Swedlund v. Foster

GILBERTSON, Chief Justice

(dissenting).

[¶ 56.] I respectfully dissent. I would hold that the officers’ entry into the home and the amount of force used therein fall within the good faith immunity from 42 U.S.C. 1983 liability. I cannot join the Court’s opinion which results in a de facto judicial repeal of good faith immunity and replaces it with a strict common-law negligence standard to ascertain liability for officers’ mistakes.

[¶ 57.] This Court has a previously well-developed analytical framework for the examination of claims of good faith immunity. As the Court today concedes, the mistaken entry into a wrong house by law enforcement by itself, does not strip them of immunity. Mistaken execution of a search warrant at the wrong location does not violate the Fourth Amendment when the officers believe in good faith that they were executing the search warrant at the correct location. Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443 (1989); Maryland v. Garrison, 480 U.S. 79, 86-88 , 107 S.Ct. 1013, 1017-19 , 94 L.Ed.2d 72 (1987). The Fourth Amendment is only violated if the mistaken entry was an unreasonable one. Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir.1995). This unreasonableness issue is determined under an “objectively reasonable” standard. Horne v. Crozier, 1997 SD 65 at 13 , 565 N.W.2d 50, 54 (citing Graham, 490 U.S. at 397 , 109 S.Ct. at 1872 , 104 L.Ed.2d at 456 ). More specifically, negligent or grossly negligent conduct by an officer is not sufficient to become the basis of a constitutional tort claim. Home, 1997 SD 65 at 13 , 565 N.W.2d at 54 (additional citations omitted).

[¶ 58.] In this case the following facts are pertinent to an examination of the nature of the officers’ conduct:

1. The officers were investigating a valid criminal complaint filed by a citizen. Approximately $18,000 in stolen checks was missing. Anita Swedlund was specifically identified by the citizen as the likely thief. Thus, the officers did not seek to enter the Swedlund residence on whim or caprice.

2. They prepared an affidavit to obtain a search warrant from a circuit judge rather than directly entering the home *59 without one and attempting to subsequently rely on an exception to the warrant requirement.

3. They satisfied the circuit judge that they had probable cause of the issuance of a warrant and it was so issued.

4. To attempt to make sure they got the right house, they sent an advance scouting party to the rural area of the Swedlund residence.

5. They located the right road but stopped at the first home on it because the sign said “Swedlund,” the correct last name of the person they were seeking. There were no house numbers on the residence. At this time none of the officers knew there was more than one Swedlund residence on this road.

6. The correct Swedlund house was in the same neighborhood only one-half mile away on the same road.

7. When the officer, who had previously been at Anita’s residence five years before, noticed they were now going into a different house marked “Swedlund,” he concluded Anita had moved in the previous five years rather than there was a second Swedlund house on that road.

8. The officers entered only the home they thought they were authorized to search. No other buildings or vehicles were entered.

9. The officers properly entered the home and did no damage to the home or its contents once in it.

10. When informed they had searched the wrong house, they made no attempts to further search the premises and promptly left it.

[¶ 59.] Clearly, prior to the entry of the wrong house, they made several mistakes that resulted in the entry of Lyle and Ruth’s house. The two Swedlund houses were not similar in design and the officers had been previously given a description of the correct Swedlund residence. Negligence? Yes, they were negligent. Grossly negligent? Probably not, but for purposes of this analysis even if they were, it still would not establish a basis for liability. 8 For good faith immunity to be swept *60 away, their conduct must be that of the “plainly incompetent or those who knowingly violate the law.” Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 2157, 150 L.Ed.2d 272 (2001) (citing Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986)). The United States Supreme Court has stated:

While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.

Garrison, 480 U.S. at 87 , 107 S.Ct. at 1018 , 94 L.Ed.2d at 82 (citations omitted). Under a totality of the circumstances, this conduct of the officers was not “plainly incompetent.”

[¶ 60.] The comparison of this case by the Court with that of Hart v. Miller, 2000 SD 53 , 609 N.W.2d 138 , most appropriately demonstrates the weakness of the Court’s current analysis. In Hart we rejected a defense of good faith immunity by a law enforcement officer for what the plaintiff claimed was an offer to dismiss a criminal charge in exchange for sex. 2000 SD 53 at 29 , 609 N.W.2d at 147 . It takes no extensive legal analysis to know there is no good faith on the part of a law enforcement officer who solicits sex from a criminal defendant in that type of case. 9 Compare that with the ease now before us where the defendant officers executed a valid search warrant issued by a judge upon a house marked “Swedlund,” albeit going to the wrong house next door to the correct one which was also a Swedlund house. Execution of valid search warrants is a legitimate police function. Solicitation of sex in exchange for dismissal of criminal charges clearly is not. 2000 SD 53 at 27 , 609 N.W.2d at 146 .

[¶ 61.] In failing to apply the correct Saucier standard, the Court in effect abrogates good faith immunity for law enforcement officers. This “new immunity” only protects those officers where there is no question of fact as to their lack of negligence. Thus, this “immunity” is only applicable to those officers’ actions where it is not needed, because they did not err in the first place.

[¶ 62.] There likewise is no basis to strip the officers of their good faith immunity for their force used on Duane. This Court has previously stated:

We must also analyze that question, however, from the perspective of the officer at the scene. That inquiry is not performed with the “20/20 vision of hindsight,” or pursuant to a type of “Monday morning quarterback” approach in which analysis rests on whether the offi *61 cers should have pursued alternative strategies or a lesser degree of force. Rather, the Fourth Amendment only requires that the officer’s actions fall within a range of objective reasonableness. This “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make ... judgment — in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation.

Yellowback v. City of Sioux Falls, 1999 SD 114 at 11 , 600 N.W.2d 554, 558 (internal citations omitted).

[¶ 63.] When the officers entered the house, they had valid reasons to believe heightened security was necessary as Anita Swedlund had a prior history of illegal drug activity. Rather than kick the door in, they knocked three times and announced that the Custer County Sheriffs Office was there to serve a search warrant. There was no response. When the officers entered the unlocked house they found only Duane, a full-grown adult, who unknown to them, was mentally retarded. He was unable to identify to the officers the nature of his condition or the reasons he could not comply with the officers’ commands. 10 There was no one else in the house to provide the officers with this information. Further, there was nothing identified by the Court which would have given the officers reason to believe they had an individual who could not comply with their commands due to lack of understanding, rather than a person who intentionally would not comply. In the officers’ opinions, Duane was refusing to comply with the officers’ directives in a manner consistent with individuals under the influence of narcotics.

The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Saucier, 538 U.S. at 202, 121 S.Ct. at 2156, 150 L.Ed.2d at 277 (citations omitted). It is only with a classic application of Monday morning quarterbacking, that the Court somehow concludes that the officers should have objectively known at the time of their entry into the house, that Duane was retarded rather than under the influence of narcotics, and the amount of force they ultimately used was not necessary.

[¶ 64.] Once again the Court errs by extracting eleven “facts” from the record which it concludes creates a question of fact for a jury rather than application of good faith immunity. As with the previous issue, this is another attempt to cast aside good faith immunity and make officers run the gauntlet of a jury proceeding where the plaintiff can come up with no more than a question of fact as to whether the officers were negligent in the performance of their duties. 11

*62 [¶ 65.] The Court unsuccessfully tries to isolate the various facts confronting the officers by concluding that they were authorized to look only for missing checks and not illegal drugs. However, under the proper totality of circumstances approach, the officers knew they were looking for missing checks in the possession of those who were known to use illegal drugs and who had a previous history of violently resisting arrest to the point of biting an officer. 12 For a person actually under the influence of narcotics, the amount of force used by the officers was not excessive.

“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

Graham, 490 U.S. at 396-7 , 109 S.Ct. at 1872 , 104 L.Ed.2d at 455-6 (citations omitted). 13 Under the Court’s erroneous analysis, the most that can be said (if even that) is that the conduct of the officers was negligent in the amount of force they used.

[¶ 66.] In conclusion, the officers’ conduct is not even close to being “plainly incompetent” and no evidence exists they knowingly entered the wrong house or used excessive force on Duane. What the Court does in effect today, is overturn Horne, and its federal counterparts, strip the officers of good faith immunity and impose on them a strict negligence standard. It is the abolition of good faith immunity; for if the officers are not negligent, that is alone sufficient to avoid liability by itself and good faith analysis as now outlined by the Court is redundant. Such a result has no basis in our jurisprudence and will have a serious chilling effect on the efforts of law enforcement to vigorously execute the laws of this state and protect its citizens. That chill will be most obvious in situations where entry into a private residence may be necessary. Domestic assaults, child abuse, and crack *63 houses all occur behind close doors. Will the officers promptly protect those who they reasonably believe to be in danger, and pursue those whom they reasonably believe to be violating the law, or will they pause?

That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities .... Unless a government agent’s act is so obviously wrong, in light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actors has immunity from suit. Because qualified immunity shields government actors in all but exceptional cases, courts should think long and hard before stripping defendants of immunity.

Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995) (citations omitted).

[¶ 67.] For the same reasons as are set forth above, there is no basis not to grant summary judgment on the various state tort claims against the officers.

[¶ 68.] Therefore I respectfully dissent.

AMUNDSON, Retired Justice

(dissenting).

[¶ 69.] I join in Chief Justice Gilbert-son’s dissent for the reasons set forth in my dissent filed in Hart v. Miller, 2000 SD 53 , 609 N.W.2d 138 , based upon the following rationale:

In the present case, to overcome the first element of the Home test, Hart must “allege the violation of a dearly established constitutional or statutory right." See Comfort v. Town of Pittsfield, 924 F.Supp. 1219, 1227 (D.Maine1996) (emphasis added).... In discussing application of qualified immunity, the Maine District Court stated, [t]he Supreme Court has extended qualified immunity generously, imposing a heavy burden on plaintiffs to establish liability, [citation omitted.] This policy is justified on a variety of grounds, not least of which is a fear that “personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”

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The Eighth Circuit Court of Appeals found [in ruling on a § 1983 claim] that Reeve had no claim and held, [Reeve] has failed to allege a constitutional violation .... As we stated in Gregory v. City of Rogers, 974 F.2d 1006, 1009 (8th Cir.1992), ce rt. denied, [ 507 U.S. 914 ], 113 S.Ct. 1265 , 122 L.Ed.2d 661 (1993), “Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws. ”

Id. at 59, 63, 609 N.W.2d 138 (emphasis added). In this case, the Court is allowing the “1983 font of tort law,” to remain open.

. The court cites the following ''facts” in support of its thesis that a question of fact exists which precludes application of good faith immunity for the officers and sends the case to the jury. These "facts” are a rendition of a claim of classic negligence "facts” and no more. In conceding the accuracy of the above facts which support the officers, the Court wholly fails to show how a comparison of the two sets of “facts" arrives at the officers being "plainly incompetent or those who knowingly violate the law;" that being the correct basis to get such a claim to a jury- Instead, we have no more than summary judgment analysis in a negligence case.

1. The warrant only authorized a search of Lowell and Anita's home, not Lyle and Ruth's home.

2. Lowell and Anita's home was adequately and unambiguously described as a "grey two story farm house” in the warrant.

3. Lyle and Ruth’s bright red A-frame home did not match the unambiguous description in the warrant.

4. Sheriff Foster did not send Deputy En-gen, who had previously been to Lowell and Anita's home, on the scouting mission. Instead, Foster sent two officers who had never been to Lowell and Anita’s house to make sure they had the right house.

5. The two officers sent to scout for the right house did not follow the simple directions to go to a grey two story farm house at the end of Wind Song Valley Road where it takes a sharp right.

6. The scouts took pictures that only showed trees and a door, which admittedly were inadequate to determine whether they had scouted the right house.

7. Although in dispute, the scouts may have seen Lowell in the yard at the correct house while they were scouting the wrong house. (This is a disputed question for the trier of fact to resolve.)

8. When they went to execute the warrant, the officers did not follow the simple directions to go to a grey two story farm *60 house at the end of Wind Song Valley Road where it takes a sharp right.

9. Deputy Engen recognized that Lowell and Anita’s house was “over there’’ at a different location but failed to alert the other officers and continued to participate in the execution of the warrant at the wrong house.

10. The officers did not discern the difference between a grey two story farm house and a bright red A-frame house when they approached, knocked on the door and entered Lyle and Ruth’s house.

. As far as "contested facts” analysis, in Hart , this Court still would have allowed good faith immunity despite the contesting claims of the two parties because of the vagueness of the officer's request of “what were they going to do about [the marijuana]?” The plaintiff was only able to overcome the good faith defense because she was able to provide affidavits from other women which established a repeated course of similar conduct by the officer upon them. Herein, the plaintiff can point to no such similar course of improper conduct by the law enforcement officers of Custer County.

. When the deputies entered the Swedlund home, Duane was watching television. The deputies ordered him to take a position on the floor. Rather than obey, Duane stood up and began moving toward the deputies with his arms out screaming incoherently: "Ah-ah-ah-ah.” He then sat down again. He then got up again and began repeating that behavior. The officers at that time had no idea why he was acting as he did and why he was not rationally responding to their commands. Later when the officers struggled to subdue him, Duane kicked Sheriff Foster and attempted to reach for a large pair of scissors.

. The "facts” as ascertained by the Court are as follows:

1. The officers were making a "high risk entry” to search for stolen checks.

2. Embezzling money or stealing checks from an employer is not a violent crime.

3. There was no mention of drags in the affidavit for the search warrant.

*62 4. There was no mention that Anita had a prior drug conviction in the affidavit for the search warrant.

5. There was no mention that Anita had previously bitten an officer in the affidavit for the search warrant.

6. Six officers entered the premises with guns drawn.

7. Duane was 48 years old.

8. Duane was sitting in a chair, watching TV and working a jigsaw puzzle when the officers arrived.

9. Duane was not armed.

10. Without provocation, Duane was ordered to get on the floor.

11. Duane was not aggressive until sprayed in the face with pepper spray.

.The officers had been previously told there was a direct nexus between the missing checks and the illegal drug use. The owner of the checks told the Sheriff that he thought Anita was stealing money from his business in order to support her drug habit.

.Tragically, concerns by law enforcement in this state for their personal safety upon the entry into a home at the hands of its occupant rest upon a factual basis. See State v. Bittner, 359 N.W.2d 121 (S.D.1984) (two Huron police officers were summoned to a domestic disturbance and upon entry into the home, both officers were stabbed by the defendant and Officer Tom Callies died). See also State v. Czmowski, 393 N.W.2d 72 (S.D.1986) (citing State v. Aikins Crim 85-318 (Eighth Circuit Court Lawrence County, South Dakota, (1985))) (State Trooper Oren Hindman was killed in line of duty); Bearshield v. City of Gregory, 278 N.W.2d 166 (S.D.1979) (Officer William Bearshield fatally stabbed in heart by stalker); State v. Sitts, 71 S.D. 494 , 26 N.W.2d 187 (1947) (Officer Matthews fatally shot in back as he got out of his car to approach defendant's car).