Holland Ex Rel. Overdorff v. Harrington

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 19 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SHELBY PAIGE HOLLAND, a
minor, by and through her next friend
and parent Tessa Kay Overdorff;
MARTY SHANE HOLLAND, a
minor, by and through his next friend
and parent Tessa Kay Overdorff;
ANTHONY SCOTT "SCOTTY"
HOLLAND, a minor, by and through
his next friend and parent, Tonie
Pauline Heflin; KRISTY DENISE
HOLLAND DANE; RANDY JOE
HOLLAND; TESSA KAY
OVERDORFF; TONIE PAULINE
HEFLIN; SAMUEL ALLEN HEFLIN,

Plaintiffs - Appellees,

v. No. 99-1373

ROBIN S. HARRINGTON,
individually, and in her official
capacity as Undersheriff of La Plata
County, Colorado; DUKE
SCHIRARD, individually, and in his
official capacity as the Sheriff of La
Plata County, Colorado; KELLY
DAVIS, individually, and in his
official capacity as a deputy sheriff of
the La Plata County Sheriff's
Department,

Defendants - Appellants.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 98-B-229)

Theodore S. Halaby (Sue Ann Haskell, with him on the brief) of Halaby, Cross &
Schluter, Denver, Colorado, for Defendants-Appellants.

William E. Zimsky, of Abadie & Zimsky, LLC, Durango, Colorado, for the
Plaintiffs-Appellees.

Before HENRY and BRISCOE, Circuit Judges; and JENKINS, Senior District
Judge. *

JENKINS, Senior District Judge.

Plaintiffs brought this civil rights action under 42 U.S.C. § 1983, alleging

that the La Plata County Sheriff’s Department SWAT Team subjected them to

excessive force in violation of the Fourth Amendment’s guarantee that persons be

free from unreasonable searches and seizures. Defendants-appellants Robin S.

Harrington, Duke Schirard and Kelly Davis appeal the district court's

order denying in part their motion for summary judgment based on the defense of

qualified immunity. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm in part, reverse in part and remand.

The Honorable Bruce S. Jenkins, United States Senior District Judge for the District of
*

Utah, sitting by designation.

-2-
FACTUAL BACKGROUND

On April 14, 1996 at approximately 2:00 a.m., an altercation occurred

outside Virginia’s Steakhouse, a restaurant located in La Plata County, Colorado.

According to the victims and some witnesses, several men assaulted a group of

patrons, throwing them to the ground where they were kicked and beaten, often by

several men at once. During their investigation of the incident, La Plata County

Sheriff’s Department officers learned the names of several suspects, including

Samuel “Sammy” Allen Heflin. The Sheriff’s Department obtained warrants for

Heflin’s arrest on misdemeanor assault and reckless endangerment charges, and to

search his residence and other buildings located on his property, looking for a

black cowboy hat, Marlboro cigarette packages, a bloody shirt, restaurant receipts,

and other items believed to be evidence tying Heflin and others to the assaults.

The search warrant authorized a search “at any time, day or night,” but did not

contain language authorizing a “no knock” entry.

Several hours beforehand, Sheriff Duke Schirard authorized the use of the

Sheriff’s Department SWAT Team, comprised of ten deputy sheriffs led by

defendant Kelly Davis, to serve the warrants on the evening of April 16, 1996.

Undersheriff Robin Harrington accompanied Sheriff Schirard to the Heflin

residence, bringing with her copies of the warrants.

-3-
 At approximately 8:30 p.m. on April 16, the SWAT Team executed the

warrants. Seven SWAT Team members dressed in green camouflage clothing

with no identifying markings and hoods showing only their eyes approached the

residence, together with defendant Davis. 1
Three uniformed deputies were also

present.

Randy Joe Holland,18, Marty Shane Holland, 8, and Ray Walker, 24, were

playing basketball in the driveway. Three SWAT Team deputies approached

rapidly, brandishing weapons; one of them pointed his weapon at the three young

men and ordered them to lie face down on the ground, and continued pointing his

weapon at them as they lay there. 2

Three SWAT deputies next encountered Anthony “Scotty” Holland, 14,

near the bunkhouse and at gunpoint ordered him to lie on the ground. He was

kept in a prone position for nearly 10 minutes.

Also outdoors when the SWAT Team arrived was four-year-old Shelby

Paige Holland, who upon seeing the armed deputies in their combat costumes, ran

1
Davis was present during the entire SWAT Team raid, accompanying the SWAT
deputies as they approached, entered and remained inside the residence. Plaintiffs aver
that they remained at gunpoint during the raid until Davis ordered SWAT deputies to
lower or holster their weapons.
Schirard and Harrington arrived on the scene later, as the search was being
concluded.
2
Randy Holland testified that when eight-year-old Marty Holland asked one of the
SWAT deputies if they were going to jail, he replied, “Probably.” Davis testified that a
uniformed officer, Deputy Shupe, remained with the boys.

-4-
screaming into the residence, pursued by SWAT deputies. According to the

plaintiffs, one SWAT deputy pursued the child inside the house, training his laser-

sighted weapon on the child’s back as evidenced by the tell-tale glowing red dot.

The SWAT deputies then entered the residence, though it remains in

dispute whether they knocked and announced their presence, or in any way

identified themselves as law enforcement officers. 3
At the time that the SWAT

Team entered, there were five persons inside: “Sammy” Heflin and his wife Tonie

were seated at the dining room table; Kristi Holland Dane was in the kitchen; and

Tessa Sliter 4
(Shelby Holland’s mother) and Helen Kennedy were in a back

bedroom.

SWAT deputies ordered Sammy Heflin, Tonie Heflin and Kristi Dane at

gunpoint to lie face down on the living room floor. 5
SWAT deputies also

followed Shelby Holland into the back bedroom and held Tessa Sliter and Helen

Kennedy at gunpoint, moving them from the back bedroom into the living room.

3
Plaintiffs allege that at least one SWAT deputy was shouting “get the f*** down!,”
without any other announcement, while defendant Davis testified that Deputy Sandoval
announced two or three times, “Sheriff’s Department, search warrant.” (Appellant’s
App. 86-87.)
4
Also known as Tessa Overdorff.
5
According to the plaintiffs, Tonie Heflin repeatedly asked what was happening and
expressed concern that the deputies were pointing guns with young children present, to
which SWAT deputies shouted, “Shut the f*** up!”

-5-
 All persons found outdoors or inside the residence were held in the living

room by SWAT deputies until a “wants and warrants” check was completed on

each one. Meanwhile, the deputies conducted a search of the Heflin property. 6

When the check was completed, the deputies told them they could leave, with the

exception of Sammy Heflin, who was placed under arrest pursuant to the warrant.

Everyone else then left the residence and went to the home of Mike Beatty (Tonie

Heflin’s brother).

Several empty packs of Marlboro Light cigarettes were found in vehicles on

the Heflin property, but no bloody clothing was discovered. (Appellant App. at

262.) Plaintiffs allege that nothing found at the Heflin residence on April 16 was

offered as evidence at the subsequent trial of Sammy Heflin.

Sammy Heflin was acquitted of the misdemeanor charges.

The district court granted summary judgment in favor of the La Plata

County Sheriff’s Department, and on qualified immunity grounds in favor of

Schirard, Harrington and Davis on plaintiffs’ “excessive force” claims arising

from the April 16 raid, except as to the reasonableness of (1) the decision to

employ the SWAT Team; (2) the SWAT Team’s use of weapons against minor

6
When Tonie Heflin asked the deputies if they had a warrant, she testified that
defendant Davis responded, “Shut the f*** up.” The search warrant itself was delivered
to Davis by Harrington shortly after the search was completed.

-6-
children, and (3) the officers’ alleged failure to “knock and announce” their entry

into the Heflin residence.

I

In civil rights actions seeking damages from governmental officials, "those

officials may raise the affirmative defense of qualified immunity, which protects

'all but the plainly incompetent or those who knowingly violate the law.' " Gross

v. Pirtle , 245 F.3d 1151, 1155 (10th Cir. 2001) (quoting Malley v. Briggs , 475

U.S. 335, 341 (1986)). The protection of qualified immunity gives officials “'a

right, not merely to avoid “standing trial,” but also to avoid the burdens of “such

pretrial matters as discovery.”’” Id. (quoting Behrens v. Pelletier , 516 U.S. 299,

308 (1996) (quoting Mitchell v. Forsyth , 472 U.S. 511, 526 (1985))).

Where the defendant seeks qualified immunity, a ruling on that issue
should be made early in the proceedings so that the costs and
expenses of trial are avoided where the defense is dispositive.
Qualified immunity is “an entitlement not to stand trial or face the
other burdens of litigation.” Mitchell v. Forsyth , 472 U.S. 511, 526
(1985). The privilege is “an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively
lost if a case is erroneously permitted to go to trial.” Ibid . As a
result, “we repeatedly have stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.”
Hunter v. Bryant , 502 U.S. 224, 227 (1991) ( per curiam ).

Saucier v. Katz , 121 S. Ct. 2151, 2155-56 (June 18, 2001) (emphasis in original).

We review de novo the denial of a summary judgment motion raising

qualified immunity questions. Gross , 245 F.3d at 1155; Wilson v. Meeks , 52 F.3d

-7-
1547, 1551 (10th Cir. 1995). “Because of the underlying purposes of qualified

immunity, we review summary judgment orders deciding qualified immunity

questions differently from other summary judgment decisions.” Medina v. Cram ,

252 F.3d 1124, 1128 (10th Cir. 2001) “After a defendant asserts a qualified

immunity defense, the burden shifts to the plaintiff,” and the plaintiff “must first

establish that the defendant's actions violated a constitutional or statutory right.”

Id.

A court required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged show
the officer’s conduct violated a constitutional right? This must be the
initial inquiry. Siegert v. Gilley , 500 U.S. 226, 232 (1991). In the
course of determining whether a constitutional right was violated on
the premises alleged, a court might find it necessary to set forth
principles which will become the basis for a holding that a right is
clearly established. This is the process for the law’s elaboration from
case to case, and it is one reason for our insisting upon turning to the
existence or nonexistence of a constitutional right as the first inquiry.
The law might be deprived of this explanation were a court simply to
skip ahead to the question whether the law clearly established that
the officer’s conduct was unlawful in the circumstances of the case.

Saucier , 121 S. Ct. at 2156.

If a “favorable view” of the facts alleged show the violation of a

constitutional right, “the next, sequential step is to ask whether the right was

clearly established” at the time of the defendant's unlawful conduct. Id. ; Albright

v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995). In determining whether the

right was “clearly established,” the court assesses the objective legal

-8-
reasonableness of the action at the time of the alleged violation and asks whether

“‘the contours of the right [were] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’” Id. (quoting

Anderson v. Creighton , 483 U.S. 635, 640 (1987)). “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Id. (citing Wilson v. Layne , 526 U.S. 603, 615 (1999)).

Applying the same standards as the district court, we must determine

whether the plaintiff has satisfied this “heavy two-part burden.” Albright , 51 F.3d

at 1534. If the plaintiff fails to satisfy either part of the two-part inquiry, the

court must grant the defendant qualified immunity. Id. at 1535. Conversely,

If the plaintiff successfully establishes the violation of a clearly
established right, the burden shifts to the defendant, who must prove
“‘that there are no genuine issues of material fact and that he or she
is entitled to judgment as a matter of law.’”. . . In short, although we
will review the evidence in the light most favorable to the
nonmoving party, . . . the record must clearly demonstrate the
plaintiff has satisfied his heavy two-part burden; otherwise, the
defendants are entitled to qualified immunity.

Medina , 252 F.3d at 1128 (citations omitted).

A district court's denial of a defendant's summary judgment motion based

on qualified immunity represents “an immediately appealable collateral order

when the issue appealed concerns whether certain facts demonstrate a violation of

clearly established law,” rather than questions of the sufficiency of the evidence.

-9-
Id. at 1130 (citing Mitchell v. Forsyth , 472 U.S. 511, 527-28 (1985)). 7
Even when

the district court concludes issues of material fact exist, “we have reviewed the

legal question of whether a defendant’s conduct, as alleged by the plaintiff,

violates clearly established law. . . .” Id. at 1130 (citations omitted).

II

Plaintiffs allege that their Fourth Amendment right to be free from

unreasonable searches and seizures 8
was violated when the Sheriff’s Department

SWAT Team seized each of them using excessive force. They seek to hold

defendants-appellants Schirard, Harrington and Davis liable for that violation

because of their respective roles in planning and carrying out the April 16 raid.

Schirard, Harrington and Davis respond that no Fourth Amendment violation

occurred because (1) the plaintiffs (except Sammy Heflin) were not “seized”

during the raid; (2) no plaintiff suffered physical harm from the actions of the

officers conducting the raid; and (3) the planning of the raid, including the

7
“An order denying summary judgment based on qualified immunity necessarily
involves a legal determination that certain alleged actions violate clearly established
law.” Gross , 245 F.3d at 1157 (citing Behrens , 516 U.S. at 313).
8
The Fourth Amendment reads in part: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated . . . .” U.S. Const., Amend. IV. This constitutional guarantee is
“enforceable against the States through the Fourteenth [Amendment].” Colorado v.
Bannister , 449 U.S. 1, 2 (1980)) (per curiam); see also Mapp v. Ohio , 367 U.S. 643
(1961); Wolf v. Colorado , 338 U.S. 45 (1949).

-10-
decision to employ a SWAT team, falls beyond the scope of the protection

afforded by the Fourth Amendment.

Supervisory Liability of Davis

Kelly Davis, was supervisor of the SWAT Team and was present at the

scene throughout the April 16 raid, and may be held liable for the alleged

unconstitutional acts of his subordinates if plaintiffs-appellees demonstrate an

“affirmative link” through facts showing that he actively participated or

acquiesced in the constitutional violation. See Winters v. Board of County

Comm’rs, 4 F.3d 848, 855 (10th Cir. 1993) (citing Rizzo v. Goode , 423 U.S. 362

(1976)); Snell v. Tunnell , 920 F.2d 673, 700 (10th Cir. 1990) (“For supervisory

liability [in a § 1983 action], plaintiffs must demonstrate an affirmative link

between the supervisor's conduct and the constitutional deprivation.”). A plaintiff

may show that “‘an affirmative link exists between the [constitutional]

deprivation and either the supervisor's personal participation, his exercise of

control or direction, or his failure to supervise.’” Worrell v. Henry , 219 F.3d

1197, 1214 (10th Cir. 2000) (quoting Meade v. Grubbs , 841 F.2d 1512, 1527

(10th Cir.1988) (quotation omitted)); see Snell , 920 F.2d at 700 ("Plaintiffs must

show that a supervisory defendant, expressly or otherwise, authorized, supervised,

or participated in conduct which caused the constitutional deprivation.").

-11-
 Plaintiffs-appellees argue that Davis failed to direct the SWAT deputies

under his command to conduct the execution of the warrants in a constitutionally

appropriate manner, and that Davis’ failure to supervise provides the affirmative

link between Davis’ conduct and the SWAT deputies’ use of excessive force.

Whether Plaintiffs were “Seized”

“Violation of the Fourth Amendment requires an intentional acquisition of

physical control.” Brower v. County of Inyo , 489 U.S. 593, 596 (1989). One need

not be the target of a search or be the person named in an arrest warrant to be

“seized” within the meaning of the Fourth Amendment: “A seizure occurs even

when an unintended person or thing is the object of the detention or taking, . . .

but the detention or taking itself must be willful.” Id. (citations omitted). Thus,

each of the plaintiffs was “seized” during the April 16 raid if “there is a

governmental termination of [plaintiff’s] freedom of movement through means

intentionally applied ,” regardless of whether he or she was the subject of an arrest

warrant or was ultimately placed under arrest. Id. at 597 (emphasis in original). 9

9
One’s freedom of movement is terminated “if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was not free
to leave,’” id. at 600 (Stevens, J., concurring in the judgment) (quoting United States v.
Mendenhall , 446 U.S. 544, 554 n. 6 (1980) (Stewart, J.)), and the police have applied
physical force, however slight, or the person has submitted to a show of authority by the
police. California v. Hodari D. , 499 U.S. 621, 623-29 (1991); see also 1 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(a) (1996 &
Supp. 2000).

-12-
 We are satisfied that the uncontroverted facts before the district court show

that each of the plaintiffs was “seized” within the meaning of the Fourth

Amendment during the April 16 raid. Physical force was intentionally applied by

the Sheriff’s Department SWAT Team and each of the plaintiffs submitted to that

show of authority until Lieutenant Davis informed them that they were free to

leave. (Mr. Heflin, of course, was formally placed under arrest and taken into

custody.)

Fourth Amendment Reasonableness

Tennessee v. Garner , 471 U.S. 1, 7 (1985), makes it clear that the Fourth

Amendment requires an examination of “the reasonableness of the manner in

which a search or seizure is conducted[:]”

To determine the constitutionality of a seizure “[w]e must balance
the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” United States v. Place , 462
U.S. 696, 703 (1983); . . . We have described “the balancing of
competing interests” as “the key principle of the Fourth
Amendment.” Michigan v. Summers , 452 U.S. 692, 700 n.12 (1981).
. . . Because one of the factors is the extent of the intrusion, it is
plain that reasonableness depends on not only when a seizure is
made, but also how it is carried out . . . .

471 U.S. at 8 (emphasis added & some citations omitted). Garner plainly rejected

the view that the Fourth Amendment has nothing to say about how a seizure is

-13-
made. To the contrary, a court must scrutinize whether “the totality of the

circumstances justified a particular sort of search or seizure.” Id. at 9. 10

The reasonableness of an officer’s conduct must be assessed “from
the perspective of a reasonable officer on the scene,” recognizing the
fact that the officer may be “forced to make split-second judgments”
under stressful and dangerous conditions. . . . The Fourth
Amendment standard requires inquiry into the factual circumstances
of every case; relevant factors include the crime’s severity, the
potential threat posed by the suspect to the officer’s and others’
safety, and the suspect’s attempts to resist or evade arrest. . . .

Gross , 245 F.3d at 1158 (citing Graham v. Connor , 490 U.S. 386, 396-97 (1989))

(citations omitted).

Fourth Amendment Reasonableness and the April 16th Raid

Taking the April 16th raid on the Heflin residence and the resulting

seizures of persons in the light most favorable to the parties asserting the injury,

“do the facts alleged show the officer[s]’ conduct violated a constitutional right?”

Saucier , 121 S. Ct. at 2156.

The district court ruled that the facts alleged do not show a violation of

constitutional right, with three exceptions: (1) the decision to employ the SWAT

10
The Garner Court ruled that consistent with Fourth Amendment “reasonableness,”
deadly force may not be used to seize a fleeing suspect “unless it is necessary to prevent
the escape and the officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or others.” Garner ,
471 U.S. at 3. The Court concluded that an officer’s fatal shooting of a unarmed
burglary suspect fleeing over a fence was not justified under the facts and circumstances
in that case and that a state statute authorizing use of such force was unconstitutional.
Id. at 21-22.

-14-
Team; (2) the SWAT Team’s use of weapons against minor children, and (3) the

officers’ alleged failure to “knock and announce” their entry into the Heflin

residence.

(1) The Decision to Use the SWAT Team

We must decide whether Fourth Amendment scrutiny extends to the

planning of an arrest by law enforcement officials and in particular, to the

decision to employ a SWAT team to make an arrest on a misdemeanor warrant

and to conduct a search of a residence. The district court held that it does, and

denied summary judgment in favor of Schirard, Harrington, and Davis because the

facts underlying the issue of reasonableness remain in dispute.

In Medina v. Cram , this court recently reaffirmed that the “totality of the

circumstances” surrounding a seizure embraces conduct “immediately connected

with the seizure,” such as police conduct “arguably creating the need for force”

where use of excessive force has been alleged. 252 F.3d at 1132; accord , Bella v.

Chamberlain , 24 F.3d 1251, 1256 (10th Cir. 1994) (“Obviously, events

immediately connected with the actual seizure are taken into account in

determining whether the seizure is reasonable.”).

Schirard, Harrington and Davis contend that the decision to employ the

SWAT Team to execute the Heflin search and arrest warrants and the planning of

the April 16 raid on the Heflin residence were not conduct “immediately

-15-
connected with the seizure” of the plaintiffs-appellees during the raid itself, and

are therefore beyond the reach of the Fourth Amendment. 11
Moreover, they argue

that plaintiffs-appellees cannot show that a reasonable officer would have known

on April 16, 1996 that the decision to employ a SWAT team to execute a

misdemeanor arrest warrant in and of itself would violate plaintiffs-appellees’

Fourth Amendment rights, in light of the clearly established law of this or other

circuits at that time. Consequently, they insist that they are entitled to qualified

immunity and that the district court’s order denying summary judgment in their

favor should be reversed.

11
Defendants-appellants rely on Carter v. Buscher , 973 F.2d 1328 (7th Cir. 1992),
in which the Seventh Circuit rejected a claim that the Fourth Amendment “prohibits
creating unreasonably dangerous circumstances in which to effect the legal arrest of a
suspect.” Id. at 1332. “The Fourth Amendment,” Carter said, prohibits unreasonable
seizures not unreasonable, unjustified or outrageous conduct in general. . . . Therefore,
pre-seizure conduct is not subject to Fourth Amendment scrutiny.” Id. (emphasis in
original; citations omitted). In Carter , the Seventh Circuit read Garner as beginning its
analysis “by identifying the ‘seizure.’ Then the Court proceeded to examine . . .
whether the force used to effect the seizure was reasonable in the totality of the
circumstances, not whether it was reasonable for the police to create the circumstances.”
973 F.2d at 1332. Carter did not involve the use of a SWAT team to make an arrest.

-16-
 Plaintiffs-appellees point to no Supreme Court or Tenth Circuit case

authority squarely addressing this issue. 12
Authority from other circuits proves to

be sparse at best. 13

Andrade v. Chojnacki , 65 F. Supp. 2d 431 (W.D. Tex. 1999), was a Federal

Tort Claims Act case arising out of two organized assaults by federal law

enforcement officers on the Branch Davidian compound in Waco, Texas in

February and April of 1993. The Andrade court concluded that plaintiffs’ claims

as to the planning of these “dynamic entry” operations failed to state a claim

under the Fourth Amendment, observing that “[t]he decision to use ‘dynamic’

entry is not, in and of itself, a violation of the Fourth Amendment.” Id. at 457 (no

citation to authority). Further, “[t]here are absolutely no specific facts contained

in Plaintiffs’ complaints that would suggest that any of the named Defendants

planned any activity for the specific purpose of causing harm to the Davidians.”

Id. Thus, Andrade suggests that to be actionable under the Fourth Amendment,

the facts surrounding the planning of a “dynamic entry” operation must show that

12
They rely on Myers v. Oklahoma County Bd. of County Comm’rs , 151 F.3d 1313 (10th
Cir. 1998), in which this court examined for Fourth Amendment reasonableness the
sheriff’s decision that deputies enter the apartment of a suicidal suspect. The panel held
the sheriff’s decision to be objectively reasonable.

For the law to be “clearly established,” there “must be a Supreme Court or Tenth
13

Circuit decision on point, or the clearly established weight of authority from other
courts must be as plaintiff maintains." Foote v. Spiegel , 118 F.3d 1416, 1424 (10th Cir.
1997).

-17-
the planning included the specific intent to cause harm through the use of

excessive force.

In Williams v. Richmond County, Georgia , 804 F. Supp. 1561 (S.D. Ga.

1992), the court observed that “[m]erely deploying the SWAT team was not an

unreasonable seizure which raises constitutional problems. Even if law

enforcement officials here arguably erred in judgment when they decided on a

plan that employed potentially deadly force,” the court continued, “such evidence

falls short of a showing that there was no plausible basis in this instance for the

officials’ belief that this degree of force might be necessary.” Id. at 1569.

The decision to deploy a SWAT team to execute a warrant necessarily

involves the decision to make an overwhelming show of force—force far greater

than that normally applied in police encounters with citizens. Indeed, it is the

SWAT team’s extraordinary and overwhelming show of force that makes

“dynamic entry” a viable law enforcement tactic in dealing with difficult and

dangerous situations.

The decision to use a SWAT team to make a “dynamic entry” into a

residence constitutes conduct “immediately connected with the seizure” because it

determines the degree of force initially to be applied in effecting the seizure

itself. If, as Garner instructs, “it is plain that reasonableness depends on not only

when a seizure is made, but also how it is carried out,” 471 U.S. at 8, then the

-18-
decision to deploy a SWAT team to execute a warrant must be “reasonable”

because it largely determines how the seizure is carried out, thereby determining

the extent of the intrusion on the individual’s Fourth Amendment interests. Both

Williams and Andrade examined the reasonableness of the decision to deploy a

SWAT team in each case, rather than placing that decision beyond Fourth

Amendment scrutiny altogether.

Where a plaintiff claims that the use of a SWAT team to effect a seizure

itself amounted to excessive force, we review the decision to use that degree of

force by “balanc[ing] the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the governmental interests

alleged to justify the intrusion.” Garner , 471 U.S. at 8 (internal quotation

omitted).

In this case, Schirard, Harrington and Davis assert that several

considerations counseled in favor of deploying the SWAT Team to execute the

Heflin warrants:

The situation at plaintiff Sammy Heflin’s compound that day
was potentially very dangerous to all parties on the scene, officers
and civilians alike. The SWAT team members knew there would
probably be children there, and were concerned about their safety. . .
. The SWAT team knew that plaintiff Sammy Heflin had a history of
violence. . . . The SWAT team knew that several other individuals
who resided in the 60-acre compound had histories of criminal
violence. . . . The SWAT team was unsure of the total number of
adults who resided at the compound, but suspected there were as
many as seven or eight. . . . The SWAT team suspected there would

-19-
 be firearms in the residence. . . . The SWAT team’s goal was to
effect the arrest and search warrant quickly, without injury, and to
preserve evidence. And, the SWAT team was successful—no shots
were fired and no one was injured.

(Appellants’ Brief at 22 (citations omitted).)

The plaintiffs-appellees strongly dispute the accuracy of this

characterization of the facts, pointing out that the raid involved a misdemeanor

warrant, that the officers “knew that Sam Heflin had no criminal record and that

none of the suspects lived at the Heflin home.” (Appellees’ Brief at 45.)

Furthermore, the officers “had no reason to believe that anyone they ... believe[d]

lived at the Heflin home would physically resist arrest,” or “to believe that Sam

Heflin would physically resist arrest. In fact, they knew him to be cooperative in

his previous dealings with them to the point of being ‘polite.’” ( Id. ) They argue

that the decision to use the SWAT Team was made—in Harrington’s words—in

order to “teach this piece of sh** a lesson.” ( Id. at 6, 44.) They also assert that

Schirard decided to use the SWAT team to preserve physical evidence sought

pursuant to the search warrant, even though that evidence could not easily be

destroyed.. ( Id. at 8, 40-43.)

Viewed most favorably to those claiming injury, the facts alleged by

plaintiffs-appellees nevertheless do not show that by itself, the display of force

inherent in the deployment of the SWAT team—the force invoked by the decision

to deploy— was excessive under Fourth Amendment standards. Nor can it fairly

-20-
be said that Schirard, Harrington and Davis lacked any plausible basis for

believing that “dynamic entry” was warranted in this situation. As they had

anticipated, the deputies executing the warrants encountered several persons

besides Sam Heflin both inside and outside the house on the Heflin property, and

firearms were found at the residence. There existed the possibility of an

altercation, but given the SWAT team’s swift action, no such incident actually

occurred. In hindsight, plaintiffs argue that an altercation was highly unlikely to

occur, but we are not prepared to conclude that the Sheriff’s concerns prior to the

April 16 raid were so unwarranted as to render “dynamic entry” by itself an

excessive use of force.

The specific conduct of the SWAT deputies during the April 16 raid is

another matter, but plaintiffs did not show that Schirard, Harrington or Davis

decided to use the SWAT team knowing that the SWAT team would use excessive

force, intending to cause harm to any person, or that they instructed the SWAT

team to use excessive force while conducting the April 16 raid. Absent such

facts, no violation of a constitutional right arising from the decision to deploy the

SWAT Team to execute the warrants has been established. 14

In the alternative, plaintiffs-appellees assert that the decision to deploy the SWAT
14

Team violated their right to due process of law under the Fourteenth Amendment.
Where conduct falls beyond the reach of the Fourth Amendment, “Force inspired by
malice or by ‘unwise, excessive zeal amounting to an abuse of official power that
shocks the conscience ... may be redressed under [the Fourteenth Amendment].’” Latta
(continued...)

-21-
 The district court erred in denying summary judgment in favor of Schirard,

Harrington and Davis on qualified immunity as to this claim. As this was the only

remaining basis of liability for Schirard and Harrington, they should be dismissed

from the action.

(2) Display and Pointing of Firearms at Children

The Sheriff deployed the SWAT Team on April 16 to conduct a search and

to arrest one individual at a residence pursuant to lawful warrants. The officers

knew in advance that other persons, including children would be present. In

conducting the search and effecting the seizure of Sammy Heflin, the SWAT

deputies held each of the plaintiffs-appellees at gunpoint, initially forcing several

of them to lie down on the ground for ten to fifteen minutes, and ultimately

gathering all of them in the living room of the residence where they were held

until all but Mr. Heflin were released.

The district court acknowledged that “the right to arrest an individual

carries with it the right to use some physical coercion to effect the arrest,” and

that it is “not unreasonable for officers to carry weapons or to take control of a

situation by displaying their weapons.” (Order, dated August 3, 1999, at 16 (citing

14
(...continued)
v. Keryte , 118 F.3d 693, 702 (10th Cir. 1997) (quoting Hewitt v. City of Truth or
Consequences , 758 F.2d 1375, 1379 (10th Cir.1985)). We are satisfied that on the facts
as alleged by the plaintiffs-appellees, the decision to deploy the SWAT Team to execute
the warrants did not amount to “an abuse of official power that shocks the conscience”
under the circumstances of this case.

-22-
Thompson v. City of Lawrence, Kansas , 58 F.3d 1511, 1516 (10th Cir. 1995)).)

However, the district court concluded that “the undisputed testimony that the

SWAT team pointed weapons at young children during the entry” raised a triable

issue as to reasonableness, and denied defendants’ motion for summary judgment

(Id. )

The district court’s conclusion as to reasonableness finds support in prior

case law. In Baker v. Monroe Township , 50 F.3d 1186 (3d Cir. 1995), police

officers detained four persons, two of whom were minors, who were approaching

a house that was the subject of a drug raid. The officers ordered the four down on

the ground, handcuffed them, and held them at gunpoint. The Third Circuit held

their continued detention at gunpoint to be unreasonable; the four persons had not

attempted to resist or interfere, and there was “simply no evidence of anything

that should have caused the officers to use the kind of force they are alleged to

have used.” Id. at 1193.

In McDonald v. Haskins , 966 F.2d 292 (7th Cir. 1992), the Seventh Circuit

held that a police officer violated Fourth Amendment rights by aiming his firearm

at the head of a nine-year-old boy and threatening to pull the trigger. The child

“was not being arrested, nor was he even suspected of committing a crime,” and

posed no threat to the officer, other officers or the community. Id. at 294 (citing

Black v. Stephens , 662 F.2d 181, 189 (3d Cir. 1981) (“For an unidentified officer

-23-
to brandish his revolver eighteen inches from [the subject]’s head with [his wife]

in the precise line of fire and then threaten to shoot, is conduct that shocks the

conscience.”)).

The display of weapons, and the pointing of firearms directly at persons

inescapably involves the immediate threat of deadly force. Such a show of force

should be predicated on at least a perceived risk of injury or danger to the officers

or others, based upon what the officers know at that time. “These are the very

ingredients relevant to an excessive force inquiry.” McDonald , 966 F.2d at 294.

Where a person has submitted to the officers’ show of force without resistance,

and where an officer has no reasonable cause to believe that person poses a

danger to the officer or to others, it may be excessive and unreasonable to

continue to aim a loaded firearm directly at that person, in contrast to simply

holding the weapon in a fashion ready for immediate use. Pointing a firearm

directly at a child calls for even greater sensitivity to what may be justified or

what may be excessive under all the circumstances.

In McDonald , the Seventh Circuit explained:

It should have been obvious to Haskins that his threat of deadly
force—holding a gun to the head of a 9-year-old and threatening to
pull the trigger—was objectively unreasonable given the alleged
absence of any danger to Haskins or other officers at the scene and
the fact that the victim, a child, was neither a suspect nor attempting
to evade the officers or posing any other threat. As we observed in
Lester , 830 F.2d at 711, “Although the issue in Garner was deadly
force, implicit in its totality of the circumstances approach is that

-24-
 police use of less than deadly force would violate the Fourth
Amendment if not justified under the circumstances.”

966 F.2d at 295.

Taken in the light most favorable to the plaintiffs-appellees, the facts

alleged concerning the pointing of firearms at the child bystanders found at the

Heflin residence on April 16, 1996 show the officers’ conduct violated a

constitutional right. While the SWAT Team’s initial show of force may have

been reasonable under the circumstances, continuing to hold the children directly

at gunpoint after the officers had gained complete control of the situation outside

the residence was not justified under the circumstances at that point. This

rendered the seizure of the children unreasonable, violating their Fourth

Amendment rights.

(3) Failure to “Knock and Announce”

Whether the SWAT deputies announced their identity before entering the

Heflin residence on April 16 remains in genuine dispute. The question appears to

be one of the sufficiency of the evidence to support plaintiffs-appellees’

allegations. The witnesses recall events differently, and the trier of fact must

decide whose testimony as to the event is to be believed. Even where issues of

material fact exist, however, we may review the legal question of “whether a

defendant’s conduct, as alleged by the plaintiff, violates clearly established law.”

Medina , 252 F.3d at 1130 (citations omitted).

-25-
 In reviewing that “legal question,” the reasonableness of the alleged failure

to knock and announce cannot be considered in isolation. We are called upon to

evaluate one event, a single occurrence, in light of the applicable standards of

conduct and the totality of the circumstances surrounding that single event.

Taking the facts alleged by plaintiffs-appellees as true, and considering the

totality of the circumstances thus alleged, those facts show a violation of clearly

established constitutional rights. See Wilson v. Arkansas , 514 U.S. 927, 936

(1995). Though the Fourth Amendment “should not be read to mandate a rigid

rule of announcement,” Wilson squarely holds that “an officer’s unannounced

entry into a home might be unreasonable under the Fourth Amendment,” at least

absent a sufficient showing of countervailing law enforcement interests. Id. at

934.

The genuine factual dispute concerning whether the officers announced

their presence as they entered the Heflin residence has a direct bearing upon the

Fourth Amendment reasonableness of the ensuing search. Other alleged facts,

such as the officers’ demeanor, bear upon Fourth Amendment reasonableness as

well.

(4) Harsh Language

The district court rejected plaintiffs-appellees’ claim that the SWAT

deputies’ use of foul and abusive language during the April 16 raid violated their

-26-
Fourth Amendment rights. This allegation, too, may not be treated in isolation

from the totality of the circumstances.

While “[n]ot every push or shove, even if it may later seem unnecessary in

the peace of a judge’s chambers, violates the Fourth Amendment,” Graham , 490

U.S. at 396, “[p]ushes and shoves, like other police conduct, must be judged

under the Fourth Amendment standard of reasonableness.” Saucier , 121 S. Ct. at

2160. The whole course of conduct of an officer in making an arrest or other

seizure—including verbal exchanges with a subject—must be evaluated for Fourth

Amendment reasonableness in light of the totality of the circumstances.

Of course, in conducting a search or making a seizure, “The risk of harm to

both the police and the occupants is minimized if the officers routinely exercise

unquestioned command of the situation.” Michigan v. Summers , 452 U.S. 692,

702 (1981). Simple instructions spoken in a firm, commanding tone of voice

communicate clearly what an officer wants a subject to do, and likely would be

most effective, particularly in dealing with bystanders and children.

In contrast, expletives communicate very little of substance beyond the

officer’s own personal animosity, hostility or belligerence. Such animus would be

entirely misplaced in dealing with bystanders or children, particularly where they

have offered no resistance to the officers’ initial show of force.

One can be firm and direct without being foul and abusive.

-27-
 In evaluating the Fourth Amendment reasonableness of a seizure, the

officers’ verbal interaction as well as their physical conduct become part of the

totality of the circumstances to be considered. While it seems unlikely that harsh

language alone would render a search or seizure “unreasonable,” verbal abuse

may be sufficient to tip the scales in a close case.

Violation of Fourth Amendment Rights

Outfitting sheriff’s deputies in hooded combat fatigues, arming them with

laser-sighted weapons and ordering them to conduct the “dynamic entry” of a

private home does not exempt their conduct from Fourth Amendment standards of

reasonableness. The “SWAT” designation does not grant license to law

enforcement officers to abuse suspects or bystanders, or to vent in an

unprofessional manner their own pent-up aggression, personal frustration or

animosity toward others. 15

If anything, the special circumstances and greater risks that warrant

“dynamic entry” by a SWAT team call for more discipline, control, mindfulness,

and restraint on the part of law enforcement, not less. SWAT officers are

specially trained and equipped to deal with a variety of difficult situations,

including those requiring a swift and overwhelming show of force. At all times,

15
E.g. , trailing a frightened four-year-old child with a laser-sighted firearm appears, on
its face, needlessly dangerous.

-28-
SWAT officers no less than others—dressed in camouflage or not—must keep it

clearly in mind that we are not at war with our own people.

Nor does the fact that none of the plaintiffs suffered physical injury during

the raid foreclose a finding of excessive force.

Pointing to Bella v. Chamberlain , 24 F.3d 1251, 1257 (10th Cir. 1994), in

which this court noted that “we have never upheld an excessive force claim

without some evidence of physical injury,” Davis insists that plaintiffs’ claims

must fail. (Reply Brief at 12.)

Physical injury may be the most obvious injury that flows from the use of

excessive force. Yet the interests protected by the Fourth Amendment are not

confined to the right to be secure against physical harm; they include liberty,

property and privacy interests—a person’s “sense of security” and individual

dignity. No physical injury was pleaded in Baker or McDonald . Nor was

physical injury alleged in Bivens v. Six Unknown Named Agents , 403 U.S. 388

(1971), which held that officers may be held liable in damages for violating

persons’ Fourth Amendment rights, including the use of unreasonable force.

Keeping in mind that the “‘touchstone of the Fourth Amendment is

reasonableness,’. . . measured in objective terms by examining the totality of the

circumstances,” the Supreme Court has “consistently eschewed bright-line rules,

instead emphasizing the fact-specific nature of the reasonableness inquiry.” Ohio

-29-
v. Robinette , 519 U.S. 33, 39 (1996) (citation omitted). We likewise decline to

adopt a “bright-line” standard dictating that force cannot be “excessive” unless it

leaves visible cuts, bruises, abrasions or scars. 16

Taken in the light most favorable to the party asserting the injury, the facts

alleged in this case show that the conduct of the La Plata County Sheriff’s

Department SWAT Team violated plaintiffs-appellees’ Fourth Amendment rights.

III

As Saucier instructs, “the next, sequential step is to ask whether the right

was clearly established.” 121 S.Ct. at 2156.

“Clearly Established” Rights

Having determined as a preliminary matter that the conduct of the SWAT

deputies alleged by plaintiffs-appellees violated a constitutional right, we must

consider whether that alleged conduct violates “clearly established” law.

The Fourth Amendment’s guarantee that people shall “be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures”

has been part of our Constitution since 1791. The Fourth Amendment

reasonableness standard “is ‘clearly established’ in the context of § 1983 actions”

16
A conclusion that an officer did not violate clearly established right may be
“confirmed” by the fact that “the force was not so excessive that [plaintiff] suffered hurt
or injury,” Saucier , 121 S. Ct. at 2160, but the alleged violation itself must be examined
in terms of the totality of the circumstances and “what the officer reasonably understood
his powers and responsibilities to be, when he acted, under clearly established
standards.” Id. at 2159.

-30-
involving claims of excessive force. Gross , 245 F.3d at 1158 (citing Wilson , 52

F.3d at 1552). Indeed, “there is no doubt that Graham v. Connor . . . clearly

establishes the general proposition that use of force is contrary to the Fourth

Amendment if it is excessive under objective standards of reasonableness.”

Saucier , 121 S. Ct. at 2156.

The “knock and announce” requirement acknowledged by the Supreme

Court in Wilson predates the April 16, 1996 raid by nearly a year, as does Baker

and prior case law ( e.g. , McDonald , Black ) dealing with the display and pointing

of weapons.

As a general proposition, the law that a search or seizure must be

objectively “reasonable” under all the circumstances has been “clearly

established” for a long time. 17
It is also clearly established that police use of less

than deadly force in seizing and detaining a person, particularly a bystander not

suspected of any wrongdoing, must be justified under all of the circumstances.

17
The scheme of the Fourth Amendment becomes meaningful only
when it is assured that at some point the conduct of those charged with
enforcing the laws can be subjected to the more detached, neutral scrutiny
of a judge who must evaluate the reasonableness of a particular search or
seizure in light of the particular circumstances. And in making that
assessment it is imperative that the facts be judged against an objective
standard: would the facts available to the officer at the moment of the
seizure or the search warrant a man of reasonable caution in the belief that
the action taken was appropriate?

Terry v. Ohio , 392 U.S. 1, 21 (1968).

-31-
Lester , 830 F.2d 706, 711 (7th Cir. 1987) (“Police use of less than deadly force

would violate the Fourth Amendment if not justified under the circumstances.”).

Qualified Immunity, Excessive Force and Reasonable Mistakes

Here, however, the inquiry as to clearly established rights is more specific:

“whether it would be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.” Saucier , 121 S. Ct. at 2156.

Qualified immunity “operates in this case, then, just as it does in others, to

protect officers from the sometimes ‘hazy border between excessive and

acceptable force,’. . . and to ensure that before they are subjected to suit, officers

are on notice their conduct is unlawful.” Id. at 2158 (citing Priester v. Riviera

Beach , 208 F.3d 919, 926-927 (11th Cir. 2000)). It grants “officers immunity for

reasonable mistakes as to the legality of their actions,” and in excessive force

cases, “in addition to the deference officers receive on the underlying

constitutional claim, qualified immunity can apply in the event the mistaken belief

was reasonable.” Id. at 2159. “Excessive force claims, like most other Fourth

Amendment issues, are evaluated for objective reasonableness based upon the

information the officers had when the conduct occurred.” Id.

The concern of the immunity inquiry is to acknowledge that
reasonable mistakes can be made as to the legal constraints on
particular police conduct. It is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive force, will
apply to the factual situation the officer confronts. An officer might
correctly perceive all of the relevant facts but have a mistaken

-32-
 understanding as to whether a particular amount of force is legal in
those circumstances.

Id. at 2158. “If the officer’s mistake as to what the law requires is reasonable,”

Saucier explains, “the officer is entitled to the immunity defense.” Id.

How do we evaluate whether a legal mistake is reasonable? A mistake of

law may be “reasonable” where the circumstances “disclose substantial grounds

for the officer to have concluded he had legitimate justification under the law for

acting as he did.” Id. at 2159-60.

Here, Davis asserts that the SWAT deputies announced themselves as they

entered the Heflin residence. Even if that announcement was not heard in the

turmoil of that moment, however, Davis asserts that based on their belief that

Sammy Heflin had “recently been involved in a violent assault” and the other

circumstances the SWAT team encountered on April 16, the SWAT deputies

“were entitled to display their weapons and enter without knocking and

announcing as a matter of law.” (Reply Brief at 13-14 (citing Graham , 490 U.S.

at 397).)

The young people encountered by the SWAT deputies as they entered the

Heflin property offered no resistance. They did as they were told. The SWAT

deputies’ initial show of force gained immediate and unquestioned control of the

situation outside the residence. Thereafter, the justification for continuing to hold

the young people directly at gunpoint simply evaporated.

-33-
 Davis argues that “[i]t was not obvious to the officers that the minors

would not interfere with their search. . . . Shelby, for example, ran screaming into

the house, forcing the SWAT team to follow her in, allegedly without knocking

and announcing.” (Reply Brief at 13.) But Davis does not explain what facts

would suggest to a reasonable officer that the young people detained outside

would interfere with the search. None of the facts pointed to by Davis give any

reason to believe that the young people posed any kind of threat. Indeed, with no

small amount of irony, Davis asserts that continuing to hold the children at

gunpoint “protect[ed] the children from the danger inherent in the situation,” and

that “concerned about” four-year-old Shelby’s “safety,” an officer trailed her at

direct gunpoint only briefly: “the officer’s laser shown on her back for, at most,

two seconds.” (Appellants’ Brief at 23.)

We can find no substantial grounds for a reasonable officer to conclude that

there was legitimate justification for continuing to hold the young people outside

the residence directly at gunpoint after they had completely submitted to the

SWAT deputies’ initial show of force, or for training a firearm directly upon a

four-year-old child at any time during the operation. Davis’ supervision of the

SWAT deputies during the raid furnishes the affirmative link between this

violation and Davis’ conduct; it appears uncontroverted that the SWAT deputies

-34-
continued to point their weapons at the persons found on the Heflin property until

Davis directed them to stop doing so at the conclusion of the search.

This violation does not reflect a reasonable mistake of law for which Davis

should enjoy the benefits of qualified immunity. This was an invasion of a clearly

established constitutional right, and the officers’ mistake as to what the law

requires was unreasonable under all of the circumstances. Therefore, the district

court properly denied summary judgment in favor of Davis on his assertion of

qualified immunity.

CONCLUSION

Schirard and Harrington are entitled to summary judgment on qualified

immunity as to the decision to deploy the SWAT Team. To that extent, the

judgment of the district court is REVERSED, and as this was the only remaining

basis of liability for Schirard and Harrington, upon remand they should be

dismissed from the action. The judgment of the district court is otherwise

AFFIRMED, and the case is REMANDED for further proceedings consistent with

this Opinion.

-35-
HENRY, J., concurring in part and dissenting in part:
99-1371 Holland v. Harrington

The facts of this case as we must construe them on summary judgment are,

to understate, disquieting. At 8:30 P.M. on April 16, 1996, seven camouflaged,

unmarked, unidentified, and hooded SWAT team officers (from the La Plata

County sheriff’s office) swooped down upon a family compound, weapons

brandished, laser sights sweeping, and interrupted an eight year old’s basketball

game, forcing him and his older playmates to the ground, before continuing their

advance. The seven then continued their raid, sweeping their laser sights across

the back of a scared and fleeing four year-old child. Barging into the house, they

found their quarry seated with his wife at his dining room table. Forcing them to

lie down at gunpoint, the seven next raided the bedroom, removing the two

women there to the front room, where the others were held.

The purpose of this armed intervention? To serve a search and arrest

warrant for a misdemeanor charge. Incidentally, Sammy Heflin was later

acquitted of these misdemeanor charges. What is wrong with this picture?

Well, for one thing, we don’t really know much about the plaintiff, Mr.

Heflin. It does seem reasonable for the officers and their supervisors to have

suspected him of assault and battery of some guests at a restaurant approximately

two nights earlier. We do know Mr. Heflin was charged with a misdemeanor, but

we are advised (and again, this is on summary judgment, where the record must
be construed in favor of the non-moving party) that he had no criminal record,

and, in fact, that he had no history of violence known to the police. We also

know that the people who lived on Mr. Heflin’s property had no history of

violence known to the police (with one exception, and that exception had already

been arrested and removed from the premises). There was no evidence that the

alleged assault in the restaurant involved any weapon.

But what kind of a supervisor would authorize such a raid? Our evidence

further suggests that it was the kind of supervisor that wanted “to teach this piece

of [excrement deleted] a lesson.” Aplt’s App. at 340-41 (depo. testim. of James

Cheverie, investigator for Sheriff’s Department, referring to statement of

Undersheriff Harrington). The La Plata County Sheriff’s Department’s training

session narrative instructed that the department

would use a dynamic entry only when it was deemed that serious bodily
injury would likely occur to persons if a dynamic entry was not used.
Dynamic entry would not be used to simply preserve evidence that
might be destroyed if a slower form of entry was made.

Id. at 415-16 (narrative from April 29, 1992 La Plata County Sheriff’s Office

training session). A dynamic entry would be “made to counter an immediate threat.”

Id. at 416. In addition, the evidence sought to be collected by the SWAT team (hats

and cigarette packages, receipts and bills) was not easily destructible.

I join my colleagues in a well-crafted opinion, with one exception. My

-2-
conscience, although not as shockable as it once was, is shocked by the planning

that this kind of raid may very well have involved. Such planning would

constitute force inspired by “unwise, excessive zeal amounting to an abuse of

official power that shocks the conscience” that deserves “redress[] under the

[Fourteenth Amendment].” Latta v. Keryte , 118 F.3d 693, 702 (10th Cir. 1997)

(internal quotation marks omitted).

Certainly, the plaintiffs’ case against Sheriff Schirard and Undersheriff

Harrington would be stronger with factual allegations specifying their knowledge

of the danger involved in such a “dynamic entry.” But, the ordering of such an

entry by Sheriff Schirard and Undersheriff Harrington, contrary to department

policy (or at least without showing compliance with department policy)–where

seven armed guards converge on a compound where children are known to be

playing, all in an effort to serve a warrant for a misdemeanor, coupled with

Undersheriff Harrington’s apparent animosity toward Mr. Heflin–gives rise to

sufficient knowledge of danger that I would not cloak such reckless supervision

with the protection of qualified immunity. I agree with the district court’s

conclusion that Sheriff Schirard’s decision to use the SWAT team, the knowledge

of which is charged to Undersheriff Harrington, “provides the ‘affirmative link’

between his ‘personal participation’ in the alleged deprivation of Plaintiffs’

constitutional rights.” Aplt’s Br. ex. 2 (dist. ct. order filed Aug. 3, 1999) at 19.

-3-
 I am certainly not ready to grant judgment for the plaintiffs, but I would not

decide at the summary judgment stage that this conduct was not violative of the

Fourth Amendment; or if the Fourth Amendment does not apply, I would not

decide on summary judgment that this conduct is not violative of the Fourteenth

Amendment’s guarantee of substantive due process. Thus, I would affirm the

district court’s decision denying qualified immunity to defendants Schirard,

Harrington, and Davis on the claims arising from the decision to employ the

SWAT team.

-4-