Petition for Writ of Certiorari — Storie v. Duncan

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In The

Supreme Court of the United States

October Term, 1989

CLYDE STORIE, Individually and in his official capacity as

a County Sheriff, Thurston County, Nebraska; and DAN-

IEL WHITTED, Individually and in his official capacity as

a Deputy County Sheriff,

Petitioners,

VS.

KENNETH DUNCAN,

Respondent.

,’

—-

on PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

LARRY E. WELCH

Counsel of Record

and

JOHN W. ILiFr

both of

Gross & WELCH

A Professional Corporation

800 Commercial Federal Tower

2120 South 72nd Street

Omaha, NE 68124

402-392-1500

Counsel of Record and

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Is a police officer entitled to immunity from trial

as a matter of law if he arrests a suspect for a misde-

meanor within the threshold of the suspect’s doorway

without exigent circumstance or a warrant but as part of

a lawful arrest begun while the suspect was in a public

place?

2. Is a police officer entitled to application of the

Harlow test as a basis for qualified immunity from trial

for a claimed violation of a suspect's civil rights by rea-

son of the application of excessive force at the time of the

suspect’s arrest?

3. Ina remand for trial of a pivotal question of fact

with regard to the right of qualified immunity, is a police

officer entitled to a separate full trial on the fact specific

issue relative to the question of qualified immunity prior

to a trial of the merits of the underlying case?

LIST OF PARTIES

Parties to the proceedings below were the Petitioners,

Clyde Storie, in his individual capacity and in his capac-

ity as Sheriff of Thurston County, Nebraska, Daniel Whit-

ted, individually and in his official capacity as Deputy

County Sheriff, and the Respondent, Kenneth Duncan.

TABLE OF CONTENTS

Page

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gs i ks 6 ss sees eee s sea an dacaes 2

UE MI MED gk ce ee tessa seca nneasenes 3

geo | eh) a 3

REASONS FOR GRANTING THE WRIT ........... 10

I. The Eighth Circuit’s doctrine that a person who

has presented himself in a public place may

reassert his right to privacy by an attempt to

retreat into his home, conflicts with the deci-

sions of this Court and other circuits ......... 10

Il. The Eighth Circuit failed to consider, by the

objective standards of Harlow, whether the

arresting officers were entitled as a matter of

law to qualified immunity from a claim of exces-

ENE EOS Pe LETT TEER EE 14

III. The decision that if a conflict of fact exists in a

fact specific issue relative to qualified immunity

is to be resolved at a trial concurrent with the

trial on the issues raises important and unre-

i a eee kn 86 6460s kee ASK eset 15

EE MCLE RA Cais bak aS AKA Reese ecesancenes 17

APPENDIX (Opinion and Judgment of Court of

Appeals, and Memorandum Decision of District

SOE AS la

TABLE OF AUTHORITIES

CASES:

Anderson v. Creighton, 55 U.S.L.W. 5092 (1982)....... 13

Duncan v. Storie, 869 F.2d 1100 (8th Cir. 1989) .. 16, 12, 14

Graham v. Connor, 57 U.S.L.W. 4513 (1989)........... 15

Harlow v. Fitzgerald, 457 U.S. 800 (1982).. 13, 14, 15, 16

Mitchell v. Forsyth, 475 U.S. 511 (1985) .............. 16

Payton v. New York, 445 U.S. 573 (1980) ............. 10

Putnam v. Gerloff, 639 F.2d 415 (8th Cir. 1981)..... 9, 14

Scott v. United States, 436 U.S. 128 (1978)............ 15

United States v. Davis, 785 F.2d 610 (8th Cir. 1986) .11, 12

United States v. Johnson, 626 F.2d 753 (9th Cir. 1980) .... 12

United States v. Howe, 603 F.2d 1297 (8th Cir. 1979) .... 12

United States v. Morgan, 743 F.2d 1158 (6th Cir.

SOMES KANA's Kx bcc R Ros bo Kee Oe SROKA E Se ewes 44a ees 12

United States v. Santana, 427 U.S. 38 (1976)

cae eR ke © cei ates watek wis tea oe 8, 10, 12, 13, 14

lLinited States v. Watson, 423 U.S. 411 (1976).......... 11

Warren v. City of Lincoln, 816 F.2d 1254 (8th Cir.

ok ey POE EE ere ee ee rer eee Oe ree tes erent 9, 16

Warren v. City of Lincoln, 864 F.2d 1436 (8th Cir.

ROME cin <0 k NAA WAM CR OERERANA RS Coteaa er eae rien 16

TABLE OF AUTHORITIES

Page

MISCELLANEOUS:

Neb. Rev. Stat. §28-1310 (Reissue 1985) ............... 4

Neb. Rev. Stat. §29-404.02 (Reissue 1985).............. 5

Oe Ge ack PONE 6.5% 080 kde wane ec inecauaeeeet sues 2

ee ME PUES CAs ec Uebel dcncecsetk eonenee ca Reeeae 3

28 U.S.C. §1343(1), (2), (3), (4)

In The

Supreme Court of the United States

October Term, 1989

—

CLYDE STORIE, Individually and in his official capacity

as a County Sheriff, Thurston County, Nebraska; and

DANIEL WHITTED, Individually and in his official

capacity as a Deputy County Sheriff,

Petitioners,

vs.

KENNETH DUNCAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioners, Clyde Storie and Daniel Whitted,

respectfully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Eighth Circuit, entered in the above-

entitled proceeding on March 13, 1989.

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Circuit is reported at 869 F.2d 1100, and is reprinted in

the appendix hereto, p. 13a, infra.

The memorandum decision of the United States Dis-

trict Court for the District of Nebraska (Urbom, D.J.) has

not been reported. It is reprinted in the appendix hereto,

pp. la and 4a, infra.

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C. §1983,

Duncan brought this suit in the United States District

Court of Nebraska, sitting at Lincoln. On September 1,

1987, the Nebraska Federal District Court denied the

Defendants’ Motions for Summary Judgment based on

qualified immunity of Storie and Whitted. See pp. la and

4a, infra.

On their appeal, the Eighth Circuit on March 13,

1989, entered a judgment and an opinion affirming the

Trial Judge’s Order and remanded the matter back to the

Trial Judge for trial in accordance with his Memorandum

Opinion, as amended on November 4, 1987. See p. 13a,

infra. A Petition for Rehearing was filed, and overruled

by the Eighth Circuit on April 18, 1989. See p. 23a, infra.

The jurisdiction of this Court to review the judgment

of the Eighth Circuit is invoked under 28 U.S.C. §1254(1).

See p. 24a, infra.

STATUTE INVOLVED

No controversy exists which directly affects the inter-

pretation or application of a federal statute with regard to

this matter.

STATEMENT OF THE CASE

The Plaintiff, Kenneth Duncan, on December 26,

1985, was the Chief of Police and served on the volunteer

fire department of the town of Emerson, Nebraska. On

that date, he was arrested by the Defendants, Sheriff

Clyde Storie of Thurston County, Nebraska, and his dep-

uty, Daniel Whitted. He was arrested at his home and

taken into custody for commission of a misdemeanor. He

was arrested without a warrant and he claims that his

arrest was unlawful and constituted a violation of his

civil rights under the Fourth, Fifth, and Fourteenth

Amendments of the United States Constitution and that

Storie and Whitted used excessive force, thereby depriv-

ing him of his constitutional rights. On March 10, 1986, he

filed a Complaint in the United States District Court for

the District of Nebraska, invoking the Court's jurisdiction

under 28 U.S.C. §§1331, see p. 24a, infra, and 1343 (1), (2),

(3), and (4), see p. 24a, infra.

Storie and Whitted have asserted a qualified immu-

nity from suit, claiming that the arrest procedure which

they followed was made in a good faith belief that the

arrest was appropriate and lawful. They filed a Motion

for Summary Judgment with the United States District

Court, which Motion was overruled. The Court, in its

Memorandum Opinion, found that there was a conflict of

—————————

evidence with regard to pivotal facts upon which the

Defendants based their request for a qualified immunity.

The Trial Court, in its Amended Memorandum Decision,

provided that the disputed pivotal fact issue should be

submitted to a jury as a part of the trial of all of the issues

of the case.

For purposes of the Motion for Summary Judgment,

the following facts were undisputed by the parties. On

December 26, 1985, the Plaintiff, Kenneth Duncan, called

from his home in Dixon County, Nebraska, to the offices

of Sheriff Storie in Pender, Thurston County, Nebraska,

and asked to talk with Sheriff Storie. Sheriff Storie con-

versed with Mr. Duncan. The subject of the conversation

had to do with the failure of Mr. Duncan to appropriately

report the transportation of a dead body from the place of

death in Thurston County, to a local hospital in Emerson.

Emerson, although a small Nebraska town, is so situated

that its geographical boundaries include portions of

Dixon, Thurston, and Dakota Counties.

Duncan admits that during the phone conversation,

he called Sheriff Storie a “fucking asshole”, and threat-

ened to haul his “fucking shrimpass into Court”.

At the time of this incident, Neb. Rev. Stat. §28-1310

(Reissue 1985) provided that intimidation by phone call is

a Class III misdemeanor if the call is made with the intent

to annoy or offend and uses language that is at least

indecent. See p. 26a, infra. The statute provides that the

use of indecent, lewd, or obscene language shall be prima

facie evidence of the intent required by the statute. The

Trial Court found in its Memorandum in response to the

Defendants’ Motion for Summary Judgment, that the

Defendants had probable cause to believe that Kenneth

Duncan had violated the statute.

Further, Nebraska had in force and effect at the time

of the incident, Neb. Rev. Stat. §29-404.02, (Reissue 1985),

which empowered a police officer or peace officer to

make a warrantless arrest in cases in which the officer

had reasonable cause to believe that a misdemeanor had

been committed in the officer’s presence. See p. 27a, infra.

The Trial Court found that although Sheriff Storie and

Deputy Whitted were not physically present in Duncan’s

home at the time that Duncan placed the call, the offense

may be considered to have been committed in Sheriff

Storie’s presence; that the call was directed to Storie and

he participated in the conversation, both of which could -

have given Storie reasonable cause to believe that a mis-

demeanor was being committed in his presence.

Further, the Trial Court found, and the fact is, that

there is no statute or court decision which limits the

authority of a peace officer to make an arrest for the

commission of a misdemeanor performed in his presence

to any limited territorial jurisdiction.

It is further undisputed that after the conclusion of

the phone call, Sheriff Storie proceeded with Deputy

Whitted to the home of Kenneth Duncan in Emerson,

Nebraska, and further, that Kenneth Duncan’s home was

located in that portion of town that was situated in Dixon

County, Nebraska. In deposition, Kenneth Duncan testi-

fied that he saw Sheriff Storie’s car come around the

corner and come down the street towards his home. He

put his dog in a closet because the dog had a tendency to

bark when people came to his door. He secured a report

ne had written concerning the transfer of the dead body,

and he proceeded to the front door of his residence and

opened the door. Sheriff Storie and Deputy Whitted were

just mounting the steps of his front porch when Duncan

opened the door. Duncan and Storie engaged in conversa-

tion, and at all times during that conversation, Storie and

Whitted remained on the front porch of the Plaintiff's

There then exists a divergence in the testimony with

regard to the location of Mr. Duncan once he opened his

door and commenced his conversation with Sheriff Storie.

According to the deposition of Sheriff Storie, he asked

Duncan to step out on the front porch and Duncan did so,

and thereafter, the arrest took place. According to the

deposition of Kenneth Duncan, when he learned that

Sheriff Storie did not want his report, he attempted to

thrust the report at Sheriff Storie and close the screen

door or outer door of his home when Sheriff Storie

“grabbed his arm and pulled him out on the porch.

It is undisputed that Duncan wrestled with Sheriff

Storie and that Dan Whitted applied a battery-operated

“stun gun” to Kenneth Duncan to facilitate his arrest. A

stun gun is a device used by peace officers that has the

effect of interfering with certain nerves in the system,

causing the subject to, in effect, become relaxed and

nonresistent to arrest. It is used in lieu of a club or other

instrument which might cause physical injury.

Duncan was then taken back to Pender, Nebraska,

where he was booked and released.

It is undisputed that the Defendants did not have a

warrant to arrest Kenneth Duncan.

It was the position of the Defendants in the Motion

for Summary Judgment that they were authorized to

make an arrest without a warrant by reason of the

Nebraska statute which authorizes and empowers a

police officer to arrest an individual who has committed a

misdemeanor in the presence of the police officer, and

such arrest may be made without a warrant. It is the

position of the Defendants that the arrest was made in a

public place or that a police officer could reasonably

believe that the arrest was made in a public place.

The Trial Court, in overruling the Defendants’

Motion for Summary Judgment on the issue of qualified

immunity, found that a conflict of fact existed with regard

to whether or not the arrest took place outside of Kenneth

Duncan’s home on the porch as testified to by Sheriff

Storie, and therefore, was an arrest ina public place, or in

fact took place as described by Kenneth Duncan, in which

he testified that the Defendants reached into his home

and pulled him out of the threshold of his doorway and

onto the front porch as part of the arrest. The Trial Court,

in effect, took the position that the Nebraska statute

which authorizes a police officer to make an arrest with-

out a warrant of a person who has committed a misde-

meanor in his presence, does not empower or authorize a

police officer to enter the home of the suspect to make an

arest without a warrant, because such an arrest would be

in violation of the Fourth Amendment rights of the sus-

pect with regard to his right of privacy.

The Defendants contend that although there is a dis-

pute of fact concerning the position of Kenneth Duncan at

the time of his arrest, the disputed fact is not material in

that under either version of the facts the Plaintiff was ina

public place, or a reasonable police officer could believe

the suspect was in a public place at the time of his arrest.

It is the contention of the Defendants that the undisputed

facts establish that Kenneth Duncan placed himself vol-

untarily in the threshold of his doorway and that consis-

tent with the decision of the United States Supreme Court

in United States v. Santana, 427 U.S. 38 (1976), the plaintiff

was in a public place and had no expectation of privacy

at the time of his arrest, or at the very least, that a

reasonable police officer could believe that he was in a

public place and had no expectation of privacy.

The Eighth Circuit found that under Duncan’s ver-

sion of the facts, namely that when it was apparent that

the officers had not come for his report, he stepped

further back into the house and attempted to close the

door when at that moment he claims he was pulled from

his home by the officers. The Eighth Circuit asserts that a

jury could find that his attempted retreat, much like the

suspect in Santana, placed Duncan firmly inside his home

and the officers would be required to demonstrate exi-

gent circumstances.

It is the contention of the officers that the policy of

this Court as announced in Santana is that one who places

himself voluntarily in the threshold of his doorway has

no expectation of privacy, and that once a warrantless

arrest has begun, when he is in such a public place, that

arrest lawfully begun may be pursued and continued

even though the subject attempts to retreat within his

premises, or at least as a matter of law, a reasonable

officer could so believe at the time that the arrest was

made of Kenneth Duncan. It is the contention of the

Defendants that the Eighth Circuit is in error in asserting

a principle that a warrantless arrest for a misdemeanor

once begun in a public place would require a presence of

exigent circumstances to continue that arrest if the subject

attempts to resist by retreating into his home.

The Eighth Circuit, in affirming the Trial Court’s

Order, has remanded the matter back for trial. By his

Memorandum Opinion, the Trial Court indicated that the

issue of fact upon which qualified immunity would pivot

wouid be submitted to the jury with instructions in accor-

dance with the case of Warren v. City of Lincoln, 816 F.2d

1254, 1262 (8th Cir. 1987).

The procedure for the trial of fact as set forth in

Warren would submit the issue of fact pivotal to qualified

immunity to the jury along with all of the factual issues

of the underlying case.

It is the position of Storie and Whitted that if such an

issue must be tried to a jury, such trial should be a

separate trial on the fact specific issue and a verdict

rendered on that fact issue prior to a trial on the issues of

the underlying case.

Further, the Eighth Circuit found that a fact issue

existed relative to Duncan’s claim of excessive force

under the four pronged test applied by the Circuits in

cases such as Putnam v. Gerloff, 639 F.2d 415, 423 (8th Cir.

1981). It is the position of Storie and Duncan that the

objective test of Harlow should be applied in excessive

force cases to determine if the officers are entitled to

qualified immunity from such claim.

REASONS FOR GRANTING THE WRIT

The Eighth Circuit’s doctrine that a person who has

voluntarily presented himself to a police officer in a

public place may reassert his right to privacy by an

attempt to retreat into his home, thus defeating a

lawful arrest begun while he was in the public

place without a warrant or exigent circumstance,

conflicts with the decisions of this Court and other

circuits.

The Eighth Circuit in Storie reasons that if Kenneth

Dunean’s assertions of fact surrounding his arrest are

found to be true by the trier of fact, he may simply defeat

a lawful arrest by the mere expediency of attempting to

retreat into the confines of his home. The Court in effect

establishes the policy that if police officers have begun an

arrest in a public place, the subject may terminate the

arrest by simply turning and moving into his home, thus

effectively nullifying the arresting procedure. The Court

would require that the officers must either obtain a war-

rant or be faced with exigent circumstances before con-

tinuing with the arrest.

PNA afl, CLIO OI PILED eo

The authority to follow a suspect into the home if the

arrest began in the threshold of the house is found in

United States v. Santana, 427 U.S. 38 (1976). There, this

Court held that an arrest without warrant or exigent

circumstance begun in the threshold of the suspect’s

doorway is an arrest begun in a public place and need

only be supported by probable cause. The complexion

changes if the subject is within his home and has an

expectation of privacy. As noted in Payton v. New York,

445 U.S. 573 (1980), the Fourth Amendment protects

te yet iat yp rd |. Powe wee

ee eae Cee ns

against unreasonable search and seizure without a war-

rant or unless significant exigent circumstance is present

to justify an intrusive arrest without a warrant.

Although the opinion in Santana noted that elements

of exigent circumstance were present, the Court did not

condition its holding on exigent circumstance. The Court

simply held that once an arrest is set in motion in a public

place, the arresting officer may follow the suspect into

the home to complete the arrest. The clear, unambiguous

holding of this Court was:

We thus conclude that a suspect may not defeat an

arrest which has been set in motion in a public place,

and is therefore proper under Watson, by the expe-

dient of escaping to a private place...

As recently as 1986, the Eighth Circuit seems to per-

ceive a split of authority in the circuits with regard to

whether an arrest in the threshold of a doorway is an

arrest in a public place as enunciated in United States v.

Watson, 423 U.S. 411 (1976). In United States v. Davis, 785

F.2d 610, 615 (8th Cir. 1986), the Court stated:

... When a person is arrested at the doorway, as was

Davis, the circuits are split as to whether this consti-

tutes a house arrest and is improper. Compare United

States v. Whitten, 706 F.2d 1000, 1015 (9th Cir. 1983)

(relying on United States v. Santana, 427 U.S. 38, 42, 96

S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976), court found

no warrant required because doorway is a_ public

place) . . . with United States v. Morgan, 743 F.2d 1158,

1166 (6th Cir. 1984)(location of arrested person, not

arresting officer, determines whether situation is a

home arrest)...

In Davis, the suspect was arrestec in his doorway

without a warrant and charged with rape. The Eighth

Circuit after having referenced “a split” in the circuits on

the issue of arrest in a doorway without warrant, then

justified an arrest on grounds of probable cause and

exigent circumstance coupled with a finding that there

existed no egregious conduct on the part of the officers at

the time of arrest.

In Davis, the Eighth Circuit noted that exceptions to

valid warrantless arrests in doorways were found in cir-

cuit decisions. United States v. Howe, 603 F.2d 1297, 1300

(8th Cir. 1979) (deliberate delay); United States v. Morgan,

743 F.2d 1158, 1166 (6th Cir. 1984) (coercive behaviour);

and United States v. Johnson, 626 F.2d 753, 757 (9th Cir.

1980) (deceptive practices).

The Eighth Circuit now in Storie, for all intents and

purposes, reintroduces the requirement of exigent cir-

cumstance in a doorway arrest.

It is respectfully suggested that the cases cited by the

Eighth Circuit do not constitute a split within the circuits

concerning application of Santana, but rather, all of the

cases cited outside of the Eighth Circuit deal with circum-

stances wherein the subject or suspect did not enter the

threshold voluntarily and thus did not waive the right of

privacy.

In Storie, the Eighth Circuit has adopted the rule as

proposed by Mr. Justice Marshall in his dissent in San-

tana, as the operative rule in the Eighth Circuit rather

than the rule as pronounced by the Court majority. Justice

Marshall, in his dissent in Santana, forcefully calls for

exigent circumstance as a criterion for a warrantless

arrest in the doorway of the home, which, of course,

merely extends to the doorway the same right of privacy

as is extended to the suspect in the interior of the home.

In any event, the Eighth Circuit again brushes over

the objective standard of measurement of the officers’

actions in support of application of the doctrine of quali-

fied immunity as established by this Court in Harlow v.

Fitzgerald, 457 U.S. 800 (1982) and Anderson v. Creighion,

55 U.S.L.W. 5092 (1987). Although the Court posits the

argument of Storie and Whitted that, in light of Santana, a

reasonable arresting officer could ‘believe that he was

empowered to arrest Duncan in the doorway of his home

without a warrant because he voluntarily placed himself

there, the Court never responds to the issue except to find

that because a question of fact exists with regard to the

ultimate issue of whether Defendants breached Duncan’s

constitutional right, therefore there cannot exist a right of

qualified immunity.

It is clear that the distinction between the ultimate

question of whether the Plaintiffs’ constitutional rights

were violated and the question of whether as measured

by the clearly established law a reasonable officer could

believe he was acting properly, is not applied in the

Eighth Circuit. It was not applied in Creighton, and it was

not applied in Storie.

Petitioners respectfully submit to this Court that if

Storie is not reversed, the requirement of exigent circum-

stances in arrests in a suspect’s doorway becomes con-

trolling precedent in the Eighth Circuit and Storie will

afford a precedent for other circuits to chip away at the

fundamental holding in Santana. Petitioners submit that a

reversal of Storie will significantly further define, clarify,

and affirm the principals enunciated in Santana.

In addition, Petitioners suggest that the fact situation

in Storie and the opinion of the Eighth Circuit is a classic

example of the confusion that exists concerning the dis-

tinction between the ultimate issue of the case and the

issue of qualified immunity from trial based upon the

application of the doctrines in Harlow, supra. Petitioners

suggest that a treatment of the issues in Storie and a

reversal of the Eighth Circuit’s decision will significantly

instruct in the dichotomy of issues between qualified

immunity and the ultimate issues of the case and further

reinforce and affirm the doctrines in Harlow.

Il.

Whether a police officer ‘is entitled to qualified

immunity measured by the objective standards as

set forth in Harlow with regard to a claim of exces-

sive force is an important and significant issue.

In addition, the Court affirmed the Trial Court’s over-

ruling of the officers’ Motions for Summary Judgment

with regard to the issue of qualified immunity concerning

the question of excessive force finding a fact issue exists

relative to the four pronged test as set forth in Putnam v.

Gerloff, 639 F.2d 415, 423 (8th Cir. 1981), which applies a

subjective standard of intent relative to the application of

force. (p. 20a, infra) It is the position of Storie and Whit-

ted, that the objective test of Harlow should be applied in

determining whether they are entitled to qualified immu-

nity from trial with regard to the issue of excessive force.

The very recent case of Graham v. Connor, 57 U.S.L.W.

4513 (1989), points out that a claim of damages under 42

U.S.C. §1983 is not a cause of action founded on some

generic standard or basic principles to be found in §1983

jurisprudence, but rather that such claims must be

brought as a violation of a specific constitutional amend-

ment, more particularly, the Fourth Amendment. The

court did away with the four pronged subjective test

followed by the circuits in measuring whether excessive

force had been applied to a suspect and asserted an

objective standard such as found in Scott v. United States,

436 U.S. 128, 137-139 (1978).

Because a Fourth Amendment right is the basis of a

cause of action for use of excessive force, and such must

be measured by an objective standard, it is the position of

Storie and Whitted that qualified immunity should also

attach to any such claim measured by the standards set

forth in Harlow.

III.

The decision that if a conflict of fact exists with

regard to a fact specific issue which is pivotal to

qualified immunity such issue must be tried as a

part of the trial of all of the issues of the case, raises

important and unresolved issues.

The Trial Court, in his Memorandum Decision (See p.

la, infra), overruled Defendants’ Motion for Summary

Judgment on the issue of qualified immunity, finding that

conflict of fact existed concerning the pivotal issue of

whether Plaintiff was on his porch and therefore could

be deemed to be in a public place or whether he was

16 =

standing in the doorway of his home and therefore would

be entitled to Fourth Amendment protection. The Court

indicates that it will follow the process established by the

Eighth Circuit in Warren v. City of Lincoln, 816 F.2d 1254

(8th Cir. 1987). In the Warren case, the Eighth Circuit

panel remanded an issue of fact pivotal to qualified

immunity to the District Court for submission to the jury

along with the issues of the main action.

Initially, the jury had tried all issues, including quali-

fied immunity, and found for the Defendants. The panel

reversed, finding, among other reasons, that the Court

had misinstructed on the issue of qualified immunity.

Prior to retrial, the Eighth Circuit reheard the matter en

banc, determined that the initial decision of the jury was

correct with regard to issues of the main action, and

affirmed the verdict, rendering moot the issue of retrial of

the question of qualified immunity. A dissent, however,

reaffirmed the procedure of trial of the immunity issue,

along with other issues of the case. Warren v. City of

Lincoln, 864 F.2d 1436 (8th Cir. 1989). It is that procedure

that Judge Urbom indicates he will follow in Storie in his

Memorandum and it is that decision that was affirmed by

the Eighth Circuit.

It is clear from Harlow, supra, and Mitchell v. Forsyth,

475 U.S. 511 (1985), that the doctrine of qualified immu-

nity addresses a right to be free from trial or answer for

alleged wrongful acts. As stated in Mitchell:

... The entitlement is an immunity from suit rather

than a mere defense of liability; and like an absolute

immunity, it is effectively lost if a case is erroneously

permitted to go to trial.

Id. at 527 (emphasis in original).

If, indeed, a material factual dispute exists that is

pivotal to Defendants’ claim of qualified immunity, it is

clear that a separate trial must be had on the issue and a

final appealable Order entered.

,’

CONCLUSION

For the foregoing reasons, Petitioners urge the Court

to grant their Petition. This matter includes extension of

the doctrine of qualified immunity to arrests made for

misdemeanors, the question of procedures to be followed

if a fact issue exists relative to pivotal facts underlying a

claim of qualified immunity and extension of qualified

immunity, and the objective test therefore, in a claim of

excessive force.

Respectfully submitted,

Larry E. WELCH

Counsel of Record

and

JoHN W. Iver

both of

Gross & WetcH

A Professional Corporation

800 Commercial Federal Tower

2120 South 72nd Street

Omaha, NE 68124

402-392-1590

Counsel of Record and

Counsel for Petitioners

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

KENNETH DUNCAN, ) CV86-L-218

Plaintiff, )

) MEMORANDUM AND

ve ) ORDER ON DEFENDANTS’

CLYDE STORIE, et al., ) MOTION FOR SUMMARY

) JUDGMENT

Defendants.

)

(Filed Sep 1, 1987)

The obligation of the movant on summary judgment

is to show that “there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Rule 56(c) Federal Rules of

Civil Procedure.

Several interesting and challenging legal questions

are presented by this case, but the one that the defen-

dants have failed to deal with in their brief is whether a

warrantless arrest in the arrestee’s home is violative of a

constitutional right. There may be some factual and legal

issues as to whether an arrest was made within the home

or immediately outside the home, following the forcible

pulling of the plaintiff from his home, but in any event

the obligation is upon the defendants to show that there

is no genuine issue of fact and that they are entitled toa

judgment as a matter of law. This they have failed to do.

IT THEREFORE IS ORDERED that the motion for

summary judgment, filing 45, is denied, except as to the

plaintiff’s claim under 42 U.S.C. § 1981, which the plain-

tiff acknowledges is not a viable claim.

Dated September 1, 1987.

BY THE COURT

/s/ Warren K. Urbom

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

KENNETH DUNCAN, ) CV86-L-218

Plaintiff,

VS. ) ORDER

CLYDE STORIE, et al., )

Defendants. ‘

(Filed Nov 4, 1987)

Based on the explanation given in the accompanying

memorandum,

IT IS ORDERED that the order of this court dated

September 1, 1987, is amended to include an express

denial of the defendants’ motion for summary judgment .

on the grounds of qualified immunity.

Dated November 4, 1987.

BY THE COURT

/s/ Warren K. Urbom

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

KENNETH DUNCAN,

Plaintiff,

CV86-L-218

)

ve ) AMENDMENT TO MEM-

CLYDE STORIE, et al. ) ORANDUM AND ORDER

) ON DEFENDANTS’

) MOTION FOR SUMMARY

) JUDGMENT

(Filed Nov 4, 1987)

Defendants.

On September 1, 1987, I entered an order denying the

defendants’ motion for summary judgment because |

determined that the defendants, Clyde Storie and Daniel

Whitted, failed to show that no genuine issue of material

fact remained to be resolved in the case. Specifically, I

identified a factual dispute regarding whether the war-

rantless arrest was made inside or immediately outside

the home of plaintiff Kenneth Duncan. My order makes

no mention of the defense of qualified immunity that was

raised by the defendants and accordingly, the defendants

have appealed.

On October 10, 1987, plaintiff’s counsel brought to

my attention Craft v. Wipf, 810 F.2d 170 (8th Cir. 1987).

The Craft defendants appealed a district court’s entry of

summary judgment in favor of the plaintiff, arguing that

the district court’s order tailed to address the issue of

qualified immunity. The Craft court relied on the United

States Supreme Court’s statement in Mitchell v. Forsyth,

472 U.S. 511, 530 (1985), that “a district court’s denial of a

claim of qualified immunity, to the extent that it turns on

an issue of law, is an appealable ‘final deci-

sion’ . . . notwithstanding the absence of a final judg-

ment.” Id. Because a denial of qualified immunity

generally is an appealable final order, and because the

Eighth Circuit court believed that the district court is in a

more favorable position than is the appellate court to

judge which facts or alleged facts should constitute the

basis of decisicn, the Craft court remanded the case to the

district court for its ruling on the merits of the qualified

immunity defense.

The Craft Court advocated the widespread use of

summary judgment motions to dispose of cases on quali-

fied immunity grounds and discussed the factual/legal

dichotomy with which the qualified immunity analysis

struggles. Although the Craft opinion recounts the facts

of the case, it does not discuss the facts that were

allegedly disputed. The wording of the Mitchell holding,

supra, indicates that if the disposition of a qualified

immunity defense hinges on a factual issue rather than a

legal issue, the district court’s order may not be imme-

diately appealable. I find that such a factual issue is

present in this case, making disposition of the qualified

immunity defense imprudent on a summary judgment

motion. In light of the concern by the attorneys who

represent the parties to this lawsuit, I have decided to

amend my order of September 1, 1987 to discuss the

qualified immunity issue.

The good faith, or qualified immunity, defense has

historically been composed of both objective and a sub-

jective aspects. Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982). The Harlow Court explained that “[t]he objective

element involves a presumptive knowledge of and

respect or ‘basic, unquestioned constitutional

rights.’ . . . The subjective component refers to ‘pe. .iss-

ible intentions.’ ” Id. (citations omitted). In recent years,

the United States Supreme Court has attempted to mini-

mize the significance of the subjective element of the

qualified immunity defense and accordingly, the Court

has clarified the scope of the objective element. In Ander-

son v. Creighton, 55 U.S.L.W. 5092, 5093 (June 25, 1987), the

Court restated the standard set forth in Harlow:

[W]hether an official protected by qualified immu-

nity may be held personally liable for an allegedly

unlawful official action generally turns on the ‘objec-

tive legal reasonableness’ of the action assessed in

light of the legal rules that were clearly established at

the time it was taken.

Id. (citations omitted). Because the question of the defen-

dants’ qualified immunity cannot be answered with refer-

ence to both elements, or in the preferred manner with

reference to the objective element alone, I will expressly

deny the defendant’s motion for summary judgment on

the qualified immunity defense.

Two primary determinations must be made by courts

that consider the qualified immunity defense according to

Anderson. First, a court must determine whether the right

that the official is accused of violating was clearly estab-

lished under the law. The Anderson Court explained that

clearly established means 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.” id.

The Court emphasized that it is not sufficient for a court

to determine whether the right asserted by the plaintiff is

well established. In addition, a court must consider the

situation from the perspective of the official and ask

whether the law had not established at the time the action

was taken that the officer’s actions violated the plaintiff’s

right. Id.

Second, the Anderson Court stated that the court will

usually be forced to determine the extent of the “informa-

tion possessed by the investigatory officiais.” Id. The

Court warned that this inquiry should not reintroduce

the subjective element into the qualified immunity anal-

ysis; the official’s subjective beliefs about the allegedly

unconstitutional actions are irrelevant. Jd. Rather, the

inquiry should help to objectively answer what a reason-

able officer who was possessed of the investigatory offi-

cer’s information would have believed was constitutional

in light of the established law. Id.

The defendants’ argue that their arrest of Duncan

was justified under the Nebraska statutes. In the deposi-

tions of the defendants, they state that Duncan volun-

tarily exited his house and stepped onto his porch at

which tim. the arrest was conducted. See Deposition of

C. Storie, part of filing 35, 15:5-9; Deposition of D. Whit-

ted, part of filing 35, 30:12, 31:1-4. To the contrary, Dun-

can testified in his deposition that the defendants opened

the door to this house and forcibly pulled him from

where he stood inside the house onto the porch and made

the arrest there. Deposition of K. Duncan,-part of filing

35, 40:15-20. The central constitutional claim raised by

Duncan is that he was unlawfully arrested in violation of

his fourth amendment right to be free from unreasonable

searches and seizures. Different constitutional standards

apply in resolving fourth amendment warrantless arrest

issues depending on whether the arrest was made in a

public place or whether it was made in the arrestee’s

home.

The standard for a warrantless arrest in a public

place was stated by the Supreme Court in United States v.

Watson, 423 U.S. 411 (1976). The Wetson Court stated that

a peace officer has the authority to make a warrantless

arrest of an individual in a public place provided that the

officer has probable cause. A different constitutional stan-

dard applies to warrantless arrests when they are made

within the arrestee’s home. In order to have acted consti-

tutionally in making a warrantless arrest in an arrestee’s

home, the officer must show that exigent circumstances

sufficient to excuse the absence of a warrant existed. See,

Ker v. California, 374 U.S. 23, 40-42 (1963).

The defendants apparently rely on their alleged find-

ing of probable cause and upon Nev. Rev. Stat. §29-404.02,

which permits a peace officer to make an arrest if a

misdemeanor is committed in the officer’s presence, in

seeking qualified immunity. If the arrest was made, as the

defendants claim, outside Duncan’s house, then they

would likely be immune from suit under the law that

applied at the time. Although there is a sense that Storie

and Whitted would not have so ardently pursued the

matter had Storie and Duncan not had a history of dis-

agreements between them, this evidence indicates that

they acted in an objectively legally reasonable manner.

Under Neb. Rev. Stat. §28-1310, a person who places

a phone call can be found to have committed the class III

misdemeanor of intimidation by phone call if the call is

made with the intent to at least annoy or offend, and uses

language that is at least indecent. Portions of the deposi-

tions of Duncan, Storie and Whitted could be read to

indicate that the defendants had probable cause to make

a warrantless arrest of Duncan in a public place. Deposi-

tion of K. Duncan, part of filing 35, 31:25, 32:1-2 (recount-

ing the language used during the conversation);

Deposition of C. Storie, part of filing 35, 17:13-15 (stating

that Storie found the language “objectionable”); Deposi-

tion of D. Whitted; part of filing 35, 28:19-22 (expressing

his belief that the facts indicated a violation of the stat-

ute). Furthermore, Nev. Rev. Stat. §1310(2) states that use

of “indecent, lewd or obscene language . . . shall be prima

facie evidence” of the intent required by the statute.

The defendants also seem to justify their actions

under a Nebraska statute that empowers a police officer

to make a warrantless arrest in cases in which the officer

has reasonable cause to believe that a misdemeanor has

been committed in the officer’s presence. See Nev. Rev.

Stat. §29-404.02. Relying on the standard articulated in

Anderson, this court may determine that the law of

Nebraska has not clearly established whether receiving

an phone call that falls within Nev. Rev. Stat. §28-1310

sufficiently puts an officer in the presence of the alleged

offender so as to make a warrantless arrest under Neb.

Rev. Stat. §29-404.02. Although Storie and Whitted were

not physicé lly present in Duncan’s home at the time that

Duncan placed the call, the offense may be considered to

have been committed in Storie’s presence. The call was

directed to Storie and he participated in the conversation,

both of which could have given Storie reasonable cause to

believe that a misdemeanor was being committed in this

presence. Neither of the defendants’ theories car be the

10a

basis of a finding of qualified immunity upon a motion

for summary judgment. The evidence can be considered

only after a jury has determined that the arrest was made

on the porch after Duncan voluntarily stepped outside

his house.

An entirely different result would probably be

reached if the plaintiff’s version of the facts was proven.

The plaintiff claims that the arresting officers forcibly

pulled him from inside his home onto the porch of the

house where the defendants arrested him. Warrantless

arrests in homes have been upheld based on a finding of

exigent circumstances such as an officer’s belief that the

arrestees would flee the jurisdiction, would destroy evi-

dence or would harm society or themselves. See Ker v.

California, supra; Warden v. Hayden, 387 U.S. 294, 298-99

(1967). In his deposition, Storie testified that he did not

know whether Duncan would act in a manner that would

give rise to exigent circumstances and he indicated that

he had no reason to believe Duncan would. Deposition of

C. Storie, part of filing 35, 24:16-25, 25:1-7.

The apparent absence of exigent circumstances is also

indicated by recent case law. The Supreme Court in Welsh

v. Wisconsin, 466 U.S. 740, 753 (1984), and the Eighth

Circuit Court in Patzner v. Burkett, 799 F.2d 1363, 1368 (8th

Cir. 1985), have held that the seriousness of the offense

for which the arrest is made is a consideration that has

great significance in determining whether exigent circum-

stances sufficient to justify a warrantless arrest in the

home exist. The Welsh Court acknowledged that the state-

imposed penalty for a crime is the most consistent mea-

sure of the gravity of the offense. Intimidation by phone

call is a class III misdemeanor in Nebraska. These factors

lla

would be considered by the court if the jury determines

that the arrest was made only after the defendants pulled

Duncan from his house against his will.

In Warren v. City of Lincoln, 816 F.2d 1254, 1262 (8th

Cir. 1987), the Eighth Circuit remanded a case to the

district court and seized the opportunity to reiterate that

whether a defendant is entitled to qualified immunity is a

question of law to be decided by the court. The plaintitf

in Warren was arrested by the police under the authority

of a traffic warrant but was extensively questioned about

a burglary that had b.. 1 committed in the vicinity in

which he was apprehe rded. The Warren Court attempted

to clarify the procedural questions that exist due to the

factual and legal dichotomy that is everpresent in quali-

fied immunity analysis. The Eighth Circuit directed that:

On remand, the jury should initially determine under

proper instructions whether the arrest of Warren was

a pretext employed to gather evidence of unrelated

crimes. If the jury determines that it was a pretext,

then the district court should determine whether the

law prohibiting pretextual arrests was clearly estab-

lished [at the time the officers made the arrest]. If the

jury finds that the arrest was not pretextual but

rather a lawful arrest pursuant to a traffic warrant,

then [the district court] should determine whether

Warren was detained beyond the time necessary to

process the traffic offense for questioning on an unre.

lated matter. If the jury determines that he was so

detained, then the district court should determine

whether the law prohibiting such a detention was

clearly established [at the time the officers made the

arrest].

Id. Although this process is convoluted, I believe some-

thing similar in this case is necessary. The jury must first

decide whether Duncan voluntarily stepped onto the

12a

porch and the arrest was made thereafter, or whether the

defendants opened the door to Duncan’s house and

forced Duncan onto the porch so that they could make

the arrest. Only after such a finding is made will the court

be in a position to rule on the issue of the defendants’

qualified immunity defense.

Dated November 4, 1987.

BY THE COURT

/s/ Warren K. Urbom

United States District Judge

13a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-2369

Kenneth Duncan,

appenee, Appeal from the United

States District Court for

the District of Nebraska.

Clyde Storie, Individually

and in his official capacity

as a County Sheriff,

Thurston County,

Nebraska; and Daniel

Whitted, individually and

in his official capacity as a

Deputy County Sheriff,

a oe oe oe oe ae oe oe oe ee oe a oe

Appellants.

Submitted: June 13, 1988

Filed: March 13, 1989

Before LAY, Chief Judge, BROWN,” Senior Circuit Judge,

and WOLLMAN, Circuit Judge.

LAY, Chief Judge.

This suit arises under Title 42 U.S.C. § 1983. It comes

here on an interlocutory appeal from a denial of summary

*THE HONORABLE JOHN R. BROWN, Senior Circuit Judge

for the United States Court of Appeals for the Fifth Circuit,

sitting by designation.

14a

judgment by the district court.! See Mitchell v. Forsyth, 472

U.S. 511, 524-530 (1985).

At the time the events in issue took place, Kenneth

Duncan was the Chief of Police and Captain of the Volun-

teer Rescue Squad in Emerson, Nebraska and Clyde

Storie was Sheriff of Thursion County. For some time

prior to December 23, 1985, there had been an ongoing

dispute between Duncan and Storie, whose jurisdictions

overlap geographically, regarding the proper procedure

for transporting bodies of deceased persons from the

scene of the death. Storie required rescue squad person-

nel to inform his office prior to transporting these bodies

to enable his staff to conduct an investigation into possi-

ble foul play.

On December 23, 1985, Duncan ordered the removal

of a deceased person from a residence in Emerscn before

informing the Thurston County Sheriff’s Office. A few

days later, on December 26, Duncan and Storie had a

telephone conversation concerning this matter. During

this conversation, Storie, who was disturbed by Duncan’s

failure to notify his office, threatened to revoke the

town’s permit to have a red light on its rescue vehicle.

Storie called Duncan an “asshole.” Duncan responded by

calling Storie a “fucking asshole” and threatened to haul

his “fucking shrimp ass in[to] court.”

Later on the same day as the phone call, Storie and

Daniel Whitted, a Thurston County Deputy Sheriff, drove

to Duncan’s home. Duncan observed their arrival and,

1 The Honorable Warren K. Urbom, United States District

Judge for the District of Nebraska.

15a

believing that they had come to pick up his written report

on the transportation of the dead body, opened the front

door to meet them. According to Storie and Whitted,

when Duncan realized that they were there with regard

to the alleged intimidating phone call, he stepped outside

onto the porch and began to argue with them. At that

time Storie decided to place Duncan under arrest for

making an obscene phone call and a wrestling match

ensued. Whitted applied a stun gun to Duncan which

enabled the officers to handcuff him and transport him to

the Sheriff’s office.

Duncan contends that he had remained inside his

front door when the officers arrived.2 He attempted to

close the door as soon as he ascertained that they had

come to arrest him for making an intimidating phone call.

The officers, however, prevented him from doing so and

pulled him out of his home. Duncan was then wrestled to

the ground where he received repeated applications of

the stun gun before being handcuffed and placed in the

squad car.

2 Duncan’s deposition provides the following description

of the arrest:

I said, here’s the report, Clyde. And he said, that’s not

what I’m here for. Come outside. And I said, no, I’m not

going to come outside. I’ve told you before and I’m not

arguing with you about this. I’!l see you in court.

If that’s the way you want it, I’ll see you in court, and

I handed the report out to him. He started to pull the door

opened. And when he pulled on the door, | reached for the

door, he grabbed my left hand, the Deputy grabbed my

(Continued on following page)

l6a

Duncan filed an action against the officers under

section 1983 in federal district court alleging unlawful

arrest and excessive use of force. The district court

denied defendants’ motion for summary judgment. The

court stated that a ruling on the availability of qualified

immunity would be premature until factual findings were

made regarding the circumstances surrounding the arrest.

Legality of the Arrest

Depending upon whether Duncan was arrested in his

home or outside in a public place, different standards

apply to evaluate the constitutionality of this warrantless

arrest. If an individual voluntarily left the confines of his

home, as Storie and Whitted claim that Duncan did, then

the arrest was made in a public place. United States v.

Santana, 427 U.S. 38, 42 (1976). Under these circum-

stances, the individual has no expectations of privacy and

the arresting officers need only demonstrate that there

was probable cause in order to justify a warrantless

arrest. United States v. Watson, 423 U.S. 411, 423-24, reh’g

denied, 424 U.S. 979 (1976). However, a warrantless airest

(Continued from previous page)

right arm, pulled me outside the house onto the porch and

started to wrestle me tot the ground.

When they were wrestling me to the ground, | felt that

there was probably going to be more than just an arrest or

whatever here because they said as they were pulling me

out, Clyde said, we’re going to — I’m going arrest you for

making an intimidating phone call.

Duncan Dep. at 40, lines 11-25.

17a

that occurs inside an individual’s home is unconstitu-

tional unless the officers demonstrate the existence of

probable cause and exigent circumstances.?

The doorway of an individual’s home or apartment

or hotel room may be a public place for the purpose of

making a warrantless arrest if the individual has come to

stand in the doorway voluntarily. See United States v.

Whitten, 706 F.2d 1000, 1015 (9th Cir. 1983). However, an

individual who is compelled to stand in a doorway can-

not be lawfully arrested without the existence of probable

cause and exigent circumstances. See United States v. Al-

Azzawy, 784 F.2d 890, 893 (9th Cir. 1986); United States v.

Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984). The same

standard applies when officers deceive an individual in

order to bring him to the door. United States v. Johnson,

626 F.2d 753, 757 (9th Cir. 1980), aff'd on other grounds, 457

U.S. 537 (1982).4

3 In determining whether exigent circumstances exist, the

following criteria are considered: (1) seriousness of the alleged

offense; (2) reasonable belief that the suspect is armed; (3) clear

showing of probable cause to believe that the suspect commit-

ted the alleged offense; (4) strong reason to believe that the

suspect is on the premises; (5) likelihood that the suspect will

escape if not swiftly apprehended; and (6) entry may be made

peaceably. United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.

1978).

4 In addition to the existence of probable cause and exi-

gent circumstances, this court has examined the record for

egregious police misconduct when evaluating the propriety of

a doorway arrest. United States v. Davis, 785 F.2d 610, 615 (8th

Cir. 1986).

18a

It is well established that a warrantless arrest within

the confines of the home, barring exigent circumstances,

is unconstitutional. The defendants concede the absence

of exigent circumstances in this case, but urge that under

the Santana decision an officer might reasonably believe

that Duncan’s appearance at the door constituted

entrance into a public place. They argue that the cases are

in conflict as to when the doorway of a home constitutes

a public place, and that this conflict provides objective

reasonableness for failing to comprehend any constitu-

tional violation in this case. Thus, the defendants contend

that they should be entitled to qualified immunity. We

disagree.

In Santana, the Supreme Court took particular care to

point out that the individual who was arrested was

“standing directly in the doorway - one step forward

would have put her outside, one step backward would

have put her in the vestibule of her residence.” 427 U.S. at

40 n.1. We think it unwise to become preoccupied with

the exact location of the individual in relation to the

doorway. Cf. United States v. Carrion, 809 F.2d 1120, 1128

n.9 (5th Cir. 1987). As the case law discussed previously

illustrates, the crucial issues involve the individual’s rea-

sonable expectation of privacy and whether that individ-

ual came to the doorway voluntarily.®

5 In Santana, for example, the suspect was not summoned

to the door. In fact, she was already standing in the open

doorway of her home when the police arrived and identified

themselves. 427 U.S. at 40. It was at that time that she retreated

to the vestibule. Id. The Court found that the doorway was a

(Continued from previous page)

19a

The existence of genuine issues of material fact is

evident in this case. The parties dispute whether the

arrest occurred in a public place. Storie and Whitted

contend that Duncan stepped out on the porch volun-

tarily. Duncan, however, asserts that he had simply

opened the door and remained in the home. Storie then

requested him to come outside. Duncan refused to accede

to this request. Duncan had answered the door for the

sole purpose of handing the report out to the officers.

When it was apparent that the officers were not there for

the report, Duncan stepped farther back into the house

and attempted to close the door. It was at that time that

Duncan claims he was puiled from his home by the

officers. A jury could find that Duncan’s attempt to

retreat, much like the suspect’s retreat in Santana, placed

him firmly inside his home and the officers would be

required to demonstrate exigent circumstances.® Under

Duncan’s version, which we must credit for the purpose

(Continued from previous page)

public place under these circumstances. Id. at 42. It was, how-

ever, the existence of exigent circumstances - “a true ‘hot

pursuit’ ” — that permitted the officers to pursue the suspect

inside her house. Id. at 42-43 & n.3 (citing Warden v. Hayden, 387

U.S. 294, 298 (1967) and Johnson v. United States, 333 U.S. 10, 16

n.7 (1948)). See also United States v. Martinez-Gonzalez, 686 F.2d

93, 101 (2d Cir. 1982).

6 If this were the case, the officers have already conceded

liability: “If this case turns upon the issue of the presence of

exigent circumstance, Appellants lose.” Appellant's reply brief

at 3. Indeed, “it is difficult to conceive of a warrantless home

arrest that would not be unreasonable under the Fourth

Amendment when the underlying offense is extremely minor.”

Welsh v. Wisconsin, 466 U.S. 740, 753 (1984).

20a

of reviewing the denial of summary judgment, Storie and

Whitted did not announce their intention to arrest Dun-

can until he was pulled out of his home.” Under this

version it would be impossible to hold as a matter of law

that he voluntarily placed himself in a public place and

willingly relinquished the expectation of privacy that he

is entitled to when he is within his home. Duncan’s

version of the arrest asserts viclations of clearly estab-

lished constitutional rights and it would be improper to

grant summary judgment before the finder of fact has

determined these issues.

Excessive Use of Force

“A plaintiff may recover for excessive use of force

[used in effecting an arrest] under § 1983 if the degree of

force used was unreasonable under the circumstances, or

if the force was used for an improper purpose.” Patzner v.

Burkett, 779 F.2d 1363, 1371 (8th Cir. 1985).8 The alleged

use of excessive force is generally an issue of fact. Id. In

this case, Duncan alleges that he was savagely beaten and

7 In fact, Storie and Whitted concede they did not decide

to make the arrest until after Duncan was outside the house

and allegedly became uncooperative and abusive. See Storie

Dep. at 15, lines 3-13, and Whitted Dep. at 31, lines 6-12.

8 In determining whether the use of force was reasonable

and properly motivated, the court must consider “the need for

the application of force, the relationship between the need and

the amount of force that vas used, the extent of injury inflic-

ted, and whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically

ror the very purpose of causing harm.” Id. (quoting Putnam v.

Gerloff, 639 F.2d 415, 423 (8th Cir. 1981)).

DOD ay ot teletee

2la

that the officers tortured him with repeated applications

of a stun gun. He asserts that these actions were in excess

of the force required to make the arrest. The officers, of

course, deny these allegations and maintain that they

used only that force necessary to subdue Duncan, who

resisted their efforts, and place him in the police car. The

existence of a genuine issue of material fact is made

apparent by these two very different versions of the

arrest. The alleged use of excessive force is therefore a

proper issue for the trier of fact to determine.

The judgment of the district court in denying the

defendants’ motion for summary judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

22a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JUDGMENT

No. 87-2369NE

Kenneth Duncan,

Appellee, Appeal from the United

States District Court for

the District of Nebraska.

(April 27, 1989)

Clyde Storie, Individually

and in his official capacity

as a County Sheriff,

Thurston County,

Nebraska; and Daniel

Whitted, individually and

in his official capacity as a

Deputy County Sheriff,

x * * * * H H HH HH HR HH HH

Appellants.

This appeal from the United States District Court was

submitted on the record of the district court, briefs of the

parties and was argued by counsel.

After consideration, it is ordered and adjudged that

the judgment of the district court in this cause be

affirmed in accordance with the opinion of this Court.

March 13, 1989

Appellee will recover from appellants the sum of $28.50

for taxable costs on appeal.

A true copy.

ATTEST: Robert D. St. Vrain

Clerk, U.S. COURT OF APPEALS, EIGHT CIRCUIT

MANDATE ISSUED: 4/25/89

a a ey

23a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-2369NE

Kenneth Duncan,

Appellee, Appeal from the United

States District Court for

the District of Nebraska.

VS.

* ¢$ @ @ # &@

Clyde Storie, etc., et al,

Appellants.

Appellants’ suggestion for rehearing en banc has

been considered by the Court and is denied by reason of

the lack of majority of active judges voting to rehear the

case en banc.

The petition for rehearing is also ordered denied.

April 18, 1989

Order entered at the Direction of the Court:

Robert D. St. Vrain

Clerk, U. S. Court of Appeals, Eighth Circuit.

24a

28 U.S.C. § 1254. Courts of appeals; certiorari; appeal;

certified questions :

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the peti-

tion of any party to any civil or criminal case, before

or after rendition of judgment or decree;

(As amended June 27, 1988, Pub.L. 100-352, § 2(a), (b), 102

Stat. 662.)

28 U.S.C. § 1331. Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

28 U.S.C. § 1343. Civil rights and elective franchise

(a) The district courts shall have original jurisdic-

tion of any civil action authorized by law to be com-

menced by any person;

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by any act done

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Be) ates

in furtherance of any conspiracy mentioned in section

1985 of Title 42;

(2) To recover damages from any person who fails

to prevent or to aid in preventing any wrongs mentioned

in section 1985 of Title 42 which he had knowledge were

about to occur and power to prevent;

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Consti-

tution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States;

ta al A pare TON

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for the

protection of civil rights, including the right to vote.

(b) For purpose of this section-

(1) the District of Columbia shall be considered

to be a State; and

(2) any Act of Congress applicable exclusively

to the District of Columbia shall be consid-

ered to be a statute of the District of

Columbia.

42 U.S.C. § 1983. Civil action for deprivaiion of rights

Every person who, under color of any statute, ordi- —

nance, regulation, custom, or usage, of any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

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within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

Neb. Rev. Stat. § 28-1310 (Reissue 1985) Intimidation by

phone call; penalty; prima facie evidence. (1) A person

commits the offense of intimidation by phone call if with

intent to terrify, intimidate, threaten, harass, annoy, or

offend, he:

(a) Telephones another anonymously, whether or

not conversation ensues, and disturbs the peace, quiet,

and right of privacy of any person at the place where the

calls are received; or

(b) Telephones another and uses indecent, lewd,

lascivious, or obscene language or suggests any indecent,

lewd, or lascivious act; or

injury to any person or to the property of any person; or

(d) Intentionally fails to disengage the connection;

(e) Telephones another and attempts to extort

money or other thing of value from any person.

Ls Oe Attn a ae 5 Si, “eal daa

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(2) The use of indecent, lewd, or obscene language

or the making of a threat or lewd suggestion shall be

prima facie evidence of intent to terrify, intimidate,

threaten, harass, annoy, or offend.

(3) The offense shall be deemed to have been com-

mitted either at the place where the call was made or

where it was received.

(4) Intimidation by phone call is a Class III

misdemeanor.

Neb. Rev. Stat. § 29-404.02 (Reissue 1985) Warrant;

arrest; when not required. A peace officer may arrest a

person without a warrant if the officer has reasonable

cause to believe that such person has committed:

(1) A felony; or

(2) A misdemeanor, and the officer has reasonable

cause to believe that such person either (a) will not be

apprehended unless immediately arrested; (b) may cause

injury to himself or others or damage to property unless

immediately arrested; (c) may destroy or conceal evi-

dence of the commission of such misdemeanor; or (d) has

committed a misdemeanor in the presence of the officer.

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U.S. Const. amend IV (1791)

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

U.S. Const. amend XIV § 1 (1868).

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.