consent to enter the they do not own decisions have addressed the in issue argue consent to enter the home actu order to ascertain whether the law was ally given. was they Nor do argue that clearly established at the time the State they believed, otherwise, reasonably or Defendants entered the Andrews’ home. given. consent had been

872 F.2d at 1251-52. B. Jordan, In a social worker with the Lu- Again, government County officials are cas Children Services Board entitled to summary judgment based on Ohio assigned investigate was to a report proceeded children. 145 Fed. Jordan then neglected consider possible right report The indicated that whether established Appx. at 515. “a “deplorable by analyzing condition” whether case worker in the home was “caring position objectively home was for would [the defendant’s] and the adult The understood that she ‘was under an children.” Id. social have twenty-five duty affirmative to have to the home and met two refrained from worker went ” conduct.’ Id. at police (quoting there. One of the such Bills v. police officers Aseltine, Cir.1995)). to the home earlier officers had been day investigate complaint panel about The Jordan concluded that a reason- worker premises and told the able social “under similar circum- the condition “filthy police that the home was stances would have deferred to the social worker entry full of trash.” Id. After their knocks officers’ conclusion” that immediate unanswered, required prevent physical front door went the was imminent harm. panel recog- and the social worker entered the Id. at 518. While the through authority door. Id. The social nized the of social home side workers to circumstances, proceeded officers then enter a home under certain worker and it also noted their duty cooperate to remove the children from home. Id. Although the officers did not have a law enforcement officers and the expertise war- rant, testified that after of law enforcement in making the social worker Fourth Amendment speaking with the officers about condi- decisions. The court home, in the tions that had been observed reasoned workers should not “[c]ase guess decisions, the scene” have to second “personnel were officers’ particularly children in the home were where the police belief that the have told danger in and “removal was them that children are in physi- immediate imminent necessary prevent physical danger.” Ultimately, immediate cal Id. based on the brought upon harm.” Id. The homeowner a civil social worker’s reasonable reliance officers, damages against asserting police statutory duty suit the officials “her rights investigate neglect, that her Fourth were abuse and and her duty statutory cooperate po- violated the warrantless search of the with the lice,” home. Id. at 517. the court concluded that “a reason- able case worker in social [the worker’s] reviewing In the social worker’s claim of position would not have understood her immunity, this court “assume[d] violating clearly actions as established rights Fourth Amendment [plaintiffs law.” Id. were violated.” Id. In a footnote the court binding precedent, While Jordan is not that while “neither the Supreme observed only it is the case from our court that explicitly Court nor this Court have held on the of bears issue whether reason- that the Fourth Amendment does not cre- worker, facing able social the situation ... exception, ate a social worker other case, the instant would have known 2 circuits have so held.” Id. at 517 n. clearly her conduct violated established (internal omitted) (citing citation Dubbs v. Yet, give guid- law. fails to clear Jordan (10th Start, Inc., Head the social ance to worker faced with the Roska, 1240; Cir.2003); 328 F.3d at Doe v. to enter the Andrews home. decision Heck, Cir.2003); F.3d First, Cnty. Dep’t Family referencing & the Jordan footnote Walsh v. Erie Job of Servs., other not en- F.Supp.2d 746-47 the views of circuits does (N.D.Ohio 2003)). them, explicitly dorse or otherwise. The

footnote does not hint at whether the court eisions. Case workers should not have to exception to the decisions, believes social worker guess particular- second officers’ of the Fourth Amendment application ly where the have told them that merely should The footnote is an apply. children are in imminent physical dan- observation about the existence of an issue ger.”). Quite simply, the reasonable social Moreover, explored in Jordan. the worker faced with the circumstances of concluded, using fairly court in Jordan clearly this case could not ascertain from language, broad that social workers should legality established law the of her con- guess” not “have to second decisions duct.7 Although

officers. Id. at 518. the court mentions that the officer told the social 2. worker the children the house were The State Defendants are entitled to danger physical immediate circum- —a qualified immunity unless a reasonable present opinion stance not here —the employee DCS faced with the cir- same makes no effort to delineate the situations cumstances would know that her conduct in which on officers’ reliance decisions violated a right. established federal appropriate would be and those which it Anderson, See 483 U.S. at Consequently, would not. a social worker 3034. turn specific We then to the situa- determine, Jordan, could not based on tion faced the State Defendants. Their might reasonably rely whether she on the objectively actions were not unreasonable officers’ decision under the circumstances so that a employee DCS knowledge fact, presented here. In to the extent precedent Jordan would have known suggests Jordan an answer to the question that she “was under an duty affirmative rely whether the social worker could ... Bills, from refrain[ ] such conduct.” decision, an suggests officer’s it that she 52 F.3d at 603. (“Law could do so. Id. enforcement offi- make, duty Here, cers have a and are accus- Davis received a referral contain- making, tomed to Fourth ing allegations Amendment de- of required abuse and was thorough opinion, 7. A district court v. jurisprudence.” Walsh constitutional Id. at 758. County Department Family Erie Job & Ser- The court thus concluded that the defendant of vices, (N.D.Ohio 2003), F.Supp.2d qualified social workers could not invoke im engages qualified munity immunity analysis entry in a for their re- warrantless and search. opinion garding The Walsh plaintiff a claimed has been followed a violation of the decision the parents’ from Eastern District and of Tennes children's Fourth Amendment see as well as another rights, including decision in the North entry a warrantless subsequent ern District of Ohio to the date of family's search of the home a social work- challenged the Daugh actions. See Baxter v. police er officers. Walsh found that a 5:08-485, tery, No. 2010 WL 3620247 constitutional had violation been made out 10, 2010); (E.D.Ky. Sept. Cuya Kovacic v. because the Fourth Amendment’s mandates Servs., hoga Cnty. Dept. Family Children & actors, apply including to all state social of (N.D.Ohio 2011). F.Supp.2d workers, exception and no to the warrant requirement applied on the facts of the case. The instant case was heard the in Middle addition, Id. 746-52. In the court found Tennessee, District of and the Walsh decision right clearly that the was established because put is not sufficient to the State Defendants the social workers could not assume that in right clearly on notice that the estab- explicitly confirming absence of a decision previously, lished. As noted to find a that the applies Fourth Amendment to social right, extraordinary established absent cir- workers, they cumstances, ignore were free to the basic a "binding district court looks to principles Court, Fourth Amendment precedent by that are "clear- Supreme its court of ly Seiter, firmly articulated and appeals embedded in our or itself.” 858 F.2d at 1177. the home in order to established law whether the State Defen- a visit to to make had not allegations. required comply She dants were even investigate with to the home to make the visit been able of the strictures Fourth Amendment. for forty-eight designated hours result, within the As a the State Defendants’ conduct referrals, her consis- despite in P2 contact easily enough ‘hazy’ here is “near to the Thus, by faith efforts to do so. good tent separating illegal legal border from con- the ad- finally time she tracked down immunity duct for to attach.” dress, it reasonable to believe that she Whitehall, Bing City See of more concerns about the might have had (6th Cir.2006). 555, 571 given lapse in the home children The State Defen- time without contact. C. joined by officers at the home. dants were explained, As we have the actions concede, the officers did

As the Andrews entering a social workers home are talking of the outside of the home. most Amendment, governed by the Fourth however, on, point there are From we have concluded that no social worker about the exact circum- questions fact exception applies in such situations. surrounding entry into the stances Nonetheless, question, there is still a going is evidence that the first home. There forward, about whether social workers can the Andrews’s home was person to enter rely upon police the actions of officers in Thus, a Defendant. Chessor —not State home, deciding they whether can enter a in their the State Defendants’ claim brief sure, although, question to be there is a they “reasonably upon relied fact in this about whether case reliance on propri- Sheriffs officers’ assessment recognize officers occurred. While we may ety entry” plausibility. have some duty cooper social workers have But the Defendants themselves testi- State and, police perhaps, ate with depositions they in their did not fied natural inclination to defer to their deci the house recall that the officers entered sions, exempting them. social workers from the they rely Fourth Amendment whenever event, clarity of any given In the lack of upon officer’s actions is tanta Jordan, objectively it was not unreason- recognition a mount to “social worker able for the State Defendants to enter the exception” to the Fourth Amendment’s re Although home. the facts of this case join quirements. We other circuits in Jordan, in that differ from the officers recognizing that Fourth Amendment stan alleged prior here are not to have had same, are the dards whether state knowledge in- first-hand situation actor is a enforcement a law officer or (as side the Andrews home the officer did Gates, social worker. 537 F.3d at 420 Jordan), in the officers are the ones who (“[I]t in circuit that is well established this outside, attempted took control to ne- regulates the Fourth Amendment social Mr. gotiate entrance into the home with Roska, investigations.”); workers’ civil 328 addition, Andrews. In the State because (“[Ajbsent at n. probable F.3d 23 requested Defendants had assistance from and a warrant or circum exigent cause due to the late hour and the officers stances, may not an social workers enter guns Davis’s belief that there were in the purpose taking home for the following individual’s home her conversations with referent, custody.”); they protective it not that a child into Cala was unreasonable bretta, (refusing “adopt would allow the officers to take the lead. 189 F.3d Moreover, principle it under that a search warrant is not evident

required investigatory for home visits FIRMED and qualified the denial of im- (internal (Davis, quotation munity social workers” marks to the State Defendants omitted)); Good, Primm, (treating Wright) 891 F.2d at 1094 is REVERSED. police officer and social worker defendants SUTTON, Judge, Circuit concurring identically analyzing Fourth Amend- part judgment. and in the claims). ment join I Judge all of opinion Gibbons’s Nonetheless, if social workers can except IV, for Part IV. Even as to Part I police officers not be treated better than agree Judge Gibbons that there is no Amendment, they under the Fourth should social-worker exception to the Fourth worse, work not be treated either. Social Amendment. I agree And that the social frequently ers are asked to make decisions are qualified immunity. workers entitled to them, on provided based information need, however, I see no to decide wheth directly indirectly, by police. When er these social workers violated the Fourth rely faith on good social workers infor Callahan, Amendment. See Pearson v. police mation from suggests officers which 223, 236, 808, 555 U.S. 129 S.Ct. they can exception enter home under an (2009) (“[T]he L.Ed.2d 565 ap courts of requirement, to the warrant or can reason peals deciding [have] discretion in which of ably infer that exception applies an from prongs two immunity actions, they are rely entitled to first.”). analysis should be addressed All I that information. United States v. Hens say, would and all say we need to to re 221, 232, ley, 469 U.S. 105 S.Ct. case, solve this is that the social workers (1985) L.Ed.2d 604 (finding “reasonably could [have] believe[d] who arrest an individual reliance on a conduct complie[d] [their] with the law.” flyer or police “may bulletin issued Pearson, 555 U.S. at 129 S.Ct. 808. good-faith have a any defense to civil suit” First, Judge as correctly Gibbons ob if flyer or bulletin contains false infor serves, whether, it was unclear in 2008 mation); Warden, Whiteley v. 401 U.S. how, if so the Fourth applied 560, 568, 28 L.Ed.2d 306 to social accompanying workers (1971) police offi (noting officers “are enti cers to a residence where child abuse was tled assume” that requesting “officers suspected. Second, See Part supra IV.B.1. aid” to execute a warrant “offered the the social workers reasonably relied on the magistrate requisite the information home, officer’s decision to enter the wheth support an independent judicial assess er because the entry officer’s confirmed probable cause”); ment of Hardesty, 461 exigent fear that an circumstance 656; F.3d at Aey, Feathers v. (child endangerment) was afoot or because (6th Cir.2003) (“[Plaintiff] cannot it confirmed that the officers had obtained prevail § in a 1983 suit” when defendants consent to enter. acted on inaccurate po information from dispatcher prior lice making a Terry The social workers had no information stop). The social position workers’ is the undermining this reasonable assumption. police same as that of a officer who reason Although Dale allegedly Andrews told the ably relies on another officer. in, officers not to nothing come record indicates the social workers knew

V. Everyone that. agrees that the Andrews reasons, For the foregoing the denial of never asked the social workers to leave. (Davis qualified immunity 88; is AF- deposition) R.54-5 at R.54-6 Martin, 35-36; Richard his individual and at R.54-7 deposition) (Wright 60-61; capacities (Primm 37, R.54-8 official as Metro Police at deposition) 57-62; Officer, Defendant-Appellant. (Patricia deposition) Andrews (Dale deposi- at 26-27 Andrews R.54-9 No. 11-6449. tion). Andrews, the according to the And Appeals, United States Court of the officers followed one social workers Sixth Circuit. See, R.54-3 at 7. e.g., the home. into contrary, later- indications to the Absent 28, Nov. 2012. matter general officers as arriving police colleagues have entered may assume reason, exi- a lawful such as

a house for Turk or consent. See

gent circumstances 946, No. Comerford, Fed.Appx.

v. (6th

11-3682, at *11 Cir. 2012 WL 2012) immunity (granting qualified

July after other officers

to officer who entered may “law-enforcement officers

because that other officers have

generally assume Sargent City v. Toledo lawfully”); acted (6th 470, 474 Dep’t, Fed.Appx.

Police (“[N]o

Cir.2005) viola- Fourth Amendment part- follows a when an officer

tion occurs already partner after the has

ner inside home.”); Hardesty entered the cf.

Hamburg Turp.,

Cir.2006). is no reason social work- There In differently.

ers should be treated analysis, the social workers did not

final any clearly rights established

violate it at family, and I would leave

Andrews

that. SUTTON, Plaintiff-Appellee,

Jermaine OF

METROPOLITAN GOVERNMENT AND

NASHVILLE DAVIDSON Defendants,

COUNTY, al., et

Case Details

Case Name: Robert Andrews v. Hickman County, Tennessee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 3, 2012

Citation: 700 F.3d 845

Docket Number: 10-6462, 10-6464

Court Abbreviation: 6th Cir.