REVISED December 16, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20316
EDWIN O. HEITSCHMIDT,
Plaintiff-Appellant,
VERSUS
THE CITY OF HOUSTON; SAM NUCHIA, Chief;
GEORGE SWEETIN; C. P. GILLESPIE; J. K. SHAFFER;
KEVIN D. TEMPLETON; GEORGE FENCL; JOHN C. WHITEFIELD,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
November 23, 1998
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Edwin O. Heitschmidt appeals the district court’s rule
12(b)(6) dismissal of his § 1983 action against six named Houston
Police Officers, former Houston Police Chief Sam Nuchia, and the
City of Houston. We reverse and remand for further proceedings
consistent with this opinion.
I.
Dismissal pursuant to rule 12(b)(6) is appropriate only when
“‘it appears that no relief could be granted under any set of facts
that could be proven consistent with the allegations.’"
Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 529 (5th
Cir. 1996) (quoting Bulger v. United States Bureau of Prisons, 65
F.3d 48, 49 (5th Cir. 1995)); see also Rochon v. City of Angola,
122 F.3d 319, 320 (5th Cir. 1997), cert. denied, 118 S. Ct. 1311
(1998). We review the district court’s action de novo, accepting
as true all well-pleaded facts in Heitschmidt’s complaint.
Meadowbriar Home for Children, 81 F.3d at 529.
In June 1994, Edwin Heitschmidt was living in Houston, Texas
with Anne Menke Fucaluro, the leader of a sizable ring of
innovative prostitutes known as the “salad sisters.” After
Fucaluro was arrested as part of a sting operation, a warrant was
issued to search the house that Heitschmidt shared with Fucaluro.
Officers had information prior to the search that Fucaluro shared
the house with Heitschmidt and that he was a U.S. Customs Officer.
Heitschmidt was not a target of the investigation, and police had
no reason to suspect Heitschmidt of any wrongdoing prior to
searching the home.
Officers arrived to serve the warrant around 9:00 p.m. on the
evening of June 9, 1994. Two policemen lured Heitschmidt from the
residence by claiming they needed his help identifying people who
2
had allegedly been picked up in the neighborhood. Heitschmidt
agreed to help, then put on a shirt and voluntarily exited his
home, walking toward a police car parked on the street. As
Heitschmidt approached the parked car, police shined a flashlight
into the back seat, where Heitschmidt observed two individuals
smiling at him. The two policemen escorting Heitschmidt then
pushed him onto the trunk of the police car and handcuffed him
tightly enough to cause severe pain.
As Heitschmidt was being handcuffed, several unmarked cars
pulled into the driveway and in front of the house, and about ten
or twelve additional police officers exited the vehicles. Some of
the police arriving at this time had guns drawn, and some of the
guns were pointed at Heitschmidt.
Heitschmidt was then taken back inside the house and
positioned on a bar stool in the living room. Defendant Officer
Sweetin told Heitschmidt the house was being searched pursuant to
a warrant and held a copy of the warrant in front of Heitschmidt.
Heitschmidt explained that he could not read the document without
his reading glasses. Officer Sweetin moved the paper back
slightly, but Heitschmidt was still unable to read the document and
no effort was made to secure Heitschmidt’s reading glasses.
Officer Sweetin then read Heitschmidt his rights. Heitschmidt
asked whether he was under arrest. Sweetin replied that
Heitschmidt was not under arrest, and that he was merely being
detained.
3
Heitschmidt remained handcuffed and seated on the bar stool
from approximately 9:15 p.m. until about 1:45 a.m. the next
morning, as many police officers from various jurisdictions
searched the house. During that period, Heitschmidt complained
that the handcuffs were painfully tight and requested that they be
loosened. Heitschmidt’s requests were denied. Heitschmidt also
requested permission to use the bathroom. That request was also
denied.
Police seized a number of items from the home, all thought to
be related to Fucaluro’s operation of the prostitution ring. When
the four and one-half hour search was complete, the handcuffs were
removed and Heitschmidt was released.
Heitschmidt claims that he suffered permanent serious injury
to his wrists as a result of the incident, for which he has sought
medical treatment. He also claims psychological harm, for which he
has sought medical treatment.
II.
Heitschmidt filed this civil rights suit pursuant to 42 U.S.C.
§ 1983 in May 1996. Heitschmidt’s original complaint named Houston
Police Officers George Sweetin, C.P. “Chris” Gillespie, J.K.
Shaffer, Kevin D. Thompson, George Fencl, and John C. Whitefield,
in their individual capacities; Houston Police Chief Sam Nuchia, in
his individual capacity; and the City of Houston, as defendants.
4
Heitschmidt’s original complaint raised federal claims under the
Fourth, Fifth, Eighth, and Fourteenth Amendments, and several
pendant state law claims.
In June 1996, the defendants moved for dismissal on the basis
of qualified immunity. In November 1996, the district court
entered an order deferring its ruling on the defendants’ motion,
and permitting Heitschmidt an opportunity to amend his pleadings to
set forth facts sufficient to overcome the defendants’ claimed
entitlement to qualified immunity. See Schultea v. Wood, 47 F.3d
1427, 1433-34 (5th Cir. 1995) (en banc) (establishing procedure for
requiring a civil rights plaintiff to file a reply tailored to the
issues raised by a motion asserting the qualified immunity
defense). On December 9, 1996, Heitschmidt filed an amended
complaint. Defendants responded with an amended answer, and
shortly thereafter, with another motion to dismiss. On April 1,
1997, the district court entered an order (1) dismissing
Heitschmidt’s Fifth, Eighth, and Fourteenth Amendment claims for
failure to state a claim, and (2) dismissing Heitschmidt’s Fourth
Amendment claims against the six named officers and Chief Nuchia on
the basis that those defendants were entitled to qualified
immunity. On June 16, 1997, the district court entered a second
order (1) dismissing Heitschmidt’s claims against the City of
Houston for failure to state a claim, and (2) dismissing
Heitschmidt’s remaining state law claims for want of jurisdiction.
5
On June 26, 1997, the district court entered final judgment
dismissing all claims. Heitschmidt appealed.
Heitschmidt’s principal brief on appeal challenges only the
district court’s decision to grant the six named Houston Police
Officers qualified immunity from his Fourth Amendment claims.
Heitschmidt’s briefing does not contain any cogent argument
concerning the district court’s dismissal of his Fifth, Eighth, and
Fourteenth Amendments claims for failure to state a claim, the
district court’s dismissal of all claims against Chief Nuchia and
the City of Houston, or the district court’s dismissal of
Heitschmidt’s pendant state law claims. We therefore limit our
review to the district court’s April 1, 1997 decision that the six
named Houston Police Officers were entitled to qualified immunity
from Heitschmidt’s Fourth Amendment claims.
III.
To determine whether the district court’s grant of qualified
immunity to the individual officers was proper, we must decide
whether Heitschmidt’s pleadings, if accepted as true, (1)
conceivably state violations of clearly established Fourth
Amendment rights, and (2) allege conduct that is objectively
unreasonable. See, e.g., Fontenot v. Cormier, 56 F.3d 669, 673
(5th Cir. 1995). Heitschmidt’s Fourth Amendment claims alleged (1)
that he was unlawfully and unreasonably detained, and (2) that he
6
was subjected to excessive force. With regard to his unlawful
detention claim, Heitschmidt asserts his clearly established right
to be free from unreasonable seizure of his person, a right which
he maintains includes the clearly established right to be free from
an unreasonably prolonged or intrusive detention without probable
cause. Heitschmidt further claims that the conduct of the officers
was objectively unreasonable because he was held for more than four
hours in painful restraints without being allowed access to a
bathroom, even though he was not a target of the investigation and
police had no articulable reason for suspecting him of misconduct.
Defendants rely upon Michigan v. Summers, 101 S. Ct. 2587
(1981), for the proposition that a valid search warrant implicitly
authorizes the detention of any occupant of the premises to be
searched during the pendency of the search. The district court
likewise focused upon Summers, holding that police may detain a
person not named in the search warrant while a validly executed
search warrant is executed. Therefore, the district court
reasoned, Heitschmidt could not allege violation of a clearly
established right.
Defendants’ unqualified reliance upon Summers for the
proposition that Heitschmidt could not, under any circumstances,
state a claim for unlawful detention during the execution of a
valid search warrant is unjustified. The holding in Summers was
far more narrow.
7
In Summers, police obtained a valid warrant to search a house.
The defendant, who in that case was trying to suppress evidence
offered at his criminal trial, was observed leaving the house as
officers arrived. Officers requested his assistance entering the
house and detained him during the search. Summers, 101 S. Ct. at
2589.
Summers recognized that:
some seizures admittedly covered by the Fourth
Amendment constitute such limited intrusions on the
personal security of those detained and are
justified by such substantial law enforcement
interests that they may be made on less than
probable cause, so long as police have an
articulable basis for suspecting criminal activity.
Id. at 2592-93. The Court noted that those cases recognizing
exceptions to the probable cause requirement, for example for Terry
stops based upon reasonable suspicion, “are consistent with the
general rule that every arrest, and every seizure having the
essential attributes of a formal arrest, is unreasonable unless it
is supported by probable cause.” Id. at 2593. The Court concluded
that “a warrant to search for contraband founded on probable cause
implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted.” Id.
at 2595.
Whether a particular seizure falls within the limited
authority recognized in Summers to proceed without probable cause
depends upon “both the character of the official intrusion and its
8
justification.” Id. at 2593; see also United States v. Place, 103
S. Ct. 2637, 2642-43 (1983) (whether a particular intrusion must be
supported by probable cause depends upon a balancing of the “nature
and quality of the intrusion . . . against the importance of the
governmental interests alleged to justify the intrusion”). Summers
identified several factors important to its analysis that the
intrusion in that case was not great. First, the Court stated that
the restraint on liberty was minimal because, unless the respondent
intended flight to avoid arrest, he would have little incentive to
leave during a search. Summers, 101 S. Ct. at 2593. Second, the
Court noted that the detention during the search of a residence is
unlikely to be prolonged because police are seeking information
from the search rather than the person. Id. at 2594. Finally, the
Court stated that the stigma and inconvenience of the detention is
likely to be less significant when the detention occurs in the
person’s home. Id.
Summers also identified factors important to its conclusion
that the intrusion in that case was justified by important police
interests. First, the Court recognized the law enforcement
interests in preventing flight and minimizing harm to officers.
Id. Second, the Court observed that an efficient search may be
facilitated by the presence of the resident. Id. Finally, the
Court stated that the existence of the warrant based upon probable
cause “gives the police officer an easily identifiable and certain
9
basis for determining that suspicion of criminal activity justifies
a detention of th[e] occupant.” Id.
Although Summers expressly rejects a completely ad hoc
approach to determining whether probable cause was required, id. at
2595 n.19 (“the balancing of the competing interests . . . must in
large part be done on a categorical basis” (internal quotations
omitted)), the holding is not without limitation, see id. at 2595
n.20 (“we do not decide whether the same result would be justified
if the search warrant merely authorized a search for evidence”) &
id. at 2595 n.21 (“Although special circumstances, or possibly a
prolonged detention, might lead to a different conclusion in an
unusual case, we are persuaded that this routine detention of
residents of a house while it is being searched for contraband
pursuant to a valid warrant is not such a case.”). Thus, Summers
merely holds that the police have limited authority to detain the
occupant of a house without probable cause while the premises is
searched, when the detention is neither prolonged nor unduly
intrusive, and when police are executing a validly executed search
warrant for contraband. Summers cannot be blindly used for the
much broader proposition that Heitschmidt had no Fourth Amendment
right to be free from an unreasonably intrusive or unjustified
detention while his home was being searched.
The intrusion in this case was far more severe than in
Summers. In Summers, the defendant was merely asked to remain at
10
the home until the search was completed. Heitschmidt claims he was
physically pushed onto the trunk of a car and handcuffed in the
street. Heitschmidt was then detained in pain without a restroom
break for more than four hours. The nature of Heitschmidt’s
detention renders the Supreme Court’s general observations that
detention at home may involve minimal restraint and that detention
at home generally involves less stigma inapplicable to this case.
The duration of Heitschmidt’s detention renders the Supreme Court’s
final observation, that detention at home will rarely be prolonged,
likewise inapplicable to this case. Thus, none of those factors
that the Supreme Court used to explain why the detention in Summers
was so minimally intrusive that the probable cause requirement
could properly be excused apply in this case.
Similarly, the justification supporting Heitschmidt’s
detention is far less persuasive than was the case in Summers.
Heitschmidt was lured from his home. He was not trying to flee.
Indeed, he voluntarily dressed and then exited the home, ostensibly
to assist police efforts. Thus, the police officers had no
significant interest in preventing flight at the time Heitschmidt
was pushed onto the trunk of the car and handcuffed. In addition,
there was only minimal indication that Heitschmidt’s restraint was
required to protect the police. Defendants’ amended answer states
that police were aware Heitschmidt’s status as a U.S. Customs
Officer might have provided him access to guns. But there is no
11
indication that police had any reason to believe that Heitschmidt
was involved in the prostitution ring or any other crime at the
time the home was searched, and likewise, no indication that police
had any reason to believe Heitschmidt would use any hypothetical
gun that he might have been able to access.
As a resident, Heitschmidt could certainly have helped
facilitate the search. However, that there was no need to place
Heitschmidt in painful restraints to vindicate that legitimate
police interest. While the existence of a search warrant may, in
some circumstances, support a reasonable belief that anyone present
at the premises to be searched is engaged in criminal activity, id.
at 2594-95, that justification is significantly weakened when, as
here, police know the occupant’s identity and yet have no
articulable reason for suspecting that person of criminal activity.
Finally, defendants’ amended answer makes clear that the
warrant at issue in this case was aimed at retrieving evidence
relating to the prostitution ring for the purpose of preparing a
case against Fucaluro, which is exactly what police found. Police
were not searching for, and did not find, contraband of any sort.
Summers expressly left open whether probable cause would be
required when the search warrant supporting the detention was for
evidence, rather than contraband. Id. at 2595 n.21. We conclude
that none of those factors that the Supreme Court used to explain
why the detention in Summers was justified by legitimate police
12
interests should be given any significant weight in this case.
Based upon an application of the controlling factors identified in
Summers, it appears that Heitschmidt has at least conceivably
alleged violation of his clearly established right to be free from
unreasonable seizure of his person.
The remaining inquiry is whether the police officers’ actions
were nonetheless objectively reasonable. Heitschmidt was
restrained for more than four hours. See Place, 103 S. Ct. at
2642-43 (“we have never approved a seizure of the person [without
probable cause] for the prolonged 90-minute period involved here
and cannot do so on the facts presented by this case”). But we
need not base our holding upon the prolonged nature of
Heitschmidt’s detention alone. Once the premises was secure and
police were proceeding with their work without interference, there
was no justification for prolonging the physically intrusive aspect
of Heitschmidt’s detention. Heitschmidt’s pleadings allege that
there were between ten and twelve police officers in the home
during the search. Heitschmidt could have been effectively
restrained, and the police interest in facilitating the search
could have been vindicated, with a far less intrusive detention.
We cannot say, on the basis of the pleadings, that the officers’
conduct was objectively reasonable as a matter of law.
Heitschmidt has at least conceivably alleged a violation of
his clearly established Fourth Amendment right to be free from
13
unreasonable seizure. Moreover, the defendants’ conduct in
continuing the painful restraint once any conceivable interest in
the physically intrusive nature of the detention was vindicated
requires the conclusion that the officers’ conduct was not
objectively reasonable as a matter of law. We conclude the
officers are not entitled, on the basis of the pleadings, to
qualified immunity with respect to Heitschmidt’s unreasonable
detention claim. Accordingly, the district court’s dismissal of
that claim is reversed.
IV.
Heitschmidt also claims that the defendants subjected him to
excessive force, in violation of the Fourth Amendment. To state a
claim for imposition of excessive force, Heitschmidt was required
to show that he (1) suffered some injury which (2) resulted from
force that was clearly excessive to the need for force; (3) the
excessiveness of which was objectively unreasonable. See Ikerd v.
Blair, 101 F.3d 430, 433-34 (5th Cir. 1996). When examining the
propriety of qualified immunity from excessive force claims, the
Court is faced with the unusual circumstance that the standard for
stating a claim, the objective reasonableness of the force exerted,
coincides in large part with the inquiry for determining qualified
immunity, the objective reasonableness of the officers’ conduct.
On the basis of these pleadings, we are unable to conclude that
14
either the force exerted or the officers’ conduct was reasonable as
a matter of law.
Heitschmidt complained that he was cuffed too tightly, and
then left in pain for a significant period of time without
justification. The district court held that the officers’ failure
to loosen the handcuffs or to allow Heitschmidt to go to the
bathroom was objectively reasonable. In reaching that conclusion,
the district court recognized that nonfeasance or failure to act is
less likely to be considered an act of excessive force than a
direct act of injury. In our view, the district court failed to
give appropriate weight to the consequence that it was the officers
who placed Heitschmidt in the painful restraints to begin with.
Heitschmidt informed the officers that he was in pain and asked
that the cuffs be loosened. Once police secured the premises there
was no justification for requiring Heitschmidt to remain painfully
restrained. Heitschmidt alleges that he suffered serious and
permanent injury to his wrists, for which he has required medical
treatment. While the character of the force exerted may make
Heitschmidt’s claim more difficult to prove, we cannot say that it
is sufficient to render Heitschmidt’s excessive force claim without
effect. We conclude that Heitschmidt has at least conceivably
stated a violation of his Fourth Amendment right to be free from
excessive force. Accordingly, the district court’s dismissal of
Heitschmidt’s excessive force claim on the basis of qualified
immunity is reversed.
15
V.
Heitschmidt argues on appeal that he should have been allowed
limited discovery before the district court granted defendant’s
motion for qualified immunity. The district court dismissed
Heitschmidt’s claims on the basis that his pleadings did not state
facts sufficient to overcome the qualified immunity defense.
Qualified immunity is a defense from both liability and suit.
Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996). Our Court
has held that “[e]ven limited discovery on the issue of qualified
immunity must not proceed until the district court first finds that
the plaintiff’s pleadings assert facts which, if true, would
overcome the defense of qualified immunity.’” Id. at 1368-69
(quoting Wicks v. Mississippi State Employment Serv., 41 F.3d 991,
994 & n.10 (5th Cir. 1995)).
Heitschmidt’s motion for limited discovery was denied before
the district court’s decision on the defendants’ motion to dismiss.
There was, therefore, no error in that decision. Now that
Heitschmidt’s pleadings have been judged adequate to at least
potentially state a claim, however, discovery can proceed on
remand. We do not hold that Heitschmidt will eventually be able to
establish a violation of his Fourth Amendment rights, but rather,
that his pleadings are sufficient to create that possibility. See
Meadowbriar Home for Children, 81 F.3d at 529. Should further
discovery lead to the conclusion that there is no genuine issue of
16
fact which could support such a claim, there will be no procedural
or substantive barrier to the filing of a motion for summary
judgment on the issue of qualified immunity. See Behrens v.
Pelletier, 116 S. Ct. 834 (1996).
CONCLUSION
The district court’s decision dismissing Heitschmidt’s Fourth
Amendment claims for unreasonable detention and the use of
excessive force against defendants George Sweetin, C. P. “Chris”
Gillespie, J. K. Shaffer, Kevin D. Thompson, George Fencl, and John
C. Whitefield is REVERSED and the cause REMANDED for further
proceedings consistent with this opinion.
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