# Gould v. Davis

> Court of Appeals for the Fourth Circuit · December 31, 1998 · 165 F.3d 265

URL: https://www.frixlaw.com/law-library/cases/9813059

## Case

- **Full name:** Clarence GOULD, Sr., Individually and as Husband; Lena Gould, as Wife, Plaintiffs-Appellees, v. Andrew S. DAVIS; Lee Russo, Corporal; Philip Crumbacher, Police Officer, Defendants-Appellants, and Baltimore County; John Doe, I; John Doe, II; John Doe, III; John Doe, IV; John Doe, V; Lisa Allewalt-Hannon, Police Sergeant; Martin Lippy, Police Officer; Michael Prendergast, Police Officer, Defendants
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** December 31, 1998
- **Citations:** 165 F.3d 265; 1998 U.S. App. LEXIS 32622; 1998 WL 910151
- **Precedential status:** Published
- **Opinion:** Dissent by Williams
- **Judges:** Ervin, Goodwin, Southern, Williams
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9813059

## How later opinions describe it (automated extraction)

- holding that " 'reasonableness' of the officers' decision in applying for and executing the warrant is a legal question” and therefore, the court had jurisdiction to hear appeal from the district court's order denying summary judgment on the basis of qualified immunity
- holding that Aguns do not fire themselves . . . a justifiable fear for an officer=s safety must include a belief, not simply that a gun may be located within a home but that someone inside the home might be willing to use it@
- holding that "guns do not fire themselves . . . a justifiable fear for an officer's safety must include a belief, not simply that a gun may be located within a home but that someone inside the home might be willing to use it"
- finding absence of jurisdiction to “review the district court’s order insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial” (internal quotation marks omitted)

## Opinion text

WILLIAMS, Circuit Judge,
dissenting:
Today the majority holds that officers executing a no-knock search (pursuant to a warrant issued by a neutral and detached state circuit court judge that specifically authorized a no-knoek search) at a home where a resident had shot at officers within the previous year are not entitled to qualified immunity. Because I am convinced that the officers’ conduct did not violate Gould, Sr.’s clearly established constitutional rights, I respectfully dissent.
I.
As the majority correctly notes, police officers are entitled to qualified immunity if, in the performance of their duties, “their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). For the reasons that follow, however, I disagree with the majority’s conclusion that the officers’ decision to seek and execute a no-knoek warrant of *274 Gould, Sr.’s home violated his clearly established Fourth Amendment rights.
As Fourth Circuit case law plainly indicated at the time of the officers’ actions, exigent circumstances could excuse the failure to “knock and announce.” See, e.g., Simons v. Montgomery County Police Officers, 762 F.2d 30, 32-33 (4th Cir.1985) (noting that exigent circumstances justify the failure to “knock and announce”); cf. Wilson v. Arkansas, 514 U.S. 927 , 115 S.Ct. 1914, 1918 , 131 L.Ed.2d 976 (1995) (noting that not “every entry must be preceded by an announcement”). As a result, to avoid summary judgment on qualified immunity grounds, Gould had to allege facts demonstrating that the established contours of the “exigent circumstances” exception were sufficiently clear at the time of the incident such that the unlawfulness of the officers’ actions was obvious. I submit that Gould, Sr. simply failed to allege such facts.
Without question, the failure to knock and announce prior to entering a home can be justified by a fear for officer safety. See, e.g., United States v. Jackson, 585 F.2d 653, 662 (4th Cir.1978) (noting that the failure to “knock and announce” may be justified if there is a likelihood that the occupants will resist the police). Here, although Gould, Jr. was in police custody at the time of the search, the officers were aware of the extensive criminal history of his siblings. Indeed, there is evidence that officers were involved in a shooting incident with one of Gould, Jr.’s brothers at the Gould’s home within the previous year. The majority, however, minimizes the danger that the officers reasonably believed they faced that night. * Although it was later determined that Gould, Jr.’s siblings were also in jail (on unrelated charges) at the time of the search, the officers acted reasonably upon the evidence available to them at the time. Because “officers on the beat are not afforded the luxury of armchair reflection,” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2512 , 138 L.Ed.2d 1015 (1997), their actions must not be judged “with the 2%o vision of hindsight,” Graham v. Connor, 490 U.S. 386, 396-97 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989). Accordingly, I believe that the officers’ decision to seek and execute a no-knock warrant was objectively justified and reasonable.
Even assuming, as the majority argues, that at the time of the search the officers in question had no knowledge of the prior shooting incident at the Gould residence or of the criminal record of Gould, Sr.’s children, I believe that the contours of the “officer safety” exception to the “knock and announce” requirement were not clearly established in 1992 so as to make the unlawfulness of these officers’ actions apparent. See Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987) (noting that “[t]he contours of the right must be sufficiently clear- that a reasonable official would understand that what he is doing violates that right”); Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.1998) (en banc) (same), cert. granted, — U.S. -, 119 S.Ct. 443 , - L.Ed.2d - (1998). Although the majority contends that the unlawfulness of the officers’ actions was apparent in 1992, it was only last year, 1997, that the Supreme Court stated that the officer safety exception would not justify a “no-knock” search “at a time when the only individuals present in a residence ha[d] no connection with the [criminal] activity.” Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416, 1421 , 137 L.Ed.2d 615 (1997). Thus, although it is now clearly established that the officers’ conduct — as portrayed by the majority — violated the “knock and announce” requirement, it was not clearly established that their conduct violated the “knock and announce” requirement in October 1992.
II.
Because I believe that the officers acted reasonably under the circumstances and, in *275 the alternative, that there was a lack of clarity in the law governing the officer safety exception in October 1992, I would grant the officers qualified immunity.
The majority states that the officers believed that they would be in danger at Gould, Sr.’s home because the criminal history of his children warranted an inference that Gould, Sr. might be violent. See ante at 271. The officers did not, as the majority suggests, primarily argue that Gould, Sr. might use a weapon because of the criminal propensities of his children. Rather, the officers were concerned that one of Gould’s children might use a weapon. Although it was later determined that all of Gould's children were in jail at the time of the search, the officers were not aware of that fact at the time of the incident.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9813059. Public record. Not legal advice.