finding a genuine issue of material fact as to “at what point the officers knew or reasonably should have known they were at the wrong residence,” and that the trier of fact must determine “what searches and seizures occurred after that” where plaintiffs alleged officers had remained in the wrong residence to “secure” it “for an additional four to five minutes” rather than exiting promptly
How later courts described this case
- finding a genuine issue of material fact as to “at what point the officers knew or reasonably should have known they were at the wrong residence,” and that the trier of fact must determine “what searches and seizures occurred after that” where plaintiffs alleged officers had remained in the wrong residence to “secure” it “for an additional four to five minutes” rather than exiting promptly
- holding that officers would not be entitled to qualified immunity for forcing innocent bystanders to floor at gunpoint during drug raid if jury found that officers knew “they were in the wrong residence and . . . no threat of danger was involved”
- finding a genuine issue of material fact as to “which, if any, of the illegal searches and seizures took place after the officers discovered or reasonably should have discovered that they were in fact in the wrong residence”
- stating that summary judgment is not appropriate when the question of immunity turns on the resolution of factual disputes; in such cases, the jury determines whether the defendant is entitled to immunity
Written by the judges who cited it.
The opinion
BATCHELDER, Circuit Judge.
I concur in the result reached by the majority in this case, and in much of the reasoning. I write separately because I believe that there is a critical element of this case that the majority fails to address. ,
The plaintiffs in this ease alleged, and the defendants conceded, that the City of San-dusky police department policy required police officers executing a warrant to secure the premises being searched by placing all occupants on the floor, and that the officers who entered the Prays’ apartment 1 acted pursuant to this policy when they ordered the plaintiffs to the floor. Sams affidavit at 63-66; Complaint ¶ 34, at 6.
It seems to me that in order to determine whether any of the searches and seizures violated the clearly established rights of these plaintiffs, we must look at more than just the issue addressed by the majority, that is, whether these searches and seizures occurred after the officers realized that they were in the wrong apartment. Rather, we must look also at the constitutionality of the City’s policy of securing premises, and whether, in effecting that policy in this situation, the officers violated any clearly established rights.
It is important to note here that in the order appealed by the defendant, the district court held that it “cannot find that [the City’s securing of premises] policy is unconstitutional on its face.” 2 If the policy to secure premises was not clearly unconstitutional, then that fact must guide a court’s analysis of whether the officers receive immunity. The officers are entitled to immunity for all their non-discretionary acts performed in good faith pursuant to the policy. See Kentucky v. Graham, 473 U.S. 159, 166-67 , 105 S.Ct. 3099, 3105 , 87 L.Ed.2d 114 (1985) (stating that immunity is given for “objectively reasonable reliance on existing law”).. As the record demonstrates, however, the policy left much to the discretion of the officers. The bulk of the officers’ behavior at .issue here consisted of discretionary act's and therefore was' governed by traditional qualified immunity analysis. See Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982) (“[government officials performing discretionary functions generally are shielded from liability_”). Thus, if the policy was not unconstitutional, then the officers are entitled to qualified immunity for *1162 their actions taken to secure the premises unless they used excessive force.
Because the policy dictates that in every execution of a warrant the officers shall secure the premises by putting all occupants on the floor, the policy does not distinguish between searches of the correct premises and searches of the wrong premises. I agree with the majority that the officers are entitled to qualified immunity for their “initial mistake” of entering the wrong premises, but I also would hold that those officers are entitled to immunity for their actions in securing those premises, so long as those actions did not exceed the City’s policy of securing the premises and did not involve excessive force.
. Exactly which officers actually ordered the plaintiffs to the -floor is in dispute.
. The court went on to hold that the City was not entitled to summary judgment because a genuine issue of material fact remained -as to whether the execution of that policy was the proximate cause of the plaintiffs' injuries.