Bishop v. Arcuri

Case: 11-50010 Document: 00511783088 Page: 1 Date Filed: 03/09/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 9, 2012

No. 11-50010 Lyle W. Cayce

Clerk

LINDSEY BISHOP; CAROLYN CLARK,

Plaintiffs - Appellants

v.

TONY ARCURI, in his individual capacity; CITY OF SAN ANTONIO,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before DENNIS, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Lindsey Bishop and Carolyn Clark (“Appellants”) appeal the district

court’s grant of summary judgment in favor of Tony Arcuri and the City of San

Antonio (the “City”) on their claim, pursuant to 42 U.S.C. § 1983, that San

Antonio Police Department (“SAPD”) officers, led by Arcuri, violated Appellants’

Fourth Amendment rights by failing to knock-and-announce their identity and

purpose prior to forcibly entering Appellants’ home to execute a search warrant.

We reverse.

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No. 11-50010

I. FACTS AND PROCEEDINGS

The relevant facts are largely undisputed. On April 27, 2009, a confidential

informant told Detective Arcuri that he had purchased methamphetamine from

a man named “Randy” at a home in Leon Valley, a small municipality entirely

encompassed within the City of San Antonio. The informant further told Arcuri

that Randy was allowing others to “cook” methamphetamine at the same house.

Arcuri alleges that the informant, whose identity remains confidential, had

given him credible information in the past. The following day, Detective Arcuri

obtained a warrant to search for methamphetamine at the residence from

Magistrate Judge Marion Cavazos.

Before executing the search warrant, Arcuri conducted an investigation

of the residence. He determined that: women, not anyone named Randy, paid the

taxes and utility bills for the house; the car parked in the driveway was

registered to appellant Clark; and there was no history of criminal activity

associated with the property or its known residents. Arcuri also surveilled the

premises and observed that someone appeared to be at home, but he was not

able to determine the identity of anyone inside.

Although his reasons are disputed, Arcuri decided to execute the warrant

without knocking and announcing his team’s identity and purpose. The decision

to make a no-knock entry was approved by Arcuri’s supervising sergeant,

William Hunt. Around 9:40 p.m., Arcuri and his search team, consisting of seven

plain-clothes SAPD detectives and one uniformed Leon Valley officer, forcibly

entered the house using a battering ram to knock in the front door. Clark was

at the back of the home when the officers came in the front door. Two armed

officers approached her and ordered her to lie down on the floor where she was

handcuffed. Bishop was in her bedroom undressed and looked out when she

heard the commotion. Officers entered her bedroom, gave her a shirt and pants,

and waited while she dressed. Bishop was then handcuffed. Both Appellants

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were questioned regarding their operation of a methamphetamine laboratory.

They denied any involvement with illegal drugs. When the officers’ initial search

failed to uncover any evidence of drugs, a narcotic detection dog was brought in

to search the home, but it too found no evidence of drugs. Appellants were

cooperative throughout the search. The officers eventually un-cuffed Appellants

and departed. The raid lasted a total of approximately an hour and 45 minutes.

Appellants were not the subject of any further investigation.

On September 14, 2009, Appellants filed suit pursuant to 42 U.S.C. § 1983

against the City of San Antonio and the nine officers involved in the search of

their home, alleging that they were subjected to excessive force, false arrest, and

an unreasonable search. The district court dismissed all of Appellants’ claims

against the individual defendants and all but the unreasonable search claim

against the City under Federal Civil Rule 12(b)(6) for failure to state a claim

upon which relief could be granted. The district court then granted Appellants’

motion to amend, and they amended their complaint to state a claim against

Arcuri for the allegedly unreasonable no-knock search. The City and Arcuri both

moved for summary judgment on the unreasonable search claim. In a

Memorandum and Recommendation submitted on September 3, 2010, a

magistrate judge recommended that the district court deny both motions. The

district court rejected the recommendation of the magistrate judge, concluded

that the no-knock entry was reasonable under the Fourth Amendment, and

granted summary judgment in favor of both defendants.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, applying the

same standards as the district court. Apache Corp. v. W & T Offshore, Inc., 626

F.3d 789, 793 (5th Cir. 2010). Summary judgment is appropriate when “there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a). There is no genuine issue for

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trial “[i]f the record, taken as a whole, could not lead a rational trier of fact to

find for the non-moving party.” Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir.

1999). We view the evidence in the light most favorable to the nonmoving party.

Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).

We also review a grant of qualified immunity de novo. 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

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. . . . [I]f the plaintiff has alleged a constitutional violation, the

court must next determine whether the official’s conduct was

objectively unreasonable under established law.

Linbrugger v. Abercia, 363 F.3d 537, 540 (5th Cir. 2004) (citations omitted).

III. DISCUSSION

A. Fourth Amendment Violation

We first address the district court’s conclusion that the search of

Appellants’ home was reasonable within the meaning of the Fourth Amendment.

The specific question before this court is whether exigent circumstances justified

Arcuri’s decision, which was approved by his immediate superior, to enter

Appellants’ home without knocking and announcing his team’s identity and

purpose. Because Arcuri has relied almost exclusively on generalizations that

are legally inadequate to create exigent circumstances, we conclude that the no-

knock entry was unreasonable under the Fourth Amendment.

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. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). The

general knock-and-announce requirement, however, is not “a rigid rule of

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announcement that ignores countervailing law enforcement interests.” Id.

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 v.

Wisconsin, 520 U.S. 385, 394 (1997). “The reasonableness of the officer’s decision

must be evaluated ‘as of the time [he] entered the [dwelling].’” Linbrugger, 363

F.3d at 542 (quoting Richards, 520 U.S. at 395).

There is no dispute that Arcuri’s search team entered Appellants’ home

without knocking and announcing their identity and purpose. Arcuri argues the

no-knock entry was justified because of “exigent circumstances.” Specifically,

Arcuri asserts that: (1) he “held a reasonable suspicion that any

methamphetamine located at the premises could be easily and readily destroyed

if he announced his team’s presence,” and (2) his “team’s safety was in danger

due to the inherent dangers of making an entry to execute a drug warrant.”

Appellants respond that, even accepting his version of the facts, Arcuri’s

proffered justifications for the no-knock entry are legally inadequate because

they do not rest on any particularized circumstances. We consider each of

Arcuri’s asserted justifications in turn.

1. Destruction of Evidence

A no-knock entry is permissible under the Fourth Amendment if police

have “a reasonable suspicion that knocking and announcing their presence,

under the particular circumstances, . . . would inhibit the effective investigation

of the crime by . . . allowing the destruction of evidence.” Richards, 520 U.S. at

394. Arcuri argues that the informant tip gave him reason to believe that small

quantities of methamphetamine, which could be easily disposed of, were present

in the home. He asserts that the disposable nature of methamphetamine,

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together with the general prevalence of evidence destruction in drug cases, is

enough to justify a no-knock entry.1

The Supreme Court has rejected the contention that the execution of all

drug-related search warrants inherently pose a substantial risk of evidence

destruction. Richards, 520 U.S. at 394; see also United States v. Washington, 340

F.3d 222, 226 (5th Cir. 2003). Arcuri’s reliance on the disposable nature of

methamphetamine and a general assertion about the prevalence of evidence

destruction in drug cases is hardly distinguishable from the blanket rule,

rejected by a unanimous Court in Richards, that knocking-and-announcing is

never required when executing a search warrant in a felony drug investigation.

Moreover, in applying Richards we have previously held, in a case with similar

underlying facts involving the nighttime execution of a narcotics search warrant

at a home while the residents were present, that it was “clear that the [no-

knock] search of [the] residence was unreasonable under Fourth Amendment

analysis.” United States v. Cantu, 230 F.3d 148, 153 (5th Cir. 2000). We rested

that conclusion in part on the fact that the officers “were unable to point to

anything [aside from some movement within the home] that would indicate that

evidence was being destroyed.” Id. at 150.

Similarly, in United States v. Valdez, 302 F.3d 320 (5th Cir. 2002), we

concluded that police had violated the Fourth Amendment by forcibly entering

a home immediately after knocking to execute a narcotics search warrant. We

rejected the assertion of “exigent circumstances,” noting that there “was no

testimony that any officer heard movements inside [the] home suggesting that

1

The City argues that Arcuri’s decision was justified by his knowledge of the specific

layout of the house. In fact, Arcuri, who does not press this argument, never asserted that any

specific feature of the house increased the general likelihood of evidence destruction.

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evidence was being destroyed.” Id. at 322.2 Although Arcuri observed that

someone was in the house, he did not establish the identity of the occupants and

has never alleged that he detected movement within the home that suggested

evidence was being destroyed. Both Cantu and Valdez involved drugs that

presumably were disposable in nature, but this fact was not enough to constitute

exigent circumstances.

In Richards, the Supreme Court ultimately upheld an unannounced

forcible entry as reasonable because, before the officers identified themselves,

the suspect recognized them as police and slammed the door on them. “These

actual circumstances—petitioner’s apparent recognition of the officers combined

with the easily disposable nature of the drugs—justified the officers’ ultimate

decision to enter without first announcing their presence and authority.” 520

U.S. at 396. Nothing in Arcuri’s deposition testimony or briefing suggests that

he had any reason to believe that evidence was in danger of being destroyed

before the inhabitants knew police were on the premises. Thus, the Court’s

reasoning in Richards indicates that the risk of evidence destruction had not yet

ripened into “exigent circumstances” sufficient to justify a no-knock entry at the

time just before Arcuri’s team entered Appellants’ home. Cf. United States v.

Banks, 540 U.S. 31, 36 (2003) (no-knock entry justified only where “exigency

already exists or will arise instantly upon knocking” (emphasis added)).

Also instructive is the Supreme Court’s analysis of the length of time

police must wait between knocking-and-announcing and forcibly entering a

residence. In Banks, the Supreme Court held that a 15–20 second wait was

reasonable when executing a warrant for cocaine. 540 U.S. at 38.3 Importantly,

2

In Valdez, we affirmed “the judgments and rulings of the district court” and

incorporated the entirety of the district court’s order into our opinion as an Appendix.

3

The Court simply assumed as a starting point that the officers were required to

knock-and-announce. Banks, 540 U.S. at 35.

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the government conceded that the police arrived at the suspect’s house “without

reasonable suspicion of facts justifying a no-knock entry,” despite the fact that

they were expecting to find easily disposable drugs. The Court accepted the

government’s argument that the announcement of police presence “started the

clock running toward the moment of apprehension that [the suspect] would flush

away the easily disposable cocaine, prompted by knowing the police would soon

be coming in,” so the only question was whether 15–20 seconds was a reasonable

time to wait. The Court concluded that “after 15 or 20 seconds without a

response, police could fairly suspect that cocaine would be gone if they were

reticent any longer.” Id. The Court’s reasoning makes clear that when police are

afraid that announcing their presence and purpose will prompt the destruction

of evidence, the appropriate constitutional inquiry is how long they must wait

to enter after they have announced, not whether they should announce at all.

Arcuri points only to the quantity of drugs he expected to find as a

particular circumstance justifying his team’s no-knock entry.4 At least some of

the summary judgment evidence indicated that small, retail quantities of

methamphetamine were being sold from Appellants’ house. But the presence of

retail quantities of an easily disposable drug is legally insufficient, without more,

to constitute the type of exigency needed to justify a no-knock entry. Richards,

4

Appellants argue that even if the suspected presence of a small quantity of

easily-disposable drugs were sufficient to justify a no-knock entry, Arcuri is not entitled to

summary judgment on qualified immunity grounds because there is a factual issue concerning

whether Arcuri genuinely believed there was a threat of evidence destruction. Arcuri’s

deposition testimony and affidavit arguably support the conclusion that Arcuri did not

perceive a genuine risk of evidence destruction. For example, although he described evidence

destruction as “common practice” in drug cases, when asked why he thought it was going to

happen in this “specific instance,” he responded, “I didn’t think it was going to happen.” Arcuri

also gave equivocal testimony about the quantities of drugs he expected to find, stating at

some places that he hoped to find a meth lab, and at others that he expected to find only small

quantities that would be easily disposable. Because we have accepted Appellants’ primary

argument that a small quantity of methamphetamine was inadequate to produce exigent

circumstances, we need not determine whether Arcuri’s statements create a genuine factual

dispute.

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Banks, and Cantu all involved searches similarly based on information that

drugs were being dealt from the house in question. Arcuri has not even alleged,

much less demonstrated through specific facts, that a threat of evidence

destruction existed before the occupants of the home knew police were on the

premises. Under these circumstances, the disposable nature of

methamphetamine was not enough to create exigent circumstances justifying a

no-knock entry. In light of Richards and Banks, had Arcuri announced his

team’s presence and purpose, the threat of evidence destruction may have

amounted to exigent circumstances after a very short time—perhaps only a few

seconds—but Arcuri’s no-knock entry cannot be justified on evidence-destruction

grounds.

2. Dangerousness

Arcuri also argues that his team’s no-knock entry was justified by his

reasonable suspicion that announcing their presence would have put them in

danger. Arcuri concedes, however, that his safety concerns were based on

generalities about the dangerousness of drug dealers. For example, in the

affidavit he submitted to the district court, Arcuri stated that “it is extremely

common for individuals selling or possessing narcotics to have some type of

weapon at the location where they are selling illegal drugs from.” Similarly, in

his deposition, Arcuri stated, “[I]t’s considered a high risk because anytime

you’re dealing with individuals that possess or sell narcotics, they have a high

tendency to have, you know, some type of weapon.” Arcuri has never attempted

to connect his belief that knocking-and-announcing would have been dangerous

to any specific facts discovered during his investigation of the Appellants’

residence. Arcuri did not recall that the municipal court or police records he

reviewed indicated any law enforcement history associated with the home or its

residents, and the car parked outside the house was registered to Carolyn Clark,

not “Randy” or any known drug-dealer. In fact, Arcuri admits that “his

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investigation revealed no particularized facts suggesting that he or his team

were making a high risk entry aside from the dangers inherent to making an

entry involving drugs.”

Moreover, it is clear from Arcuri’s brief that he treated no-knock entries

as the default mode of executing drug-related search warrants: “Despite their

investigation and surveillance, the officers were not able to learn any

information indicating that Randy or any other occupants of the premises did

not pose a threat to the officers’ safety upon entry.”

Arcuri readily admits that he had no particularized basis for his safety

concerns because he mistakenly asserts that the general dangerousness of drug-

related criminals is sufficient justification for conducting a no-knock entry. His

position is based on a misreading of two Fifth Circuit cases: Washington and

Linbrugger. In Washington, this court held a no-knock entry reasonable under

the Fourth Amendment where police had specific information that a convicted

felon, who “always carried a firearm on his person,” was selling drugs from a

room at a halfway house in which an informant had observed a weapon. 340 F.3d

at 224. We held that such information “exceeds the level this circuit has found

sufficient to establish a reasonable suspicion of danger.” Id. at 227. Linbrugger

was a qualified immunity case concerning officers who had made a no-knock

entry while executing an involuntary mental health commitment warrant. We

concluded that the officers “respond[ed] reasonably to a reasonably perceived

dangerous situation” because the target of the warrant, who had recently

threatened to kill his sister and whom his father considered to be a threat to

himself and others, intentionally simulated the sound of a shotgun being primed

to make the officers believe he was armed. 363 F.3d at 543. Considering the

totality of these circumstances, the panel had little trouble holding that the

officers were not required to complete a normal knock-and-announce procedure.

Id.

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Both Washington and Linbrugger dealt with no-knock entries that were

clearly justified by reasonable safety concerns. In each case, the police knew the

identity of the occupant of the dwelling they entered and had specific

information indicating that the person might be dangerous. Arcuri, on the other

hand, made a no-knock entry into a house when he had admittedly not

established who was home and had no specific information that the inhabitants

were dangerous. Despite these obvious differences, Arcuri relies heavily on the

court’s statement in Washington, cited in Linbrugger, that an officer’s safety

concerns may be “reasonable even though he had no particularized knowledge

that the suspect was armed.” Washington, 340 F.3d at 227; Linbrugger, 363 F.3d

at 542. Arcuri apparently interprets this language to mean that generalizations

about the dangerousness of drug-related criminals are sufficient to justify a no-

knock entry.

Admittedly, some of the language in Washington, read in isolation,

appears to support Arcuri’s position. Washington considered the reasonableness

of a no-knock entry, but in its discussion of the officer’s safety concerns, it drew

analogies to Fifth Circuit cases considering the reasonableness of warrantless

searches. In such cases, this court has used a five-factor test to evaluate whether

exigent circumstances justify a warrantless entry, of which one relevant factor

is “the possibility of danger to the police officers guarding the site of contraband

while a search warrant is sought.” See United States v. Howard, 106 F.3d 70, 73

(5th Cir. 1997).5 In this context, which is distinct from our circuit’s knock-and-

5

The five factors are: “(1) the degree of urgency involved and amount of time necessary

to obtain a warrant; (2) [the] reasonable belief that contraband is about to be removed; (3) the

possibility of danger to the police officers guarding the site of contraband while a search

warrant is sought; (4) information indicating the possessors of the contraband are aware that

the police are on their trail; and (5) the ready destructibility of the contraband and the

knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of

persons engaged in the narcotics traffic.” Howard, 106 F.3d at 73. Concern for safety is not,

by itself, sufficient to justify a warrantless entry—there must also be exigent circumstances

that preclude the officers from simply leaving the scene and returning later. Thus, in the

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announce jurisprudence, this court has counted fear for safety as “a factor

favorable to the Government in the exigent circumstances calculation” even

where the officer lacks a “particularized fear.” Id. at 75 (emphasis added). Thus,

noting that “firearms are the tools of the trade of those engaged in illegal drug

activities,” we have considered the general dangers posed in drug cases to weigh

in favor of finding a warrantless search justified. Id. (internal quotation marks

omitted). This hardly establishes that the general dangerousness of drug-related

criminals, by itself, justifies a no-knock entry for the execution of all narcotics

warrants.6

Indeed, Arcuri’s reading of Washington as allowing for no-knock entries

based on a general assessment of the dangers associated with drug crimes is

definitively foreclosed by Richards, as we acknowledged in Washington. 340 F.3d

at 226 (“The [Supreme] Court [has] rejected the contention that all drug

investigations inherently have risks of officer safety” substantial enough to

excuse police from the knock-and-announce requirement.). Likewise, in Cantu

we characterized Richards as “reject[ing] blanket rules allowing ‘no-knock’

entries based on over-generalizations about today’s drug culture.” 230 F.3d at

152; see also Valdez, 302 F.3d at 322 (“[The officer] justified the entry of her

warrantless entry context, officers are stuck between a rock and a hard place: either act now

on limited information or risk letting the bad guys get away with their crime. In such

circumstances, it is reasonable to excuse officers from making a particularized showing of

dangerousness because they are, by hypothesis, left without time to conduct a further

investigation of the threat they might be facing. On the other hand, Arcuri has never

attempted to show that there was any urgency requiring the search of Appellants’ home to

take place exactly when it did. He therefore has less justification for treating “unknowns” as

a reason to bypass a general constitutional requirement.

6

Importantly, in the warrantless entry analysis, concern for safety is considered a

“plus factor” for the government only if the threat exists while the officers wait to make an

entry. By contrast, in the no-knock analysis, the relevant safety concerns typically arise from

the entry itself. Arcuri has never asserted that his team felt endangered before they entered

the home, making the discussion of safety concerns in warrantless entry cases inapposite. See

Valdez, 302 F.3d at 322 (“No exigent circumstance existed outside Defendant’s home.”).

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team’s [sic] on the grounds that Defendant was a known drug dealer and that

known drug dealers are prone to certain violent behavior. Such justification has

been clearly rejected by the Fifth Circuit.”).7 Arcuri relies heavily on such over-

generalizations.

Reading Washington together with Richards and its progeny, the law in

this circuit is that, as stated in Linbrugger, a police officer does not have to

“demonstrate ‘particularized knowledge’ that a suspect is armed in order to

justify a no-knock entry,” 363 F.3d at 542, but that does not negate the

requirement that “reasonable suspicion” must be derived from specific facts and

circumstance surrounding a search. Because “reasonable suspicion of danger” is

a lower threshold than “particularized knowledge” that a suspect possesses a

weapon, an officer must be able to point to specific facts to explain his safety

concerns but need not demonstrate that he specifically knew a certain suspect

was armed. Thus, contrary to Arcuri’s suggestion, Washington and Linbrugger

are entirely consistent with the requirement that he point to something beyond

the general dangers associated with drug crimes to justify his entry into

Appellants’ home. Obviously neither Linbrugger nor Washington could or did

eliminate the requirement announced in Richards that, to justify a no-knock

entry on grounds of officer safety, an officer must have “a reasonable suspicion”

based on “the particular circumstances” that knocking-and-announcing would

be dangerous. 520 U.S. at 394. Because Arcuri admits that he had no such

particularized suspicion of danger, he unwittingly concedes that his team’s no-

knock entry was not justified by safety concerns.

In sum, neither Arcuri’s concerns for evidence preservation nor for officer

safety amounted to reasonable suspicion based on particular facts, so exigent

7

See also Price v. State, 93 S.W.3d 358, 364 (Tex. App.—Houston [14th Dist.] 2002)

(“The mere assumption that those in possession of controlled substances are normally also in

possession of firearms is insufficient as a matter of law to eliminate the notice requirement.”)

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circumstances did not justify his team’s no-knock entry of Appellants’ home. The

entry therefore violated Appellants’ Fourth Amendment rights.

B. Qualified Immunity

Having concluded that the no-knock entry led by Arcuri violated

Appellants’ Fourth Amendment right to be free from unreasonable searches, we

now turn to the second prong of qualified-immunity analysis: whether Arcuri’s

conduct was objectively unreasonable under established law. “For a right to be

clearly established under the second step of the qualified immunity analysis,

‘[t]he contours of that right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’” Flores v. City of

Palacios, 381 F.3d 391, 399–400 (5th Cir. 2004) (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). “[I]f a right is clearly established enough to impart fair

warning to officers, then their conduct in violating that right cannot be

objectively reasonable.” Williams v. Kaufman Cnty., 352 F.3d 994, 1002 n.12 (5th

Cir. 2003).

At the time of the search, the Supreme Court’s unanimous decision in

Richards rejecting a blanket exception to the knock-and-announce requirement

for narcotics searches had been on the books for twelve years. As discussed

above, Arcuri’s proffered justifications for his team’s no-knock entry—evidence

preservation and officer safety—were based primarily on generalities rather

than particularized suspicion, and his position is therefore virtually

indistinguishable from the type of blanket rule repudiated in Richards.

Moreover, multiple decisions of this circuit, and of the Texas state courts8 have

8

See, e.g., Price, 93 S.W.3d at 368 (“In light of Richards and Wilson, we decline to

permit officers to invoke the destruction of evidence exception whenever the objects named in

the search warrant are by their nature amenable to ready disposal or destruction.”); Brown

v. State, 115 S.W.3d 633, 639 (Tex. App.—Waco [10th Dist.] 2003) (holding no-knock search

unconstitutional where “there was no testimony or evidence that either [of the suspects] were

violent or were known to keep weapons in their home”). Indeed, the Texas courts arguably

interpret Richards more stringently than does this court. See, e.g., Ballard v. State, 104

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reinforced the applicability of the knock-and-announce requirement to searches

indistinguishable from the one conducted on Appellants’ home. Arcuri’s no-knock

entry of Appellants’ home, based only on generalized concerns about evidence

preservation and officer safety, violated clearly established law and was

therefore unreasonable. See Williams, 352 F.3d at 1002 n.12.

Because the rights violated by Arcuri’s team were well-established at the

time of the raid, Arcuri’s actions were unreasonable, and he is not entitled to

qualified immunity.

C. Municipal Liability

“[M]unicipal liability under section 1983 requires proof of three elements:

(1) a policymaker; (2) an official policy; and (3) violation of constitutional rights

whose moving force is the policy or custom.” Hampton Co. Nat’l Sur., LLC v.

Tunica Cnty., 543 F.3d 221, 227 (5th Cir. 2008) (internal quotation marks

omitted). A municipality is liable only when its policy is the “moving force”

behind the suffered injury, Williams, 352 F.3d at 1014, but when a municipal

policy itself violates federal law, such a policy necessarily constitutes the

“moving force.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997).

Appellants concede that the formal written policies of the SAPD are

constitutional. The City’s “official policies,” however, include any “persistent,

widespread practice of city officials or employees, which, although not authorized

by officially adopted and promulgated policy, is so common and well settled as

to constitute a custom that fairly represents municipal policy.” Bennett v. City

of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). Appellants argue that the

S.W.3d 372, 383 (Tex. App.—Beaumont [9th Dist.] 2003) (“[T]he mere presence of a handgun

. . . is insufficient, as an exigent circumstance exception to the knock-and-announce rule,

where the State does not also prove the authorities possessed information that the

individual(s) subject to the warrant was likely to use the weapon, was likely to become violent,

had a criminal record reflecting violent tendencies, or a verified reputation of a violent

nature.”).

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City is liable for the damages caused by Arcuri’s team’s entry into their home

because the SAPD has a customary policy of making no-knock entries on less

than reasonable suspicion.

The district court did not reach the issue of municipal liability because it

concluded that no constitutional violation had occurred, but the magistrate judge

had concluded that a genuine issue of fact existed regarding the existence of an

SAPD custom. Having concluded that there was a constitutional violation, we

agree with the magistrate judge that the City is not entitled to summary

judgment.

The City affirmed, in its Rule 36 responses to request for admissions, that

the search of Appellants’ home was consistent with SAPD policy. Thus,

Appellants argue that if the court concludes the search violated Appellants’

Fourth Amendment rights, the City has admitted liability. See Russo v. City of

Bridgeport, 479 F.3d 196, 212–13 (2nd Cir. 2007) (city’s admission that

defendants acted in accordance with “custom, policy and practice” indicated that

municipal liability would be appropriate if defendants violated plaintiff’s

constitutional rights). We agree that this admission, though not dispositive,

supports Appellants’ position.

In further support of their argument that the SAPD had an

unconstitutional policy of conducting no-knock entries on less than reasonable

suspicion, Appellants rely on the deposition testimony of San Antonio Chief of

Police William McManus. McManus is the relevant law enforcement policymaker

for the City. The City’s charter names him the “director of the police

department,” and the SAPD Rules and Regulations provide that he has “the

exclusive right to establish, rescind, or modify departmental rules and

regulations.” Additionally, he testified that he was responsible for SAPD policy

and agreed that “the buck stops with [him].” At the very least, the Chief’s

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No. 11-50010

understanding of common operating procedure is highly relevant to the existence

of a custom.

In his deposition, McManus made several statements that might be taken

to imply that SAPD officers customarily forego the knock-and-announce

procedure when they suspect a small quantity of drugs may be found on the

premises. For example, McManus stated, “If it’s a small quantity, you’re

probably not going to find too many police investigators that are going to knock

. . . . They’re just not going to do it.” Similarly, in response to a question about

when no-knock entries are acceptable, he answered that the relevant facts are

“the amount of drugs involved and whether they’re disposable or not.” Moreover,

McManus described extremely atypical examples when asked for scenarios in

which he would advise a knock-and-announce procedure, suggesting a policy of

treating no-knock entries as the default procedure in drug cases.

McManus also testified that, based on his review of the internal affairs

report of the search of Appellants’ home, he did not think it violated department

policies. In light of the deposition excerpts in the summary judgment record, a

reasonable jury could infer that McManus promotes a policy of making no-knock

entries any time a search warrant for a small (or unknown) quantity of drugs is

executed.

Appellants also point to the deposition testimony of Albert Ortiz, the

former SAPD Chief of Police. Although Ortiz appreciated that a no-knock entry

must be understood as an exception to the general knock-and-announce rule, he

indicated that the presence of “sinks and kitchens and bathrooms” in Appellants’

house was sufficient to give rise to reasonable suspicion.9 Of course, such a large

exception to the “rule” is virtually indistinguishable from a policy of making no-

9

Even assuming that the mere presence of indoor plumbing at a residence is enough

to create reasonable suspicion in narcotics cases, an “exception” that would swallow the rule,

Arcuri did not articulate a reliance on the presence or location of sinks or toilets in the house

to justify his decision to make a no-knock entry.

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No. 11-50010

knock entries in all drug-related cases. Thus, Ortiz’s testimony does little to

negate the existence of a policy of conducting no-knock entries in an overly broad

class of drug cases.

Moreover, the testimony of Arcuri and Marty Laurenz, another SAPD

detective involved in the search of Appellants’ home, support the conclusion that

SAPD officers customarily treat a no-knock entry as the default in drug-related

searches. When asked whether the search of Appellants’ home “was a high risk

simply because you were making a drug bust,” Arcuri responded, “Yes, sir.” As

discussed above, even Arcuri’s appellate brief concedes that he conducts a no-

knock entry unless he can establish that the “occupants of the premises did not

pose a threat to the officers’ safety upon entry.” This approach flips Richards on

its head by authorizing no-knock entries unless the particular facts of a case

confirm that a search will not pose a threat to safety.

Laurenz echoed the department’s presumption of danger: “If it’s unknown

[whether the occupants of a house are dangerous], we do not knock and

announce. We enter the location in the most expedient way, which is usually

through the front door utilizing a ram.” Laurenz specifically stated that the no-

knock entry of Appellants’ home was made because “we didn’t have the knowns

on Randy. There was too much unknown about him. We couldn’t verify if he was

violent or non-violent.” These officers’ testimony concerning the usual

application of SAPD policy evidences a custom of making no-knock entries on

less than reasonable suspicion drawn from particular facts and circumstances.

Taken together, the deposition testimony of McManus, Ortiz, Arcuri, and

Laurenz, and the City’s admission that the search of Appellants’ home was

conducted in accordance with SAPD policies, are sufficient to create a genuine

issue of material fact on the issue of municipal liability. Appellants have

therefore made the requisite showing to survive summary judgment on this

issue.

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IV. CONCLUSION

For the reasons given above, the district court’s order granting summary

judgment to Arcuri and the City is REVERSED, and the case is REMANDED for

further proceedings consistent with this opinion.

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