Swedlund v. Foster

served, and interrogatories were after the 2003 SD 8 placed the last deadline months after five and Ruth Duane SWEDLUND telling It is that the trial court. Swedlund, Plaintiffs and expert, dated 12- from Plaintiffs’ report Appellees, 19-01, to Plaintiffs’ counsel was addressed line, response began “[i]n individually Greg FOSTER, and in his 12-10-01.” This letter is the your letter of capacity County as indicating in the record official Custer only document Sheriff; Roy Scherer, individually; any request report, for a Plaintiffs made individually; Baker, Engen, Dave made five months Dan request was individually; Rivers, Mike individual If Plaintiffs be- the final deadline. after Biesheuvel, individually; ly; Jim compliance with the lieved County, Appel order, Defendants and compelled have felt Custer they would not day before the lants. provide report delayed over a having after hearing No. 21870. request. initial year after the Supreme Court of South Dakota. expert witness Storm named year for over a complaint, yet in the failed March 2002. Argued complete produce report answers Jan. 2003. Decided despite repeated re- interrogatories, Rehearing Denied Feb. Furthermore, specifi- quests. Storm hearing cally informed at first compel comply that failure to

motion to subject the suit to

within two weeks would

dismissal, another six yet they waited All of the facts taken comply.

months to clearly display in this case willful

together

disobedience, cause, good without of two orders and a statute. This is

clear court support the dis-

sufficient willfulness to

missal. affirm. We GILBERTSON, Justice, Chief ZINTER,

and KONENKAMP AMUNDSON,

Justices, and Retired

Justice, concur. MEIERHENRY, Justice, not Court, at the

having been member to the

time this action was submitted

Court, participate. did not Johnson, H. Michael C. Loos of

Glen Clayborne, Eiesland Huffman and Johnson Dakota, City, Attorneys Rapid South appellees. and plaintiffs Knudsen, judge, it P. James Nelson of warrant and submitted to a circuit Donald S. Nelson, 1,1999, Gunderson, Palmer, warrant on August and who issued a Goodsell Dakota, search and City, Attorneys for Lowell Anita’s house. The Rapid South provided appellants. warrant address defendants description of Lowell and Anita’s house as GORS, Acting Justice. 61D, Custer, “RR1 Box follows: SD Song Valley grey story Wind Rd. A two Duane and Ruth Swedlund farm house.” (Swedlunds) County sued Sheriff Custer deputy warrant, Foster and sheriffs. Greg executing five [¶ 4.] Before (Scher- Deputies Roy Swedlunds claimed the law enforcement Foster sent Scherer er) (Rivers) under 42 rights officers violated their civil and Mike Rivers to locate (“scout”) brought photograph § 1983. Swedlunds also Lowell and Ani- U.S.C. ta’s Sheriff law tort claims for and bat- house because Foster wanted state assault to make had the tery, intentional infliction of dis- sure emotional Engen tress, arrest, Deputy (Engen), Dan pre- who had imprisonment false false viously gave Anita’s for sum- been Scher- trespass. The officers moved following go er the directions: “You down mary judgment, claiming they were enti- road, Road, Song Valley the down Wind protection immunity to tled the to and it the end where it a § follow takes on Swedlunds’ 1983 claims and common house, sharp His right. Lowell Swed- law on Swedlunds’ state law tort house, is right lund’s You corner. claims. The trial court denied the motion. They can’t it.” did. miss granted petition Court the This officers’ permission ap- for to take an intermediate deputies The did not take Wind peal. We affirm. Song Road to it Valley the end where sharp right. takes they a Before reached AND

FACTS PROCEDURE road, deputies the the end of the noticed (Tennyson) Tennyson 2.] Mike told [¶ sign the name bearing “Swedlund” and (Foster) County Custer Sheriff Foster However, house in the distance. ob- trees (Anita) suspected he Anita was Swedlund scured of the the view house from where embezzling money from business. his Nevertheless, their they parked car. the assigned Deputy Foster David Baker deputies they concluded that were at the (Baker) investigate, and and Baker Ten- photographs address and took met the on nyson day. next Based parked house from their vehicle. When conversation, Baker that several surmised developed, photographs only the showed missing Tennyson’s checks from business Scherer, of a part Engen trees and door. might found at of Anita be the residence later pho- and Biesheuvel testified that the (hereinafter her husband and Lowell “Lo- tographs properly insufficient were house”). and Tennyson, well Anita’s who identify objects house only the because the Anita, supplied lived same area as At visible were trees and the front door. Baker with her rural and route address initially the time the officers looked at the described Lowell and house as a however, Anita’s no photographs, ques- officers grey story two farm Baker then house. photo- tioned the scout team whether the rural verified route box number with graphed correct post office. deputies took pictures [¶ 6.] information, pre- 3.] With this Baker they photo- [¶ house. The house that belonged an affidavit a search pared request graphed Lyle and and Ruth Swed- lund, who with must parents, lived their Lowell have moved. When ar- Lowell’s old, mentally house, retarded forty-eight year Lyle rived and Ruth’s neither son, Lyle and Ruth’s house was Duane. Engen nor anything Biesheuvel said about house, in A-frame contrast bright red Engen’s concerning comment Lowell and was de- Lowell and Anita’s which being Anita’s house located down road. “grey warrant as a in the search scribed Lyle Biesheuvel knocked on and and Ani- farm house.” story two Lowell times,3 Ruth’s door three announced his a half ta’s is located less than mile house then purpose, opened waited and the un- road; away Lyle one can see on the same door. Duane person locked was house and Anita’s and Ruth’s from Lowell sitting the house. He was on a chair Disputed driveway. evidence exists that watching working and jig- television deputies actually some of the drawn, puzzle. guns saw With their yard in his own while seen Lowell outside yelled get at Duane to down on the looking for Lowell and Anita’s Startled, up floor. Duane stood from his house.1 and, speak, yelling chair unable to started previous experience Based on waving his arms. The officers did not Anita, was concerned that Foster retarded, Duane mentally know might people there Lowell Ani- be why get did not know would Duane ta’s house who would be under influ- They down on floor. claimed Duane’s Therefore, drugs.2 ence of Foster decided were consistent un- actions with someone high-risk to execute the warrant as a en- der the influence of narcotics. Baker try, using eight officers to execute the Engen weapons holstered their and at- approximately p.m. warrant. At 7:40 four to to the tempted force Duane floor. Department patrol County Custer Sheriff resisted, Engen tried spray Duane so to vehicles, one Patrol Highway and vehicle eyes pepper spray Duane’s with hit but drove the officers assumed to be to what Engen’s instead. second of Baker shot Lowell house in order and Anita’s to spray hit Duane pepper right between the missing the checks. As the for eyes. Duane continued to resist. The house, up Lyle Ruth’s officers drove to and physically officers then forced Duane to Engen Lowell and Anita’s house at saw his a placed knees and handcuff on one Song Road and remarked end Wind Biesheuvel, Duane managed up, wrist. to stand and to “There’s Lowell’s house leg him Engen right to Baker struck on the three or pointed down there.” Lo- house, four times. then well Anita’s which was Baker forced Duane to and visible again. to then that his At Engen point Biesheuvel. concluded knees this Duane be- Shortly history resisting a pic- deputies 1. after the officers had taken that Anita had tures, Engen and a ornery.” Biesheuvel overheard con- "pretty and arrest could be Anita versation between Rivers and Scherer at the Engen prior had once bitten on a occasion According testimony office. Sheriff's being was while she arrested. Biesheuvel, Engen photograph- while and out house, ing Lyle and and Ruth's Rivers Scher- judge officers 3.The did tell circuit they er said that saw Lowell outside in his they that who issued the search warrant sus- however, Scherer, any yard. own denies such pected possible drug trafficking at Anita's conversation. they house or that intended to execute the Therefore, high-risk entry. search as possession 2. Anita had been convicted of judge pur- did not issue no-knock warrant earlier, years cocaine several and it was be- suant to SDCL 23A-35-9. drug lieved that Anita was involved with trade in the Custer area. also told the Foster Amendment Fourth and Fourteenth Con- dragging floor several crawling on the gan thought rights Duane and for assault and bat- him. Foster stitutional scissors, so pair reaching tery, infliction of emotional dis- was intentional jerked and by tress, arrest, him the belt grabbed imprisonment Foster false false kicked Foster him Duane back. The officers moved for sum- trespass. stomach, Duane twice struck and Foster claiming they that mary judgment, eventually was forearm. Duane im- qualified and common law entitled struggle. a considerable handcuffed after munity. The trial court denied the motion. granted permission to take This Court house, and Anita’s From Lowell 9.] [¶ appeal. ap- The defendants intermediate brother) (Duane’s that saw several Lowell following issues: peal on the parked parents’ at his police vehicles were Anita, Lowell and Subsequently, are 1. the officers afforded Whether was daughter drove there to see what qualified from Swedlunds’ arrived, Lowell ex- happening. When § 1983 claims. began asking the offi- the vehicle and ited the law enforcement offi- Whether then hand- Lowell was questions. cers im- protected by common law cers are patrol in the back seat of a put cuffed and inten- munity from Swedlunds’ state law car, they also Anita exited the car. When tort claims. tional her, her, placed handcuffed arrested separate patrol in the seat of her back OF REVIEW STANDARD

car. The trial court found Meanwhile, Duane removed by protected the officers were not He was red the house handcuffs. from immunity. foaming mouth. or common law face and either at his decided why Immunity legal question the officers were is a be Lowell asked they responded parents’ particularly the court and is amenable a warrant to search Lowell summary judgment. Bryant, Hunter v. missing checks. Lowell 534, 536, Anita’s house for stated, you’re do- you “Don’t know what Miller, (1991); Hart v. L.Ed.2d you at? you know where are ing? Don’t 13, 138, 143; 53 at 609 N.W.2d 2000 SD my parents’ house.” Baker looked This is Crozier, 6, 65 at 565 v. 1997 SD Home red, grey, at saw it was 50, Qualified immunity is not 52. N.W.2d at knew liability an entitle just a defense to but remarked, some, you win “You Scherer to stand trial or face the burdens ment not handcuffs Foster ordered the lose some.” Therefore, immunity ques litigation. of Duane. The from Lowell and removed early possible. resolved as as tions should be premises with Anita hand- officers left the rne, 6, at 565 1997 SD 65 N.W.2d Ho patrol car. cuffed the back seat 52, Forsyth, v. 472 U.S. citing Mitchell They never did search Anita Lowell’s 2815, 511, 526, 2806, 86 L.Ed.2d 105 S.Ct. missing checks. house for the (1985). Otherwise, 411, protection 425 effectively lost if immunity is qualified of Ruth Swedlund sued Duane and [¶ 11.] a trial to establish that no there must be law enforcement officers4 Foster and five Katz, v. 533 necessary. trial Saucier violating § 42 is under U.S.C. 1983 County, deputies from the suit. one of the and the missed 4. Custer voluntarily dis- highway patrol officers were 46 ” 2151, Ass’n, 2156, 194, 200-01, Territory.’ County 150 Tri 121 S.Ct.

U.S. Landfill (2001). County, 11, v. 272, Inc. Brule 2000 SD 148 281 L.Ed.2d 663, 667 24 (citing 619 U.S.C. N.W.2d This Court’s standard of 1983). § of action To establish a cause grant a trial court’s regarding review 1983, plaintiff § under must establish is judgment well estab summary of denial “First, following two elements: lished: plaintiff allege person must that some has “if the Summary judgment is authorized deprived Second, right. him of federal depositions, answers to inter- pleadings, that allege the'person he must who has file, on to- and admissions rogatories,. deprived him under acted affidavits, any, if gether with show color of or territorial law.” Gomez v. state to genuine any no issue as mate- there is Toledo, 1920, fact, moving is party rial that the 1923, 572, Hart, (1980); 577 as a matter law.” judgment entitled 58, 2000 at 150 SD 53 609 N.W.2d no will affirm when there are We (Amundson J., A claim under dissenting). fact issues of material and the genuine § predicated 1983 must be on deliberate questions correctly de- legal have been Horne, action; negligence enough. is not All inferences drawn cided. reasonable 12, 1997 SD 65 at 565 at 54. Even N.W.2d must be viewed in favor from facts gross enough. is not Id. at 13. negligence non-moving party. burden is rights A claim under for violation civil clearly moving party show an brought § 42 1983 can be either U.S.C. any genuine issue of material absence federal court. v. Minne or state Eischen judgment and an as a fact entitlement (S.D. haha 205 County, 363 N.W.2d of law. matter 1985) (Henderson J., dissenting). Huron, Pork Indus. v. 2002 SD Dakota Sovereign is (internal 884, 885 citations not a to a claim under U.S.C. defense omitted). Whether the officers are rights § 1983 civil violations claim because by sovereign immunity ques “shielded Gordon, Bego tort. See intentional law, novo, de no tion of reviewed (S.D.1987); 809 n. 10 N.W.2d given legal the trial deference court’s County, Webb v. Lawrence F.3d Hart, 2000 SD 53 at conclusions.” (8th Cir.1998); Webb v. Lawrence 142. (D.S.D.1996). County, F.Supp. officers, However, police under certain sit AND DECISION ANALYSIS uations, may raise the defense of THE WHETHER OFFI- § immunity liability to avoid under 1983. QUALI- ARE AFFORDED CERS Delano, 587, 520 591 v. N.W.2d Hafner FIED FOR IMMUNITY SWED- (S.D.1994). Qualified immunity given is § LUNDS’ 1983 CLAIMS. good have made a faith mis officers who Hart, 14, 53 Rights the Civil take. 2000 SD at 609 N.W.2d [¶ 15.] Under (42 1983) 143; citing Rogers, § at v. 973 F.2d party Act of 1871 Gainor U.S.C. (8thCir.l992) (“This 1379, [qualified damages “‘deprivation for the of recover 1382 analysis] ample room for any rights, privileges, immunity or immunities se allows by by good the Constitution and laws of the faith mistake the officer since cured in by any person acting his conduct must be measured terms of United States caused statute, ordinance, the officer any reg under color of belief of a reasonable based ulation, custom, offi- usage, any upon of or the facts then available to the or State

47 next, Falls, sequential the right, a constitutional cer”); City 1998 v. Sioux Spenner of 606, Quali- right was 27, step 612. “is to ask whether at 580 N.W.2d SD 56 prevent liti- inquiry extended to as to clearly is established.” Id. The fied inhibiting govern- liability from gation right was clear- whether the constitutional discharging from officials ment light in ly established “must be undertaken 59, Hart, at 609 2000 SD 53 duties. case, specific not as a of the context (Amundson J., concurring at N.W.2d Third: Fi- general proposition.” Id. broad part). goal in The dissenting in part, “relevant, inquiry in nally, dispositive to avoid excessive immunity is qualified clearly determining right whether a es- permit disruption government is whether it would be clear to tablished claims on sum- of insubstantial resolution officer that his conduct was reasonable Fitzgerald, Harlow v. mary judgment. in situation he confronted.” unlawful 2738, 818, 2727, 800, 102 S.Ct. 457 U.S. 202, 2156, at 150 L.Ed.2d Id. at S.Ct. (1982). 396, 410 L.Ed.2d (citing Layne, 526 U.S. at 282 Wilson 818, 1692, 143 L.Ed.2d Eighth The Circuit Court (1999)). three-part test to 830 employs a Appeals protected an officer is whether determine articulated this 19.] The test immunity: by qualified in Hart is similar: “To find whether Court of a plaintiff 1. claimed a violation Has immunity applies, the test is to right? constitutional clearly if the officer’s conduct violated ask clearly right the constitutional Was statutory constitutional established established? rights a reasonable officer would a reasonable officer know 3. Would 13, at known at the time.” 2000 SD 53 alleged actions violated at 143. Hart also stated: right? clearly established constitutional 591-92, protected by quali- an official citing [W]hether Hafner, at 520 N.W.2d personally immunity may be held Cnty., v. Cole 991 F.2d fied Foulks Cir.1993) (8th (citing City Cross v. Des official allegedly for an unlawful liable (8th Moines, F.2d 631-32 Cir. “objective generally turns on the action Horne, 1992)); 1997 SD 65 at action, cited as- of the legal reasonableness” at 59-60. legal rules light sessed at the time it Saucier, “clearly established” Recently, in the United was taken. employed a similar Supreme Court States analyzing qualified

three-part test when 121 S.Ct. at

immunity. 533 U.S. that the cases establish [O]ur 150 L.Ed.2d at 281. First: must alleged to have violated official is is, light in the question “[t]aken threshold “clearly [the established” have been [plaintiff], do the most favorable to contours of the following] sense: The the officer’s conduct alleged facts show sufficiently that a right must be clear right?” a constitutional violated official would understand reasonable right. that doing is violates that what he that there is 281. If the court determines say an official action This is not to that right, then no violation of a constitutional immunity un protected by qualified is and the officer is entitled inquiry stops, pre in has very question less the action immunity. Id. Second: How- unlawful, it viously held but is ever, been plaintiff if the can show violation 48 reasonable, cause, preexisting light probable in law the based

say that exigencies and apparent. that the of the situation must be unlawfulness imperative. made the course 27, (citing 1998 SD 56 at Spenner, at 14 Id. (S.D. Max, 685, State v. 263 N.W.2d 687 612, quoting Anderson v. 1978). right The Fourth Amendment “to 640, 685, 488 107 S.Ct. Creighton, U.S. retreat into own home and there be [one’s] 523, (1987)). 3039, 3034, 530-31 97 L.Ed.2d in governmental free from unreasonable Hart, our test from conclude that We long trusion” been Silver has established. and the test articulated Eighth Circuit test States, 505, 511, man v. 365 81 United U.S. Supreme by the United States Court (1961).5 679, 682, 734, 5 L.Ed.2d 739 essentially are the same. There- Saucier Supreme eloquently The Court de Iowa fore, we will examine this case to deter- clared: (1) if complaint alleged mine Swedlunds’ castle, and, A still man’s home is his (2) rights, of their if violation constitutional high-raised although by not surrounded rights clearly es- the constitutional mound, thick battlement and labored (3) and if a tablished reasonable officer wall, gate, and moated he is as secure doing that what he was would understand therein as a baron old feudal castle. rights. violated constitutional guaranties The constitutional and statu- (1) complaint allege Did Swedlunds’ vio- tory are for the inhibitions substitutes rights lation of their constitutional physical security of environments and by the law enforcement officers? days, guaranties former and these and all,.... by respected limitations must be Fourth [¶ Amend 20.] protects “right people ment Osterson, 983, 183 McMillan v. 191 Iowa houses, in their persons, papers be secure (Iowa 1921). 487, N.W. 489 effects, against and and unreasonable Connor, v. Graham 490 U.S. ” Const, searches seizures.... U.S. 386, 1865, 395, 1871, 109 S.Ct. 104 L.Ed.2d A sei amend. IV. warrantless 443, (1989), the held Supreme 454 Court probable absent zure unreasonable that the Fourth Amendment limits the exigent Payton circumstances. cause arresting officer amount of force which York, 573, 586, v. New 100 S.Ct. Horne, 565 use. SD 65 (1980). 63 L.Ed.2d “Today explicit make we has stated: previously This Court Garner, implicit what [Tennessee the fourth amendment United 105 S.Ct. U.S. VI, (1985)], § Constitution and Article and hold that all claims that law

States of the South Dakota constitution enforcement officers have used excessive both provide deadly or not—in the course of an people to be force— arrest, houses, persons, papers, investigatory stop, secure in their or other ‘sei effects, analyzed zure’ against unreasonable of a free citizen should be under Id. This searches and seizures. Warrantless ar the Fourth Amendment^]” searches, therefore, made it all claims rests and are uncon Court has also clear that stitutional, have used showing unless there is law enforcement officers analyzed from force are under exemption those who seek the war excessive guarantee requirement rant that their Fourth Amendment’s to citizens actions were Hampshire, presumed Coolidge v. New home without a warrant is unrea- 5. See also 477-78, exigent the absence circum- U.S. sonable in (1971) stances). (holding that a L.Ed.2d 564 search of

49 executing search war prior residences persons in their secure right “to be “critical,” “important” and ... rants is seizures.” unreasonable against ... 511, safety to have the house Schumacher, that “it’s a valve 495 N.W.2d Darrow v. right “have the (S.D.1993). scouted” to be sure 519 it was deputies The also knew house.” unrea- free from right The to be [¶ 22.] be important right to search the house seizures and sonable searches they conducted the reconnaissance cause are force6 free from excessive right to be pictures in an effort to make sure and took rights of which “clearly established both right specific house. The they had the Pray v. know.” official would reasonable right to free from unrea constitutional be (6th 1154, 1158 Sandusky, 49 F.3d City of right and to search the sonable search Cir.1995) Graham, 490 at 392- (citing U.S. to the law admittedly house were known 1969-70, L.Ed.2d at 93, at 104 109 S.Ct. ques no officers so there is enforcement (1989)). Therefore, the Swedlunds’ 453 clearly it established. tion that was both unreason- claimed complaint which also Law enforcement officers [¶24.] force seizure and excessive able search and may not use excessive know that of their constitutional alleged violation part provides 23A-3-5 officers. force. SDCL law enforcement rights subject person shall an arrested that “No (2) rights to be the constitutional Were physical restraint than is person to more

free from unreasonable searches necessary to the arrest.” reasonably effect clearly force and excessive seizures impermissible of “excessive force is Use Horne, established? arrest.” 1997 during even a lawful 13, 54, citing at 65 at 565 N.W.2d SD burden is on the The (2d Okst, 845, 858 Weyant v. 101 F.3d that the constitutional to show Swedlunds Cir.1996). right to be free specific unreasonable search free from rights be clearly estab force was from excessive were clear and excessive force and seizure 27-28, 56 at 580 Spenner, 1998 SD lished. statutory or constitutional ly established 612-13; Pray, 49 F.3d at 1158. N.W.2d would officer rights which a reasonable 40, Horne, 65 at 565 1997 SD know. (3) that officers know reasonable Would 60; Fitzgerald, Harlow N.W.2d alleged actions violated 2738, 818, 2727, 800, 102 S.Ct. U.S. clearly constitutional established (1982). 396, light “[I]n L.Ed.2d rights? unlawfulness must be pre-existing law the Supreme The United States Creighton, Anderson v. apparent.” “relevant, in Saucier that the 97 Court noted U.S. (1987). determining whether dispositive inquiry in police A officer L.Ed.2d it is whether right clearly established Fourth Amendment know that the should that to a reasonable officer unrea would be clear prohibit constitution and the state Home, the situation his conduct was unlawful 1997 SD 65 sonable searches. 202, 121 533 U.S. at knew he confronted.” at 60. Sheriff Foster at 282. Our task im correct house was identifying summary “scouting out” then is to determine whether portant. He testified Falls, analyzed under the Fourth Amendment’s 1999 SD be Yellowbackv. Sioux See ¶ 9, ("This against Court has persons ... 'to be secure in their that law enforce- made clear that all claims ”). seizures.’ and] unreasonable [searches excessive force must ment officers have used 50 (1) warrant on the that a reason- cution of a valid search shows record

judgment case, wrong premises. In that officers situation in the defendants’ officer able suspect pink that a and his were told Lyle that the search of known have would (an object of the search as well as Camaro sei- house the Ruth Swedlunds’ house) Byrd 611 were both at Street. the (2) unlawful, and was zure of Duane previ- Id. at 532. One of the officers position in defendants’ officer reasonable Byrd personally 611 and was ously been to known the amount have would Nevertheless, the familiar the route. Duane was excessive. used on force too soon onto Adam officers turned a block wrong The only vehicle at 611 Adam Street. Id. that the officers undisputed It is only partially pink, and was a van that was Lyle have a search warrant for did not house was a different color then they entered the residence when Ruth’s Byrd. one at 611 Id. The officers did home, cause to probable nor did discrepancies with the rest check the taking place at any crime was believe Instead, Id. the officers burst the team. officers contend that be- their home. The guns home with their drawn. into the place their actions took as result cause occupants who They ordered the female belief that were exe- their mistaken watching get television to down on on the correct cuting the search warrant teenage boy A their knees. Id. at 532. position a reasonable officer and hand- against was thrown the wall not know that their actions were would husband, who cuffed. Screams awoke constitutional violating Ruth and Duane’s by one of then knocked to the floor was rights. gun. the officers with his The husband’s striking from the floor. Id. The face bled “The Fourth Amend [¶27.] brought alleging §a 1983 action residents not violated ... the mistaken ment is entry and excessive unlawful and arrest on of a valid search warrant execution summary for force. The officers moved Graham, wrong premises.” 490 U.S. immunity. judgment based 1872, 104 L.Ed.2d at 455 109 S.Ct. their motion. Id. at The trial court denied (1989). reasonable, can have but “Officers Eighth Appeals 534. The Circuit Court mistaken, beliefs as to the facts establish affirmed, of a concluding, “the execution probable cause or exi ing the existence premises wrong valid warrant on the vio- circumstances, example, and in gent if lates the Fourth Amendment the officers will not hold that those situations courts premises searched are not should know the Sau they have violated Constitution.” warrant, i.e., premises described cier, 533 U.S. objectively mistake is not rea- the officers’ at 284. The Fourth Amendment L.Ed.2d Maryland (discussing Id. sonable.” there is an unreason violated when Garrison, 1013, 94 execution of a valid search able mistaken (1987)).7 The Dawkins Court L.Ed.2d at the house. Dawkins v. warrant further stated: (8th Cir.1995). Graham, 50 F.3d prohibiting the officers’ conduct law factually clearly at the time of Dawkins is a similar established funda- Dawkins, the raid. This case involved the case. involved mistaken exe- claims, U.S. at force the conduct occurred.” 533 7. Saucier noted that "excessive issues, Amendment are like most other Fourth (emphasis L.Ed.2d at 285 S.Ct. at objective evaluated for reasonableness based added). upon had when the information the facts are in appropriate Fourth where long-established mental in dispute they as are this case. Other into one’s rights to retreat Amendment employed approach. this In courts have unreason- free from home and to be own Dawkins, that Eighth the Circuit held there. The intrusion governmental able circumstances, jury a must de- these “[i]n subjected to specific right not to be more have whether the officers should cide execution mistaken the unreasonable of entering were the known clearly was also valid search warrant a court went house.” 50 F.3d at 535. The in the time the search established at of of say, question on to “there is a material this case. entry the officers’ fact about whether (internal added) (emphasis at 535 50 F.3d amount- the Dawkins home was a mistake omitted). citations In plain incompetence.” Id. another ing to not to have to be careful Courts suit, entry the Second Circuit mistaken the into a corner with paint themselves “Consequently, are factual held that there immunity analysis. In an effort qualified could questions as to whether the officials disrup or prevent inhibition of officials a belief that have had reasonable and liabil with lawsuits government tion of apart- respect actions to the correct plaintiff ity, analysis requires clearly ment were not in violation of estab- or that deliberate misconduct prove Further, factual lished law. there were In Davis wholly incompetent. official was targeting Castro’s questions as to whether (8th 1346, County, 90 F.3d v. Fulton bespoke was a apartment mistake Cir.1996), Ap Eighth Circuit Court of incompetence.” v. United plain Castro “[n]egligent, or even concluded that peals Cir.1994). (2d 106, States, 34 F.3d by government negligent, conduct grossly held that previously This Court has also a constitu cannot be the basis of officials question is a of fact essential when there also, Horne, Id. tional tort claim.” See immunity question, to determination of an 13, at 54 65 at 1997 SD properly jury it instructed to de- is for conducting an ar negligence (“[g]ross Hart, 28-29, 609 In 2000 SD 53 at cide. altogether insufficient to sustain rest is 146-47, question at there was 1983”). Saucier, § under action Trooper con- fact as to whether Miller’s Supreme declared States Court United objectively reasonable. Chief duct was immunity protects “all but qualified Gilbertson, majori- writing for the Justice those who plainly incompetent ty, said: violate the law.” 533 U.S. knowingly actions trial court measured Miller’s L.Ed.2d at 282 121 S.Ct. at objective reason- against a standard of (citing Malley Briggs, U.S. basis, found this the court ableness. On (1986)). If 89 L.Ed.2d 271 posi- that a reasonable officer Miller’s plaintiff proved finds that inten the court actions have believed his tion would incompetence misconduct or total tional of Hart’s lawful and not violation were immunity, then the and denies However, rights. it failed constitutional effectively directed a verdict on court has of fact question on whether a to focus plaintiff’s claim. the merits ques- meaning of Miller’s exists as to prior approach The better is Hart and the claims tion to meaning interpreting there is the trier of fact decide when misconduct as statement. ambiguous “[I]n of material fact as of his genuine issue law the unlawful- objec light pre-existing the official’s conduct was whether Anderson, 483 apparent.” judgment ness must be tively Summary reasonable. pictures took which The scouts U.S. a door Miller could showed trees and and which ad- at 531. While L.Ed.2d inadequate question suspect mittedly when cir- to determine properly reasonably indicate it is nec- whether scouted the cumstances (see 1998 SD essary, Spenner, 613), liberty he was not at dispute,

580 N.W.2d at in Although 7. the scouts prosecution from in in to offer at the yard seen Lowell the exchange they favors. scouting sexual correct house while were (This disputed the a wrong house. and reverse this issue remand for We resolve.) question trier of for the fact to jury judge will the a trial where the they 8. the war- When went execute credibility as to the witnesses what rant, not officers did follow the sim- the really occurred and determine whether ple go grey story to a two directions proper conduct for a reason Miller’s was Song farm the end house at of Wind or not. Valley it sharp Road where a takes facts im- Disputed cannot confer right. munity. recognized Deputy Engen 9. that Lo- case, In is a genuine this there [¶ 31.] well and Anita’s house was “over there” issue of material fact as to whether the at a different location but failed to alert executing officers’ actions the valid par- the and other officers continued to warrant location was search at the ticipate in execution of the warrant objectively following evi- reasonable. at the wrong house. persuade could a trier of fact that dence 10. did The officers not discern objectively was the search not reasonable: grey story a two difference between 1. The warrant authorized a bright farm and a red A-frame house home, Anita’s Lowell and not they approached, house knocked when Lyle and Ruth’s home. Lyle on the and entered Ruth’s door 2. Lowell and Anita’s home was ade- quately unambiguously described as contrast, In Chief Justice story two farm house” in the “grey a out points Gilbertson his dissent

warrant. following evidence the mistak showed Lyle bright 3. and Ruth’s red A-frame objectively en search was reasonable: unambiguous home did not match the investigating 1. were The officers description the warrant. complaint by valid a citi- criminal filed Deputy 4. Sheriff Foster did not send $18,000 zen. in stolen Approximately Engen, previously who had been to Lo- missing. Anita Swedlund checks was home, scouting well Anita’s the citizen specifically identified Instead, mission. Foster sent two offi- Thus, likely as the thief. did officers cers who had never been to Lowell and to enter the resi- seek Swedlund Anita’s house to make sure had the caprice. dence on whim right house. 2. to obtain They prepared affidavit judge from circuit 5. The two sent to scout for the search warrant officers directly entering rather the home right simple house did not follow than attempting without to subse- go grey story directions to to a two farm one rely exception on an to the war- Song Valley quently house at the end of Wind sharp right. rant requirement. Road where it takes a Force. Excessive judge they the circuit They satisfied 3. of a for the issuance probable cause further contend Swedlunds it so issued. and was

warrant the officers’ use of force was excessive. they got to make sure attempt To 4. claim, however, phys- that the The officers an advance they sent right on Duane was reasonable ical force used area of the the rural scouting party to under the circumstances. The residence. Swedlund executing “high-risk note that road but They located the entry” potentially that could have become on it because at the first home stopped dangerous. “Swedlund,” the correct sign said they were seek- person last name of Graham, Supreme numbers on no house ing. There were “all claims that law enforce Court held none of the At this time the residence. have used excessive force— ment officers than one was more officers knew there arrest, an deadly or not—in the course of on this road. residence Swedlund stop, other ‘seizure’ of a investigatory or in house was The correct Swedlund 6. analyzed citizen under the free should be only one-half neighborhood the same Fourth Amendment and its ‘reasonable same road. away mile on the ” (emphasis original) .... ness’ standard previously who had 7. the officer When omitted). (internal citations years five be- at Anita’s residence been 1871, at 454. 109 a fore, going now into noticed the force used A determination of whether “Swedlund,” he marked different house under the Fourth Amend was reasonable previ- Anita had moved concluded balancing of ‘the “requires ment a careful rather than there was years ous five quality of the intrusion on the nature and road. house on that second Swedlund interests’ individual’s Fourth Amendment home entered 8. The officers countervailing governmental against they were authorized they thought 396,109 Id. at S.Ct. at interests at stake.” buildings or vehicles search. No other has L.Ed.2d at 455. This Court 104 were entered. § claim based previously addressed properly entered 9. The Yellowback, force in 1999 SD on excessive damage to the home or home and did no In that case at 558. N.W.2d in it. its contents once of whether the inquiry stated that the we they had searched informed When Fourth Amendment force used violated the house, attempts they made no wrong vision of performed “is not with ’20/20 premises and to further search the type to a of ‘Mon hindsight,’ pursuant promptly left it. approach in day morning quarterback’ the trier of disputed facts are for These the offi analysis rests on whether which the function of fact to decide. It is not alternative strat pursued cers should have the facts or to second this Court to resolve degree of force.” egies or a lesser Zech’s of fact. Matter guess the trier (S.D.1979). also ad- Estate, Excessive force was N.W.2d at 1160. Pray, 49 F.3d say a matter of law that the dressed We cannot as officers entered Pray, and Ruth’s home law enforcement Lyle mistaken search of during Therefore, duplex by mistake plaintiffs’ lower objectively reasonable. pursuant to a warrant night, a raid at correctly denied the motion the trial court According Prays, to the upper duplex. summary judgment. Pray get Objective Mr. down ordered reasonable the officer subjective An officer is not gunpoint. floor at then ness determined from the Pray’s vantage of hands on Mr. shoulders the officer. The trier of fact placed his the floor. Another pushed him to must determine whether a reasonable offi Pray. to Mrs. As a officer did the same cer would have believed his actions were injuries Hart, result, Pray suffered to her Mrs. lawful. 2000 SD 53 at knees, needing surgery. 146; Anderson, later Mr. arthritic 483 U.S. at angina, attack of which Pray suffered 107 S.Ct. at 97 L.Ed.2d at 532. As nitroglycerine pills. him to take required with the mistaken search of the officers, asserting that Prays sued the genuine The there is a issue material their Fourth Amend- the officers violated fact as to whether the officers’ use force specifically the to be rights, objectively ment on Duane was reasonable. The illegal searches and seizures and following persuade free from could of fact trier force. Id. at 1157. The court objectively excessive that the use of force was not stated: reasonable: making “high 1. The officers were entry subsequent entry” risk to search for stolen checks. a warrant ...

seizure was done without exceptions Embezzling money stealing no to the warrant re- 2. or apply respect employer with to the from an not a quirement checks violent Pray home. The record crime. search officers, that

clearly shows without drugs 3. There was no mention of in authority, Pray residence entered the affidavit for the search warrant. illegal conducted an search and sei- 4. There was no mention that Anita Moreover, Prays had a clear zure. prior in drug had a conviction the affida- physically right not to be forced to the for the vit search warrant. Thus, if the circum- gunpoint. floor at 5. There was no mention that Anita application such that the stances were previously had bitten officer clearly unnecessary and un- force was affidavit for the search warrant. reasonable, then the defendants’ use of premises 6. Six officers entered the considered force would be excessive. guns with drawn. Pray note that ulti- at 1158-59. We Id. years 7. Duane was 48 old. mately held that the officers’ mistake chair, sitting 8. Duane was in a watch- entering plaintiffs home was reason- puzzle ing working jigsaw TV and and thus able under the circumstances when the officers arrived. by qualified immunity. Id. at protected 9. Duane was not armed. However, recognized the court 1159. also provocation, 10. Duane was Without officers carried out the raid at get ordered to on the floor. poor, vision was and that the night, when until aggressive 11. Duane was not merely entered the door sprayed pepper spray. the face with (address up upper duplex to the which led contrast, Justice Chief Gil- Street) opposed Erie as to the door 1/2 points bertson out in his dissent that the (address duplex which led to the lower following evidence showed the officers’ use Street). Additionally, Pray Erie Id. objectively of force was reasonable: question Court held there was a prior history 1. Anita had a respect subsequent fact with to the Swedlund illegal drug activity. and excessive force claims. genuine issues of mate- stating there were previously bit- Anita Swedlund

2. state tort claim. rial fact on each an officer. ten law, At common law enforce- [¶40.] times, knocked three The officers 8. to use force privileged ment officers were authority purpose announced jobs. Dakota to do their Under South instead of the unlocked door opened statute, privi- officer is a law enforcement it in. kicking necessary perfor- force in the leged to use Duane not know The officers did 4. legal duty. SDCL 22-18-2. mance of was retarded. may ordinarily Also an of the law officer to be rational. appear Duane did not acting scope in the of his trespass when Cook, the offi- comply did not duty. 6. Duane 319 N.W.2d State (S.D.1982). get down cers’ commands an arrest would be Otherwise floor. and a search would be a tres- an assault jailer could not incarcerate his pass. The is for the trier disputed evidence This hangman could not exe- prisoners, and the enforcement law fact to resolve. While privilege cute the condemned without the situa- to “freeze” the officers are entitled by the law. afforded suspi- stop of a to make brief tion and identity determine or individual to law, cious Under South Dakota momentarily, quo the status maintain officer arrest a a law enforcement 93 at Hodges, SD officer has an arrest war person when the of law that say cannot as a matter we 23A-2-7, rant, there is SDCL when employed by these officers the force a crime has been probable cause to believe of fact The trier objectively reasonable. person to be arrested committed and the objectively rea- if it was to decide crime, needs 23A-3-2. A committed the SDCL everyone premises to force sonable may that re officer use law enforcement when gunpoint on the floor at get down necessary is reasonable and straint which missing a search warrant for executing by may trespass arrest and to effect an Therefore, the trial in this case. checks to do so. SDCL breaking premises into for sum- correctly denied the motion court is A enforcement officer 23A-3-5. law judgment. mary some to use force to arrest privileged also felony. a SDCL who has committed one THE LAW WHETHER [¶ 38.] as law and until At common 22-18-3. ARE OFFICERS ENFORCEMENT privilege included recently as BY LAW PROTECTED COMMON custody by fleeing felon to reducing a FROM SWEDLUNDS’ IMMUNITY death, 22-16-32 him to SDCL shooting INTENTIONAL LAW STATE however, 22-16-33; privilege now and CLAIMS. TORT to situations deadly force is limited to use to believe probable is cause the where there also sued The Swedlunds significant threat of suspect poses in- state law officers for law enforcement or injury to the officer battery, or serious and death tentional tort claims assault Gamer, distress, 471 U.S. others. intentional infliction of emotional defense L.Ed.2d at 9-10. Self arrest, and tres- 85 imprisonment false false persons of other the officer and defense summary pass. The officers moved justification for the recognized as a claiming is still on the state law torts judgment force, deadly SDCL 22-16-34 use of immunity privilege. or common law 22-16-35, officer is and a law enforcement summary judgment, trial court denied an prevent public acting general use force to of- A officer within the privileged to persons subject against scope authority the officer or other of his is not fense long as as the force is not property liability or tort for an administrative act or prevent the of- more than sufficient if omission fense, SDCL 22-18-4. (a) in engaged he is immune because function, discretionary the exercise of a A search warrant is written judge directing (b) a law enforce order from he not exceed privileged does per designated to search for ment officer privilege, or abuse the bring judge. it to the property and sonal (c) his conduct was not tortious because may trespass An 23A-35-1. officer SDCL negligent performance was not in the he any property if in to admittance and break responsibility. of his SDCL 23A-35-8. some is refused. added) (emphasis (citing Restatement of cases, trespass even the officer (2nd) (1979)). Sovereign § im- Torts 895D in without notice. SDCL 23A-35-9 break (a) munity applica- is not subparagraph warrant). (the right knock” Like the “no ble to intentional torts committed law arrest, privi to use force to effect Hart, 2000 53 at enforcement officers. SD not without limitations. The lege is Here, 38, 609 N.W.2d at 148. the officers protects people’s still Fourth Amendment privilege subpara- claim that to be secure from unreasonable (b) gives them from the graph If officer is not and seizures. searches Exam- intentional tort claims. Swedlunds’ warrant, search a war- executing a valid facts, however, reveals that ination of the unreason search and seizure is rantless privileged. the officers’ conduct is not probable exigent cause and absent able York, Trespass Payton v. New circumstances. U.S. The defendants were law (1980); Jorgen State L.Ed.2d conducting a search. enforcement officers (S.D.1983) (ex sen, Although they had a valid search warrant cases, a search is unreason cept certain house, they for Lowell and Anita’s did not Max, warrant); absent valid able Lyle any have a warrant of kind to search at 687. Ruth’s house. The officers do any searching claim under ex privi The officer is 43.]

[¶ ception requirement to the of warrant it the things these because leged to do exceptions and none of the to the warrant job. If the officer was not afford officer’s Lyle requirement applied to the search job privilege, he could not do his with ed Payton, 445 U.S. at and Ruth’s house. battery, being sued for assault and out 651; at 63 L.Ed.2d at and other imprisonment, trespass false Therefore, Max, at 687. the applies even if the privilege torts. The Lyle and Ruth’s house entry and search of acquitted, later or noth person arrested is authority. factually In a were without search, long during found the so ing was case, where the officers executed similar doing officer was what the law as the house, the warrant on the valid Ray, authorized him to do. Pierson v. 386 Appeals Court of said: Sixth Circuit 1213, 1218, 547, 555, 87 S.Ct. 18 U.S. (1967). are, search and entry subsequent The There how L.Ed.2d a warrant— ever, was done without privilege. Bego limits the In v. seizure (1987), at Erie Gordon, only the warrant cited Giles 809 n. 11 N.W.2d 716½ exceptions to the war- no recognized this that: Street —and Court chair, 23A-3-5, just respect sitting to Duane was requirement apply rant with puz- watching working jigsaw TV and on a The rec- Pray home. the search It is officers, committing zle. He was not a crime. with- clearly shows that the ord retarded, law to against not the be scared Pray resi- authority, entered out There probable or incoherent. was no illegal search and conducted an dence Duane any cause to arrest for crime. and seizure. looking the offi- The officers were [¶ 47.] F.3d at Since Pray, 49 1158-59. an innuen- Lyle missing and for checks. There was authority no to search cers had might Anita with house, ac- do that also be involved claim their Ruth’s cannot drugs. probable If there had cause been privileged the Swedlunds’ tions are from drugs, drug drug suspect activity, to users for trespass. state tort claims addicts, drug put or officers could Battery, Inflic- Intentional Assault application their information Emotional Distress False tion of for gotten drugs. a warrant There was Arrest, Imprisonment False try to none and the officers did not even During previously their unauthorized for get drugs. [¶ 45.] a warrant As noted, offi Lyle quest and Ruth’s issue of search whether entry gunpoint justified high-risk at checks missing cers entered house get the floor. in this case is for the of fact. Duane to down on trier ordered ensued comply, he did not a scuffle When The worst that can be said into sub eventually beaten and Duane get Duane is that did not down about he encounter, citi everyday mission. In him yelled at on the floor when listen to law speak zens do not have against It is not the law to gunpoint. Royer, enforcement officers. Florida get down on floor when an refuse to 491, 498, 1319, 75 yells you. As we can see from officer (1983); 2001 SD Hodges, L.Ed.2d had a not to be Pray, Duane “clear Hodges, In 631 N.W.2d at 209. gunpoint.” to the physically forced floor at in a passenger, held that a this Court armed. 49 F.3d at 1159. Duane was not detained, justifiably has been vehicle which aggressive until the officers He was at the scene. required be remain spray pepper spray him started to Here, at 210-11. Id. him to the floor with violence and force in Hodges, the officer these officers unlike and blows. authority Lyle and Ruth’s had no ' The officers also claimed protec- handcuffing Duane was for his own only danger Duane was the Pray case is more tion. The face with Pray, sprayed as him in the analogous to this situation. officers who here, floor with pepper spray, search war forced him to the the officers had a valid by painfully The and handcuffed him wrong rant but went to the home. blows offi- Appeals bending fingers his back. Since the Court of for the Sixth Circuit Prays legal authority not to to search noted “the had a clear cers did not arrest or physically gun probable forced floor at house or cause to be to the Duane, privi- not point.” Pray, Forcing at 1159. their actions are F.3d detain tort was not from the Swedlunds’ intentional gunpoint leged Duane to the floor at and necessary battery, or a law en claims of assault intentional reasonable. While distress, force emotional false arrest forcement officer use reasonable infliction of arrest, imprisonment. to effect an 22-18-2 and false SDCL addition, gence liability the officers were standard to ascertain [¶ 50.] as much force as was officers’ mistakes. only privileged to use there necessary. SDCL 23A-3-5. Since previously This Court has a [¶ 57.] fact genuine issue of material as to is a analytical well-developed framework for used more force than whether the officers good the examination of claims of faith necessary, require the trial court must was concedes, immunity. today As the Court jury to properly instructed resolve mistaken entry by into a wrong house genuine are issues of ma- question. There itself, by strip law enforcement does not all terial fact on of the other intentional immunity. them of Mistaken execution of tort claims when the evidence is viewed a search warrant at the location light most favorable to the Swedlunds. does not violate the Fourth Amendment Therefore, the trial court was correct in good when the officers believe faith that summary denying judgment the law they warrant at executing the search their claim of com- enforcement officers on Connor, the correct location. Graham v. immunity mon law from the intentional 386, 396, 109 490 U.S.

torts. (1989); Maryland L.Ed.2d 443 v. Garri

son, 79, 86-88, CONCLUSION (1987). 1017-19, 94 L.Ed.2d 72 Fourth Amendment is violated if the The trial court’s denial of sum- [¶ 51.] entry mistaken was an unreasonable one. mary judgment qualified immunity (8th Graham, Dawkins v. 50 F.3d immunity common law is affirmed. Cir.1995). This unreasonableness issue is KONENKAMP, “objectively [¶ 52.] SABERS determined under an reason Justices, Crozier, concur. able” standard. Horne v. (citing SD 65 at GILBERTSON, [¶ 53.] Chief Justice Graham, 490 U.S. at 109 S.Ct. at AMUNDSON, Justice, Retired dissent. 456). specifi More cally, negligent grossly negligent con ZINTER, Justice, having not [¶ 54.] by duct an officer is not sufficient to be at the time been member Court come the basis of a constitutional tort Court, this action was submitted to the did Home, claim. 1997 SD 65 participate. (additional omitted). at 54 citations MEIERHENRY, Justice, not [¶ 55.] following In this case the facts having been a member of the Court at the pertinent are to an examination of the time this action was to the submitted nature of the officers’ conduct: Court, participate. did not investigating 1. The officers were (dissent- GILBERTSON, Chief Justice complaint by valid criminal filed a citi- ing). $18,000 Approximately zen. in stolen missing. checks was Anita Swedlund respectfully I I dissent. would specifically identified the citizen entry into hold the officers’ the home Thus, likely as the thief. the officers did and the amount of force used therein fall not seek to enter the Swedlund resi- good within the faith from 42 caprice. dence on whim or liability. join I cannot the U.S.C. opinion They prepared

Court’s which results in a de facto 2. an affidavit to obtain judicial judge a circuit repeal good immunity of faith a search warrant from replaces directly entering than the home negli- it with a strict common-law rather previous years five rather than there attempting to subse- one and without a house on that to the war- second Swedlund exception rely on quently road. requirement. rant only entered the home judge circuit 8. The officers They satisfied the

3. thought they were authorized to they of the issuance cause they probable buildings or vehicles search. No other and it was so issued. a warrant were entered. they got attempt to make sure 4. To properly entered the house, an advance 9. The officers they sent right damage to home and did no the home the rural area of the scouting party to in its contents once it. residence. Swedlund they had searched 10. When informed right road but They located the 5. house, they attempts no wrong made on it because at the first home stopped “Swedlund,” premises search the further the correct sign said it. promptly left they were seek- person name of the last were no house numbers ing. There entry Clearly, prior to the time none of the At this the residence. wrong they made several mistakes than one there was more officers knew entry Lyle in the that resulted road. on this Swedlund residence The two Swedlund houses Ruth’s house. in house was The correct Swedlund 6. design and the officers were not similar only one-half neighborhood the same previously given description a had been road. away on the same mile Negli residence. the correct Swedlund Yes, they negligent. Gross officer, gence? were previous- who had 7. When not, Probably pur ly negligent? but years five at Anita’s residence ly been were, it analysis they even if before, going poses into of this they were now noticed “Swedlund,” a for liabilit would not establish basis marked still a different house swept good faith to be y.8 in the For Anita had moved he concluded Deputy did send En- following sup- 4. Sheriff Foster not ''facts” in 8. The court cites the question fact exists port gen, previously thesis that a been to Lowell and of its who had good faith im- precludes application home, which scouting In- Anita's mission. munity and sends the case to for the officers stead, officers who had Foster sent two a of a jury. These "facts” are rendition Anita’s house to never been to Lowell and negligence no "facts” and claim of classic right they sure had the house. make accuracy conceding the of the above more. In sent to scout for 5. The two officers officers, support the Court facts which simple di- did not follow the house comparison of the wholly fails to show how a story go grey farm to a two rections being at the officers of “facts" arrives two sets Song Valley Wind Road house at the end of knowingly "plainly incompetent or those who right. sharp where it takes a law;" being basis the correct violate pictures that 6. The scouts took Instead, get jury- we have such a claim to a door, admittedly which trees and a showed analysis summary judgment than no more inadequate to determine whether were negligence case. right house. had scouted the only authorized a search of 1. The warrant Although dispute, the scouts 7. home, Lyle and and Anita's Lowell yard at the correct have seen Lowell in the Ruth's home. scouting they house while adequate- and Anita's home was 2. Lowell (This question for the disputed "grey unambiguously ly described as resolve.) trier of fact to story farm house” in the warrant. two warrant, execute the When went to 8. bright Lyle and Ruth’s red A-frame simple di- not follow the the officers did unambiguous de- home did not match the grey story go two farm rections to scription warrant. in the 60 type Compare must be that of the defendant in that

away, their conduct case.9 or those who know “plainly incompetent ease with the now before us where the Katz, the law.” Saucier v. ingly violate defendant officers executed a valid search 194, 202, 121 2151, 2157, 150 S.Ct. 533 U.S. by judge upon warrant issued a a house (2001) (citing Malley v. L.Ed.2d 272 “Swedlund,” going marked albeit to the 1092, Briggs, 475 U.S. wrong house next door to correct one (1986)). 271 The 89 L.Ed.2d United a which was also Swedlund house. Execu- has stated: Supreme States Court legiti- tion of valid search warrants is a justifying police a purposes While police mate function. Solicitation of sex in permissible limit the ex- strictly search exchange charges for dismissal of criminal search, the Court has also tent of clearly is not. 2000 SD 53 at lati- recognized the need to allow some N.W.2d at 146. mistakes that are made tude for honest failing apply the correct [¶ 61.] in and difficult by dangerous standard, the in effect Saucier Court abro- executing arrests and process making gates good faith for law enforce- warrants. immunity” only ment officers. This “new Garrison, at protects those officers where there is no omitted). (citations Un- question negli- of fact as to their lack of circumstances, totality this der of the Thus, gence. “immunity” only ap- this “plainly conduct of the officers was plicable to those officers’ actions where it

incompetent.” needed, in is not because did not err by of this case comparison The place. the first Miller, that of Hart v. the Court with There likewise is basis to no appropriately most SD N.W.2d strip good officers of their faith immu- of the demonstrates the weakness Court’s nity force This for their used Duane. rejected analysis. In Hart we current previously stated: Court has immunity by a good defense of faith law analyze question, also We must plaintiff officer for what the enforcement however, perspective from the of the a criminal claimed was an offer to dismiss inquiry That is not officer the scene. 53 at charge exchange in for sex. SD performed with the vision of hind- It no exten- at 147. takes “20/20 “Monday sight,” pursuant type to a legal analysis good sive to know there is no morning quarterback” approach faith enforcement part law analysis offi- officer who solicits sex from a criminal which rests on whether the Hart, Song Valley analysis, Wind Road 9. As far as "contested facts” house the end of good Court would have allowed faith this still sharp right. where it takes a immunity despite contesting of the claims Engen recognized Deputy that Lowell parties vagueness two because of the “over there’’ at a Anita’s house was they going request officer's of “what were different location but failed to alert oth- marijuana]?” plaintiff about [the do participate er officers and continued to good faith defense able to overcome the at the the execution of the warrant provide she was able to affidavits because a re- from other women which established 10. The officers did not discern the differ- by peated of similar conduct the offi- course grey story ence two farm house between Herein, upon plaintiff point can cer them. bright and a red A-frame house when improper similar course of con- no such approached, on the door and en- knocked duct the law enforcement officers Custer Lyle tered and Ruth’s house. County. under- with commands due to lack of pursued alternative have cers should degree a of force. than a inten- standing, person or lesser rather who strategies Rather, only Amendment re- the Fourth tionally comply. not In the would officers’ the actions fall with- that officer’s quires opinions, refusing comply Duane was to objective of reasonableness. range in a with in a manner the officers’ directives reasonableness must This “calculus of the influ- consistent with individuals under fact po- for the that embody allowance ence of narcotics. to ... are forced make officers often lice relevant, dispositive in de- inquiry that are judgment circumstances —in clearly a termining whether is estab- tense, uncertain, rapidly evolving— and lished whether it would clear to a be that the amount of force is neces- about officer that his conduct was reasonable sary particular in a situation. unlawful in the he confronted. situation Falls, City Sioux 1999 SD

Yellowback of (internal 11, 600 114 at Saucier, omitted). citations (citations omit- officers entered the ted). When the a of only application It is with classic house, they had reasons valid believe Monday morning quarterbacking, that the necessary as Ani- heightened security was that the Court somehow concludes officers history illegal of prior a ta Swedlund objectively the should known at time have than kick door activity. Rather the drug entry of their into the that Duane in, times and an- they knocked three rather than under the influ- was retarded County that the nounced Custer Sheriffs narcotics, ence the amount force there serve a search warrant. Office was necessary. they ultimately used was not the response. no When officers There was again by errs Once the Court the house found entered unlocked extracting eleven “facts” from the record adult, Duane, a un- full-grown who question of which it concludes creates a them, mentally retarded. known to was jury application fact for a rather than identify to the unable to officers He was immunity. previous good faith As with the the nature of his condition or reasons issue, attempt another to cast aside this is com- comply could not with officers’ he run good faith and make officers There no one else in the mands.10 was jury where gauntlet proceeding in- officers with this provide house to plaintiff up can come no more Further, nothing there was formation. fact question than as to whether by the which Court would identified negligent performance officers were given the officers reason believe of their comply could not duties.11 had an individual who attempted Sheriff deputies the Swedlund Duane kicked Foster When the entered 10. home, watching large pair television. The Duane was of scissors. reach for position deputies ordered to take a him obey, up Duane stood floor. Rather than as the Court are 11. The "facts” ascertained began moving deputies toward the with his as follows: incoherently: screaming "Ah-ah- arms out "high making 1. risk The officers again. got He He then down then ah-ah.” sat entry” to search stolen checks. repeating up again began behavior. stealing Embezzling money 2. checks why time had no idea he The officers employer is a violent crime. from an not why acting as he he did and was drags in was no mention of There rationally responding to their commands. La- him, struggled affidavit for the search warrant. to subdue ter when ted).13 unsuccessfully The Court tries Under the Court’s erroneous anal- confronting facts isolate various ysis, (if the most that can be said even by concluding they officers were au- that) is that the conduct of the officers was missing for thorized look checks negligent in they the amount of force used. However, illegal drugs. and under the conclusion, In the officers’ con- proper totality approach, of circumstances duct is not even being “plainly close to they looking the officers knew incompetent” and no evidence exists missing possession checks in the of those knowingly entered the house or illegal who were known to use drugs and used excessive force on Duane. What the previous history violently who had a Court does in today, effect is overturn resisting point biting arrest Horne, and its counterparts, strip federal person actually officer.12 For a under the good officers of faith narcotics, influence of the amount of force impose on them a strict negligence stan- by used was officers not excessive. dard. It is the good abolition of faith shove, every push may “Not even if it immunity; for if the negli- officers are not unnecessary peace later seem in the of a gent, that is alone sufficient to avoid chambers,” liabili- judge’s violates the Fourth ty by good analysis itself and faith Amendment. The as now calculus of reason- embody by outlined is ableness must allowance for the Court redundant. Such that police fact officers are often forced a result jurisprudence has no basis in our split-second to make judgments cir- and will chilling have a serious effect on —in tense, uncertain, cumstances that are the efforts vigorous- of law enforcement to rapidly evolving the amount ly execute the laws of pro- this state and —about necessary in particular of force tect its citizens. That chill will be most situation. obvious situations entry where into a Graham, 396-7, private necessary. 490 U.S. at residence be Do- (citations assaults, abuse, 455-6 omit- mestic child and crack 13.Tragically, by 4. There was no mention that Anita had a concerns law enforcement in prior drug conviction in the affidavit for the personal safety upon this state for their search warrant. entry occupant into a at the home hands of its 5. There was no mention that Anita had Bittner, upon rest a factual basis. See State v. previously bitten an officer in the affidavit (S.D.1984) (two po- 359 N.W.2d 121 Huron for the search warrant. lice officers were summoned to domestic premises 6. Six officers entered the home, upon entry disturbance and into the guns drawn. by both officers were stabbed the defendant years 7. Duane was 48 old. died). and Officer Tom Callies See also State v. chair, sitting watching 8. Duane Czmowski, (S.D.1986) (citing 393 N.W.2d 72 working jigsaw TV puzzle when the (Eighth State v. Aikins Crim 85-318 Circuit officers arrived. Dakota, County, Court Lawrence South 9. Duane was not armed. (1985))) (State Trooper Oren Hindman was provocation, 10. Without Duane was or- duty); City killed in line of Bearshield v. get dered to on the floor. (S.D.1979) (Officer Gregory, 278 N.W.2d 166 aggressive 11. Duane was not until fatally William Bearshield stabbed in heart sprayed pepper spray. in the face with Sitts, stalker); State v. 71 S.D. previously 12.The been told there (1947) (Officer fatally Matthews shot in missing was a direct nexus between the got approach back as he out of his car to illegal drug checks and the use. The owner of car). defendant's thought the checks told the Sheriff that he stealing money Anita was from his business drug support order to her habit. or statutory established constitutional close doors. Will all occur behind houses right." v. Town See Pitts protect those who promptly the officers Comfort (D.Maine 1219, 1227 field, F.Supp. danger, to be in they reasonably believe 1996) added).... (emphasis discuss they reasonably those whom pursue ing application qualified immunity, law, violating or will to be believe stated, the Maine District Court [t]he pause? Supreme has extended Court immunity protects gov- qualified That generously, imposing heavy rule; establish only plaintiffs liability, usual burden on actors is the ernment policy justi This [citation omitted.] government will actors exceptional cases variety grounds, fied on a of not least of against claims made no shield “personal monetary which is a that fear capaci- against them in their individual liability harassing litigation will un government agent’s ties .... Unless duly in the discharge inhibit officials of wrong, obviously light act is so their duties.” law, plainly that in- preexisting who officer or one was know- competent violating the law would have done

ingly Eighth Appeals Circuit Court actors has thing, government such §a ruling [in claim] found immunity from suit. Because held, Reeve no claim and [Reeve] government actors in immunity shields allege has failed to a constitutional viola Gregory .... cases, City tion As stated v. we all courts should exceptional but Cir.1992), (8th Rogers, F.2d stripping hard before long think denied, 914], U.S. [507 rt. ce immunity. defendants of (1993), Lemacks, 50 F.3d v. harms, Hartsfield by a “Many though caused state (11th Cir.1995) (citations omitted). actor, scope do within the fall section 1983 does not section the same reasons as are set For turn the Amendment into a Fourteenth above, no grant forth there is basis not to supersedes tort tort law font state summary judgment various under systems already available indi ” against tort the officers. claims vidual state laws. I respectfully Therefore dissent. (emphasis Id. at 609 N.W.2d 138 added). case, is allowing this the Court law,” open. to remain the “1983 font of tort (dissent- AMUNDSON, Retired Justice ing). join I in Chief Justice Gilbert- reasons forth in

son’s dissent for the set Miller,

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Case Details

Case Name: Swedlund v. Foster

Court Name: South Dakota Supreme Court

Date Published: Jan 15, 2003

Citation: 657 N.W.2d 39

Docket Number: None

Court Abbreviation: S.D.