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Waldron v. Roark

Supreme Court of Nebraska

October 13, 2017

Marilyn Waldron, appellant,
v.
Lancaster County Deputy Sheriff James Roark, individually and in his official capacity, appellee.

         1. Summary Judgment: Appeal and Error. An appellate court reviews the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.

         2. Summary Judgment: Immunity. When a defendant asserts qualified immunity at the summary judgment stage, the plaintiff must produce evidence sufficient to create a genuine issue of fact regarding whether the defendant violated clearly established law.

         3. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         4. ___ . In the summary judgment context, a fact is material only if it would affect the outcome of the case. If a genuine issue of material fact exists, summary judgment may not properly be entered.

         5. Immunity. Those entitled to qualified immunity hold more than a mere defense to liability; they hold an entitlement not to stand trial or face the other burdens of litigation.

         6. ___ . If a case is erroneously permitted to go to trial, then qualified immunity is effectively lost.

         7. Immunity: Public Officers and Employees. Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right and (2) that the right was clearly established at the time of the challenged conduct.

         8. ___: ___. In evaluating whether the right to qualified immunity was clearly established, the question is not whether the very action in [298 Neb. 27] question has previously been held unlawful, but whether the contours of the right were sufficiently clear at the time of the challenged conduct that every reasonable official would have understood that the challenged conduct violates that right. 9. Immunity. In a qualified immunity analysis, the dispositive question is whether the violative nature of particular conduct is clearly established. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.

         10. Immunity: Public Officers and Employees. The clearly established standard gives government officials breathing room to make reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.

         11. ___: ___. Even if a public official has engaged in unlawful conduct, the clearly established prong of the qualified immunity analysis protects him or her from suit so long as the official reasonably believed such conduct to be lawful.

         12. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. Under certain circumstances, an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment.

         13. ___: ___: ___. The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.

         14. Police Officers and Sheriffs: Search and Seizure: Words and Phrases. In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile or that it would inhibit the effective investigation of the crime, for example by allowing the destruction of evidence.

         15. Police Officers and Sheriffs: Search and Seizure. Police must have a reasonable suspicion under the particular circumstances that one of the grounds for failing to knock and announce exists, and this showing is not high.

         16. Immunity. Courts have discretion to decide which of the two prongs of qualified immunity analysis to tackle first.

         17. Immunity: Police Officers and Sheriffs. The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his or her conduct was unlawful in the situation he or she confronted.

         18. Police Officers and Sheriffs: Arrests: Words and Phrases. Reasonable force, which may be used by an officer making an arrest, is generally considered to be that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would deem necessary under the circumstances.

         [298 Neb. 28] 19. Police Officers and Sheriffs: Arrests. The inquiry into the reasonableness of a use of force assesses reasonableness at the moment of the use of force, as judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

         20. Constitutional Law: Civil Rights: Municipal Corporations. Municipalities can be sued directly under 42 U.S.C. § 1983 (2012) for monetary, declaratory, or injunctive relief where the action alleged to be unconstitutional implements or executes a policy statement or custom of the municipality.

         21. Civil Rights: Municipal Corporations: Employer and Employee: Liability. A municipality cannot be held liable under 42 U.S.C. § 1983 (2012) on a respondeat superior theory.

         22. Civil Rights: Public Officers and Employees. The government as an entity is responsible under 42 U.S.C. § 1983 (2012), when execution of its policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.

         23. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.

         24. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

         Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

          Vincent M. Powers, of Vincent M. Powers and Associates, for appellant.

          Joe Kelly, Lancaster County Attorney, David A. Derbin and Ryan M. Swaroff for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          PER CURIAM.

         I. INTRODUCTION

         Marilyn Waldron brought this action pursuant to 42 U.S.C. § 1983 (2012), alleging a violation of her Fourth Amendment rights by Lancaster County Deputy Sheriff James Roark when [298 Neb. 29] he entered Waldron's home to serve a warrant on Waldron's grandson, Steven Copple. Waldron argues that in doing so. Roark violated the knock-and-announce rule. Waldron also argues that her arrest was unreasonable and unconstitutional because there was no probable cause to arrest her and because Roark used excessive force in handcuffing her.

         In Waldron v. Roark (Waldron I), [1] we found that material issues of fact existed as to Waldron's knock-and-announce and excessive force claims and remanded the cause. On remand, following additional argument on the issues of qualified immunity and sovereign immunity, the district court again granted Roark's motion for summary judgment, on the basis that Roark was entitled to qualified immunity. In this appeal, we now analyze Waldron's claims within the framework of the affirmative defense of qualified immunity. Because we find that Waldron did not meet the burden of showing that Roark violated a clearly established right in any of Waldron's claims, we affirm the district court's grant of qualified immunity.

         II. BACKGROUND

         In September 2013, Waldron filed a complaint against Roark, alleging that Roark violated Waldron's civil rights under § 1983, resulting in her injuries. Forming the basis of this action are the events that happened on February 22, 2012, when Roark and his partner, Lancaster County Deputy Sheriff Amanda May, went to Waldron's home to serve an arrest warrant on Copple. The specific allegations regarding what happened during this event are set forth in more detail in Waldron I and are discussed further in the analysis section below.

         In November 2014, Roark filed a motion for summary judgment. In December 2014, Waldron filed an amended complaint against Roark, in his individual and official capacities. The district court eventually granted the motion for summary judgment, finding as a matter of law that the deputies' entry [298 Neb. 30] into Waldron's home was proper, that Waldron obstructed the work of the deputies, and that Roark's use of force was objectively reasonable.

         On appeal in Waldron I, we reversed the district court's order and remanded the cause for further proceedings. We held that summary judgment on Waldron's § 1983 Fourth Amendment claim was not proper because there were issues of material fact as to (1) whether Roark properly displayed notice of his office or authority when he entered Waldron's home, (2) whether Roark's entry was reasonable, and (3) whether the force Roark used was excessive.

         Following the issuance of our opinion in Waldron I, the parties again addressed Roark's motion for summary judgment. In its second order granting the motion, the district court found that Roark was entitled to qualified immunity and that the record was sufficiently developed to render a separate trial or evidentiary hearing unnecessary. The court specifically found that (1) Roark was entitled to qualified immunity on Waldron's knock-and-announce claim because sufficient exigent circumstances existed from Roark's perspective to warrant his entry without a proper announcement, (2) Roark was entitled to qualified immunity on the excessive force claim because (a) Roark had probable cause to arrest Waldron and (b) Waldron's right to be free of excessive force was not clearly established, and (3) Roark was entitled to judgment in his favor as to Waldron's claims against him in his official capacity. Waldron appeals.

         III. ASSIGNMENTS OF ERROR

         Waldron assigns, restated and consolidated, that the district court erred in finding that (1) Roark was entitled to qualified immunity on Waldron's knock-and-announce claim, (2) Roark was entitled to qualified immunity on Waldron's unlawful arrest claim because (a) Roark had probable cause to arrest Waldron and (b) Waldron's "right to be free of the excessive force used by . . . Roark was not clearly established, " (3) there was no evidence to support Waldron's claim that a policy or custom [298 Neb. 31] of Lancaster County caused her damages, and (4) Roark was entitled to summary judgment in his official capacity.

         IV. STANDARD OF REVIEW

         We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.[2] When a defendant asserts qualified immunity at the summary judgment stage, the plaintiff must produce evidence sufficient to create a genuine issue of fact regarding whether the defendant violated clearly established law.[3]

         V. ANALYSIS

         [3, 4] Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.[4] In the summary judgment context, a fact is material only if it would affect the outcome of the case.[5] If a genuine issue of material fact exists, summary judgment may not properly be entered.[6]

         1. Qualified Immunity

         Both the U.S. Supreme Court and the Eighth Circuit Court of Appeals have repeatedly "' "stressed the importance of resolving immunity questions at the earliest possible stage in litigation.'""[7] This is because those entitled to qualified [298 Neb. 32] immunity hold more than a mere defense to liability; they "hold 'an entitlement not to stand trial or face the other burdens of litigation.'"[8] If a case is erroneously permitted to go to trial, then qualified immunity is effectively lost.[9]

         Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right and (2) that the right was '"clearly established' at the time of the challenged conduct."[10] In evaluating whether the right was "clearly established, " the question is not whether the very action in question has previously been held unlawful, but whether '"[t]he contours of [the] right [were] sufficiently clear'" at the time of the challenged conduct that "every 'reasonable official would [have understood] that [the challenged conduct] violates that right.'"[11] A case does not need to be directly on point, but existing precedent must have placed the constitutional question beyond debate.[12] The dispositive question is "whether the violative nature of particular conduct is clearly established."[13] This inquiry '""must be undertaken in light of the specific context of the case, not as a broad general proposition.'""[14] Put frankly, plaintiffs in a § 1983 action have a steep burden of showing that a right is clearly established.[15] The '"clearly established'" standard '"gives government officials breathing room to make reasonable but mistaken [298 Neb. 33] judgments' by 'protecting] all but the plainly incompetent or those who knowingly violate the law.'"[16] Even if a public official has engaged in unlawful conduct, the clearly established prong of the qualified immunity analysis protects him or her from suit so long as the official reasonably believed such conduct to be lawful.[17] If a reasonable official could have believed the conduct was lawful, the official's conduct does not violate clearly established law.[18]

         First, we address whether Roark is entitled to qualified immunity on Waldron's knock-and-announce claim.

         (a) Waldron's Knock-and-Announce Claim

         The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."[19] Among the factors to be considered in assessing the reasonableness of a search or seizure is the "method of an officer's entry into a dwelling."[20] Under certain circumstances, "an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment."[21] The rule that officers should knock and announce their purpose and be denied admittance prior to entering a dwelling has been codified in Neb. Rev. Stat. § 29-411 (Reissue 2016).[22]

         The U.S. Supreme Court has made clear that not every entry must be preceded by an announcement.[23] "The Fourth Amendment's flexible requirement of reasonableness should [298 Neb. 34] not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests."[24] "[I]f circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in."[25]

         We view the evidence surrounding Roark's entry into Waldron's home in the light most favorable to Waldron. According to Waldron, she "cautiously opened the door" and immediately noticed that "people were pushing on it." Waldron claims that she tried to, but could not, hold the door closed. According to Waldron, it was only "after they got in [to]" Waldron's home that Roark announced that he and his partner, May, were deputies and that they were looking for Copple. Viewing the evidence in the light most favorable to Waldron, we assume that Roark entered Waldron's home without knocking and announcing his purpose.

In order to justify a "'no-knock'" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile or that it would inhibit the effective investigation of the crime, for example by allowing the destruction of evidence.[26] "[The Court] require[s] only that police 'have a reasonable suspicion . . . under the particular circumstances' that one of these grounds for failing to knock and announce exists, and . . . '[t]his showing is not high.'"[27]

         As we noted in Waldron I, one possible exigency in this case was that "Copple posed a threat to the safety of the deputies or the public."[28] Roark testified that as he approached Waldron's home, he saw Copple inside, but that when he reached the [298 Neb. 35] door, he could no longer see Copple. Roark testified that Copple could be "a dangerous guy" and that he was "aware [Copple] had lots of law enforcement contacts, " including "prior . . . weapons offenses."

         Despite Roark's undisputed testimony about Copple's prior weapons offenses, we found in Waldron I that there was a material issue of fact as to whether exigent circumstances existed in his attempt to arrest Copple. However, whether exigent circumstances actually existed to justify Roark's no-knock entry is relevant only to the first prong of the qualified immunity analysis, i.e., whether a statutory or constitutional right has been violated.

         The U.S. Supreme Court has repeatedly held that "courts have discretion to decide which of the two prongs of qualified immunity analysis to tackle first."[29] Therefore, in evaluating whether Roark is entitled to qualified immunity against Waldron's knock-and-announce claim, we exercise our discretion to bypass the first prong of the qualified immunity analysis and instead tackle the second prong first. In so doing, we find that regardless of whether exigent circumstances actually existed to justify Roark's no-knock entry into Waldron's home, Roark is entitled to qualified immunity against Waldron's knock-and-announce claim, because a reasonable official could have believed that Roark's no-knock entry was lawful.

         As noted above, Waldron bears the steep burden of proving that her right was so clearly established that every reasonable public official would have known that Roark's conduct violated the right. She has not met this burden. Instead, Waldron simply argues that "[i]t has long been held . . . that law enforcement must 'knock and announce' prior to serving a warrant or [when] authorized to make an arrest without [a warrant]."[30] Though it is true that the knock-and-announce [298 Neb. 36] rule is well established, Waldron ignores the fact that this rule does not apply when exigent or countervailing circumstances exist, and she makes no attempt to delineate the contours of the "exigent circumstances exception."[31]

         In addition, Waldron relies solely on U.S. v. Lucht[32] to support her assertion that the right at issue was clearly established. While we cited Lucht to provide guidance as to whether exigent circumstances existed in Waldron I, as noted above, that was a first-prong analysis. We note that the applicability of Lucht is limited in addressing the second prong of the qualified immunity analysis. Unlike the case at hand, Lucht was not a § 1983 case; rather, the Eighth Circuit's holding applies to the knock-and-announce requirement as it pertains to the suppression of evidence. Moreover, as the district court stated, "there are factual differences between the officer's knowledge, assumptions, and conduct in Lucht and those of [Roark] in this case."

         Although we are aware that certain categories of exigent circumstances have emerged (for example, when knocking would be dangerous, futile, or might allow the destruction of evidence[33]), we find no case law that so clearly establishes that any law enforcement officer standing in Roark's shoes would have understood that the circumstances presented were not exigent circumstances.

         Even viewing the facts in the light most favorable to Waldron, it would not have been '"entirely unreasonable' for an officer to believe, in the particular circumstances of this case, " that exigent circumstances existed.[34] Nor do the facts support a finding that Roark was "' "plainly incompetent"'" or '"knowingly violate[d] the law.'""[35] Thus, we conclude that [298 Neb. 37] Waldron has not met her burden to prove that her right was clearly established. Nor has she shown that a material issue of fact prevents judgment as a matter of law.[36] As such, Waldron's first assignment of error is without merit.

         (b) Waldron's Claims of Unlawful Arrest

         Waldron makes two arguments as to why she believes Roark is not entitled to qualified immunity for Waldron's alleged unlawful arrest. First, Waldron argues that Roark did not have probable cause to arrest her; second, Waldron argues that Roark used excessive force in arresting her. We address these arguments ...


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