Bishop v. Arcuri

Case: 11-50010 Document: 00511783088 Page: 1 Date Filed: 03/09/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 9, 2012

No. 11-50010 Lyle W. Cayce
Clerk

LINDSEY BISHOP; CAROLYN CLARK,

Plaintiffs - Appellants
v.

TONY ARCURI, in his individual capacity; CITY OF SAN ANTONIO,

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Texas

Before DENNIS, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Lindsey Bishop and Carolyn Clark (“Appellants”) appeal the district
court’s grant of summary judgment in favor of Tony Arcuri and the City of San
Antonio (the “City”) on their claim, pursuant to 42 U.S.C. § 1983, that San
Antonio Police Department (“SAPD”) officers, led by Arcuri, violated Appellants’
Fourth Amendment rights by failing to knock-and-announce their identity and
purpose prior to forcibly entering Appellants’ home to execute a search warrant.
We reverse.
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No. 11-50010

I. FACTS AND PROCEEDINGS
The relevant facts are largely undisputed. On April 27, 2009, a confidential
informant told Detective Arcuri that he had purchased methamphetamine from
a man named “Randy” at a home in Leon Valley, a small municipality entirely
encompassed within the City of San Antonio. The informant further told Arcuri
that Randy was allowing others to “cook” methamphetamine at the same house.
Arcuri alleges that the informant, whose identity remains confidential, had
given him credible information in the past. The following day, Detective Arcuri
obtained a warrant to search for methamphetamine at the residence from
Magistrate Judge Marion Cavazos.
Before executing the search warrant, Arcuri conducted an investigation
of the residence. He determined that: women, not anyone named Randy, paid the
taxes and utility bills for the house; the car parked in the driveway was
registered to appellant Clark; and there was no history of criminal activity
associated with the property or its known residents. Arcuri also surveilled the
premises and observed that someone appeared to be at home, but he was not
able to determine the identity of anyone inside.
Although his reasons are disputed, Arcuri decided to execute the warrant
without knocking and announcing his team’s identity and purpose. The decision
to make a no-knock entry was approved by Arcuri’s supervising sergeant,
William Hunt. Around 9:40 p.m., Arcuri and his search team, consisting of seven
plain-clothes SAPD detectives and one uniformed Leon Valley officer, forcibly
entered the house using a battering ram to knock in the front door. Clark was
at the back of the home when the officers came in the front door. Two armed
officers approached her and ordered her to lie down on the floor where she was
handcuffed. Bishop was in her bedroom undressed and looked out when she
heard the commotion. Officers entered her bedroom, gave her a shirt and pants,
and waited while she dressed. Bishop was then handcuffed. Both Appellants

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No. 11-50010

were questioned regarding their operation of a methamphetamine laboratory.
They denied any involvement with illegal drugs. When the officers’ initial search
failed to uncover any evidence of drugs, a narcotic detection dog was brought in
to search the home, but it too found no evidence of drugs. Appellants were
cooperative throughout the search. The officers eventually un-cuffed Appellants
and departed. The raid lasted a total of approximately an hour and 45 minutes.
Appellants were not the subject of any further investigation.
On September 14, 2009, Appellants filed suit pursuant to 42 U.S.C. § 1983
against the City of San Antonio and the nine officers involved in the search of
their home, alleging that they were subjected to excessive force, false arrest, and
an unreasonable search. The district court dismissed all of Appellants’ claims
against the individual defendants and all but the unreasonable search claim
against the City under Federal Civil Rule 12(b)(6) for failure to state a claim
upon which relief could be granted. The district court then granted Appellants’
motion to amend, and they amended their complaint to state a claim against
Arcuri for the allegedly unreasonable no-knock search. The City and Arcuri both
moved for summary judgment on the unreasonable search claim. In a
Memorandum and Recommendation submitted on September 3, 2010, a
magistrate judge recommended that the district court deny both motions. The
district court rejected the recommendation of the magistrate judge, concluded
that the no-knock entry was reasonable under the Fourth Amendment, and
granted summary judgment in favor of both defendants.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo, applying the
same standards as the district court. Apache Corp. v. W & T Offshore, Inc., 626
F.3d 789, 793 (5th Cir. 2010). Summary judgment is appropriate when “there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). There is no genuine issue for

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No. 11-50010
trial “[i]f the record, taken as a whole, could not lead a rational trier of fact to
find for the non-moving party.” Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir.
1999). We view the evidence in the light most favorable to the nonmoving party.
Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).
We also review a grant of qualified immunity de novo. Qualified immunity
protects public officers from suit if their conduct does not violate any “clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A two-step analysis governs whether public officials are entitled to
qualified immunity. First, we must determine whether the facts,
either as the plaintiff alleges or as proved without dispute, establish
that the officer violated a clearly established constitutional
right. . . . [I]f the plaintiff has alleged a constitutional violation, the
court must next determine whether the official’s conduct was
objectively unreasonable under established law.
Linbrugger v. Abercia, 363 F.3d 537, 540 (5th Cir. 2004) (citations omitted).
III. DISCUSSION
A. Fourth Amendment Violation
We first address the district court’s conclusion that the search of
Appellants’ home was reasonable within the meaning of the Fourth Amendment.
The specific question before this court is whether exigent circumstances justified
Arcuri’s decision, which was approved by his immediate superior, to enter
Appellants’ home without knocking and announcing his team’s identity and
purpose. Because Arcuri has relied almost exclusively on generalizations that
are legally inadequate to create exigent circumstances, we conclude that the no-
knock entry was unreasonable under the Fourth Amendment.
The Fourth Amendment incorporates the common-law principle that
officers must knock and announce their identity and purpose before attempting
forcible entry of a dwelling. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). The
general knock-and-announce requirement, however, is not “a rigid rule of

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announcement that ignores countervailing law enforcement interests.” Id.
Countervailing circumstances may include “a reasonable suspicion that knocking
and announcing [the police] presence, under the particular circumstances, would
be dangerous or futile, or that it would inhibit the effective investigation of the
crime by, for example, allowing the destruction of evidence.” Richards v.
Wisconsin, 520 U.S. 385, 394 (1997). “The reasonableness of the officer’s decision
must be evaluated ‘as of the time [he] entered the [dwelling].’” Linbrugger, 363
F.3d at 542 (quoting Richards, 520 U.S. at 395).
There is no dispute that Arcuri’s search team entered Appellants’ home
without knocking and announcing their identity and purpose. Arcuri argues the
no-knock entry was justified because of “exigent circumstances.” Specifically,
Arcuri asserts that: (1) he “held a reasonable suspicion that any
methamphetamine located at the premises could be easily and readily destroyed
if he announced his team’s presence,” and (2) his “team’s safety was in danger
due to the inherent dangers of making an entry to execute a drug warrant.”
Appellants respond that, even accepting his version of the facts, Arcuri’s
proffered justifications for the no-knock entry are legally inadequate because
they do not rest on any particularized circumstances. We consider each of
Arcuri’s asserted justifications in turn.
1. Destruction of Evidence
A no-knock entry is permissible under the Fourth Amendment if police
have “a reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, . . . would inhibit the effective investigation
of the crime by . . . allowing the destruction of evidence.” Richards, 520 U.S. at
394. Arcuri argues that the informant tip gave him reason to believe that small
quantities of methamphetamine, which could be easily disposed of, were present
in the home. He asserts that the disposable nature of methamphetamine,

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No. 11-50010
together with the general prevalence of evidence destruction in drug cases, is
enough to justify a no-knock entry.1
The Supreme Court has rejected the contention that the execution of all
drug-related search warrants inherently pose a substantial risk of evidence
destruction. Richards, 520 U.S. at 394; see also United States v. Washington, 340
F.3d 222, 226 (5th Cir. 2003). Arcuri’s reliance on the disposable nature of
methamphetamine and a general assertion about the prevalence of evidence
destruction in drug cases is hardly distinguishable from the blanket rule,
rejected by a unanimous Court in Richards, that knocking-and-announcing is
never required when executing a search warrant in a felony drug investigation.
Moreover, in applying Richards we have previously held, in a case with similar
underlying facts involving the nighttime execution of a narcotics search warrant
at a home while the residents were present, that it was “clear that the [no-
knock] search of [the] residence was unreasonable under Fourth Amendment
analysis.” United States v. Cantu, 230 F.3d 148, 153 (5th Cir. 2000). We rested
that conclusion in part on the fact that the officers “were unable to point to
anything [aside from some movement within the home] that would indicate that
evidence was being destroyed.” Id. at 150.
Similarly, in United States v. Valdez, 302 F.3d 320 (5th Cir. 2002), we
concluded that police had violated the Fourth Amendment by forcibly entering
a home immediately after knocking to execute a narcotics search warrant. We
rejected the assertion of “exigent circumstances,” noting that there “was no
testimony that any officer heard movements inside [the] home suggesting that

1
The City argues that Arcuri’s decision was justified by his knowledge of the specific
layout of the house. In fact, Arcuri, who does not press this argument, never asserted that any
specific feature of the house increased the general likelihood of evidence destruction.

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evidence was being destroyed.” Id. at 322.2 Although Arcuri observed that
someone was in the house, he did not establish the identity of the occupants and
has never alleged that he detected movement within the home that suggested
evidence was being destroyed. Both Cantu and Valdez involved drugs that
presumably were disposable in nature, but this fact was not enough to constitute
exigent circumstances.
In Richards, the Supreme Court ultimately upheld an unannounced
forcible entry as reasonable because, before the officers identified themselves,
the suspect recognized them as police and slammed the door on them. “These
actual circumstances—petitioner’s apparent recognition of the officers combined
with the easily disposable nature of the drugs—justified the officers’ ultimate
decision to enter without first announcing their presence and authority.” 520
U.S. at 396. Nothing in Arcuri’s deposition testimony or briefing suggests that
he had any reason to believe that evidence was in danger of being destroyed
before the inhabitants knew police were on the premises. Thus, the Court’s
reasoning in Richards indicates that the risk of evidence destruction had not yet
ripened into “exigent circumstances” sufficient to justify a no-knock entry at the
time just before Arcuri’s team entered Appellants’ home. Cf. United States v.
Banks, 540 U.S. 31, 36 (2003) (no-knock entry justified only where “exigency
already exists or will arise instantly upon knocking” (emphasis added)).
Also instructive is the Supreme Court’s analysis of the length of time
police must wait between knocking-and-announcing and forcibly entering a
residence. In Banks, the Supreme Court held that a 15–20 second wait was
reasonable when executing a warrant for cocaine. 540 U.S. at 38.3 Importantly,

2
In Valdez, we affirmed “the judgments and rulings of the district court” and
incorporated the entirety of the district court’s order into our opinion as an Appendix.
3
The Court simply assumed as a starting point that the officers were required to
knock-and-announce. Banks, 540 U.S. at 35.

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the government conceded that the police arrived at the suspect’s house “without
reasonable suspicion of facts justifying a no-knock entry,” despite the fact that
they were expecting to find easily disposable drugs. The Court accepted the
government’s argument that the announcement of police presence “started the
clock running toward the moment of apprehension that [the suspect] would flush
away the easily disposable cocaine, prompted by knowing the police would soon
be coming in,” so the only question was whether 15–20 seconds was a reasonable
time to wait. The Court concluded that “after 15 or 20 seconds without a
response, police could fairly suspect that cocaine would be gone if they were
reticent any longer.” Id. The Court’s reasoning makes clear that when police are
afraid that announcing their presence and purpose will prompt the destruction
of evidence, the appropriate constitutional inquiry is how long they must wait
to enter after they have announced, not whether they should announce at all.
Arcuri points only to the quantity of drugs he expected to find as a
particular circumstance justifying his team’s no-knock entry.4 At least some of
the summary judgment evidence indicated that small, retail quantities of
methamphetamine were being sold from Appellants’ house. But the presence of
retail quantities of an easily disposable drug is legally insufficient, without more,
to constitute the type of exigency needed to justify a no-knock entry. Richards,

4
Appellants argue that even if the suspected presence of a small quantity of
easily-disposable drugs were sufficient to justify a no-knock entry, Arcuri is not entitled to
summary judgment on qualified immunity grounds because there is a factual issue concerning
whether Arcuri genuinely believed there was a threat of evidence destruction. Arcuri’s
deposition testimony and affidavit arguably support the conclusion that Arcuri did not
perceive a genuine risk of evidence destruction. For example, although he described evidence
destruction as “common practice” in drug cases, when asked why he thought it was going to
happen in this “specific instance,” he responded, “I didn’t think it was going to happen.” Arcuri
also gave equivocal testimony about the quantities of drugs he expected to find, stating at
some places that he hoped to find a meth lab, and at others that he expected to find only small
quantities that would be easily disposable. Because we have accepted Appellants’ primary
argument that a small quantity of methamphetamine was inadequate to produce exigent
circumstances, we need not determine whether Arcuri’s statements create a genuine factual
dispute.

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Banks, and Cantu all involved searches similarly based on information that
drugs were being dealt from the house in question. Arcuri has not even alleged,
much less demonstrated through specific facts, that a threat of evidence
destruction existed before the occupants of the home knew police were on the
premises. Under these circumstances, the disposable nature of
methamphetamine was not enough to create exigent circumstances justifying a
no-knock entry. In light of Richards and Banks, had Arcuri announced his
team’s presence and purpose, the threat of evidence destruction may have
amounted to exigent circumstances after a very short time—perhaps only a few
seconds—but Arcuri’s no-knock entry cannot be justified on evidence-destruction
grounds.
2. Dangerousness
Arcuri also argues that his team’s no-knock entry was justified by his
reasonable suspicion that announcing their presence would have put them in
danger. Arcuri concedes, however, that his safety concerns were based on
generalities about the dangerousness of drug dealers. For example, in the
affidavit he submitted to the district court, Arcuri stated that “it is extremely
common for individuals selling or possessing narcotics to have some type of
weapon at the location where they are selling illegal drugs from.” Similarly, in
his deposition, Arcuri stated, “[I]t’s considered a high risk because anytime
you’re dealing with individuals that possess or sell narcotics, they have a high
tendency to have, you know, some type of weapon.” Arcuri has never attempted
to connect his belief that knocking-and-announcing would have been dangerous
to any specific facts discovered during his investigation of the Appellants’
residence. Arcuri did not recall that the municipal court or police records he
reviewed indicated any law enforcement history associated with the home or its
residents, and the car parked outside the house was registered to Carolyn Clark,
not “Randy” or any known drug-dealer. In fact, Arcuri admits that “his

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investigation revealed no particularized facts suggesting that he or his team
were making a high risk entry aside from the dangers inherent to making an
entry involving drugs.”
Moreover, it is clear from Arcuri’s brief that he treated no-knock entries
as the default mode of executing drug-related search warrants: “Despite their
investigation and surveillance, the officers were not able to learn any
information indicating that Randy or any other occupants of the premises did
not pose a threat to the officers’ safety upon entry.”
Arcuri readily admits that he had no particularized basis for his safety
concerns because he mistakenly asserts that the general dangerousness of drug-
related criminals is sufficient justification for conducting a no-knock entry. His
position is based on a misreading of two Fifth Circuit cases: Washington and
Linbrugger. In Washington, this court held a no-knock entry reasonable under
the Fourth Amendment where police had specific information that a convicted
felon, who “always carried a firearm on his person,” was selling drugs from a
room at a halfway house in which an informant had observed a weapon. 340 F.3d
at 224. We held that such information “exceeds the level this circuit has found
sufficient to establish a reasonable suspicion of danger.” Id. at 227. Linbrugger
was a qualified immunity case concerning officers who had made a no-knock
entry while executing an involuntary mental health commitment warrant. We
concluded that the officers “respond[ed] reasonably to a reasonably perceived
dangerous situation” because the target of the warrant, who had recently
threatened to kill his sister and whom his father considered to be a threat to
himself and others, intentionally simulated the sound of a shotgun being primed
to make the officers believe he was armed. 363 F.3d at 543. Considering the
totality of these circumstances, the panel had little trouble holding that the
officers were not required to complete a normal knock-and-announce procedure.
Id.

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Both Washington and Linbrugger dealt with no-knock entries that were
clearly justified by reasonable safety concerns. In each case, the police knew the
identity of the occupant of the dwelling they entered and had specific
information indicating that the person might be dangerous. Arcuri, on the other
hand, made a no-knock entry into a house when he had admittedly not
established who was home and had no specific information that the inhabitants
were dangerous. Despite these obvious differences, Arcuri relies heavily on the
court’s statement in Washington, cited in Linbrugger, that an officer’s safety
concerns may be “reasonable even though he had no particularized knowledge
that the suspect was armed.” Washington, 340 F.3d at 227; Linbrugger, 363 F.3d
at 542. Arcuri apparently interprets this language to mean that generalizations
about the dangerousness of drug-related criminals are sufficient to justify a no-
knock entry.
Admittedly, some of the language in Washington, read in isolation,
appears to support Arcuri’s position. Washington considered the reasonableness
of a no-knock entry, but in its discussion of the officer’s safety concerns, it drew
analogies to Fifth Circuit cases considering the reasonableness of warrantless
searches. In such cases, this court has used a five-factor test to evaluate whether
exigent circumstances justify a warrantless entry, of which one relevant factor
is “the possibility of danger to the police officers guarding the site of contraband
while a search warrant is sought.” See United States v. Howard, 106 F.3d 70, 73
(5th Cir. 1997).5 In this context, which is distinct from our circuit’s knock-and-

5
The five factors are: “(1) the degree of urgency involved and amount of time necessary
to obtain a warrant; (2) [the] reasonable belief that contraband is about to be removed; (3) the
possibility of danger to the police officers guarding the site of contraband while a search
warrant is sought; (4) information indicating the possessors of the contraband are aware that
the police are on their trail; and (5) the ready destructibility of the contraband and the
knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of
persons engaged in the narcotics traffic.” Howard, 106 F.3d at 73. Concern for safety is not,
by itself, sufficient to justify a warrantless entry—there must also be exigent circumstances
that preclude the officers from simply leaving the scene and returning later. Thus, in the

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announce jurisprudence, this court has counted fear for safety as “a factor
favorable to the Government in the exigent circumstances calculation” even
where the officer lacks a “particularized fear.” Id. at 75 (emphasis added). Thus,
noting that “firearms are the tools of the trade of those engaged in illegal drug
activities,” we have considered the general dangers posed in drug cases to weigh
in favor of finding a warrantless search justified. Id. (internal quotation marks
omitted). This hardly establishes that the general dangerousness of drug-related
criminals, by itself, justifies a no-knock entry for the execution of all narcotics
warrants.6
Indeed, Arcuri’s reading of Washington as allowing for no-knock entries
based on a general assessment of the dangers associated with drug crimes is
definitively foreclosed by Richards, as we acknowledged in Washington. 340 F.3d
at 226 (“The [Supreme] Court [has] rejected the contention that all drug
investigations inherently have risks of officer safety” substantial enough to
excuse police from the knock-and-announce requirement.). Likewise, in Cantu
we characterized Richards as “reject[ing] blanket rules allowing ‘no-knock’
entries based on over-generalizations about today’s drug culture.” 230 F.3d at
152; see also Valdez, 302 F.3d at 322 (“[The officer] justified the entry of her

warrantless entry context, officers are stuck between a rock and a hard place: either act now
on limited information or risk letting the bad guys get away with their crime. In such
circumstances, it is reasonable to excuse officers from making a particularized showing of
dangerousness because they are, by hypothesis, left without time to conduct a further
investigation of the threat they might be facing. On the other hand, Arcuri has never
attempted to show that there was any urgency requiring the search of Appellants’ home to
take place exactly when it did. He therefore has less justification for treating “unknowns” as
a reason to bypass a general constitutional requirement.
6
Importantly, in the warrantless entry analysis, concern for safety is considered a
“plus factor” for the government only if the threat exists while the officers wait to make an
entry. By contrast, in the no-knock analysis, the relevant safety concerns typically arise from
the entry itself. Arcuri has never asserted that his team felt endangered before they entered
the home, making the discussion of safety concerns in warrantless entry cases inapposite. See
Valdez, 302 F.3d at 322 (“No exigent circumstance existed outside Defendant’s home.”).

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team’s [sic] on the grounds that Defendant was a known drug dealer and that
known drug dealers are prone to certain violent behavior. Such justification has
been clearly rejected by the Fifth Circuit.”).7 Arcuri relies heavily on such over-
generalizations.
Reading Washington together with Richards and its progeny, the law in
this circuit is that, as stated in Linbrugger, a police officer does not have to
“demonstrate ‘particularized knowledge’ that a suspect is armed in order to
justify a no-knock entry,” 363 F.3d at 542, but that does not negate the
requirement that “reasonable suspicion” must be derived from specific facts and
circumstance surrounding a search. Because “reasonable suspicion of danger” is
a lower threshold than “particularized knowledge” that a suspect possesses a
weapon, an officer must be able to point to specific facts to explain his safety
concerns but need not demonstrate that he specifically knew a certain suspect
was armed. Thus, contrary to Arcuri’s suggestion, Washington and Linbrugger
are entirely consistent with the requirement that he point to something beyond
the general dangers associated with drug crimes to justify his entry into
Appellants’ home. Obviously neither Linbrugger nor Washington could or did
eliminate the requirement announced in Richards that, to justify a no-knock
entry on grounds of officer safety, an officer must have “a reasonable suspicion”
based on “the particular circumstances” that knocking-and-announcing would
be dangerous. 520 U.S. at 394. Because Arcuri admits that he had no such
particularized suspicion of danger, he unwittingly concedes that his team’s no-
knock entry was not justified by safety concerns.
In sum, neither Arcuri’s concerns for evidence preservation nor for officer
safety amounted to reasonable suspicion based on particular facts, so exigent

7
See also Price v. State, 93 S.W.3d 358, 364 (Tex. App.—Houston [14th Dist.] 2002)
(“The mere assumption that those in possession of controlled substances are normally also in
possession of firearms is insufficient as a matter of law to eliminate the notice requirement.”)

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circumstances did not justify his team’s no-knock entry of Appellants’ home. The
entry therefore violated Appellants’ Fourth Amendment rights.
B. Qualified Immunity
Having concluded that the no-knock entry led by Arcuri violated
Appellants’ Fourth Amendment right to be free from unreasonable searches, we
now turn to the second prong of qualified-immunity analysis: whether Arcuri’s
conduct was objectively unreasonable under established law. “For a right to be
clearly established under the second step of the qualified immunity analysis,
‘[t]he contours of that right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’” Flores v. City of
Palacios, 381 F.3d 391, 399–400 (5th Cir. 2004) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). “[I]f a right is clearly established enough to impart fair
warning to officers, then their conduct in violating that right cannot be
objectively reasonable.” Williams v. Kaufman Cnty., 352 F.3d 994, 1002 n.12 (5th
Cir. 2003).
At the time of the search, the Supreme Court’s unanimous decision in
Richards rejecting a blanket exception to the knock-and-announce requirement
for narcotics searches had been on the books for twelve years. As discussed
above, Arcuri’s proffered justifications for his team’s no-knock entry—evidence
preservation and officer safety—were based primarily on generalities rather
than particularized suspicion, and his position is therefore virtually
indistinguishable from the type of blanket rule repudiated in Richards.
Moreover, multiple decisions of this circuit, and of the Texas state courts8 have

8
See, e.g., Price, 93 S.W.3d at 368 (“In light of Richards and Wilson, we decline to
permit officers to invoke the destruction of evidence exception whenever the objects named in
the search warrant are by their nature amenable to ready disposal or destruction.”); Brown
v. State, 115 S.W.3d 633, 639 (Tex. App.—Waco [10th Dist.] 2003) (holding no-knock search
unconstitutional where “there was no testimony or evidence that either [of the suspects] were
violent or were known to keep weapons in their home”). Indeed, the Texas courts arguably
interpret Richards more stringently than does this court. See, e.g., Ballard v. State, 104

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reinforced the applicability of the knock-and-announce requirement to searches
indistinguishable from the one conducted on Appellants’ home. Arcuri’s no-knock
entry of Appellants’ home, based only on generalized concerns about evidence
preservation and officer safety, violated clearly established law and was
therefore unreasonable. See Williams, 352 F.3d at 1002 n.12.
Because the rights violated by Arcuri’s team were well-established at the
time of the raid, Arcuri’s actions were unreasonable, and he is not entitled to
qualified immunity.
C. Municipal Liability
“[M]unicipal liability under section 1983 requires proof of three elements:
(1) a policymaker; (2) an official policy; and (3) violation of constitutional rights
whose moving force is the policy or custom.” Hampton Co. Nat’l Sur., LLC v.
Tunica Cnty., 543 F.3d 221, 227 (5th Cir. 2008) (internal quotation marks
omitted). A municipality is liable only when its policy is the “moving force”
behind the suffered injury, Williams, 352 F.3d at 1014, but when a municipal
policy itself violates federal law, such a policy necessarily constitutes the
“moving force.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997).
Appellants concede that the formal written policies of the SAPD are
constitutional. The City’s “official policies,” however, include any “persistent,
widespread practice of city officials or employees, which, although not authorized
by officially adopted and promulgated policy, is so common and well settled as
to constitute a custom that fairly represents municipal policy.” Bennett v. City
of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). Appellants argue that the

S.W.3d 372, 383 (Tex. App.—Beaumont [9th Dist.] 2003) (“[T]he mere presence of a handgun
. . . is insufficient, as an exigent circumstance exception to the knock-and-announce rule,
where the State does not also prove the authorities possessed information that the
individual(s) subject to the warrant was likely to use the weapon, was likely to become violent,
had a criminal record reflecting violent tendencies, or a verified reputation of a violent
nature.”).

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City is liable for the damages caused by Arcuri’s team’s entry into their home
because the SAPD has a customary policy of making no-knock entries on less
than reasonable suspicion.
The district court did not reach the issue of municipal liability because it
concluded that no constitutional violation had occurred, but the magistrate judge
had concluded that a genuine issue of fact existed regarding the existence of an
SAPD custom. Having concluded that there was a constitutional violation, we
agree with the magistrate judge that the City is not entitled to summary
judgment.
The City affirmed, in its Rule 36 responses to request for admissions, that
the search of Appellants’ home was consistent with SAPD policy. Thus,
Appellants argue that if the court concludes the search violated Appellants’
Fourth Amendment rights, the City has admitted liability. See Russo v. City of
Bridgeport, 479 F.3d 196, 212–13 (2nd Cir. 2007) (city’s admission that
defendants acted in accordance with “custom, policy and practice” indicated that
municipal liability would be appropriate if defendants violated plaintiff’s
constitutional rights). We agree that this admission, though not dispositive,
supports Appellants’ position.
In further support of their argument that the SAPD had an
unconstitutional policy of conducting no-knock entries on less than reasonable
suspicion, Appellants rely on the deposition testimony of San Antonio Chief of
Police William McManus. McManus is the relevant law enforcement policymaker
for the City. The City’s charter names him the “director of the police
department,” and the SAPD Rules and Regulations provide that he has “the
exclusive right to establish, rescind, or modify departmental rules and
regulations.” Additionally, he testified that he was responsible for SAPD policy
and agreed that “the buck stops with [him].” At the very least, the Chief’s

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No. 11-50010
understanding of common operating procedure is highly relevant to the existence
of a custom.
In his deposition, McManus made several statements that might be taken
to imply that SAPD officers customarily forego the knock-and-announce
procedure when they suspect a small quantity of drugs may be found on the
premises. For example, McManus stated, “If it’s a small quantity, you’re
probably not going to find too many police investigators that are going to knock
. . . . They’re just not going to do it.” Similarly, in response to a question about
when no-knock entries are acceptable, he answered that the relevant facts are
“the amount of drugs involved and whether they’re disposable or not.” Moreover,
McManus described extremely atypical examples when asked for scenarios in
which he would advise a knock-and-announce procedure, suggesting a policy of
treating no-knock entries as the default procedure in drug cases.
McManus also testified that, based on his review of the internal affairs
report of the search of Appellants’ home, he did not think it violated department
policies. In light of the deposition excerpts in the summary judgment record, a
reasonable jury could infer that McManus promotes a policy of making no-knock
entries any time a search warrant for a small (or unknown) quantity of drugs is
executed.
Appellants also point to the deposition testimony of Albert Ortiz, the
former SAPD Chief of Police. Although Ortiz appreciated that a no-knock entry
must be understood as an exception to the general knock-and-announce rule, he
indicated that the presence of “sinks and kitchens and bathrooms” in Appellants’
house was sufficient to give rise to reasonable suspicion.9 Of course, such a large
exception to the “rule” is virtually indistinguishable from a policy of making no-

9
Even assuming that the mere presence of indoor plumbing at a residence is enough
to create reasonable suspicion in narcotics cases, an “exception” that would swallow the rule,
Arcuri did not articulate a reliance on the presence or location of sinks or toilets in the house
to justify his decision to make a no-knock entry.

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No. 11-50010
knock entries in all drug-related cases. Thus, Ortiz’s testimony does little to
negate the existence of a policy of conducting no-knock entries in an overly broad
class of drug cases.
Moreover, the testimony of Arcuri and Marty Laurenz, another SAPD
detective involved in the search of Appellants’ home, support the conclusion that
SAPD officers customarily treat a no-knock entry as the default in drug-related
searches. When asked whether the search of Appellants’ home “was a high risk
simply because you were making a drug bust,” Arcuri responded, “Yes, sir.” As
discussed above, even Arcuri’s appellate brief concedes that he conducts a no-
knock entry unless he can establish that the “occupants of the premises did not
pose a threat to the officers’ safety upon entry.” This approach flips Richards on
its head by authorizing no-knock entries unless the particular facts of a case
confirm that a search will not pose a threat to safety.
Laurenz echoed the department’s presumption of danger: “If it’s unknown
[whether the occupants of a house are dangerous], we do not knock and
announce. We enter the location in the most expedient way, which is usually
through the front door utilizing a ram.” Laurenz specifically stated that the no-
knock entry of Appellants’ home was made because “we didn’t have the knowns
on Randy. There was too much unknown about him. We couldn’t verify if he was
violent or non-violent.” These officers’ testimony concerning the usual
application of SAPD policy evidences a custom of making no-knock entries on
less than reasonable suspicion drawn from particular facts and circumstances.
Taken together, the deposition testimony of McManus, Ortiz, Arcuri, and
Laurenz, and the City’s admission that the search of Appellants’ home was
conducted in accordance with SAPD policies, are sufficient to create a genuine
issue of material fact on the issue of municipal liability. Appellants have
therefore made the requisite showing to survive summary judgment on this
issue.

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No. 11-50010
IV. CONCLUSION
For the reasons given above, the district court’s order granting summary
judgment to Arcuri and the City is REVERSED, and the case is REMANDED for
further proceedings consistent with this opinion.

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