# Dorwart v. Caraway

> Montana Supreme Court · August 4, 1998 · 290 Mont. 196

URL: https://www.frixlaw.com/law-library/cases/9510221

## Case

- **Full name:** RUSSELL EDWARD DORWART and HARRY DORWART, Plaintiffs, Appellants and Cross-Respondents, v. PAUL CARAWAY, Individually and as a Deputy in the Stillwater County Sheriff’s Office; DANNY AMES, Individually and as a Deputy in the Stillwater County Sheriff’s Office; CLIFF BROPHY, Individually and as Sheriff of Stillwater County, Montana; And COUNTY OF STILLWATER, State of Montana, Defendants, Respondent and Cross-Appellants
- **Court:** Montana Supreme Court
- **Decided:** August 4, 1998
- **Citations:** 290 Mont. 196; 55 State Rptr. 777; 966 P.2d 1121; 1998 MT 191; 1998 Mont. LEXIS 172
- **Precedential status:** Published
- **Opinion:** Concurrence by Leaphart
- **Judges:** Gray, Hunt, Leaphart, Nelson, Regnier, Trieweiler, Turnage
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Trustees of Indiana University v. Buxbaum, 315 Mont. 210 (2003).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9510221

## How later opinions describe it (automated extraction)

- stating, “[i]n general, due process requires notice which, under the circumstances, is reasonably calculated to inform interested parties of the action and afford them an opportunity to present objections”

## Opinion text

JUSTICE LEAPHART,
specially concurring.
¶136 I concur in the Court’s resolution of Issues 1,2,4,5 and 6.1 specially concur as to Issue Number 3: qualified immunity. As the Court recognizes, in analyzing whether an official is entitled to qualified immunity, a court must identify the right violated, determine whether the right was clearly established at the time of the violation and, if the right was clearly established, determine whether a reasonable person or official would have known that his or her conduct violated that right. Hamilton v. Endell (1992), 981 F.2d 1062, 1066 ; Orozco v. Day (1997), 281 Mont. 341, 350 , 934 P.2d 1009, 1014 . The Court then goes *249 on to apply qualified immunity based on its conclusion that, given the state of case law as of the time of the defendants’ entry into Dorwart’s home, it was not clearly established that an entry into Dorwart’s home pursuant to a writ of execution violated his right to be free from unreasonable searches and seizures.
¶ 137 I, too, would find qualified immunity but for somewhat different reasons. “Qualified immunity ‘gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.’ ” Boreen v. Christensen (1996), 280 Mont. 378, 383-84 , 930 P.2d 67, 70 (quoting Hunter v. Bryant (1991), 502 U.S. 224, 229 , 112 S.Ct. 534, 537 , 116 L.Ed.2d 589, 596 (citation omitted)). I would conclude that the right to be free from unreasonable searches and seizures is (and was) clearly established under Article II, Section 11 of the Montana Constitution, but that, given the state of the case law as of the date of the entry and given that the process utilized by Ames and Caraway is the same as has been used by levying officers in this state since territorial days, a reasonable person or official would not have known that his or her conduct violated that right.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9510221. Public record. Not legal advice.