UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1925
CHASITY HUTCHINSON,
Plaintiff - Appellee,
v.
DAVID L. LEMMON, Col., Superintendent of the West Virginia
State Police, In his official and individual capacities;
WEST VIRGINIA STATE POLICE; TRAVIS BERRY, Trooper, In his
official and individual capacities; R. D. STONESTREET, First
Sgt., in his official and individual capacities; C. J.
WHITE, First Sgt., in his official and individual
capacities; J. L. PHILIPS, Sgt., in his official and
individual capacities; M. L. PHILIPS, Sgt., in his official
and individual capacities; R. D. ARTHUR, Cpl., in his
official and individual capacities; T. A. BERRY, TFC., in
his official and individual capacities; M. L. OGLESBY,
Defendants – Appellants,
and
T. J. MIKELL, Sr. Tpr., in his official and individual
capacities; JOHN DOES, I - IV, in their official and
individual capacities,
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:07-cv-00424)
Argued: May 12, 2011 Decided: June 30, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Wilkinson and Judge Niemeyer joined.
ARGUED: Michael Deering Mullins, STEPTOE & JOHNSON, LLP,
Charleston, West Virginia, for Appellants. Georgia Lee Gates,
ACLU FOUNDATION OF WEST VIRGINIA, Glen Burnie, Maryland, for
Appellee. ON BRIEF: Robert L. Bailey, II, STEPTOE & JOHNSON,
LLP, Charleston, West Virginia, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
KEENAN, Circuit Judge:
In this interlocutory appeal, we consider the district
court’s summary judgment determination that certain officers of
the West Virginia State Police (the State Police) were not
entitled to qualified immunity. The conduct at issue involved
the seizure and detention of the plaintiff, Chasity Hutchinson
(Ms. Hutchinson), during a search of her residence executed
pursuant to a valid search warrant. Ms. Hutchinson filed a
complaint in the district court under 42 U.S.C. § 1983, alleging
that the police officers executing the search warrant committed
various federal and state constitutional violations and common-
law torts. Among other allegations, Ms. Hutchinson asserts that
the police officers ordered her out of the shower while she was
nude and “dragged her” from the bathroom to the living room.
There, Ms. Hutchinson alleges, she was required to lie naked on
the floor, in the presence of her stepfather, brother, fiancé,
and eight male officers, for an unnecessary and unreasonable
period of time. Upon our review, we affirm the district court’s
denial of the defendants’ summary judgment motion. 1
1
Our holding extends only to the portion of the district
court’s order at issue in this appeal, namely, the defendants’
assertion of qualified immunity with respect to Ms. Hutchinson’s
unlawful seizure claim. We do not address the other issues
adjudicated in the district court’s order, including whether the
defendants were entitled to judgment as a matter of law with
respect to Ms. Hutchinson’s other claims.
3
I.
A.
We review the facts in the light most favorable to Ms.
Hutchinson, the nonmoving party in the district court. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986); Wilson v. Kittoe, 337 F.3d 392, 397
(4th Cir. 2003). The following facts are taken from the record,
including the complaint and the deposition testimony of Ms.
Hutchinson and her family members who were present during the
incident.
In July 2005, the State Police obtained a valid warrant to
search Ms. Hutchinson’s residence located in Wayne County, West
Virginia. On the night that the State Police executed the
search warrant, three other individuals occupied the residence,
including Josh Hutchinson (Josh), who is Ms. Hutchinson’s
brother, Michael Allen (Allen), who is Ms. Hutchinson’s
stepfather, and Edward Glenn (Glenn), who at the time was Ms.
Hutchinson’s fiancé. The State Police suspected that Josh and
Allen were operating an illegal methamphetamine laboratory
inside the residence.
The State Police assembled a Special Response Team (SRT),
consisting of eight specially-trained state police officers, to
execute the search warrant. According to Ms. Hutchinson, the
SRT entered her residence around 11:00 p.m. Upon entering the
4
home, the police officers located Josh, Allen, and Glenn, and
forcibly secured those individuals “face-down” on the main floor
of the residence. After those individuals were secured, the
officers continued their search of the residence.
During this initial search, two of the police officers
found a locked bathroom door, which they “kicked open.” Inside
the bathroom, the two officers encountered Ms. Hutchinson, who
was nude and stepping out of the shower. The officers drew
their firearms and repeatedly screamed at her, “Get down, bitch,
now.” One of the officers searched the rest of the bathroom,
while the other officer took custody of Ms. Hutchinson.
Upon leaving the shower, Ms. Hutchinson used one of her
arms to cover her breasts and the other arm to cover her groin
area. After she was forced to her knees, she reached behind her
body in an attempt to retrieve a towel from a towel rack, but
one of the officers grabbed her by her hair and pushed her down
toward the ground. That officer then forcibly escorted Ms.
Hutchinson, who was still nude, to the living room where she was
required to lie “face-down” on the floor alongside Allen and
Glenn.
Ms. Hutchinson alleged that the officers forced her to
remain naked on the floor for a period lasting between 30 and 45
minutes. During this time, Ms. Hutchinson complained to the
officers about being naked, and repeatedly requested but was
5
denied access to clothing to shield her body. In response to
her requests for clothing, one or more of the officers told Ms.
Hutchinson, “Shut up, bitch. Keep your head down and mouth
shut.” One officer responded to Ms. Hutchinson’s pleas by
stating, “What’s the matter? Don’t you think we’ve seen a
bitch’s ass before[?]”
According to Ms. Hutchinson, at one point during the
encounter, an officer touched Ms. Hutchinson on her naked
buttocks while stating, “Calm down, sweetie.” That officer then
stated, with a chuckle or a smirk, “Oh, I guess I shouldn’t have
touched you there, huh.”
Around the time that emergency medical personnel arrived at
the residence, Ms. Hutchinson was provided a blanket to cover
herself. She eventually was given clothing and allowed to dress
herself in front of a police officer. Although Ms. Hutchinson
allegedly was detained while unclothed for a period between 30
and 45 minutes, one of the officers executing the search warrant
testified during his deposition that police officers ordinarily
need only between four and five minutes to “clear” a home the
size of Ms. Hutchinson’s residence.
The defendants disputed Ms. Hutchinson’s version of these
events contending, among other things, that her body was covered
within two to five minutes after the police officers’ entry.
Nevertheless, for purposes of this interlocutory appeal, we must
6
accept Ms. Hutchinson’s version of the manner in which she was
treated by the police officers during the incident, including
her allegation that she was detained without clothing for at
least 30 minutes. See Kittoe, 337 F.3d at 397.
B.
After the events described above, Ms. Hutchinson initiated
this action, naming as defendants the eight police officers (the
individual officers) who participated in the execution of the
search warrant, as well as the State Police and its
superintendent Colonel David L. Lemmon (collectively, the
defendants). Ms. Hutchinson included six counts in her
complaint: (1) assault and battery; (2) illegal seizure in
violation of the United States and West Virginia Constitutions;
(3) excessive force depriving her “of her right to freedom from
physical abuse, coercion, and intimidation”; (4) unreasonable
invasion of her right to privacy; (5) the “tort of outrage”; and
(6) failure to adequately train employees. 2
Following discovery, the defendants filed a motion for
summary judgment seeking dismissal of all Ms. Hutchinson’s
claims. In that motion, the defendants argued that each of Ms.
Hutchinson’s claims failed as a matter of law and that,
2
The first five counts were asserted against all
defendants, while the sixth count was asserted against only
Colonel Lemmon and the State Police.
7
additionally, the individual officers were entitled to qualified
immunity.
The district court granted in part, and denied in part, the
defendants’ summary judgment motion. Hutchinson v. W. Va. State
Police, 731 F. Supp. 2d 521, 551 (S.D. W. Va. 2010). As
pertinent to this appeal, the district court denied the
defendants’ motion based on qualified immunity with regard to
the unlawful seizure claim. The district court reached its
decision by applying the two-step inquiry articulated in Saucier
v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808 (2009).
The district court first determined that, when the facts were
viewed in the light most favorable to Ms. Hutchinson, the
detention violated her Fourth Amendment rights. Next,
characterizing the issue as Ms. Hutchinson’s “right to be free
from an unjustified 30- to 45-minute naked detention,” the
district court held that this right was clearly established in
July 2005 when the seizure took place. Accordingly, the
district court held that the defendants were not entitled to
qualified immunity on the unlawful seizure claim. 731 F. Supp.
2d at 542-44.
8
II.
The defendants appeal from the district court’s holding
that they were not entitled to qualified immunity. Under 28
U.S.C. § 1291, we have jurisdiction over all final district
court orders. In cases such as the present one, in which a
district court rejects a defense of qualified immunity at the
summary judgment stage based on an issue of law, the district
court’s holding is a final decision within the meaning of § 1291
and is subject to immediate appeal. Winfield v. Bass, 106 F.3d
525, 528 (4th Cir. 1997) (en banc).
Under the doctrine of qualified immunity, “government
officials performing discretionary functions generally are
shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity protects an officer from liability or, in
many instances, from having to stand trial when the officer
makes a decision that even if constitutionally deficient,
“reasonably misapprehends the law governing the circumstances
she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
The doctrine ensures that “[o]fficials are not liable for bad
guesses in gray areas; they are liable for transgressing bright
lines.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008)
9
(quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992)). The burden of proof and persuasion with respect to a
defense of qualified immunity rests on the official asserting
that defense. Kittoe, 337 F.3d at 397.
In evaluating a defense based on the doctrine of qualified
immunity at the summary judgment stage, we conduct the Saucier
v. Katz inquiry in which we determine (1) whether, construing
the facts in the light most favorable to the nonmoving party,
the government official’s actions violated a constitutional
right, and (2) whether that right was “clearly established” at
the time of the alleged misconduct. 533 U.S. at 201; see also
Pearson, 129 S. Ct. at 815-16; Kittoe, 337 F.3d at 397. For
purposes of the present appeal, the defendants do not contest
the district court’s conclusion that the circumstances of Ms.
Hutchinson’s seizure and detention, when viewed in the light
most favorable to her, constituted a violation of her Fourth
Amendment rights.
Instead, the defendants’ sole argument pertains to the
second prong of the Saucier test. The defendants argue that Ms.
Hutchinson’s right to be free from an unjustified, extended
detention without clothing was not “clearly established” at the
time she was seized in the manner described above. We therefore
proceed directly to the second step of the Saucier analysis, and
consider whether the constitutional right in question was
10
“clearly established” on July 8, 2005, the date of the incident.
See Kittoe, 337 F.3d at 397.
This issue presents a pure question of law that we review
de novo. Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008).
For a right to be clearly established, “[t]he contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The defendants
were entitled to qualified immunity if “a reasonable officer
could have believed [the individual officers’ actions] to be
lawful, in light of clearly established law and the information
the . . . officers possessed.” See id. at 641. In making this
determination, we consider decisions from the United States
Supreme Court, this Court, and the highest court of the state in
which the incident took place. 3 Edwards v. City of Goldsboro,
178 F.3d 231, 251 (4th Cir. 1999).
3
Our analysis in this case focuses on decisions from the
United States Supreme Court and this Court. We are not aware of
any cases from the Supreme Court of Appeals of West Virginia
that bear on the issue whether the individual officers violated
Ms. Hutchinson’s “clearly-established” constitutional rights.
We further note that although the cases cited in this opinion
discuss the federal right to be free from illegal seizures under
the Fourth Amendment to the United States Constitution, the
Supreme Court of Appeals of West Virginia interprets the
analogous provision in the Constitution of West Virginia in
harmony with federal case law construing the Fourth Amendment.
See State v. Jones, 456 S.E.2d 459, 463 n.6 (W.Va. 1995).
11
We repeatedly have held that there is no requirement that
the precise right allegedly violated already have been
recognized specifically by a court before such right may be held
“clearly established” for qualified immunity purposes. See
Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir. 1995);
Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992); see also
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (rejecting proposition
that qualified immunity is inapplicable only if the very action
in question has previously been held unlawful); Robles v. Prince
George’s County, 302 F.3d 262, 270 (4th Cir. 2002) (same);
Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (same).
Thus, the absence of a court decision holding identical conduct
to be unlawful does not prevent a court from denying a qualified
immunity defense. Edwards, 178 F.3d at 251; Kittoe, 337 F.3d at
403. Accordingly, “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances.” Hope, 536 U.S. at 741.
The defendants argue that at the time the individual
officers seized Ms. Hutchinson and detained her in the described
manner, neither this Court nor the Supreme Court had decided
that such conduct was unlawful. The defendants assert that the
district court erred in relying on court decisions that were
issued after the present incident took place, as well as
decisions from courts in other jurisdictions.
12
The defendants object particularly to the district court’s
reliance on the Supreme Court’s holding in Los Angeles County,
California v. Rettele, 550 U.S. 609 (2007) (per curiam), a case
involving similar facts that was decided almost two years after
the present incident occurred. In Rettele, certain police
officers searching a house pursuant to a valid search warrant
ordered two occupants of the residence out of bed. Id. at 611.
The two individuals were required to stand naked at their
bedside for about two minutes while the officers secured the
premises. Id. at 611, 615. In holding that the police officers
did not violate the plaintiffs’ Fourth Amendment rights, the
Supreme Court observed that the officers were not:
free to force [the occupants] to remain motionless and
standing for any longer than necessary. We have
recognized that ‘special circumstances, or possibly a
prolonged detention’ might render a search
unreasonable. There is no accusation that the
detention here was prolonged. . . . And there is no
allegation that the deputies prevented [the two
occupants] from dressing longer than necessary to
protect their safety. 4
Id. at 615 (emphasis added) (internal citations omitted).
The defendants correctly assert that the Supreme Court’s
holding in Rettele stands for the proposition that it is
4
In reversing the Ninth Circuit’s holding denying the
police officers qualified immunity, the Supreme Court held that
the seizure was reasonable because the officers’ conduct was
permissible to protect their safety, and the detention was not
prolonged in light of the circumstances. 550 U.S. at 614-15.
13
unreasonable and, therefore, is unconstitutional, for police
officers executing a search warrant to detain a person unclothed
longer than is necessary to secure a home and minimize the risk
of harm to the officers. The defendants contend, however, that
before the Rettele decision, when the events at issue in this
case occurred, a reasonable police officer would not have been
on notice that it was unlawful to detain an individual naked for
a period between 30 and 45 minutes, in front of other police
officers and members of that individual’s family, after the
premises had been secured. We disagree with the defendants’
argument.
Here, the unlawfulness of the individual officers’ conduct
was obvious, even before the Supreme Court’s decision in
Rettele. Accepting Ms. Hutchinson’s version of the events, she
was kept naked for a period substantially longer than necessary
to secure the home and protect the officers’ safety. There was
no valid justification for the prolonged detention of Ms.
Hutchinson while naked, especially given the police testimony
that a home of that size ordinarily could be secured within four
or five minutes. In engaging in this manifestly unlawful
behavior, the individual officers could not have “reasonably
misapprehend[ed] the law,” cf. Brosseau, 543 U.S. at 198, nor
can it be said that they made a “bad guess[] in [a] gray
area[],” cf. Iko, 535 F.3d at 238.
14
Our conclusion is supported further by two cases, each of
which was decided before the individual officers’ prolonged
detention of Ms. Hutchinson. These cases would have put a
reasonable officer on notice that the individual officers’
alleged treatment of Ms. Hutchinson violated a clearly-
established constitutional right.
In the first of these cases, Michigan v. Summers, 452 U.S.
692 (1981), the Supreme Court held that police officers
executing a valid search warrant have “limited authority to
detain the occupants of the premises while a proper search is
conducted.” 5 Id. at 705. The Court cautioned, however, that
this “limited authority” is applicable to the “routine
detention” of residents of a house, and that “special
circumstances, or possibly a prolonged detention,” could render
such a detention unlawful. Id. at 705 n.21. Thus, the Summers
decision stands for the proposition that, in searching a
residence pursuant to a valid search warrant, a “routine”
detention of individuals found in the residence is permissible,
5
The Court’s decision in Summers established a balancing
test to analyze the reasonableness of a detention, which weighs
the intrusiveness of the search and seizure against law
enforcement’s interest in (1) preventing flight, (2) minimizing
the risk of harm to others, and (3) facilitating the orderly
completion of a search against the character of the particular
intrusion caused by a warrant-based seizure. 452 U.S. at 702-
03.
15
while a non-routine or unreasonable detention may be
impermissible. As discussed above, the individual officers’
treatment of Ms. Hutchinson fell far short of being reasonable,
and certainly was not “routine.”
Secondly, our decision in Amaechi v. West, 237 F.3d 356
(4th Cir. 2001), also supports our conclusion that a reasonable
officer should have known that the individual officers’
treatment of Ms. Hutchinson was unlawful. In that case, Amaechi
was the subject of an arrest warrant for violating a misdemeanor
noise ordinance. Id. at 359. When the police officers knocked
on Amaechi’s door to execute the arrest warrant, Amaechi
answered the door wearing a “housedress” that was missing
several buttons, requiring her to gather her dress with one of
her hands to keep the dress closed. Id. at 359 n.7. Amaechi
was not wearing any undergarments beneath her dress. Id. at
359.
The officers told Amaechi that they intended to place her
in handcuffs, at which point Amaechi informed the officers of
her clothing situation and asked to get dressed before being
taken into custody. Id. The officers denied Amaechi’s request
and secured Amaechi’s hands behind her back, causing her dress
to fall open below her chest. Id. After Amaechi again informed
the officers that she was not wearing any underwear, the
officers performed a search of Amaechi’s person, in front of her
16
house and in plain view of her family and neighbors, during
which Amaechi’s genitals were penetrated slightly. Id. at 359-
60.
Amaechi filed a complaint against the Town and the officers
under 42 U.S.C. § 1983, and, in response, one of the officers
filed a motion for summary judgment raising the affirmative
defense of qualified immunity. Id. at 360. The district court
denied the officer’s motion. Id. In affirming the district
court’s holding, we held that the search of Amaechi, which was
akin to a “strip search,” was “highly intrusive without any
apparent justification” and, therefore, was unconstitutional.
Id. at 361-63, 365. We explained that the officer was not
entitled to qualified immunity because he “had no reason to
believe his search of Amaechi was reasonable or fell within a
questionable area of law.” Id. at 365.
Importantly, in reaching our conclusion in Amaechi, we
observed that “the officers certainly knew or should have known
that handcuffing Amaechi would result in publicly exposing a
significant portion of her naked lower body.” Id. at 363. We
further observed that the search at issue “affront[ed] the basic
protections of the Fourth Amendment, which at its core is
designed to protect privacy and personal dignity against
unjustified invasion by the State.” Id. at 366 (citation
omitted). In our view, the Amaechi decision provided the
17
individual officers with notice that their “unjustified
invasion” of Ms. Hutchinson’s privacy and personal dignity was
an “affront” to the basic protections of the Fourth Amendment.
For these reasons, we agree with the district court’s conclusion
that the individual officers were not entitled to summary
judgment on the grounds of qualified immunity with respect to
Ms. Hutchinson’s unlawful seizure claim.
III.
Finally, we address the defendants’ argument that they were
entitled to qualified immunity with respect to Ms. Hutchinson’s
common-law tort claims, an issue that the district court did not
address. Qualified immunity is an affirmative defense, which a
defendant bears the burden to plead adequately. Ridpath v. Bd.
of Governors Marshall Univ., 447 F.3d 292, 305 (4th Cir. 2006).
A defense based on qualified immunity may be waived if not
“squarely presented” to the district court. Sales v. Grant, 224
F.3d 293, 296 (4th Cir. 2000). We may refuse to consider a
qualified immunity defense on appeal if the defense was not
preserved below. Ridpath, 447 F.3d at 305.
In the memorandum accompanying their motion for summary
judgment, the defendants asserted a qualified immunity defense
with respect to the unlawful seizure claim. Although that
memorandum included a footnote stating “[b]oth the individual
18
and official-capacity defendants are entitled to state-law
qualified immunity,” the defendants did not discuss the common-
law tort claims asserted in the complaint. We therefore decline
to address the qualified immunity defense in relation to any
claims other than the unlawful seizure claim, because the
defense was not “squarely presented” to the district court. See
Ridpath, 447 F.3d at 305; Sales, 224 F.3d at 296.
IV.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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