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Z.J. v. Kansas City Board of Police Commissioners

United States Court of Appeals, Eighth Circuit

July 25, 2019

Z.J., a minor, by and through her next friend, Je'tuan Jones Plaintiff - Appellee
v.
Kansas City Board of Police Commissioners, through its members: Alvin Brooks, Michael Rader, Angela Wasson-Hunt, Sylvester James, and Leland Shurin; Jason Rusley; Michael Jones; Barbara Eckert; Caleb Lenz; William Nauyok; Eric Enderlin; Charles Evans; Robert Jorgenson; Robert McLaughlin; and Venasa Ray, in their individual and official capacities Defendants - Appellants

          Submitted: November 13, 2018

          Appeal from United States District Court for the Western District of Missouri - Western Division

          Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE

         Detectives with the Kansas City Police Department ("KCPD") obtained a search warrant for what they mistakenly believed was a homicide suspect's residence. After the suspect was apprehended and arrested at another location, the detectives, hoping to find the homicide victim's cell phone and other evidence, had a SWAT team execute the search warrant. When the SWAT team knocked on the door, a young woman opened the inside front door and held up her keys to indicate she was going to unlock the screen door. Even though the SWAT team knew the suspect was already in custody, they broke open the screen and threw a flash-bang grenade into the living room of the home before the young woman could open the door.

         As it turned out, the suspect had not lived at the residence for some time and the only people inside were three women (two of them elderly) and a two-year old girl. The two-year old girl suffered Post-Traumatic Stress Disorder ("PTSD") from the blast of the flash-bang grenade. She sued the SWAT team officers, the detectives, and the Kansas City Board of Police Commissioners ("the Board") under 42 U.S.C. § 1983. The district court denied the defendants' motion for summary judgment and the defendants appealed. We affirm as to the SWAT team officers, reverse as to the detectives, and dismiss for lack of jurisdiction as to the Board.

         I. Background

         In October 2010, three homicide detectives with the KCPD, Barbara Eckert, Michael Jones, and Venasa Ray ("the detectives"), began investigating a homicide. As the victim's cell phone was missing, the detectives obtained call records for the phone after the time of the murder, as well as the GPS coordinates for those calls. The victim's phone had been used after the murder to call a residence on Bristol Avenue ("the Bristol residence") in Kansas City, Missouri. Using a database containing criminal history information from regional law enforcement agencies and motor vehicle records, the detectives learned that an individual named Lee Charles[1]resided at the Bristol residence.

         The next morning, the detectives learned the victim's phone was turned on and was within 80 meters of a particular intersection, an area including both the Bristol residence and two apartment buildings on Winchester Avenue ("the Winchester apartments"). Eckert and another detective arrived at the area to locate the phone. While standing between the two Winchester apartments, the detectives could hear a phone ringing when a third officer called the victim's phone number, although they could not pinpoint its exact location. When more officers arrived, they again tried to locate the phone, but it appeared the battery had died or the phone had been turned off.

         That evening, police learned the victim's phone was in the area of a particular intersection in Grandview, Missouri. A detective called the phone. Someone answered the call, but did not respond. The detective heard background noises that sounded like a restaurant kitchen. The detectives sought the names of employees working that evening from five restaurants in the area. Charles was working at one of those restaurants that evening.

         Records from the victim's phone also showed it had been used after the murder to call a Family Dollar store. The detectives obtained a list of employees and contact information from the store manager. Charles was listed as an employee and his address was listed as the Bristol residence.

         Charles was arrested in the afternoon of November 3. The same day, Detective Jones applied for a search warrant for what was believed to be Charles's residence on Bristol Avenue. The warrant application omitted the fact the detectives had heard the victim's phone ringing in the Winchester apartments - not at the Bristol residence. At 3:00 p.m., the warrant was issued, authorizing police to search for and seize cell phones (including cell phones matching the description of the victim's phone), clothing or shoes with blood, knives with trace evidence, items that could be used for strangulation such as cords, wire, or rope with trace evidence, and the victim's keys.

         Detective Jones contacted Sergeant Rusley of the KCPD Tactical Response Team about executing the search warrant at the Bristol residence. At 6:15 p.m., Rusley conducted a briefing with the detectives, as well as Tactical Response Team members Robert Jorgenson, Caleb Lenz, William Nauyok, Robert McLaughlin, Eric Enderlin, and Charles Evans ("the SWAT team"). The SWAT team was informed that Charles had already been taken into custody. After the briefing, officers drove by the Bristol residence to confirm the address. No other surveillance of the house was done to learn who resided there.

         At 7:00 p.m., the SWAT team, dressed in tactical gear with weapons drawn, approached the front door of the Bristol residence. The front entrance had both an inside wooden door and an outside metal screen door, each of which were "double-keyed," meaning they required a key to open from both the inside and the outside. Because the warrant did not authorize a "no knock" entry, the SWAT team knocked on the door and announced: "Police, search warrant!" At the time, there were four people inside the residence: the plaintiff, Z.J., a two year old girl; Laverne Charles, age 84; Leona Smith, age 68; and Carla Brown, age 24. Carla grabbed the keys to the door and opened the inside door.

         What happened next is disputed. According to Carla, when she opened the inner door, she saw through the screen door a lot of people outside, yelling, which startled her. She later said she didn't know whether she backed away from the screen door when she first saw the officers. She then held up the keys to the door in her hand and jingled them for the SWAT team to see in order to indicate that she was going to open up the door.[2] Before she had the opportunity to open it, the SWAT team knocked out the screen and threw in a flash-bang grenade over Carla's head into the living room of the house. Carla testified that she would have opened the screen door had she been given the opportunity to do so.

         According to Sgt. Rusley, the SWAT team waited five to ten seconds after knocking the first time before beginning to knock again. As they began knocking on the door the second time, the team was preparing to pry open the screen door with a device. At the same time, Carla opened the inside door. Rusley claimed that "she refused [to open the screen door] and walked away," after which they breached the screen door and threw in the flash-bang grenade. He explained that the flash-bang grenade was deployed because the SWAT team was "compromised," meaning "that occupants of the residence knew we were there and that we no longer had the element of surprise."

         Officer Jorgenson gave a slightly different account to the KCPD's Internal Affairs Unit, confirming part of Carla's account and stating that she only "took a couple of steps back" before she "froze there" and then "waived a set of keys":

[As the SWAT team knocked on the door a second time, ] we were getting ready to set the hooligan tool into the doorframe and then the front door was open[ed] from the inside of the house and the lady was standing there. As soon as she saw us, she took a couple of steps back. I'm sure she was in fear of what was going on. I told her to open the door and she just kind of froze there. At one point she began to turn away as we were still yelling at her to open the door. She waived a set of keys. At the time, I had no idea what that meant. The sergeant announced "hit it," which means make entry into the residence. The officer that had the hooligan tool took a swipe at the door attempting to punch a hole in it so that we could access it with our hand and then unlock it. After producing a hole in the door, the point-man reached in, in an attempt to unlock it, only to find out it was a keyed lock. So then we set the hool[igan tool] into the side of the door, hit it with the ram and pr[i]ed the door open. Due to the fact it took us a longer than the normal amount of time to get into the residence, the sergeant deployed a noise flash diversionary device into the living room of the structure.

         The flash-bang grenade caught the living room drapes on fire. The SWAT team had to remove the drapes from the house and place them in the front yard before continuing through the rest of the house. The SWAT team found two-year old Z.J. in the living room. One officer acknowledged Z.J. was "very shaken from the whole situation." The team placed Carla and Leona in zip tie restraints, but was unable to place restraints on Laverne because of her advanced age and physical condition.

         After the SWAT team cleared the house, the detectives, who had been waiting a block away, took control of the house. The detectives had Carla and Leona released from the restraints. They also learned that Charles no longer resided there and had been kicked out several months earlier. Charles was living a block away in an apartment with another individual and did not have any property at the Bristol residence.

         After the SWAT team raid, Z.J. suffered significant developmental regression and was diagnosed with PTSD. In August 2015, Z.J., through her next friend Je'taun Jones, sued the detectives, the SWAT team members, and the Board (through its members)[3] for violations of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983. As to the detectives, Z.J. alleged they omitted information on the warrant application about hearing the victim's phone ringing inside the Winchester apartments. She also alleged they failed to conduct a sufficient investigation prior to executing the warrant and then unjustifiably chose to have the SWAT team execute the search. As to the members of the SWAT team, she alleged they used excessive force by throwing a flash-bang grenade into the residence. And as to the Board, she alleged its policies and practices were deliberately indifferent to the unconstitutionally excessive use[4] of flash-bang grenades by the KCPD.

         The defendants moved for summary judgment, with the individual defendants' motions based on qualified immunity. The district court denied the motions and the defendants timely appealed.

         II. Analysis

         The Appellants argue the district court erred in denying their motion for summary judgment. A party is entitled to summary judgment where it "shows that there is no genuine dispute as to any material fact and . . . is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In an appeal from a denial of summary judgment based on qualified immunity, we have appellate jurisdiction to review the decision "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We do not review the "district court's determination about what factual issues are 'genuine.'" Johnson v. Jones, 515 U.S. 304, 313 (1995). Rather, our review "is limited to the purely legal issue of whether the facts alleged support a claim of violation of clearly established law." Berry v. Doss, 900 F.3d 1017, 1021 (8th Cir. 2018) (cleaned up) (quoting Mallak v. City of Baxter, 823 F.3d 441, 445-46 (8th Cir. 2016)). However, "[t]here is one exception to such a jurisdictional limitation on our review: we may reject the district court's factual findings to the extent that they are 'blatantly contradicted by the record.'" Wallace v. City of Alexander, 843 F.3d 763, 767 (8th Cir. 2016) (quoting Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014)).

         A. The SWAT Team

         The Appellants argue the district court erred by denying summary judgment to the SWAT team officers because they did not violate the Fourth Amendment, and in any event, are entitled to qualified immunity because they did not violate clearly established law. We disagree. Any reasonable officer would have known the use a flash-bang grenade under these circumstances constituted excessive force.

         Congress enacted 42 U.S.C. § 1983 in the Civil Rights Act of 1871 to "establish[ a] cause[] of action for plaintiffs to seek money damages from Government officers who violated federal law." Ziglar v. Abbasi, 137 S.Ct. 1843, 1870 (2017) (Thomas, J., concurring in part and concurring in the judgment). Though the text of § 1983 contains no provision of immunity, the Supreme Court has recognized a qualified immunity which "protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity entails a two step analysis: first, determining whether "the facts that a plaintiff has . . . shown . . . make out a violation of a constitutional right," and second, "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Id. at 232 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

         We first address the initial step of the qualified immunity analysis, which in this procedural context is: whether, viewing the evidence in the light most favorable to Z.J., the SWAT ...


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