Frunz v. City of Tacoma

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN FRUNZ, 

Plaintiff-Appellee,

v.

CITY OF TACOMA, a municipal No. 05-35302

corporation; TACOMA POLICE

DEPARTMENT; ALAN MORRIS, TPD  D.C. No.

CV-03-05709-RBL

Officer, in his individual capacity;

OPINION

GARY T. STRIL, TPD Sergeant;

DAVID ALRED, TPD Officer, in his

individual capacity,

Defendants-Appellants.



Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

October 25, 2006—Seattle, Washington

Filed November 13, 2006

Before: Alex Kozinski and Ferdinand F. Fernandez,

Circuit Judges, and Cormac J. Carney,* District Judge.

Opinion by Judge Kozinski

*The Honorable Cormac J. Carney, District Judge for the Central Dis-

trict of California, sitting by designation.

18643

FRUNZ v. CITY OF TACOMA 18645

COUNSEL

Jean P. Homan, Assistant City Attorney, Tacoma City Attor-

ney’s Office, Tacoma, Washington, for the defendants-

appellants.

18646 FRUNZ v. CITY OF TACOMA

Hugh J. McGavick, Law Offices of Hugh J. McGavick,

Olympia, Washington, for the plaintiff-appellee.

OPINION

KOZINSKI, Circuit Judge:

The facts are remarkable. Plaintiff, Susan Frunz, and her

two guests were in Frunz’s home in Tacoma, Washington,

when police surrounded the house, broke down the back door

and entered. The police had no warrant and had not

announced their presence. Frunz first became aware of them

when an officer accosted her in the kitchen and pointed his

gun, bringing the barrel within two inches of her forehead.

The police ordered or slammed the occupants to the floor and

cuffed their hands behind their backs—Frunz for about an

hour, until she proved to their satisfaction that she owned the

house, at which time they said “never mind” and left.

As the officers doubtless knew, physical entry into the

home is the “chief evil against which the wording of the

Fourth Amendment is directed.” United States v. United

States District Court, 407 U.S. 297, 313 (1972); see also Mur-

dock v. Stout, 54 F.3d 1437, 1440 (9th Cir. 1995)

(“[P]rotection of individuals from unreasonable government

intrusion into their houses remains at the very core of the

Fourth Amendment.”). To safeguard the home, we normally

require a warrant before the police may enter. “The right of

privacy was deemed too precious to entrust to the discretion

of those whose job is the detection of crime and the arrest of

criminals . . . . And so the Constitution requires a magistrate

to pass on the desires of the police before they violate the pri-

vacy of the home.” McDonald v. United States, 335 U.S. 451,

455-56 (1948); see also Groh v. Ramirez, 540 U.S. 551, 560

(2004). What extraordinary circumstances justified sundering

the privacy and protection of Frunz’s home without a war-

rant?

FRUNZ v. CITY OF TACOMA 18647

Earlier that afternoon, one Clinton Staples called 911 and

reported that his neighbor, who was out of town, had asked

Staples to keep an eye on his house. Staples had observed

“Susan,” the neighbor’s ex-wife, arrive in a gray Toyota with

Washington license plate 928 EKR; she was in the house and

the car was parked out front. Officers David W. Alred and

Alan R. Morris arrived a few minutes later and checked the

house for signs of break-in. They then knocked at the front

door and got no answer. Before leaving, the police told Sta-

ples to call back if he saw further evidence that the house was

occupied.

About half an hour later, Staples again called 911 to report

that Susan was “now inside the house” and had just answered

the door to a visitor. Staples also mentioned that Frunz was

subject to a restraining order which prohibited her from being

at that location. In fact, Frunz had been ceded the house dur-

ing the divorce proceedings. And, while she was restrained

from going to her ex-husband’s residence, her ex had moved

to California. Frunz had been living in the house for the better

part of a week.

Alred and Morris, joined by other officers (including Ser-

geant Gary T. Stril) arrived at the scene forty minutes later.

They surrounded the house and, without further investigation

or observation, entered and subdued the occupants as

described above. The two guests were able to prove their

identity and were found to have no outstanding warrants.

They were uncuffed and ordered to leave. The officers left

Frunz in handcuffs because she was unable to direct them to

her picture ID or to paperwork showing that she owned the

house. Frunz testified that she was unable to do so because

she was “terrified,” and because Officer Morris kept threaten-

ing her and telling her to “shut up.”1 She was released only

(Text continued on page 18649)

1

Q. And was there one officer who paid particular attention to

you when you were in the living room?

18648 FRUNZ v. CITY OF TACOMA

A. Yes.

Q. What officer would that be?

A. Officer Morrison — Morris.

....

Q. And how did he treat you?

A. He was terrible. He just—

Q. Why, or how?

A. He kept interrogating me. He would ask me, well, what is

your name? And I would tell him it’s Susan Frunz. And he

goes, you’re a burglar. We’re going to take you to jail. They

kept saying that over and over, and then when I would

answer him anything about anything, he would tell me to

shut up. Then he would ask me where my ID was.

Q. And would you answer him?

A. I’d say I don’t know. And I didn’t know where it was.

....

Q. And did he tell you to shut up?

A. Repeatedly.

Q. After he asked you questions, and then you answered? Is

that a yes?

A. Yes. Yes.

Q. Were you crying?

A. Yes, sir.

Q. Did any officer do anything to help you dry your eyes?

A. There was one officer, I don’t know, he said I — he said,

“Can I get a tissue to wipe her face?” Because I was really

crying, and I don’t know who wouldn’t be. And Officer

Morris said, no, that’s not necessary. And I kept telling him

that I was cold. And it just — I felt like that it was never

going to end. I would — you know, I didn’t know what was

going to happen next.

Q. Did he read you your Miranda rights?

FRUNZ v. CITY OF TACOMA 18649

after the officers were able to reach her divorce lawyer, who

confirmed that Frunz owned the house.

Frunz sued Alred, Morris and Stril under 42 U.S.C. § 1983,

claiming constitutional violations for unlawful entry and

search of her home, and for use of excessive force by Alred.2

The jury found against all defendants on all counts, and

awarded $27,000 in compensatory damages and $111,000 in

punitive damages.

The officers appeal, claiming the verdict is not supported

by the evidence and that they are, in any event, entitled to

qualified immunity. The nub of their argument is that their

warrantless entry was justified—or that they could reasonably

have thought it justified—by a burglary in progress. And,

having determined that they needed to enter the house in order

to catch the suspected felons red-handed, they were entitled

to break down the door, draw their weapons, handcuff the

occupants and conduct a protective sweep of the house.

A. Yes, he did. And I did not acknowledge them.

Q. Why not?

A. Because I didn’t feel like I had any rights, anyway, so why

should I mention something that — you know.

Q. You mentioned that he threatened to take you to jail. Did

you respond to that?

A. In the end, towards the end, I just told him, I said “Just take

me to jail and we will sort this out,” so it could just end the

nightmare.

Q. Did it frighten you to be alone in the house with all of these

police officers?

....

A. Yes.

2

She also sued the city and the police department, but the district court

granted summary judgment for the city. Frunz subsequently amended her

complaint to state claims only against the three officers.

18650 FRUNZ v. CITY OF TACOMA

[1] Not so. While the information provided by the neighbor

suggested that unauthorized people may be in the house, it

also made clear that this was not a break-in by strangers. Sta-

ples identified one of the occupants as the neighbor’s ex-wife,

describing her by first name, race and approximate age. The

officers confirmed that there had been no break-in when they

inspected the property during their first visit, and nothing had

changed when the officers stormed the home an hour and a

half later.3 During this first visit to the property, the officers

did not draw their weapons, did not call for back-up and did

not break down the door. Quite reasonably, they knocked and

sought to have a conversation with whoever was inside.

[2] Nothing at all had changed when the vigilant Mr. Sta-

ples made his second call. (He did provide new information

about the restraining order, but this makes no difference, for

reasons we explain below.) If the officers thought it prudent

to knock on the door the first time, they had no possible justi-

3

Officer Alred testified that, as he was about to enter, he noticed a wide-

open door and window, both of which were closed when he had inspected

the house earlier. Alred had not mentioned the open door or window in his

affidavit in support of summary judgment, or in his responses to interroga-

tories. The jury could have found that Alred lied, as his story conflicted

with his testimony that he remembered nothing about his earlier check of

the house. There were many other problems with Alred’s testimony,

including his insistence that one of Frunz’s guests had told him he had

gained entrance to the house by pushing open the window and reaching

in to open the door. The jury could have found this account inconsistent

with the fact that the police released the guest rather than detaining him

after he had supposedly confessed to burglary. Alred also claimed that he

never pointed his gun at Frunz, yet he admitted that he was executing a

plan to use a “draw and direct” technique, a procedure previously

described as “pointing a firearm at somebody.” “It wasn’t like we were

going to stroll into the house,” Alred testified. “We were going to make

an entry into the house. We were going to contact individuals using a draw

and direct. We were going to put them on the floor, and we were going

to take them into custody and determine what kind of crime we had here.”

The jury could reasonably have found that’s exactly what Alred did.

FRUNZ v. CITY OF TACOMA 18651

fication for breaking down the door and drawing their weap-

ons the second time.4

[3] The officers point to the exigency of the situation, but

there was none. Normally, when officers suspect a burglary in

progress, they have no idea who might be inside and may rea-

sonably assume that the suspects will, if confronted, flee or

offer armed resistance. In such exigent circumstances, the

police are entitled to enter immediately, using all appropriate

force. But it was clear from the information available to the

officers here that they were dealing, at worst, with some sort

of spousal property dispute. Even if it was technically a

burglary—and it’s far from clear that the officers had proba-

ble cause to suspect this—it did not present the same risk of

confrontation or flight as a break-in by strangers. The fact that

the suspected intruder had a personal relationship with the

person thought to own the house raised the possibility that she

was there with his permission or had gained possession as a

result of the legal proceedings between them. The officers

also knew that Staples had watched Frunz drive up to the

house, park out front and open the door to a visitor. These

signs of open and lawful occupancy made it far less likely that

what was going on was a burglary and materially diminished

the risk of violent confrontation. Staples, moreover, not only

identified Frunz by name, sex, race and age, but also gave the

description and license plate number of her car. Had she man-

aged to flee the 900-square-foot house that was by then sur-

rounded by at least five police officers, she could easily have

been found by contacting her ex-husband or her divorce law-

yer, or by tracking her car registration. The fact that it took

the police forty minutes to respond to Staples’s second call

confirms the absence of exigency. The delay was no doubt

caused by the low priority the communications officer

4

Indeed, they had less justification. During his second call, Staples men-

tioned that Susan had opened the front door to a visitor. Burglars don’t

usually open the front door when a visitor knocks.

18652 FRUNZ v. CITY OF TACOMA

assigned to the call by coding it as a “security check” rather

than a “burglary in progress.”5

[4] The only new fact the police knew at the time of the

second call that they hadn’t known the first time was that

Frunz might be subject to a restraining order. But the officers

in their testimony and their counsel in summation took the

position that the restraining order “ha[s] no relevance to this

case at all.” And with good reason: The officers never looked

at the restraining order, as they were clearly required to do,

if they wished to rely on it. Beier v. City of Lewiston, 354

F.3d 1058, 1069 (9th Cir. 2004). Defendants’ entire case at

trial was built on the theory that they were facing an emer-

gency so that they had no time to obtain a warrant or conduct

further investigation—indeed, that they had no choice but

immediately to break into Frunz’s home unannounced, guns

in hand, and shackle the occupants.

[5] There was, in fact, much else the officers could have

done. They could have questioned the neighbor as to his last

contact with the husband, in which case they may have

learned that the husband had moved out of the house and was

living in another state. They could have tried to get a phone

number for the husband and asked him whether his ex-wife

was authorized to be in the house. They could have tried to

track down the restraining order.6 They could have checked to

5

The communications officer who processed Staples’ calls testified that

the coding is based only on the caller’s report and that “it’s possible that

the officers will gain information in the course of responding to the call

which would indicate that it’s something entirely other than what the com-

munications officer said it was.” Here, however, the officers gained no

new information when they arrived at the scene. They did not question the

complainant, and they made no additional observations when they arrived

at the property. Rather, they must have made the decision to force their

way into the house based entirely on the information in the two dispatch

reports, as they signaled their intent to enter five seconds after arriving at

the house.

6

Had they done so, they would have learned that no restraining order

had been entered into the electronic database, because the divorce lawyers

FRUNZ v. CITY OF TACOMA 18653

see if the grey Toyota was still in front of the house and run

a check of the license plate. They could have asked the neigh-

bor for Susan’s last name and checked for outstanding war-

rants or any other indication that she might be armed and

dangerous. They could have knocked at the door, as they had

done just an hour and a half earlier, and politely asked the

occupants whether they were entitled to be there. Most impor-

tantly, reasonable officers would have tried to obtain a

warrant—a telephone warrant if they believed it was urgent—

and monitored the house to see if anyone went in or out.7

Bursting through the back door unannounced with guns drawn

and handcuffing the occupants—the owner for a full hour—

was neither necessary nor reasonable in these circumstances.8

apparently neglected to take the necessary steps. While this would not

have disproved the existence of a restraining order, it would have cast

doubt on the accuracy and timeliness of other information provided by

Staples.

7

Sergeant Stril admitted as much:

A. I suppose a person could get a search warrant to investigate

a burglary. It’s not common practice.

Q. The house was surrounded and nobody was going anywhere,

were they?

A. I wouldn’t have thought so.

Q. Curtains were open?

A. As far as I know.

Q. Do you have a hazy memory about that?

A. I remember being in the living room and there were no lights

on and there was enough light to see. So certainly there were

not any thick curtains closed.

8

For that matter, the officers had no reasonable basis for keeping Frunz

in shackles an additional forty minutes after they released her guests. Once

they had determined that the guests were not guilty of burglary, it’s hard

to imagine what crime they could reasonably have suspected she had com-

mitted. The ordeal would have ended much sooner, had the officers taken

off Frunz’s handcuffs at that time and allowed her to search for her ID,

keys or paperwork showing that she was entitled to be in the house.

18654 FRUNZ v. CITY OF TACOMA

No reasonable officer familiar with the law of searches and

seizures could have thought otherwise.

Defendants rely on Murdock, 54 F.3d at 1440-41, but that

case provides them no help. The only similarity between the

two cases is that both plaintiffs owned houses where police

entered without a warrant. In Murdock, however, unlike our

case, “[t]he facts known to the police officers indicated that

a resident was not responding when the circumstances inside

the house strongly suggested that a resident should have been

present.” Id. at 1442.9 The police thus had reason to believe

that “a resident in the house might have been in danger or

injured.” Id. Murdock is also distinguishable because the offi-

cers caused no property damage on entry, and the majority

believed (wrongly it turns out, see LaLonde v. County of Riv-

erside, 204 F.3d 947, 957 (9th Cir. 2000)) that they therefore

needed to show only a “mild exigency” to justify the entry.

Murdock, 53 F.3d at 1442. We have found no authority even

remotely supporting the notion that officers confronted with

the situation here were entitled to ignore the constitutional

requirement of a warrant and probable cause, or to conduct

themselves as the jury must have found they did once they

were inside the house. No reasonable lawyer would have

advised the defendants otherwise.

In short, we must ask: Why is this case here? There may

have been some justification for going to trial because there

were disputed questions of fact about how the officers

behaved during the course of the intrusion into Frunz’s house.

But a jury made up of seven members of the community

heard the evidence and unanimously ruled in Frunz’s favor.

By not only finding defendants liable, but also imposing puni-

tive damages, the jury determined that the officers acted in

reckless or malicious disregard of plaintiff’s constitutional

9

Indeed, Murdock expressly held that the officers did not have probable

cause to enter the house based merely on a neighbor’s report of suspicious

activity and an open door. 54 F.3d at 1441.

FRUNZ v. CITY OF TACOMA 18655

rights. Only the most misguided optimism would cause defen-

dants, and those who are paying for their defense, to appeal

the verdict under these circumstances. Surely, the citizens of

Tacoma would not want to be treated in their own homes the

way the jury found officers Stril, Morris and Alred treated

Frunz and her guests. A prompt payment of the verdict,

accompanied by a letter of apology from the city fathers and

mothers, might have been a more appropriate response to the

jury’s collective wisdom.10

AFFIRMED.

10

Defendants and their counsel shall show cause within 14 days why

they should not be assessed double costs and attorney’s fees for filing a

frivolous appeal. Fed. R. App. P. 38.