Linbrugger v. Abercia

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS March 22, 2004

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

_______________________ Clerk

No. 02-21300

_______________________

WAYNE MICHAEL LINBRUGGER II,

Plaintiff - Appellee,

versus

JACK F. ABERCIA, Etc.; Et Al.,

Defendants,

JEFF HAGGARD, Deputy, in his individual capacity as deputy of

Harris County Constable Precinct 1,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Houston Division

Before GARWOOD and JONES, Circuit Judges, and ZAINEY*, District

Judge.

EDITH H. JONES, Circuit Judge:

This is an interlocutory appeal of the district court’s

denial of a motion for summary judgment seeking qualified immunity.

Wayne Michael Linbrugger filed suit pursuant to 42 U.S.C. § 1983,

alleging that appellant Deputy Jeff Haggard, while executing a

*

District Judge for the Eastern District of Louisiana, sitting

by designation.

mental health warrant, unlawfully entered Linbrugger’s apartment

and used excessive force to effectuate a temporary commitment

order. Linbrugger included an assault claim against Haggard under

Texas law. The district court believed that genuine issues of

material fact precluded granting Haggard’s summary judgment motion.

We reverse the denial of summary judgment on the unlawful entry

claim, but lack jurisdiction to address the federal excessive force

and state law assault and battery claims.

I. BACKGROUND

On October 24, 2000, Linbrugger, a 37-year old man living

by himself, repeatedly telephoned his father and ultimately

threatened to kill his sister. Linbrugger’s father knew that his

son, who had been hospitalized for mental illness before, needed

immediate psychiatric treatment. He applied for and obtained a

judicial warrant from the Harris County Psychiatric Center (“HCPC”)

for Linbrugger’s involuntary mental health commitment. Haggard and

two other mental health deputies were assigned to serve the warrant

on Linbrugger that evening.

The deputies contacted Linbrugger’s father to obtain

background information and coordinate his assistance in serving the

warrant. Linbrugger’s father told them he did not believe

Linbrugger was dangerous or had any weapons. The deputies met

Linbrugger’s father at 10:00 p.m. near the entrance to Linbrugger’s

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apartment complex. As was customary for mental health deputies,

they wore plain clothes and drove at least one unmarked patrol car.

The deputies instructed Linbrugger’s father to knock on

the apartment door and, when Linbrugger answered, to move aside so

the deputies could state their reason for being there. Haggard and

the two other deputies lined up against the outer wall of the

apartment as Linbrugger’s father knocked. Inside, Linbrugger

testified, he heard two knocks on the door and feared he was about

to be burglarized. To scare off intruders, Linbrugger picked up

“The Club,” an anti-theft device used on car steering wheels, and

moved it back and forth to reproduce the sound of a shotgun’s being

cocked. Haggard, indeed, thought he heard the sound of a pump

shotgun. Linbrugger then opened the door to his apartment wide

enough to see who was outside, holding “The Club” as he did so.

Haggard concurs: he saw Linbrugger holding a sword-like object

above his head as the door opened.

From this point, the parties disagree about what

occurred. What is certain is that the deputies then entered the

apartment by pushing on the door. Haggard testified that he first

yelled, “Drop the weapon” while stepping between Linbrugger and his

father, and later yelled “Police, Harris County”. However,

Linbrugger does not recall the deputies identifying themselves. In

addition, Haggard testified, while Linbrugger denies, that

Linbrugger immediately began swinging “The Club” at him.

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The parties’ accounts continue to conflict over what

happened in the apartment. Haggard asserts that the deputies had

to subdue Linbrugger by force after his repeated attempts to hit

Haggard with “The Club.” Conversely, Linbrugger claims that

although he placed “The Club” on the floor after the officers asked

him if he intended to hit anyone with it, they nevertheless forced

him to the ground. Linbrugger physically resisted the deputies’

attempt to effectuate the warrant. But Linbrugger insists that

Haggard went too far when he placed his knees on Linbrugger’s neck,

choked him, and repeatedly punched him in the face. Haggard denies

using excessive force. The deputies eventually handcuffed

Linbrugger and escorted him to the unmarked police car for

transportation to HCPC. Linbrugger later received medical

treatment for a cut above his eye, a bruised throat, and other

bruises.

II. JURISDICTION AND STANDARD OF REVIEW

This court reviews the district court’s denial of a

summary judgment motion based on a claim of qualified immunity de

novo. Hatfield v. Scott, 306 F.3d 223, 226 (5th Cir. 2002).

Qualified immunity protects public officers from suit if

their conduct does not violate any “clearly established statutory

or constitutional rights of which a reasonable person would have

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

step analysis governs whether public officials are entitled to

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qualified immunity. First, we must determine whether the facts,

either as the plaintiff alleges or as proved without dispute,

establish that the officer violated a clearly established

constitutional right. Price v. Roark, 256 F.3d 364, 369 (5th Cir.

2001). If no constitutional right has been violated, the inquiry

ends and the defendants are entitled to qualified immunity. Id.

However, if the plaintiff has alleged a constitutional violation,

the court must next determine whether the official’s conduct was

objectively unreasonable under established law. Bazan v. Hidalgo

County, 246 F.3d 481, 490 (5th Cir. 2001).

We have jurisdiction to consider the legal question

whether, taking the plaintiff’s version of the facts as true, the

plaintiff has alleged a violation of clearly established

constitutional law. Roe v. Tex. Dep’t of Protective & Regulatory

Serv., 299 F.3d 395, 400 (5th Cir. 2002). However, “[i]f disputed

factual issues are material to qualified immunity, the denial is

not appealable.” Id. Materiality means that their resolution

might affect the outcome of the case under governing law. Colston

v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998) (on denial of

rehearing en banc). We disagree with the district court’s

evaluation that certain factual disputes were material to Haggard’s

qualified immunity for the unlawful entry claim. Consequently, we

resolve that claim as a matter of law. As will be seen, however,

we agree that material factual disputes preclude a resolution of

Haggard’s qualified immunity concerning Linbrugger’s other claims.

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III. DISCUSSION

A. Unlawful Entry

Linbrugger asserts that Haggard unlawfully entered his

apartment in violation of the Fourth Amendment’s guarantee against

unreasonable searches and seizures. Generally, the Fourth

Amendment’s guarantees apply in both criminal and civil contexts.

See Soldal v. Cook County, Ill., 506 U.S. 56 (1992); Wooley v. City

of Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000). In addition,

our sister circuits have held that the Fourth Amendment applies

when government officials execute a mental health warrant. See

Doby v. DeCrescenzo, 171 F.3d 858, 871 (3d Cir. 1999); Monday v.

Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997); Gooden v. Howard

County, Md., 954 F.2d 960, 968 (4th Cir. 1992). Thus, we apply

Fourth Amendment standards to this case, while observing that,

although it has not been timely argued here, the balance struck in

the criminal context between an individual’s rights and the

government’s law enforcement imperatives may require modification

in the field of mental health activity.1

1

The First Circuit addressed this issue in McCabe v. Life-Line

Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996), which found

a city policy permitting forcible, warrantless entries by police

officers in possession of an involuntary commitment order

reasonable under the Fourth Amendment. 77 F.3d at 547. The court

held that, under the “special need” exception, the State’s

administrative interest in ensuring that mentally ill persons not

harm themselves or others, which would likely be defeated by

requiring officers to obtain a warrant, outweighed the individual’s

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The Fourth Amendment incorporates the common-law

principle that officers must knock and announce their identity and

purpose before attempting forcible entry of a dwelling.2 Wilson v.

Arkansas, 514 U.S. 927, 934 (1995). As long as police officers do

not use force, they may attempt to gain entry to a dwelling by

deception. Lewis v. United States, 385 U.S. 206, 211-12 (1966).

Thus, the recruitment of Linbrugger’s father to gain entry into the

apartment, if characterized as a subterfuge, did not violate the

Fourth Amendment.3 Nevertheless, the knock-and-announce rule

continues to apply to a later forcible entry. See Richards v.

Wisconsin, 520 U.S. 385, 388, 395 (1997) (finding that, after a

failed entry by deception, the officers’ noncompliance with the

knock-and-announce requirement was reasonable).

Fourth Amendment interests. Id. at 547-53.

Haggard makes a similar “special needs” argument for the

first time in his reply brief; thus, the argument is waived. See

Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002). Linbrugger’s

motion to strike the portion of Haggard’s reply brief addressing a

mental health “special need” exception is granted.

2

Neither party in this case argues that 18 U.S.C. § 3109, the

“knock and announce” statute, applies to the state officers who

executed the warrant.

3

For purposes of this discussion, we assume that the deputies

used Linbrugger’s father to obtain his cooperative submission to

commitment. Labelling this procedure a “ruse” is unfair to the

authorities, however. Family members are often best equipped to

reason with or calm a mentally ill person. Their presence at the

scene of apprehension is on balance desirable, though it may

occasionally enhance the danger of a violent encounter.

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Even in the criminal law enforcement context, however,

the Supreme Court holds that “[t]he Fourth Amendment’s flexible

requirement of reasonableness should not be read to mandate a rigid

rule of announcement that ignores countervailing law enforcement

interests.” Wilson, 514 U.S. at 934. Countervailing circumstances

may include “a reasonable suspicion that knocking and announcing

[the police] presence, under the particular circumstances, would be

dangerous or futile, or that it would inhibit the effective

investigation of the crime by, for example, allowing the

destruction of evidence.” Richards, 520 U.S. at 394. The

reasonableness of the officer’s decision must be evaluated “as of

the time [he] entered the [dwelling].” Id. at 395. Significantly,

“a police officer views the facts through the lens of his police

experience and expertise.” Ornelas v. United States, 517 U.S. 690,

699-700 (1996). Further opining in regard to arrests pursuant to

criminal warrants, this court has not required officers to demon-

strate “particularized knowledge” that a suspect is armed in order

to justify a no-knock entry. United States v. Washington, 340 F.3d

222, 227 (5th Cir. 2003); see also United States v. Howard, 106

F.3d 70, 75 (5th Cir. 1997); United States v. Rodea, 102 F.3d 1401,

1408 (5th Cir. 1996).

Taking Linbrugger’s version of disputed facts as true,

none of the deputies identified themselves before barging through

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the door to apprehend him.4 There was a knock, but no formal

“announcement” of their identity and purpose. The question is

therefore whether the Constitution was clearly violated by this

failure.

Linbrugger argues that no exception should be made to the

knock-and-announce rule in this case. He was entitled to resist

what he perceived as a possible home invasion. Because Linbrugger

was acting within his rights of self-defense under Texas law,

Deputy Haggard had no legitimate safety concern justifying his

pretermitting an announcement. Further, Linbrugger asserts that

the officers’ safety concerns were “manufactured.” They mismanaged

the situation in arriving at his apartment late at night,

announcing their presence only with two knocks and jumping out of

nowhere at him when he opened the door. Had the officers knocked

and announced, as required by Linbrugger’s view of the

Constitution, he would not have felt compelled to fight.

What this argument overlooks is that the Fourth

Amendment’s reasonableness standard is not violated merely because,

in cool hindsight, it appears that government officials could have

executed a warrant less intrusively. See United States v. Sharpe,

470 U.S. 675, 686-87, 105 S. Ct. 1568, 1575-76 (1985) (“The

4

The district court discerned fact issues regarding whether

Linbrugger was swinging the Club; whether Haggard announced

himself; and whether Haggard “jumped out of nowhere.” Drawing all

inferences in Linbrugger’s favor, Haggard is entitled to qualified

immunity.

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question is not simply whether some other alternative was

available, but whether the police acted unreasonably in failing to

recognize or to pursue it.”). Reasonableness, to the contrary, is

judged in light of often rapidly unfolding circumstances, viewed

from the officers’ perspective. United States v. Banks, 124 S. Ct.

521, 527 (2003); Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.

1865, 1872 (1989). These consistent principles infuse Fourth

Amendment reasonableness standards in general and those applicable

to the knock-and-announce rule in particular.

Viewing the execution of the mental health warrant from

the officers’ perspective, Haggard and the other deputies knew,

from the affidavit of Linbrugger’s father, that Linbrugger was

attested to be a threat to himself and others. His father had

sworn that, on the same day, Linbrugger threatened to put a bullet

through his sister’s head, and a judicial officer found these

statements sufficient under state law to commit him involuntarily

for psychiatric treatment. Linbrugger’s father accompanied the

officers precisely to defuse his son’s tension. It was reasonable

for the officers to position themselves out of Linbrugger’s

immediate line of sight so that he would focus on his father when

opening his apartment door. They did not anticipate hearing the

sound of a shotgun being primed, as Linbrugger’s father believed

his son had no weapons. But that sound had to change their

approach. Linbrugger does not contend that more than a few seconds

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elapsed between his father’s knock at the door, his decision to

pretend to cock a gun, and his opening the door with an arm raised,

holding “The Club.”

Under these circumstances, Linbrugger’s self-defense was,

from the officers’ perspective, imminently threatening to them, to

his father and possibly to himself. Only in hindsight can one

argue that, faced with this sudden development, the officers should

have completed a formal knock-and-announce. That they might have

done so is arguable. That they were constitutionally required to

do so is out of the question. They were permitted to respond

reasonably to a reasonably perceived dangerous situation. Forcing

their way into Linbrugger’s apartment was a reasonable tactic.

Linbrugger also asserts that the officers manufactured

the exigency that permits them to claim an exception from the

knock-and-announce rule. He relies on a footnote in one Fifth

Circuit opinion which implies that the concept of manufactured

exigency can apply to the execution of a search warrant. See Cantu

v. United States, 230 F.3d 148, 153 n.1 (5th Cir. 2000). The

principal holding of Cantu is that the police did not act

reasonably when, with no prior knowledge that Cantu or the

occupants of his residence were armed or dangerous, they attempted

to execute a search warrant by means of a forcible burglar-like

entry in the middle of the night. The footnote, however, notes, in

passing, that “manufactured exigent circumstances” do not justify

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dispensing with the announcement requirement, “especially when the

initial attempt itself is unreasonable.” Id. (citations omitted).

Cantu does not discuss whether “exigent circumstances” create an

exception to the Fourth Amendment’s warrant requirement. Thus,

whether exigent circumstances, or its converse “manufactured

exigent circumstances”, should apply to the manner in which police

undertake a warranted entry is not clear, nor does Cantu broach

that subject. We assume that in the footnote in question, Cantu

simply drew an analogy to cases involving “manufactured exigent

circumstances”. Moreover, when the police have been judicially

warranted to enter a dwelling, the question of reasonableness

surrounds their decision whether to knock and announce. The test

of reasonableness overlaps and subsumes whether they have

manufactured exigent circumstances that unreasonably dispense with

a knock-and-announce; considering exigent circumstances, and its

converse, seems redundant. It is dubious that Cantu stated a rule

binding on this circuit or that the consideration of manufactured

exigent circumstances adds meaningfully to the knock-and-announce

rule.

Nevertheless, we need not finally dispose of such

questions in this opinion, as the factual predicate for

manufactured exigent circumstances does not exist here. The mental

health officers did not attempt to enter Linbrugger’s apartment in

an unreasonable fashion. They did not create an atmosphere

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calculated to inflame Linbrugger and excuse a forcible entry.

Instead, it is plain that Linbrugger reacted in an unanticipated

manner to their knocks on the door and events escalated from there.

For all these reasons, Deputy Haggard did not participate

in violating any constitutional law, much less clearly established

constitutional law, when he and the other officers failed to

complete their compliance with the knock-and-announce rule.

According to Saucier v. Katz, because “no constitutional right

would have been violated were the allegations established, there is

no necessity for further inquiries concerning qualified immunity.”

533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001).

B. Excessive Force

This court analyzes a claim of excessive force in the

course of a seizure under the Fourth Amendment. Graham v. Connor,

490 U.S. 386, 388 (1989). To prevail on an excessive force claim,

Linbrugger must show “(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 (3) objectively

unreasonable.” Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir.

1996). Haggard maintains that the district court erred in denying

his motion for summary judgment on Linbrugger’s excessive force

claim because his use of force was objectively reasonable in the

circumstances. However, the summary judgment record raises several

questions of material fact that preclude this court’s jurisdiction.

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As was previously explained, the parties disagree strenuously over

Linbrugger’s actual or perceived provocation and resistance and the

extent and proportion of the deputies’ response. That Linbrugger

suffered some injuries, including a cut above his eye and a bruised

throat, is undisputed.

Given these material factual disputes, the court is

unable to determine whether Haggard used excessive force that was

objectively unreasonable when taking Linbrugger into custody. We

lack jurisdiction to consider the genuineness of these factual

disputes on appeal. See Johnson v. Jones, 515 U.S. 304, 313

(1995); Colston, 146 F.3d at 284.

C. State Law Claim

Linbrugger claims that the same conduct comprising the

excessive force claim, specifically choking and punching, also

constitutes assault and battery under Texas law. Haggard seeks

official immunity from this claim as well. Under Texas law,

government officials have “official immunity from suit arising from

the performance of their (1) discretionary duties in (2) good faith

as long as they are (3) acting within the scope of their

authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653

(Tex. 1994). “[O]rders premised on the denial of qualified

immunity under Texas state law are appealable in federal court to

the same extent as district court orders premised on the denial of

federal law immunity.” Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir.

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1996). Therefore, “[t]he issue then becomes whether the district

court’s denial of [Haggard’s] summary judgment motion[] on the

issue of immunity turned on a question of law . . . .” Id.

(internal quotations omitted). Because genuine issues of material

fact exist regarding whether Linbrugger attempted to strike Haggard

with “The Club,” Haggard’s actions, and the severity of

Linbrugger’s injuries, this court lacks jurisdiction to consider

this portion of the appeal.

IV. CONCLUSION

For the reasons stated above, we REVERSE that portion of

the district court’s order denying summary judgment based on

qualified immunity for the unlawful entry claim and RENDER judgment

in favor of Haggard as to that claim. We DISMISS that portion of

Haggard’s appeal challenging the district court’s order denying his

motion for summary judgment on Linbrugger’s excessive force and

state law assault and battery claims. Because these claims remain

unresolved, we REMAND this case to the district court for further

proceedings. Linbrugger’s motion to strike those portions of

Haggard’s reply brief advancing a “special needs” argument is

GRANTED.

REVERSED and RENDERED in part; DISMISSED in part; case

REMANDED; motion to strike GRANTED.

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JAY ZAINEY, District Judge, concurring:

I join in the majority opinion as a correct disposition

under the facts specific to this case. I write separately,

however, to express my disagreement with Haggard’s “special needs”

argument. It is my opinion that the Fourth Amendment mandate that

officers knock and announce their identities, absent exigent

circumstances, applies in the field of mental health activity.

Likewise, I disagree with the First Circuit’s decision in McCabe v.

Life-Line Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996),

discussed in footnote one of the opinion, which held that

warrantless, forcible entries by police officers in possession of

an involuntary commitment order were reasonable under the Fourth

Amendment. Therefore, if Haggard had timely raised the special

needs argument, I would have concluded that a per se exception to

the knock and announce requirement in mental health cases does not

comport with the Fourth Amendment reasonableness requirement.

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