Chasity Hutchinson v. David Lemmon

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1925

CHASITY HUTCHINSON,

Plaintiff - Appellee,

v.

DAVID L. LEMMON, Col., Superintendent of the West Virginia

State Police, In his official and individual capacities;

WEST VIRGINIA STATE POLICE; TRAVIS BERRY, Trooper, In his

official and individual capacities; R. D. STONESTREET, First

Sgt., in his official and individual capacities; C. J.

WHITE, First Sgt., in his official and individual

capacities; J. L. PHILIPS, Sgt., in his official and

individual capacities; M. L. PHILIPS, Sgt., in his official

and individual capacities; R. D. ARTHUR, Cpl., in his

official and individual capacities; T. A. BERRY, TFC., in

his official and individual capacities; M. L. OGLESBY,

Defendants – Appellants,

and

T. J. MIKELL, Sr. Tpr., in his official and individual

capacities; JOHN DOES, I - IV, in their official and

individual capacities,

Defendants.

Appeal from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (3:07-cv-00424)

Argued: May 12, 2011 Decided: June 30, 2011

Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the

opinion, in which Judge Wilkinson and Judge Niemeyer joined.

ARGUED: Michael Deering Mullins, STEPTOE & JOHNSON, LLP,

Charleston, West Virginia, for Appellants. Georgia Lee Gates,

ACLU FOUNDATION OF WEST VIRGINIA, Glen Burnie, Maryland, for

Appellee. ON BRIEF: Robert L. Bailey, II, STEPTOE & JOHNSON,

LLP, Charleston, West Virginia, for Appellants.

Unpublished opinions are not binding precedent in this circuit.

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KEENAN, Circuit Judge:

In this interlocutory appeal, we consider the district

court’s summary judgment determination that certain officers of

the West Virginia State Police (the State Police) were not

entitled to qualified immunity. The conduct at issue involved

the seizure and detention of the plaintiff, Chasity Hutchinson

(Ms. Hutchinson), during a search of her residence executed

pursuant to a valid search warrant. Ms. Hutchinson filed a

complaint in the district court under 42 U.S.C. § 1983, alleging

that the police officers executing the search warrant committed

various federal and state constitutional violations and common-

law torts. Among other allegations, Ms. Hutchinson asserts that

the police officers ordered her out of the shower while she was

nude and “dragged her” from the bathroom to the living room.

There, Ms. Hutchinson alleges, she was required to lie naked on

the floor, in the presence of her stepfather, brother, fiancé,

and eight male officers, for an unnecessary and unreasonable

period of time. Upon our review, we affirm the district court’s

denial of the defendants’ summary judgment motion. 1

1

Our holding extends only to the portion of the district

court’s order at issue in this appeal, namely, the defendants’

assertion of qualified immunity with respect to Ms. Hutchinson’s

unlawful seizure claim. We do not address the other issues

adjudicated in the district court’s order, including whether the

defendants were entitled to judgment as a matter of law with

respect to Ms. Hutchinson’s other claims.

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I.

A.

We review the facts in the light most favorable to Ms.

Hutchinson, the nonmoving party in the district court. See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587-88 (1986); Wilson v. Kittoe, 337 F.3d 392, 397

(4th Cir. 2003). The following facts are taken from the record,

including the complaint and the deposition testimony of Ms.

Hutchinson and her family members who were present during the

incident.

In July 2005, the State Police obtained a valid warrant to

search Ms. Hutchinson’s residence located in Wayne County, West

Virginia. On the night that the State Police executed the

search warrant, three other individuals occupied the residence,

including Josh Hutchinson (Josh), who is Ms. Hutchinson’s

brother, Michael Allen (Allen), who is Ms. Hutchinson’s

stepfather, and Edward Glenn (Glenn), who at the time was Ms.

Hutchinson’s fiancé. The State Police suspected that Josh and

Allen were operating an illegal methamphetamine laboratory

inside the residence.

The State Police assembled a Special Response Team (SRT),

consisting of eight specially-trained state police officers, to

execute the search warrant. According to Ms. Hutchinson, the

SRT entered her residence around 11:00 p.m. Upon entering the

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home, the police officers located Josh, Allen, and Glenn, and

forcibly secured those individuals “face-down” on the main floor

of the residence. After those individuals were secured, the

officers continued their search of the residence.

During this initial search, two of the police officers

found a locked bathroom door, which they “kicked open.” Inside

the bathroom, the two officers encountered Ms. Hutchinson, who

was nude and stepping out of the shower. The officers drew

their firearms and repeatedly screamed at her, “Get down, bitch,

now.” One of the officers searched the rest of the bathroom,

while the other officer took custody of Ms. Hutchinson.

Upon leaving the shower, Ms. Hutchinson used one of her

arms to cover her breasts and the other arm to cover her groin

area. After she was forced to her knees, she reached behind her

body in an attempt to retrieve a towel from a towel rack, but

one of the officers grabbed her by her hair and pushed her down

toward the ground. That officer then forcibly escorted Ms.

Hutchinson, who was still nude, to the living room where she was

required to lie “face-down” on the floor alongside Allen and

Glenn.

Ms. Hutchinson alleged that the officers forced her to

remain naked on the floor for a period lasting between 30 and 45

minutes. During this time, Ms. Hutchinson complained to the

officers about being naked, and repeatedly requested but was

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denied access to clothing to shield her body. In response to

her requests for clothing, one or more of the officers told Ms.

Hutchinson, “Shut up, bitch. Keep your head down and mouth

shut.” One officer responded to Ms. Hutchinson’s pleas by

stating, “What’s the matter? Don’t you think we’ve seen a

bitch’s ass before[?]”

According to Ms. Hutchinson, at one point during the

encounter, an officer touched Ms. Hutchinson on her naked

buttocks while stating, “Calm down, sweetie.” That officer then

stated, with a chuckle or a smirk, “Oh, I guess I shouldn’t have

touched you there, huh.”

Around the time that emergency medical personnel arrived at

the residence, Ms. Hutchinson was provided a blanket to cover

herself. She eventually was given clothing and allowed to dress

herself in front of a police officer. Although Ms. Hutchinson

allegedly was detained while unclothed for a period between 30

and 45 minutes, one of the officers executing the search warrant

testified during his deposition that police officers ordinarily

need only between four and five minutes to “clear” a home the

size of Ms. Hutchinson’s residence.

The defendants disputed Ms. Hutchinson’s version of these

events contending, among other things, that her body was covered

within two to five minutes after the police officers’ entry.

Nevertheless, for purposes of this interlocutory appeal, we must

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accept Ms. Hutchinson’s version of the manner in which she was

treated by the police officers during the incident, including

her allegation that she was detained without clothing for at

least 30 minutes. See Kittoe, 337 F.3d at 397.

B.

After the events described above, Ms. Hutchinson initiated

this action, naming as defendants the eight police officers (the

individual officers) who participated in the execution of the

search warrant, as well as the State Police and its

superintendent Colonel David L. Lemmon (collectively, the

defendants). Ms. Hutchinson included six counts in her

complaint: (1) assault and battery; (2) illegal seizure in

violation of the United States and West Virginia Constitutions;

(3) excessive force depriving her “of her right to freedom from

physical abuse, coercion, and intimidation”; (4) unreasonable

invasion of her right to privacy; (5) the “tort of outrage”; and

(6) failure to adequately train employees. 2

Following discovery, the defendants filed a motion for

summary judgment seeking dismissal of all Ms. Hutchinson’s

claims. In that motion, the defendants argued that each of Ms.

Hutchinson’s claims failed as a matter of law and that,

2

The first five counts were asserted against all

defendants, while the sixth count was asserted against only

Colonel Lemmon and the State Police.

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additionally, the individual officers were entitled to qualified

immunity.

The district court granted in part, and denied in part, the

defendants’ summary judgment motion. Hutchinson v. W. Va. State

Police, 731 F. Supp. 2d 521, 551 (S.D. W. Va. 2010). As

pertinent to this appeal, the district court denied the

defendants’ motion based on qualified immunity with regard to

the unlawful seizure claim. The district court reached its

decision by applying the two-step inquiry articulated in Saucier

v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by

Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808 (2009).

The district court first determined that, when the facts were

viewed in the light most favorable to Ms. Hutchinson, the

detention violated her Fourth Amendment rights. Next,

characterizing the issue as Ms. Hutchinson’s “right to be free

from an unjustified 30- to 45-minute naked detention,” the

district court held that this right was clearly established in

July 2005 when the seizure took place. Accordingly, the

district court held that the defendants were not entitled to

qualified immunity on the unlawful seizure claim. 731 F. Supp.

2d at 542-44.

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II.

The defendants appeal from the district court’s holding

that they were not entitled to qualified immunity. Under 28

U.S.C. § 1291, we have jurisdiction over all final district

court orders. In cases such as the present one, in which a

district court rejects a defense of qualified immunity at the

summary judgment stage based on an issue of law, the district

court’s holding is a final decision within the meaning of § 1291

and is subject to immediate appeal. Winfield v. Bass, 106 F.3d

525, 528 (4th Cir. 1997) (en banc).

Under the doctrine of qualified immunity, “government

officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity protects an officer from liability or, in

many instances, from having to stand trial when the officer

makes a decision that even if constitutionally deficient,

“reasonably misapprehends the law governing the circumstances

she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

The doctrine ensures that “[o]fficials are not liable for bad

guesses in gray areas; they are liable for transgressing bright

lines.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008)

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(quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992)). The burden of proof and persuasion with respect to a

defense of qualified immunity rests on the official asserting

that defense. Kittoe, 337 F.3d at 397.

In evaluating a defense based on the doctrine of qualified

immunity at the summary judgment stage, we conduct the Saucier

v. Katz inquiry in which we determine (1) whether, construing

the facts in the light most favorable to the nonmoving party,

the government official’s actions violated a constitutional

right, and (2) whether that right was “clearly established” at

the time of the alleged misconduct. 533 U.S. at 201; see also

Pearson, 129 S. Ct. at 815-16; Kittoe, 337 F.3d at 397. For

purposes of the present appeal, the defendants do not contest

the district court’s conclusion that the circumstances of Ms.

Hutchinson’s seizure and detention, when viewed in the light

most favorable to her, constituted a violation of her Fourth

Amendment rights.

Instead, the defendants’ sole argument pertains to the

second prong of the Saucier test. The defendants argue that Ms.

Hutchinson’s right to be free from an unjustified, extended

detention without clothing was not “clearly established” at the

time she was seized in the manner described above. We therefore

proceed directly to the second step of the Saucier analysis, and

consider whether the constitutional right in question was

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“clearly established” on July 8, 2005, the date of the incident.

See Kittoe, 337 F.3d at 397.

This issue presents a pure question of law that we review

de novo. Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008).

For a right to be clearly established, “[t]he contours of the

right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The defendants

were entitled to qualified immunity if “a reasonable officer

could have believed [the individual officers’ actions] to be

lawful, in light of clearly established law and the information

the . . . officers possessed.” See id. at 641. In making this

determination, we consider decisions from the United States

Supreme Court, this Court, and the highest court of the state in

which the incident took place. 3 Edwards v. City of Goldsboro,

178 F.3d 231, 251 (4th Cir. 1999).

3

Our analysis in this case focuses on decisions from the

United States Supreme Court and this Court. We are not aware of

any cases from the Supreme Court of Appeals of West Virginia

that bear on the issue whether the individual officers violated

Ms. Hutchinson’s “clearly-established” constitutional rights.

We further note that although the cases cited in this opinion

discuss the federal right to be free from illegal seizures under

the Fourth Amendment to the United States Constitution, the

Supreme Court of Appeals of West Virginia interprets the

analogous provision in the Constitution of West Virginia in

harmony with federal case law construing the Fourth Amendment.

See State v. Jones, 456 S.E.2d 459, 463 n.6 (W.Va. 1995).

11

We repeatedly have held that there is no requirement that

the precise right allegedly violated already have been

recognized specifically by a court before such right may be held

“clearly established” for qualified immunity purposes. See

Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir. 1995);

Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992); see also

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (rejecting proposition

that qualified immunity is inapplicable only if the very action

in question has previously been held unlawful); Robles v. Prince

George’s County, 302 F.3d 262, 270 (4th Cir. 2002) (same);

Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (same).

Thus, the absence of a court decision holding identical conduct

to be unlawful does not prevent a court from denying a qualified

immunity defense. Edwards, 178 F.3d at 251; Kittoe, 337 F.3d at

403. Accordingly, “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances.” Hope, 536 U.S. at 741.

The defendants argue that at the time the individual

officers seized Ms. Hutchinson and detained her in the described

manner, neither this Court nor the Supreme Court had decided

that such conduct was unlawful. The defendants assert that the

district court erred in relying on court decisions that were

issued after the present incident took place, as well as

decisions from courts in other jurisdictions.

12

The defendants object particularly to the district court’s

reliance on the Supreme Court’s holding in Los Angeles County,

California v. Rettele, 550 U.S. 609 (2007) (per curiam), a case

involving similar facts that was decided almost two years after

the present incident occurred. In Rettele, certain police

officers searching a house pursuant to a valid search warrant

ordered two occupants of the residence out of bed. Id. at 611.

The two individuals were required to stand naked at their

bedside for about two minutes while the officers secured the

premises. Id. at 611, 615. In holding that the police officers

did not violate the plaintiffs’ Fourth Amendment rights, the

Supreme Court observed that the officers were not:

free to force [the occupants] to remain motionless and

standing for any longer than necessary. We have

recognized that ‘special circumstances, or possibly a

prolonged detention’ might render a search

unreasonable. There is no accusation that the

detention here was prolonged. . . . And there is no

allegation that the deputies prevented [the two

occupants] from dressing longer than necessary to

protect their safety. 4

Id. at 615 (emphasis added) (internal citations omitted).

The defendants correctly assert that the Supreme Court’s

holding in Rettele stands for the proposition that it is

4

In reversing the Ninth Circuit’s holding denying the

police officers qualified immunity, the Supreme Court held that

the seizure was reasonable because the officers’ conduct was

permissible to protect their safety, and the detention was not

prolonged in light of the circumstances. 550 U.S. at 614-15.

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unreasonable and, therefore, is unconstitutional, for police

officers executing a search warrant to detain a person unclothed

longer than is necessary to secure a home and minimize the risk

of harm to the officers. The defendants contend, however, that

before the Rettele decision, when the events at issue in this

case occurred, a reasonable police officer would not have been

on notice that it was unlawful to detain an individual naked for

a period between 30 and 45 minutes, in front of other police

officers and members of that individual’s family, after the

premises had been secured. We disagree with the defendants’

argument.

Here, the unlawfulness of the individual officers’ conduct

was obvious, even before the Supreme Court’s decision in

Rettele. Accepting Ms. Hutchinson’s version of the events, she

was kept naked for a period substantially longer than necessary

to secure the home and protect the officers’ safety. There was

no valid justification for the prolonged detention of Ms.

Hutchinson while naked, especially given the police testimony

that a home of that size ordinarily could be secured within four

or five minutes. In engaging in this manifestly unlawful

behavior, the individual officers could not have “reasonably

misapprehend[ed] the law,” cf. Brosseau, 543 U.S. at 198, nor

can it be said that they made a “bad guess[] in [a] gray

area[],” cf. Iko, 535 F.3d at 238.

14

Our conclusion is supported further by two cases, each of

which was decided before the individual officers’ prolonged

detention of Ms. Hutchinson. These cases would have put a

reasonable officer on notice that the individual officers’

alleged treatment of Ms. Hutchinson violated a clearly-

established constitutional right.

In the first of these cases, Michigan v. Summers, 452 U.S.

692 (1981), the Supreme Court held that police officers

executing a valid search warrant have “limited authority to

detain the occupants of the premises while a proper search is

conducted.” 5 Id. at 705. The Court cautioned, however, that

this “limited authority” is applicable to the “routine

detention” of residents of a house, and that “special

circumstances, or possibly a prolonged detention,” could render

such a detention unlawful. Id. at 705 n.21. Thus, the Summers

decision stands for the proposition that, in searching a

residence pursuant to a valid search warrant, a “routine”

detention of individuals found in the residence is permissible,

5

The Court’s decision in Summers established a balancing

test to analyze the reasonableness of a detention, which weighs

the intrusiveness of the search and seizure against law

enforcement’s interest in (1) preventing flight, (2) minimizing

the risk of harm to others, and (3) facilitating the orderly

completion of a search against the character of the particular

intrusion caused by a warrant-based seizure. 452 U.S. at 702-

03.

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while a non-routine or unreasonable detention may be

impermissible. As discussed above, the individual officers’

treatment of Ms. Hutchinson fell far short of being reasonable,

and certainly was not “routine.”

Secondly, our decision in Amaechi v. West, 237 F.3d 356

(4th Cir. 2001), also supports our conclusion that a reasonable

officer should have known that the individual officers’

treatment of Ms. Hutchinson was unlawful. In that case, Amaechi

was the subject of an arrest warrant for violating a misdemeanor

noise ordinance. Id. at 359. When the police officers knocked

on Amaechi’s door to execute the arrest warrant, Amaechi

answered the door wearing a “housedress” that was missing

several buttons, requiring her to gather her dress with one of

her hands to keep the dress closed. Id. at 359 n.7. Amaechi

was not wearing any undergarments beneath her dress. Id. at

359.

The officers told Amaechi that they intended to place her

in handcuffs, at which point Amaechi informed the officers of

her clothing situation and asked to get dressed before being

taken into custody. Id. The officers denied Amaechi’s request

and secured Amaechi’s hands behind her back, causing her dress

to fall open below her chest. Id. After Amaechi again informed

the officers that she was not wearing any underwear, the

officers performed a search of Amaechi’s person, in front of her

16

house and in plain view of her family and neighbors, during

which Amaechi’s genitals were penetrated slightly. Id. at 359-

60.

Amaechi filed a complaint against the Town and the officers

under 42 U.S.C. § 1983, and, in response, one of the officers

filed a motion for summary judgment raising the affirmative

defense of qualified immunity. Id. at 360. The district court

denied the officer’s motion. Id. In affirming the district

court’s holding, we held that the search of Amaechi, which was

akin to a “strip search,” was “highly intrusive without any

apparent justification” and, therefore, was unconstitutional.

Id. at 361-63, 365. We explained that the officer was not

entitled to qualified immunity because he “had no reason to

believe his search of Amaechi was reasonable or fell within a

questionable area of law.” Id. at 365.

Importantly, in reaching our conclusion in Amaechi, we

observed that “the officers certainly knew or should have known

that handcuffing Amaechi would result in publicly exposing a

significant portion of her naked lower body.” Id. at 363. We

further observed that the search at issue “affront[ed] the basic

protections of the Fourth Amendment, which at its core is

designed to protect privacy and personal dignity against

unjustified invasion by the State.” Id. at 366 (citation

omitted). In our view, the Amaechi decision provided the

17

individual officers with notice that their “unjustified

invasion” of Ms. Hutchinson’s privacy and personal dignity was

an “affront” to the basic protections of the Fourth Amendment.

For these reasons, we agree with the district court’s conclusion

that the individual officers were not entitled to summary

judgment on the grounds of qualified immunity with respect to

Ms. Hutchinson’s unlawful seizure claim.

III.

Finally, we address the defendants’ argument that they were

entitled to qualified immunity with respect to Ms. Hutchinson’s

common-law tort claims, an issue that the district court did not

address. Qualified immunity is an affirmative defense, which a

defendant bears the burden to plead adequately. Ridpath v. Bd.

of Governors Marshall Univ., 447 F.3d 292, 305 (4th Cir. 2006).

A defense based on qualified immunity may be waived if not

“squarely presented” to the district court. Sales v. Grant, 224

F.3d 293, 296 (4th Cir. 2000). We may refuse to consider a

qualified immunity defense on appeal if the defense was not

preserved below. Ridpath, 447 F.3d at 305.

In the memorandum accompanying their motion for summary

judgment, the defendants asserted a qualified immunity defense

with respect to the unlawful seizure claim. Although that

memorandum included a footnote stating “[b]oth the individual

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and official-capacity defendants are entitled to state-law

qualified immunity,” the defendants did not discuss the common-

law tort claims asserted in the complaint. We therefore decline

to address the qualified immunity defense in relation to any

claims other than the unlawful seizure claim, because the

defense was not “squarely presented” to the district court. See

Ridpath, 447 F.3d at 305; Sales, 224 F.3d at 296.

IV.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

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