Waldron v. Roark

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/26/2016 08:20 AM CST

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Nebraska A dvance Sheets
292 Nebraska R eports
WALDRON v. ROARK
Cite as 292 Neb. 889

M arilyn Waldron, appellant, v. Lancaster County
Deputy Sheriff James Roark, individually
and in his official capacity, appellee.
___ N.W.2d ___

Filed February 26, 2016. No. S-15-144.

 1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter of law.
  2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
 3. Constitutional Law: Actions. A civil remedy is provided under 42
U.S.C. § 1983 (2012) for deprivations of federally protected rights,
statutory or constitutional, caused by persons acting under color of
state law.
  4. ____: ____. In order to assert a claim under 42 U.S.C. § 1983 (2012),
the plaintiff must allege that he or she has been deprived of a federal
constitutional right and that such deprivation was committed by a person
acting under color of state law.
 5. Constitutional Law: Search and Seizure. The right to be free from
unlawful entry of one’s residence is a constitutional right of the high-
est magnitude, and the overriding respect for the sanctity of the home
has been embedded in the traditions of the United States since the
nation’s origins.
 6. Constitutional Law: Search and Seizure: Warrants: Probable Cause.
For Fourth Amendment purposes, an arrest warrant founded on probable
cause implicitly carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to believe the suspect
is within.
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 7. Warrants. The manner in which a warrant is executed is subject to later
judicial review as to its reasonableness.
 8. Constitutional Law: Search and Seizure. The common-law knock-
and-announce principle forms a part of a Fourth Amendment inquiry
into reasonableness.
  9. ____: ____. Absent countervailing circumstances, the Fourth Amendment
to the U.S. Constitution requires that officers knock and announce their
purpose and be denied admittance prior to breaking into a dwelling.
10. ____: ____. The common-law principle of announcement is embedded
in Anglo-American law and, therefore, is an element of the reasonable-
ness inquiry under the Fourth Amendment.
11. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs. Although the underlying command of the Fourth Amendment
is always that searches and seizures be reasonable, a court’s effort to
give content to this term may be guided by the meaning ascribed to it
by the framers of the amendment. An examination of the common law
of search and seizure leaves no doubt that the reasonableness of a search
of a dwelling may depend in part on whether law enforcement officers
announced their presence and authority prior to entering.
12. Police Officers and Sheriffs: Arrests. It is an affirmative defense to
the offense of resisting arrest if the peace officer involved was out of
uniform and did not identify himself or herself as a peace officer by
showing his or her credentials to the person whose arrest is attempted.
13. Police Officers and Sheriffs: Warrants. It is not necessary for police
officers to knock and announce their presence when executing a warrant
when circumstances present a threat of physical violence, or if there is
reason to believe that evidence would likely be destroyed if advance
notice were given, or if knocking and announcing would be futile.
14. Search and Seizure. In determining whether an individual search or
seizure is reasonable, courts evaluate the totality of the circumstances.
15. Police Officers and Sheriffs: Warrantless Searches. Exigency deter-
minations are generally fact intensive.
16. Warrantless Searches. In a criminal case, the factual determination
whether exigent circumstances existed to excuse a warrantless arrest is
a question for the court; when the issue arises in a civil damage suit, it
is properly submitted to the jury providing, given the evidence on the
matter, there is room for a difference of opinion.
17. ____. In the context of a civil suit, whether exigent circumstances
existed is guided by examination of the exigent circumstances exception
in criminal cases.
18. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs. A claim that law enforcement officers used excessive force to
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effect a seizure is governed by the Fourth Amendment’s “reasonable-
ness” standard.
19. ____: ____: ____. Determinations of the reasonableness of a particular
use of force under the Fourth Amendment involves careful attention to
the facts and circumstances of each particular case.
20. ____: ____: ____. In determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment, a court
must balance the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental
interest alleged to justify the intrusion.
21. Police Officers and Sheriffs: Arrests: Words and Phrases.
“Reasonable force” which may be used by an officer making an arrest
is generally considered to be that which an ordinarily prudent and intel-
ligent person, with the knowledge and in the situation of the arresting
officer, would deem necessary under the circumstances.
22. Police Officers and Sheriffs: Arrests. The inquiry into the reasonable-
ness of a use of force assesses reasonableness at the moment of the use
of force, as judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.
23. Search and Seizure: Police Officers and Sheriffs. An illegal search
does not justify the use of force in resisting an officer.
24. Summary Judgment. On a motion for summary judgment, the question
is not how the factual issues are to be decided but whether any real issue
of material fact exists.

Appeal from the District Court for Lancaster County:
Robert R. Otte, Judge. Reversed and remanded for further
proceedings.
Vincent M. Powers, of Vincent M. Powers & Associates,
for appellant.
Richard C. Grabow and David A. Derbin, Deputy Lancaster
County Attorneys, for appellee.
Wright, Connolly, Cassel, and Stacy, JJ.
Wright, J.
NATURE OF CASE
This action was brought pursuant to 42 U.S.C. § 1983
(2012). Appellant, Marilyn Waldron, filed an appeal from the
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WALDRON v. ROARK
Cite as 292 Neb. 889

district court’s order granting summary judgment to appellee,
Lancaster County Deputy Sheriff James Roark. Waldron was a
78-year-old woman who sustained injuries when Roark and his
partner, Deputy Sheriff Amanda May, entered Waldron’s home
to serve an arrest warrant on her grandson, Steven Copple. The
officers were not uniformed and drove an unmarked vehicle.
Waldron claimed the deputies did not display badges and
did not present a warrant upon demand before or after using
force to enter her home. She claimed that Roark forcefully
placed her in handcuffs, which caused injuries, including a
torn rotator cuff. Waldron claimed that the entry was in vio-
lation of the Fourth Amendment and that Roark used exces-
sive force. The district court found that as a matter of law,
the deputies’ entry was proper, that Waldron obstructed the
work of the deputies, and that Roark’s use of force was objec-
tively reasonable.
For the reasons stated below, we reverse the order of the dis-
trict court granting summary judgment and remand the cause
for further proceedings.
BACKGROUND
The parties’ characterizations of the facts of this case differ
substantially, but in reviewing orders granting summary judg-
ment, we consider the facts in the light most favorable to the
nonmoving party.1 Consequently, the following facts are set
forth in a light most favorable to Waldron:
On the evening of February 22, 2012, Roark and May went
to Waldron’s home to serve an arrest warrant on Copple for
failure to appear at sentencing for a misdemeanor charge of
disturbing the peace. Copple had prior police contacts, which
included at least one weapons charge. Additionally, there
was at least some indication that Copple may have had a
desire for a “suicide by cop.” The severity of the prior weap-
ons charge and the context of the information concerning

 1
Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015).
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Cite as 292 Neb. 889

Copple’s possible desire for a “suicide by cop” are unclear
from the record.
Copple lived with Waldron at all relevant times. Waldron’s
husband, now deceased, was a retired captain with the Nebraska
State Patrol and had instructed her to never allow a per-
son claiming to be law enforcement into the home without
a badge or a warrant. Roark and May were both dressed in
plain clothes at the time. Roark was dressed in jeans, a sweat-
shirt, and a ball cap. May wore jeans and a nonuniform shirt.
Neither deputy had a badge displayed. The deputies drove an
unmarked vehicle.
Upon arriving at Waldron’s home, Roark observed Copple’s
vehicle near the house. As Roark approached the home, he
observed a young male he identified as Copple inside the house
and proceeded to the front door. May went to the rear of the
house to ensure Copple did not flee out the back door. Roark
rang the doorbell. Waldron went to the door and began open-
ing it cautiously. As Waldron began to open the door, Roark
forced the door open and pushed his way past Waldron. When
he entered the home, Roark stated that he was a deputy sheriff
and demanded to know where Copple was located. Waldron
demanded to see a warrant. Roark ignored Waldron’s requests
and did not present a warrant or display his badge.
Once inside the house, believing Copple had fled toward
the basement, Roark and May drew their service weapons and
ran toward the basement stairs. Roark encountered a young
male, later identified as a friend of Copple who was visiting
him, sitting in the basement. Roark testified that the individual
was very cooperative and provided Roark information regard-
ing Copple’s whereabouts. May ordered Waldron to stay in the
kitchen and not follow Roark to the basement. Despite this
instruction and May’s attempts to block Waldron from doing
so, Waldron proceeded to the basement, following Roark.
Waldron continued to yell at the officers and threatened to call
the police on Roark and May, who had not shown identifica-
tion as police officers.
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WALDRON v. ROARK
Cite as 292 Neb. 889

Once Waldron was in the basement, Roark threw Waldron
to the ground, breaking her glasses. Once on the ground,
Roark placed his knee into Waldron’s back and pulled her
right arm back, causing her substantial pain. Waldron resisted
Roark’s attempts to place her in handcuffs by keeping her
arm stiff. She told Roark that she had surgery on her right
shoulder and did not want to be placed in handcuffs because
of the pain it caused. After being restrained, Waldron slipped
one of her hands out of the handcuffs due to the pain. Roark
again placed Waldron in handcuffs, and at some point, she fell
onto a couch and then to the floor. Waldron continued to resist
being placed in handcuffs by keeping her arms stiff. Waldron
sustained bruises to her hands and legs and experienced a
great deal of pain in her shoulders. Waldron testified that
during this time, the deputies had still not displayed either a
badge or a warrant.
Uniformed Lincoln Police Department officers arrived to
assist, and Copple was subsequently located in the house and
arrested. Waldron admitted to one of the uniformed officers
that she had not been compliant with Roark and May because
she “‘did not know who they were.’” One of the officers asked
Roark whether he had a copy of the warrant, to which Roark
responded that he did not have the warrant but that he knew
one existed. Waldron was then transported to the Lancaster
County jail, where she was lodged after being charged with
obstructing government operations and resisting arrest. The
resisting arrest charge was later amended to false reporting.
Waldron successfully completed a pretrial diversion program,
and the charges were dismissed without prejudice. Waldron has
no additional criminal history or arrests.
On September 18, 2013, Waldron filed this action pursuant
to 42 U.S.C. § 1983 against Roark in his individual and official
capacities. She claimed that Roark’s actions violated her civil
rights under the 4th and 14th Amendments. Waldron claimed
that Roark’s actions constituted an unlawful entry into her
home. Moreover, Waldron claimed Roark used excessive force
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Cite as 292 Neb. 889

to restrain her. Waldron alleged that she sustained physical
injuries to her neck, back, and shoulders, requiring treatment,
including a torn left rotator cuff.
Roark denied the allegations in the complaint. He asserted
the affirmative defense of qualified immunity and argued that
Waldron’s claims were barred by her participation in pretrial
diversion for the offenses of false reporting and obstructing
government operations.
On February 13, 2015, the district court granted summary
judgment to Roark. The court stated that it was viewing the
record and “drawing all reasonable inferences in the light most
favorable to [Waldron], while simultaneously viewing the facts
from the perspective of a reasonable law enforcement officer
on the scene.” In considering Waldron’s Fourth Amendment
argument, the court cited Payton v. New York,2 stating, “When
the police enter the home of the person they wish to arrest, the
arrest warrant suffices for entry if ‘there is reason to believe
the suspect is within.’” The court noted that Roark had a
warrant for Copple’s arrest and observed Copple inside the
house as he approached and that, therefore, he had reason to
believe Copple was in the home despite Waldron’s statements
to the contrary.
The district court found that Roark possessed an arrest
warrant for Copple, observed Copple in the window, and saw
Copple go to the basement. It found that the exigent circum-
stances doctrine applied, because once Copple was aware of
the deputies’ presence, Roark had a realistic expectation that
any delay in entry might result in Copple’s arming himself,
becoming a threat, destroying evidence, or simply escaping.
Thus, even absent a warrant, the court found the circumstances
justified the deputies’ entry.
In considering the issue of whether Roark used excessive
force, the district court concluded as a matter of law that

 2
Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639
(1980).
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Cite as 292 Neb. 889

Roark’s use of force was objectively reasonable. It found that
the undisputed facts showed Waldron was uncooperative by
impeding Roark’s entrance, failing to obey directives, follow-
ing deputies to the basement, and physically resisting being
handcuffed. The court also noted that an unknown third party
(Copple’s friend) was present and that the deputies knew
Copple had prior contact with law enforcement that included
weapons offenses.
The district court did not address the issue of whether
Roark was entitled to qualified immunity or whether Waldron’s
claims were barred by her participation in pretrial diversion.
ASSIGNMENT OF ERROR
Waldron assigns that the district court erred in granting sum-
mary judgment in favor of Roark.
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law.3 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.4
ANALYSIS
Viewing the evidence in a light most favorable to Waldron,
we must determine if there is a material issue of fact whether
Roark’s entry into Waldron’s home violated her Fourth
Amendment right to be free from unreasonable searches
and seizures and whether the district court erred in finding,

 3
Melanie M. v. Winterer, supra note 1.
 4
Id.
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Cite as 292 Neb. 889

as a matter of law, that Roark’s use of force was objec-
tively reasonable.
[3,4] A civil remedy is provided under 42 U.S.C. § 1983
for deprivations of federally protected rights, statutory or
constitutional, caused by persons acting under color of state
law.5 In order to assert a claim under § 1983, the plaintiff
must allege that he or she has been deprived of a federal con-
stitutional right and that such deprivation was committed by a
person acting under color of state law.6 Here, Waldron alleged
that her Fourth Amendment rights were violated by Roark’s
unlawful entry into her home. Furthermore, she alleged that
Roark, while acting under color of state law, violated her 4th
and 14th Amendment rights to be free from excessive force.
She alleged Roark was acting in the scope and course of his
employment as a deputy with the Lancaster County Sheriff’s
Department.
The question is whether the facts viewed most favorably to
Waldron create an issue of fact whether Roark’s conduct in
serving the misdemeanor arrest warrant was objectively rea-
sonable. In granting summary judgment in favor of Roark, the
court found that Roark’s entry into Waldron’s home was proper
pursuant to the arrest warrant for Copple and, even absent the
warrant, was justified by the exigent circumstances exception
to the warrant requirement. Furthermore, the district court
found that as a matter of law, Roark’s use of force to arrest
Waldron was objectively reasonable.
Roark’s Entry Into Home
We first consider if there was a question of fact whether
Roark’s entry into Waldron’s home violated her rights under
the Fourth Amendment.
[5-7] The U.S. Supreme Court has noted that the right to be
free from unlawful entry of one’s residence is a constitutional

 5
Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008).
 6
See id.
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right of the highest magnitude and that “the overriding respect
for the sanctity of the home . . . has been embedded in our
traditions since the origins of the Republic.”7 For Fourth
Amendment purposes, an arrest warrant founded on probable
cause implicitly carries with it the limited authority to enter
a dwelling in which the suspect lives when there is reason to
believe the suspect is within.8 However, the manner in which
a warrant is executed is subject to later judicial review as to
its reasonableness.9
The district court concluded that Roark’s entry was justified
because he had a valid arrest warrant for Copple and reason to
believe he resided at Waldron’s home. Waldron does not con-
test the validity of the arrest warrant for failure to appear for
sentencing on a misdemeanor disturbing the peace conviction.
Nor does she argue that the deputies lacked reason to believe
Copple resided at Waldron’s home and was present there on
the date and time in question. In general, Roark was autho-
rized to enter Waldron’s home under the U.S. Supreme Court’s
holding in Payton v. New York10 for the purpose of effecting
the arrest of Copple. But this does not end the analysis. While
an officer may be permitted to enter the home under the rule
in Payton, the Fourth Amendment is also concerned with the
manner of the entry. Officers are required to take additional
steps before entering the home for the purpose of executing
a warrant.
The execution of arrest warrants in Nebraska is governed
by Neb. Rev. Stat. § 29-411 (Reissue 2008), which in relevant
part provides:
In executing a warrant for the arrest of a person charged
with an offense, or a search warrant, or when authorized

 7
Payton v. New York, supra note 2, 445 U.S. at 601.
 8
Payton v. New York, supra note 2.
 9
Dalia v. United States, 441 U.S. 238, 99 S. Ct. 1682, 60 L. Ed. 2d 177
(1979).
10
Payton v. New York, supra note 2.
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to make an arrest for a felony without a warrant, the offi-
cer may break open any outer or inner door or window of
a dwelling house or other building, if, after notice of his
office and purpose, he is refused admittance . . . .
(Emphasis supplied.)
[8,9] This statute codifies the common-law requirement
of knocking and announcing when serving an arrest warrant
prior to breaking into a person’s dwelling.11 This requirement
recognizes the deep privacy and personal integrity interests
people have in their home. We have held that the common-
law knock-and-announce principle forms a part of a Fourth
Amendment inquiry into reasonableness.12 An officer’s unan-
nounced entry into a home might, in some circumstances, be
unreasonable under the Fourth Amendment.13 Absent coun-
tervailing circumstances, the Fourth Amendment to the U.S.
Constitution requires that officers knock and announce their
purpose and be denied admittance prior to breaking into a
dwelling.14 This would apply equally to the execution of an
arrest warrant.
[10,11] The U.S. Supreme Court, in Wilson v. Arkansas,15
has similarly held that the common-law principle of announce-
ment is embedded in Anglo-American law and, therefore, is
an element of the reasonableness inquiry under the Fourth
Amendment. The Court held that the manner of an officer’s
entry into a dwelling to execute a warrant was among the
factors to be considered in assessing the reasonableness of a
search or seizure, stating:
“Although the underlying command of the Fourth
Amendment is always that searches and seizures be

11
State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
12
State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
13
Id.
14
State v. Ramirez, supra note 11.
15
Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976
(1995).
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reasonable,” . . . our effort to give content to this term
may be guided by the meaning ascribed to it by the
Framers of the Amendment. An examination of the com-
mon law of search and seizure leaves no doubt that the
reasonableness of a search of a dwelling may depend in
part on whether law enforcement officers announced their
presence and authority prior to entering.16
Years later, in Hudson v. Michigan,17 the Court further
articulated the practicalities for requiring officials to knock and
announce their presence. There, the Court noted:
One of those interests is the protection of human
life and limb, because an unannounced entry may pro-
voke violence in supposed self-defense by the surprised
resident. . . . Another interest is the protection of prop-
erty. . . . The knock-and-announce rule gives individ­
uals “the opportunity to comply with the law and to
avoid the destruction of property occasioned by a forc-
ible entry.” . . . And thirdly, the knock-and-announce
rule protects those elements of privacy and dignity that
can be destroyed by a sudden entrance. It gives residents
the “opportunity to prepare themselves for” the entry of
the police.18
Thus, the knock-and-announce requirement serves to pro-
tect the safety of police officers by preventing the occupant
from taking defensive measures against a perceived unlawful
intruder.19 Moreover, it protects occupants of the home from
similarly being harmed by officers who react to measures of
self-defense against perceived intruders. This practical con-
sideration is particularly acute in the case at bar, because

16
Id., 514 U.S. at 931 (citation omitted).
17
Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56
(2006).
18
Id., 547 U.S. at 594 (quoting Richards v. Wisconsin, 520 U.S. 385, 117 S.
Ct. 1416, 137 L. Ed. 2d 615 (1997)) (citations omitted).
19
U.S. v. Sargent, 319 F.3d 4 (1st Cir. 2003).
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Roark and May were not in uniform, did not display badges
or the warrant, demanded entry into Waldron’s home, and dis-
played weapons.
Viewing the facts in the light most favorable to Waldron,
we consider if there was a question of fact whether Roark
provided proper notice of his office or purpose and displayed
his badge or the warrant. The question is whether Roark
complied with the knock-and-announce requirement of the
Fourth Amendment and § 29-411. Roark and May drove an
unmarked vehicle to Waldron’s home. They were not in uni-
form, and Waldron testified that they failed to display any-
thing that identified them as law enforcement officials. She
testified that upon the doorbell ringing, she opened the door
cautiously and Roark immediately began to force his way into
her home. After forcing his way into the home, Roark stated
that he was a sheriff’s deputy and demanded to know where
Copple was located. Roark drew his service weapon and began
searching the home. At no point before or after their entry did
they produce a copy of the warrant or show their badges as
Waldron demanded.
Roark argues that his statement identifying himself as a
sheriff’s deputy was sufficient to announce his office and
purpose. But given the facts of this case when considered
most favorably to Waldron, we disagree. Roark was dressed in
jeans, a sweatshirt, and a ball cap and did not show his badge.
Instead, he displayed a weapon upon entry into Waldron’s
home. Although a misdemeanor warrant existed for Copple,
Roark failed to produce a copy of the warrant before or after
his forced entry into the home.
[12] Waldron could have reasonably believed that Roark
was an unknown male forcing his way into her home claim-
ing to be a law enforcement officer. And without some offi-
cial display of authority, a jury could find that Roark did
not properly announce his entry. Indeed, the Legislature has
recognized that it is an affirmative defense to the offense
of resisting arrest if the peace officer involved was out of
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uniform and did not identify himself or herself as a peace
officer by showing his or her credentials to the person whose
arrest is attempted.20
The district court, citing to Payton v. New York,21 correctly
concluded that when the police enter the home of the person
they wish to arrest, the arrest warrant suffices for entry if
there is reason to believe the subject of the warrant is within.
But it incorrectly suggested that Payton created a blanket
rule allowing police to force entry into homes to serve war-
rants immediately, thus bypassing the common-law knock-
and-announce requirement. The Court’s subsequent holdings,
as well as § 29-411, make clear that the manner of serving
the warrant is relevant to the determination of reasonableness
under the Fourth Amendment.
Roark cites to the Eighth Circuit’s holding in U.S. v.
Mendoza,22 wherein the court concluded that once a door is
opened, the knock-and-announce rule is vitiated. In Mendoza,
the court found that officials did not violate the knock-and-
announce rule when they entered a dwelling without a door.
The court concluded that knocking on an open or missing
door was futile. But Mendoza examined whether officials
were required to “knock” on an open or nonexistent door.
Here, there was clearly a door and no doubt that Roark
“knocked” (rang the doorbell) and that Waldron answered
the door. Moreover, whereas the officers in Mendoza were
dressed in “raid gear” (vests and jackets with the word
“Police” conspicuously displayed),23 Roark was not in uni-
form and did not display a badge or warrant, and he imme-
diately forced his way into the home as Waldron opened the
door. Regardless of the “knocking” portion of the rule, the

20
Neb. Rev. Stat. § 28-904 (Reissue 2008); State v. Daniels, 220 Neb. 480,
370 N.W.2d 179 (1985).
21
Payton v. New York, supra note 2.
22
U.S. v. Mendoza, 281 F.3d 712 (8th Cir. 2002).
23
Id. at 714.
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facts construed most favorably to Waldron establish a mate-
rial issue of fact whether Roark “announced” his office in
a proper manner. Roark misconstrues Mendoza to suggest
that once a door is open, an officer can enter in any manner
he or she desires. We find that there was a question of fact
as to whether Roark properly displayed notice of his office
or authority.
Exigent Circumstances
[13] Roark’s failure to knock and announce his office and
purpose may have been reasonable if exigent circumstances
existed at the time of his entry. The U.S. Supreme Court has
held that it is not necessary for police officers to knock and
announce their presence when executing a warrant when cir-
cumstances present a threat of physical violence, or if there
is reason to believe that evidence would likely be destroyed
if advance notice were given, or if knocking and announcing
would be futile.24 If circumstances support a reasonable sus-
picion of exigency when the officers arrive at the door, they
may go straight in.25 Police must have a reasonable suspicion
under the particular circumstances that one of the grounds for
failing to knock and announce their presence before executing
a warrant exists, and this showing is not high.26 We examine
this issue next.
[14-16] In determining whether an individual search or
seizure is reasonable, courts evaluate the “totality of [the]
circumstances.”27 Exigency determinations are generally fact
intensive.28 The Sixth Circuit has held:

24
Hudson v. Michigan, supra note 17.
25
United States v. Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343
(2003).
26
Hudson v. Michigan, supra note 17.
27
Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1559, 185 L. Ed. 2d
696 (2013).
28
See State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
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“Although, in a motion to suppress evidence in a crimi-
nal case, the factual determination whether exigent cir-
cumstances 6 a warrantless arrest is a question for the
court, when the issue arises in a civil damage suit it
is properly submitted to the jury providing, given the
evidence on the matter, there is room for a difference
of opinion.”29
[17] In the context of a civil suit, whether exigent circum-
stances existed is guided by examination of the exigent circum-
stances exception in criminal cases. Several commonly recog-
nized categories include: (1) “hot pursuit” of a fleeing felon;
(2) threatened destruction of evidence inside a residence before
a warrant can be obtained; (3) a risk that the suspect may
escape from the residence undetected; or (4) a threat, posed by
a suspect, to the lives or safety of the public, the police offi-
cers, or to an occupant.30
The district court determined that the undisputed facts
showed that exigent circumstances existed to permit the depu-
ties’ entry even had no warrant existed. The court found that
the deputies had a realistic expectation that any delay in their
entry might result in Copple’s arming himself, becoming a
threat, destroying evidence, or simply escaping. But the offi-
cers were at Waldron’s home to arrest Copple for failure to
appear at sentencing for a misdemeanor disturbing the peace
charge. Consequently, the officers could not have been con-
cerned with destruction of evidence. Nor were they in hot pur-
suit of Copple. May was watching the back door of the home
to prevent Copple from fleeing undetected. The only possible
exigency would have been that Copple posed a threat to the
safety of the deputies or the public.

29
Carlson v. Fewins, 801 F.3d 668, 676 (6th Cir. 2015) (emphasis in
original).
30
State v. Eberly, supra note 28.
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The Eighth Circuit’s decision in U.S. v. Lucht31 provides us
guidance on this issue. There, the Eighth Circuit determined
that failure to observe the knock-and-announce requirement
required that evidence be suppressed. The officer assumed
a particular situation was high risk because the Emergency
Response Unit (ERU), a tactical police unit, was tasked with
executing the search warrant. In that case, the officer leading
the ERU into the home knew the occupant was a suspected
member of the Hell’s Angels with antipolice sentiments and
likely had access to weapons in the home. The trial court
found that exigent circumstances existed so as to render the
knock-and-announce requirement a useless gesture. The Eighth
Circuit reversed, stating:
We appreciate the fact that [the officer] assumed this
was a high risk situation because ERU was employed.
However, a decision to force entry cannot rest on an
assumption. It requires consideration of the particular
facts and circumstances surrounding the execution of the
warrant. Here, ERU was not in a dangerous tactical situ-
ation. They did not hear or see anything to indicate they
were in danger or that evidence was being destroyed.
[The officer] knew that there was a likelihood that there
were weapons in the house, but he had no information
indicating that [the suspect] was considered dangerous or
violent or might be inclined to use the weapons against
them. [The officer’s] belief that [the suspect] had a pro-
pensity for anti-police sentiments was not based on any
particularized knowledge.32
Given the Eighth Circuit’s reasoning in Lucht, we find there
was a material issue of fact whether exigent circumstances
existed in attempting to arrest Copple.

31
U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).
32
Id. at 551 (citation omitted).
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Excessive Force
We next consider Waldron’s claim that Roark used excessive
force to arrest her.
[18-20] The district court concluded as a matter of law
that Roark’s use of force was objectively reasonable. We
consider whether there was a material issue of fact whether
Roark’s use of force was reasonable. A claim that law enforce-
ment officers used excessive force to effect a seizure is gov-
erned by the Fourth Amendment’s “reasonableness” stan-
dard.33 Determinations of the reasonableness of a particular
use of force under the Fourth Amendment involves “careful
attention to the facts and circumstances of each particular
case.”34 In determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment,
we 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.35
[21,22] “Reasonable force” which may be used by an officer
making an arrest is generally considered to be that which an
ordinarily prudent and intelligent person, with the knowledge
and in the situation of the arresting officer, would deem neces-
sary under the circumstances.36 The inquiry assesses reason-
ableness at the moment of the use of force, as judged from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.37 This allows for the
fact that “police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and

33
Plumhoff v. Rickard, ___ U.S. ___, 134 S. Ct. 2012, 188 L. Ed. 2d 1056
(2014).
34
Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989).
35
Tolan v. Cotton, ___ U.S. ___, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014).
36
State v. Lingle, 209 Neb. 492, 308 N.W.2d 531 (1981).
37
Graham v. Connor, supra note 34.
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rapidly evolving—about the amount of force that is necessary
in a particular situation.”38 Some relevant but nonexhaustive
factors considered by courts in determining the reasonableness
of force include “‘the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the offi-
cers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’”39
The district court concluded that the undisputed facts
showed that Waldron was uncooperative with Roark and May.
The court noted that Waldron disregarded directives given
to her, fought being restrained, and even slipped out of the
handcuffs placed on her. The court stated, “This was all being
done at a time where the officers were in pursuit of Copple,
an unknown third party had made an appearance, and the
officers knew that Copple had previous law enforcement
contacts including weapons offenses.” The court concluded
that Waldron’s actions diverted the deputies’ attentions, which
increased the risk to the deputies. The district court further
suggested, if not concluded, that Roark had probable cause to
arrest Waldron for obstruction of government operations and
resisting arrest.
While a jury may accept Roark’s testimony over Waldron’s
or make factual findings identical to the district court, we
are obliged to view the facts most favorably to Waldron and
give her all reasonable inferences of those facts. Accepting
Waldron’s testimony, at the time she was being “uncoop-
erative,” was failing to “comply with directives,” and “fought
being restrained,” unknown persons had forced their way into
her home and displayed weapons. The undisputed facts show
that neither Roark nor May was in uniform. According to
Waldron, as she opened the door to her home, Roark began
forcing his way into the home and did not display a badge or

38
Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014).
39
Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (quoting
Graham v. Connor, supra note 34).
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warrant upon demand. Under such circumstances, a reason-
able homeowner might understandably be uncooperative and
resist being restrained. Given Waldron was married to a law
enforcement official for nearly 50 years, a jury might infer that
she would have been cooperative had she known Roark was a
sheriff’s deputy.
Roark argues that he had the authority to restrain Waldron
and place her under arrest for multiple misdemeanors. Under
Neb. Rev. Stat. § 29-404.02(1)(b) (Reissue 2008), a peace
officer may arrest a person without a warrant if the officer
has reasonable cause to believe that such person has com-
mitted a misdemeanor in the presence of the officer. Among
the misdemeanors alleged were violations of Neb. Rev. Stat.
§ 28-907(1) (Reissue 2008) and Lincoln Mun. Code § 9.08.040
(2016) (intentionally false reporting by stating that Copple was
not home), Neb. Rev. Stat. § 28-901 (Reissue 2008) (obstruct-
ing government operations), and § 28-904 (resisting arrest).
The district court supported this view, stating, “[Waldron]
knew, at some point, that Deputy Roark and Deputy May were
there to arrest her grandson. She knew they were officers of
the law and she knew she was obstructing the execution of
the warrant.”
[23] It is true that under no circumstances should a person
resist arrest by officers, regardless of the lawfulness of the
arrest. This court has held that an illegal search does not justify
the use of force in resisting an officer.40 The Legislature has
codified this rule.41 But this rule applies when the actor knows
that he or she is being arrested by a peace officer. Presumably,
a person knows he or she is being arrested once law enforce-
ment identification or other conspicuous indicators of official
status are displayed. It is an affirmative defense to prosecution
for resisting arrest if the peace officer involved is out of uni-
form and did not identify himself or herself as a peace officer

40
State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).
41
See Neb. Rev. Stat. §  28-1409(2) (Reissue 2008).
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by showing his or her credentials to the person whose arrest
is attempted.42
Given the facts viewed most favorably to Waldron, we
question how she would know “at some point” that Roark
and May were sheriff’s deputies if they were not in uniform
and did not display their badges or the arrest warrant. Once
uniformed officers arrived on the scene, there is no evidence
suggesting that Waldron continued to be uncooperative. Roark
testified that Waldron, while demanding he and May leave
her home immediately, yelled that she was going to call
the police.
The district court did not find that Waldron was physically
threatening or interfering with the deputies, but only that she
was yelling at them and at Copple. The court instead found
that she presented a danger to the deputies by distracting their
attention. She yelled at Roark and May and demanded that they
show either a badge or warrant, or leave her home. The Eighth
Circuit has held, “‘[T]he use of any force by officers simply
because a suspect is argumentative, contentious, or vitupera-
tive’ is not to be condoned.”43 Force can be used only to over-
come physical resistance or threatened force.44 May stated that
they “just put [Waldron] into custody to keep her safe and . . .
away from any problem.”
Both the district court and Roark also discuss the presence
at the scene of the arrest of a young adult male, who was
later determined to be Copple’s friend, as a justification for
Roark’s actions. But there is no indication whatsoever that
this individual was uncooperative or threatening or other-
wise presented a danger to the deputies. The record suggests
the opposite is true. Waldron and Roark each testified that
the individual was cooperating with the deputies by giving

42
§ 28-904; State v. Daniels, supra note 20.
43
Bauer v. Norris, 713 F.2d 408, 412 (8th Cir. 1983) (quoting Agee v.
Hickman, 490 F.2d 210 (8th Cir. 1974)).
44
Id.
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them information concerning Copple’s whereabouts. Roark
testified that he had asked the individual to show his hands
to determine he was not a threat and that he was “cooperat-
ing the whole time,” remaining seated with his hands visible,
and providing the deputies with information as to Copple’s
whereabouts. Regardless, it is unclear how any lack of coop-
eration by Copple’s friend would justify the use of force
against Waldron.
At the time of the incident, Waldron was 78 years old, was
approximately 5 feet 1 inch tall, and weighed approximately
145 pounds. She had recently had surgery on her shoulder and
had limited mobility of her arm. She had previously suffered a
stroke. Waldron alleged Roark threw her to the ground, caus-
ing Waldron to break her glasses and bruise her face, hands,
and legs. He pressed his knee into her back, pulling her arms
forcefully behind her as he did so. Waldron informed Roark of
her recent shoulder surgery and the pain his actions were caus-
ing to her shoulder. Once Waldron slipped out of the handcuffs
due to the pain, Roark again pulled her arms behind her back
and placed her in the handcuffs.
Waldron testified that once uniformed officers arrived on
the scene, one officer removed the handcuffs. When Roark
observed her without handcuffs, he insisted that she be placed
in handcuffs again, despite her cooperation at that point and
the presence of uniformed officers on the scene who had
found and arrested Copple. Another officer on the scene
requested that Roark cuff her in the front rather than forcing
her arms behind her back due to Waldron’s pain. Waldron
alleged that as a result of Roark’s use of force, she sustained
considerable bruising to her legs and hands. She claimed she
suffered a full thickness tear of the rotator cuff in her shoul-
der. She received treatment for pain in her neck, back, and
shoulders. A medical report indicates she experiences constant
pain in her shoulder.
[24] On a motion for summary judgment, the question is
not how the factual issues are to be decided but whether any
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real issue of material fact exists.45 Considering the totality of
the circumstances and accepting the facts in the light most
favorable to Waldron and granting her all reasonable infer-
ences therefrom, there is a material question of fact whether
Roark’s entry into her home was unreasonable and whether the
force he used was excessive.
CONCLUSION
For the reasons stated above, we reverse the order of the dis-
trict court granting summary judgment in favor of Roark and
remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
Heavican, C.J., and Miller-Lerman, J., participating on
briefs.
McCormack, J., not participating.

45
Gonzalez v. Union Pacific RR. Co., ante p. 281, 872 N.W.2d 579 (2015).