Hodge v. Laryisson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-30430

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DAWNITA LYNN HODGE,

Plaintiff-Appellee,

versus

EDWARD LARYISSON, Etc., ET AL.,

Defendants,

KEITH BILLIOT,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

USDC No. 97-CV-555-J

_________________________________________________________________

July 7, 2000

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

PER CURIAM:*

This 42 U.S.C. § 1983 case2 was brought against Keith Billiot,

a federal Drug Enforcement Agency officer who participated in a

drug raid conducted by local law enforcement officials. He, along

with several other defendants, was charged with violating the

Fourth Amendment rights of Dawnita Lynn Hodge in several respects.

We reverse the district court’s decision denying Billiot’s motion

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2

Specifically, Hodge’s case is a “Bivens” action. See Bivens

v. Six Unknown Named Agents of the Federal Narcotics Bureau, 403

U.S. 388 (1971).

for summary judgment on qualified immunity grounds. We conclude

that under the circumstances here his conduct was, as a matter of

law, objectively reasonable.

I

On December 6, 1996, the police raided Hodge’s apartment in

Hammond, Louisiana, based on information that two drug dealers,

carrying a quantity of drugs, were inside the apartment. Hodge is

a police officer, a fact the officers knew before entering the

apartment. Billiot, who was in town on other business, was invited

to participate in the raid by a local police officer.

Hodge contends that the officers, including Billiot, forcibly

entered her apartment without knocking and announcing their

presence. She alleges that the officers came into her bedroom,

forced her facedown onto the floor, and handcuffed her. Hodge

contends that Billiot placed his weapon in her face and demanded to

know where her service revolver was. Based on this conduct, Hodge

alleges that Billiot, among others, violated her Fourth Amendment

rights by conducting an illegal search of her home and an illegal

seizure of her person.3 Hodge additionally argues that when

3

The precise basis of Hodge’s Fourth Amendment claims are not

clearly articulated in her complaint. The district court stated,

however, “[w]hile the complaint does not specifically allege that

the officers violated Hodge’s rights by failing to knock and

announce their authority, the Magistrate Judge addressed this issue

in a Report and Recommendation entered on September 19, 1997. By

order and reasons entered on October 9, 1997, the Court found the

issue of announcement to be an integral part of [her] claim of

unconstitutional search and seizure.”

2

Billiot placed his gun in her face, he violated her Fourth

Amendment rights by the unreasonable application of force.

Finally, Hodge argues that Billiot had a duty to restrain the

(unspecified) unconstitutional conduct of the other officers, even

when he did not commit the alleged constitutional violations

himself.

In sum, Hodge seems to allege and argue four Fourth Amendment

claims: An unreasonable search claim; an unreasonable seizure

claim; an excessive force claim; and an allegation that Billiot

violated a duty to restrain his fellow officers from engaging in

unconstitutional conduct.

II

We review de novo the denial of Billiot’s motion for summary

judgment on the basis of qualified immunity. See Petta v. Rivera,

143 F.3d 895, 900 (5th Cir. 1998)(citation omitted).

III

We conduct a bifurcated analysis to assess whether a defendant

is entitled to qualified immunity. See Harper v. Harris County,

Tex., 21 F.3d 597, 600 (5th Cir. 1994). The first step is to

determine whether the plaintiff has alleged a violation of a

clearly established constitutional right. Id. We use “currently

applicable constitutional standards to make this assessment.”

Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). The second

step is to determine “whether the defendant’s conduct was

objectively reasonable.” Spann v. Rainey, 987 F.2d 1110, 1114 (5th

3

Cir. 1993). The reasonableness of the conduct must be assessed in

the light of the law as it existed at the time of the conduct in

question. See Harper, 21 F.3d at 601.

IV

We now turn to consider the merits of each of the issues

presented by Billiot’s arguments that the district court erred in

denying his motion for summary judgment.

A

We first consider an issue not raised explicitly by Hodge’s

pleadings, but discovered by the district court, sua sponte, within

the broad outlines of her complaint, i.e., the “knock-and-announce”

issue. Here, Billiot admits he was the third or fourth officer to

enter the apartment; this is undisputed. It is also undisputed

that Billiot was a mere participant, indeed an invitee, in the raid

and had no supervisory authority over the other participating

officers or the operation. Although there is a factual dispute

regarding whether the officers knocked and announced,4 this dispute

4

Billiot stated, “I did not personally knock on the door but

I did announce myself. I stated, ‘Police, we have a search

warrant. Open the door.’” Billiot also avers that the officer

accompanying him made the same announcements. These other officers

submitted declarations to the same.

Hodge testified in her deposition that she heard three bangs

on the door before the door collapsed. She testified that she did

not hear the officer’s announcements, but admitted it was possible

she simply did not hear them. There is testimony, however,

directly contrary to the officers’ account by an apartment resident

living across the street. In a sworn deposition, this neighbor

testified that he witnessed the event, but heard no knock and no

announcements. Instead, his testimony was that the police used a

battering ram to open the door, a sound he heard clearly.

4

does not divest us of appellate jurisdiction because the question

does not depend on a factual dispute and can be decided as a matter

of law. See, e.g., Behrens v. Pelletier, 116 S.Ct. 834, 842

(1996)(“[S]ummary judgment determinations are appealable when they

resolve a dispute concerning an ‘abstract issu[e] of law’ relating

to qualified immunity . . . . Johnson permits petitioner to claim

on appeal that all of the conduct which the District Court deemed

sufficiently supported for purposes of summary judgment met the

Harlow [v. Fitzgerald] standard of ‘objective legal

reasonableness.’”)(citing Johnson v. Jones, 515 U.S. 304, 313-18

(1995)); Mitchell v. Forsyth, 472 U.S. 511, 528-29 & n.9 (1985).

The question of law presented is whether Billiot had any individual

Fourth Amendment duty to knock-and-announce on these facts. We

think not. We agree, of course, that “the method of an officer’s

entry into a dwelling [is] among the factors to be considered in

assessing the reasonableness of a search or seizure.” See Wilson

v. Arkansas, 115 S.Ct. 1914, 1916-18 (1995). We do not think,

however, that Billiot’s individual failure, as one of several non-

supervisory participants in the search, to knock-and-announce was

unreasonable. As a veritable “tag-along,” Billiot had no duty and

no responsibility to second guess the supervisory officers he

accompanied. Hodge points us to no case law, and we have not found

any, imposing a constitutional duty on each officer engaged in a

search to knock and announce. Thus, his failure to rush forward

and knock and announce, when the supervisor of the operation had

5

chosen not to do so (assuming the evidence most favorable to

Hodge), was objectively reasonable. Consequently, on the facts in

this record, no liability can be imposed upon Billiot individually

for this alleged violation of Hodge’s Fourth Amendment rights.

B

We next consider Hodge’s argument that Billiot is individually

liable on the second claim of the illegality of the search itself,

i.e., the allegedly invalid search warrant. In its order, the

district court stated: “While Hodge contends that Chad Scott

omitted critical facts in the warrant application, namely, the

unreliability of the alleged informant, Hodge does not allege that

Billiot assisted in procuring the warrant or even knew of the

allegations contained in the warrant application.”

Billiot cannot be liable for his reliance on a search warrant

that he had no role in procuring; he is entitled to rely on a

facially valid warrant. An officer may rely, in good faith, on the

acts of another officer either in executing a warrant procured by

another officer or in filing a warrant application filled out by

another. See, e.g., Bennett v. City of Grand Prairie, Texas, 883

F.2d 400, 408 (5th Cir. 1989) (holding that an officer who merely

participated in an arrest, but did not participate in obtaining the

allegedly defective warrant, had no liability)(“Officer Little, who

executed an arrest warrant valid on its face, also acted reasonably

and competently, since she was entitled to assume that the warrant

was obtained validly.”); Hart v. O’Brien, 127 F.3d 424, 445 (5th

6

Cir. 1997) (“[A]n officer who has no personal knowledge of facts

asserted in an affidavit [may] rely on information provided by

another officer to file a warrant application.”) (citing Kalina v.

Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)),

abrogation on other grounds recognized by Spivey v. Robertson, 197

F.3d 772, 775 (5th Cir. 1999).5 Consequently, Billiot is entitled

to qualified immunity to Hodge’s inadequacy of the warrant claim.

C

Hodge’s excessive force claim against Billiot is that she

suffered various psychological injuries when Billiot pointed his

gun at her demanding to know where her service revolver was. In an

affidavit, Hodge states that Billiot, “[i]n a ‘cold and calculating

manner,’” placed a loaded gun to her face and demanded her duty

weapon. Billiot denies this accusation. In order to state a claim

for excessive force in violation of the Constitution, a plaintiff

must allege (1) an injury, which (2) resulted directly and only

from the use of force that was clearly excessive to the need; and

the excessiveness of which was objectively unreasonable. See Ikerd

v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996).

We have reviewed the record on this incident. Simply put,

assuming Hodge’s version of events, Billiot’s use of his weapon

under the circumstances of this drug raid was not objectively

5

Indeed, on appeal, Hodge presents no distinct legal argument

that Billiot himself violated her constitutional rights by his

reliance on a facially valid warrant. Instead, she conflates this

issue with the knock-and-announce issue.

7

unreasonable under the circumstances. See, e.g., Hinojosa, 834

F.2d at 1230; Simons v. Montgomery County Police Officers, 762 F.2d

30, 33 (4th Cir. 1985).

D

Finally, we consider Hodge’s argument that Billiot had a duty

to restrain the allegedly unconstitutional conduct of the other

officers. Hodge does not allege that Billiot should have

restrained a physical assault against her by other officers.

Instead, her complaint appears focused on the lack of probable

cause for the search warrant.6 We have already observed that under

the circumstances of this case Billiot was entitled to rely on a

facially valid warrant. Moreover, case law imposing this duty

based on the failure to prevent the conduct of others appears

restricted to a duty arising only with respect to some instances of

the unlawful use of physical force. See, e.g., United States v.

Reese, 2 F.3d 870, 888 & n.22 (9th Cir. 1993) (“[I]ndividuals in

the custody or control of law enforcement personnel have a right to

be kept free from harm while they are so held. . . . This right

demands not only that officers refrain from deliberately placing

their victim’s in harm’s way, but also that they take reasonable

steps to assist those who are threatened with harm by others.”).

6

The district court noted that Hodge did not detail which

constitutional right this duty extended to, but appeared to suggest

that it went to the lack of probable cause for the search warrant.

There are no facts to suggest that Billiot had anything to do with

that warrant.

8

See also id. at n.24 (citing cases). The district court’s reliance

on Ware v. Reed, 709 F.2d 345 (5th Cir. 1983), cited for the

proposition that “the Fifth Circuit has held that law enforcement

officers are obligated to prevent fellow officers from violating a

citizen’s constitutional rights,” was misplaced.7 In sum, we

cannot conclude that Billiot was under any “clearly established”

duty to restrain the conduct of his fellow participating law

enforcement officers, especially since the duty to which Hodge

speaks goes to procurement or reliance on an invalid warrant.

V

For the reasons stated above, we conclude that Billiot was

entitled to summary judgment on qualified immunity grounds on all

claims brought by Hodge against him in this case. Therefore, the

summary judgment denying Billiot qualified immunity is

REVERSED and REMANDED for

entry of judgment in accordance with this opinion.

7

In Ware, a non-suspect in a murder investigation was verbally

and physically abused during custodial interrogation. The panel

stated that “[t]here is no evidence in the record which indicates

that there was ever any need for the officers to use any degree of

force against him.” Id. at 351. Not only are the factual contexts

are quite different, but the duty issue in Ware was directed at the

inaction of the Chief of Police, who allegedly stood by and watched

these unconstitutional acts.

9