White v. Pierce County

SCHROEDER, Circuit Judge,

Dissenting.

This is a narrow, interlocutory appeal on an incomplete record. The only issue is whether the defendants have demonstrated, as a matter of law, that they are immune from suit. Mitchell v. Forsyth, — U.S. -, 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). The record must be viewed in the light most favorable to the plaintiff. Kraus v. County of Pierce, 793 F.2d 1105, 1110 (9th Cir.1986). To prevail in their motion for summary judgment, the defendants had to show that they had probable cause to believe both that White’s son had been abused, and, further, that the boy would be injured or secreted from them if they waited to obtain a warrant. In my opinion, they demonstrated neither.

The deputies went to Jimmy White’s house with only a report that a child of seven with welts on his back had been seen in the yard. When White opened the door, they observed that the household included a child who appeared to be about that age. They then demanded to examine the back of the child, and White refused. The deputies continued their insistence for 20 minutes, until White eventually resorted to profanity, and resisted the deputies’ forceable attempt to enter the house.

The majority states that the deputies could have reasonably concluded that White was attempting to “hide past abuse.” The affidavits and the record do not provide any basis for such a conclusion, nor do they even use the word “hide.” All that they demonstrate is that White stood on his constitutional rights and refused to allow the officers to examine the child without showing, by means of a warrant, that they had reason to do so.

White’s refusal to permit the police to do that which the Constitution prohibits them from doing cannot be used to create the probable cause necessary to justify that act. The Supreme Court has made clear that an individual may not be punished for failing to obey a police officer’s unlawful command. Wright v. Georgia, 373 U.S. *817 284 , 83 S.Ct. 1240 , 10 L.Ed.2d 349 (1963). Our court has also stated in no uncertain terms that an individual’s refusal to permit the police to enter her home without a warrant may not be used against her in a trial for harboring a suspect. United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978). We said that asserting the right to refuse a warrantless entry can neither be a crime itself nor serve as evidence of a crime. Id. at 1351 . A fortiori the refusal to permit a warrantless entry cannot be used to create the circumstances justifying such an entry.

Nor can White’s eventual resort to profanity in his objection to the entry serve to justify the entry. The Supreme Court has held that penalizing profanity infringes the speaker’s rights of free expression. Cohen v. California, 403 U.S. 15 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971). Speaking for the majority, Justice Harlan explained that “one man’s vulgarity is another’s lyric.” Id. at 25 , 91 S.Ct. at 1788 . Thus, under Cohen , the fact that White chose to express his objections to the entry with colorful language should have no bearing on whether the police had observed circumstances justifying the entry.

Child abuse is a heinous crime. So are murder and rape. Just as the repulsiveness of the latter two crimes does not affect the constitutional restrictions placed on police officers, neither should our repugnance to the former crime cause us to condone police procedures that infringe constitutional protections.

Section 1983 is an important deterrent against police conduct which violates the fourth amendment’s guarantee of security in our homes from unreasonable police intrusion. These deputies are not immune if they violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). The rights which plaintiffs assert in this case are clearly established. “At the very core [of the fourth amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679, 683 , 5 L.Ed.2d 734 (1961) (citing Howell’s State Trials and early Supreme Court precedent). See also Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980); United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 (1972) (“[Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”).

In holding that state officers may appeal on an interlocutory basis the denial of a motion for summary judgment in section 1983 cases, the Supreme Court created a mechanism for weeding out claims which lack merit as a matter of law. Mitchell, 105 S.Ct. at 2815-16 . Such appeals should not become a device permitting appellate judges to become triers of fact and to resolve conflicting inferences in favor of police officers. In my view the majority has succumbed to that temptation. I would affirm the district court.