Ingram v. City of Columbus

KENNEDY, Circuit Judge,

concurring in part and dissenting in part.

Viewing the evidence in the light most favorable to Plaintiffs, I agree that there are material issues of fact with respect to alleged unlawful seizure of Deborah Wom-ack, the alleged unlawful arrest of Ray Womack, and the excessive force claims. I respectfully dissent, however, from the panel’s holding that police officers in hot pursuit of a felon must knock and announce before entering the building into which the suspect has fled. I also dissent from the panel’s decision holding that the unlawful arrests of Betty Ingram and Patricia Collins are not barred by collateral estoppel, an issue not raised on appeal.

*599 I.

Without citing any definitive authority, the majority opinion today requires police officers to make a split-second, individualized judgment regarding the knock and announce rule while actively pursuing a fleeing felon. Such a result seems to me to require too much. I agree with the majority that exigent circumstances excused the officers from obtaining a warrant before entering the house. However, those same exigent circumstances also should permit police officers to follow a fleeing suspect into a home without knocking and announcing their entry.

Although the Supreme Court has not specifically addressed the knock and announce requirement with respect to exigent circumstances, the Court has indicated that a per se rule that exempts police from the knock and announce requirement may be acceptable in certain limited circumstances. In Wilson v. Arkansas, 514 U.S. 927 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995), the Court suggested that officers need not knock and announce when a threat of physical violence exists, an officer in hot pursuit of a fleeing felon pursues the felon into the felon’s residence, or evidence would be destroyed. Id. at 936 , 115 S.Ct. 1914 . The exigent circumstances of hot pursuit, which the Supreme Court has stated permit entry without knock and answer, are the same whether the officers enter the pursued felon’s residence or another residence. In both situations, police officers must react instantly, have little time to make a careful decision, and may lose a fleeing suspect. See United States v. Santana, 427 U.S. 38, 42 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976) (holding that police need not obtain a warrant before chasing a fleeing felon into a home because hot pursuit constitutes an exigent circumstance); United States v. Rohrig, 98 F.3d 1506, 1515-16 (6th Cir.1996) (same); see also Seymane’s Case, 77 Eng. Rep. 194, 198 (K.B.1603) (the knock and announce rule “shall not extend to protect any person who flies to his house ... to escape the ordinary process of law ... ”).

If, as Wilson and Seymane’s Case note, police officers may chase a suspect into his own home without adhering to the formalities of the knock and announce requirement, then the majority opinion may leave police officers with the unenviable task of determining whether the fleeing felon was or was not a resident of the house into which he fled, all while actively pursuing the felon. Admittedly, when the police officers chase a fleeing felon into another’s residence, there is a much greater intrusion on the resident’s privacy, as the majority' opinion recognizes. However, the greatest intrusion, that of the fleeing felon into the home, already has occurred. In balancing the interests of the homeowner against the police officers’ right to enter unannounced, it seems to me that the government has a greater interest in apprehending a dangerous, fleeing felon than the homeowner does in guarding his privacy, which the fleeing felon already has wrongfully invaded. In some sense, the knock and announce requirement is a useless gesture because the occupants, if they are aware of the unwarranted entrance of the fleeing felon, presumably will understand why the police officers have entered their home. Because there is no time to balance the interest of the homeowner against the police officers’ right to enter, I would hold that police officers act reasonably in light of the exigent circumstances by pursuing a fleeing felon into an unknown house without adhering to the knock and announce requirement. 1 The need to act quickly in pursuit of a fleeing felon puts this case into the category of cases in which the balancing of interests must be conducted with “an eye to the generality of cases” and the practical realities. See Wyoming v. Houghton, 526 U.S. *600 -, 119 S.Ct. 1297, 1303 , 143 L.Ed.2d 408 (1999).

Contrary to these considerations, the majority relies on the Supreme Court’s latest discussion of the knock and announce rule in Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), which struck down Wisconsin’s per se rule exempting officers from complying with the knock and announce requirement in drug eases “based on the ‘culture’ surrounding a general category of criminal behavior,” namely drug activity. 520 U.S. at 392 , 117 S.Ct. 1416 . Unlike the majority, I do not find Richards dispositive of this case. Although I agree that Richards stands for the proposition that courts may not craft exceptions to the knock and announce rule based on particular crimes or criminal activity, the Court based its holding on two general concerns — the overgen-eralization that all drug crimes pose a substantial degree of risk to the officers and the public, and the fear that the States would exempt officers from complying with the rule in cases that concern certain nonspecific types of crime, e.g., crimes that involve dangerous weapons, etc. Id. at 393-94 , 117 S.Ct. 1416 . Nothing in Richards overrules or calls into doubt Wilson’s language exempting certain exigent circumstances from the knock and announce requirement.

The majority also suggests that a per se hot pursuit exception would render the knock and announce rule meaningless. Certainly this would be true if we exempted police officers from complying with the requirement in certain random instances, such as the drug felonies in Richards , all cases that have the potential for violence, or those that involve minor offenses. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 753-54 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984) (holding that exigent circumstances did not exist to justify a warrantless entry into a home in search of a drunk driver who had swerved off the road and drove away because the offense was a misdemeanor and “there was no immediate or continuous pursuit of the petitioner from the scene of a crime”). However, Richards acknowledges that exigent circumstances may excuse the failure to knock and announce. The majority opinion implies that hot pursuit alone is not an exigent circumstance for purposes of the knock and announce requirement, but such an approach imposes additional exigent circumstances {e.g., felon must be armed or dangerous) upon exigent circumstances that already exist (hot pursuit). No Supreme Court case states or even implies that this piling of exigent circumstances upon exigent circumstances is necessary or even correct.

In hindsight, there may be instances where the knock and announce rule would have advantages, but courts cannot second guess police officers who do not always know or have time to discover all of the relevant circumstances before chasing a fleeing felon into a house. While in hot pursuit there is no way to determine whether the fleeing suspect has taken hostages, obtained a weapon, barricaded himself within, or fled out the back door, all of which are possible scenarios. Officers, concerned for their own safety, may knock and announce their entry if they feel it is prudent to do so. If denied entry, the officers will have no way of knowing whether the fleeing felon is controlling the residents’ response. The knock and announce requirement will give the fugitive time to secure his or her position. Based on these considerations, I see no reason to exclude hot pursuit of a fleeing felon into an unknown home generally as one of the exemptions noted in Wilson and I would hold that the exigent circumstances of hot pursuit in this case excused the officers from complying with the knock and announce requirement. See United States v. Flores, 540 F.2d 432, 435 (9th Cir.1976) (stating that hot pursuit constitutes one exception to the knock and announce requirement)

*601 II.

I also respectfully dissent from the majority’s holding regarding the allegedly unlawful arrests of Betty Ingram and Patricia Collins. While the issue was raised below, the district court did not address the issue nor did either of the parties on appeal. We do not ordinarily address issues not raised by the parties and I would not do so now. However, since I disagree with my colleagues’ analysis of the collateral estoppel issues involved, I will address the issue.

As my colleagues point out, we must give the same preclusive effect to state court judgments as those judgments would receive in the courts of the rendering state. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 , 104 S.Ct. 892 , 79 L.Ed.2d 56 (1984). This principle applies to civil rights actions under § 1983 with respect to issues actually litigated in the state courts (collateral estoppel), Allen v. McCurry, 449 U.S. 90, 97-99 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980), as well as those issues that were not raised but could have been litigated in the state court proceeding (res judicata). Migra, 465 U.S. at 84 , 104 S.Ct. 892 . Nonetheless, preclusion does not bar a § 1983 action “where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.” Allen, 449 U.S. at 101 , 101 S.Ct. 411 . Here, since Ingram and Collins faced criminal charges in the Ohio courts and forfeited their bond, the initial question is whether the rules of preclusion, as applied by the Ohio courts, would bar a later civil suit based on the legality of the arrests. 2 See Migra, 465 U.S. at 85 , 104 S.Ct. 892 (“We hold, therefore, that petitioner’s state-court judgment in this [§ 1983] litigation has the same preclusive effect in federal court that the judgment would have in the Ohio state courts.”); see also Donovan v. Thames, 105 F.3d 291, 298 (6th Cir.1997) (arrestee was collaterally estopped from bringing § 1983 action for false arrest when state trial court already had determined that the arrest was valid under state law because the police officers had probable cause); Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir.1988) (holding that arrestees, who pled nolo con-tendré in state criminal proceedings, were estopped from bringing § 1983 action that alleged false arrest).

In Neff v. Engle, 28 Ohio App.3d 44 , 501 N.E.2d 675 (Ohio Ct.App.1986), the Ohio Court of Appeals expressly stated: “Accordingly, we hold that a bond forfeiture in a criminal proceeding, as a compromise or settlement, is an absolute defense to an action for false arrest or false imprisonment.” Id. at 676; see also Davis v. Muncy, No. 91-4150, 1992 WL 236880, at *1 (6th Cir. Sept. 24, 1992) (table) (finding that, under Ohio law, bond forfeiture precluded plaintiff from pursuing a claim for false arrest under § 1983); Carpenter v. Meade, No. 93APE09-1306, 1994 WL 64256 , at *2 (Ohio Ct.App. March 3, 1994) (reaffirming Neff). While the Neff case concerned false imprisonment rather than false arrest, there is no reason to conclude that the court did not intend its holding to apply to false arrest. See McFinley v. Bethesda Oak Hospital, 79 Ohio App.3d 613 , 607 N.E.2d 936, 940-41 (Ohio Ct.App.1992) (“[F]alse arrest and false imprisonment as causes of action are indistinguishable. The only distinction lies in the manner in which they arise.”). Indeed, to read the express language of the Neff opinion otherwise renders the language meaningless. Thus, the bond forfeiture is equally a compromise or settlement in a false im *602 prisonment case as it is in a false arrest case. 3 Further, neither Plaintiff asserts that she did not have a full and fair opportunity to litigate the claim on the merits. (The lack of a record in this regard illustrates why we should not decide issues not raised on appeal.) Despite the majority’s attempt to ignore this precedent and apply general collateral estoppel principles to this case, I would hold that the bond forfeitures here preclude the false arrest claims of both Betty Ingram and Patricia Collins. See Haring v. Prosise, 462 U.S. 306, 314 , 103 S.Ct. 2368 , 76 L.Ed.2d 595 (1983) (stating that federal courts should first look to a state court decision on point before turning to general collateral estoppel principles under state law).

III.

In sum, I concur in the majority’s decision to reverse the district court with respect to the alleged unlawful seizure of Deborah Womack, the alleged unlawful arrest of Ray Womack, and the excessive force claims. I respectfully dissent, however, from the majority’s holding that requires police officers to knock and announce their presence while chasing a fleeing felon into an unknown home. Instead, I would hold that the exigent circumstance of hot pursuit vitiates the need to knock and announce. Finally, I also would affirm the district court’s holding that the bond forfeitures by Betty Ingram and Patricia Collins preclude their § 1983 false arrest claims.

. Although the majority argues that the police officers here did not suspect the fleeing felon of having a weapon, they reasonably could have suspected that he may obtain one in the house.

. The majority opinion states that this dissent errs by equating "a state law action for false arrest under Ohio law with a federal civil rights action for arrest without probable cause.” To the contrary, Allen and Migra require us to look at the preclusive effect Ohio law would grant to the bond forfeiture in a laler false arrest claim, even if the Ohio decision is not in a § 1983 context. The relevant inquiry under Allen and Migra is whether Ohio would apply collateral estoppel to the earlier state court decision. If so, then the same preclusion applies in federal court under § 1983.

. The majority opinion makes much of the fact that the defendants can prevail in this cause of action without a showing of probable cause. Even so, Ingram and Collins were charged with obstruction of justice because of their alleged efforts to resist arrest. Had they challenged the" obstruction of justice charges rather than forfeit their bond, the state court would have made a determination of whether they legitimately resisted arrest and thus whether the officers had probable cause to arrest them. Both Plaintiffs thus had adequate opportunity to challenge their arrest and failed to do so. Consequently, I do not find it unfair to preclude them from bringing a § 1983 claim that arose from this same incident and concerns the same issues.