No. 05-517
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 217
_______________________________________
DAN CASSADY,
Plaintiff and Appellant,
v.
YELLOWSTONE COUNTY MONTANA SHERIFF
DEPARTMENT, a Political Subdivision; SERGEANT
VINCE WALLIS, an individual; LIEUTENANT MIKE
SCHIENO, an individual; DEPUTY SHANE SKILLEN,
an individual; and DEPUTY BRENT WEGNER, an
individual.
Defendants and Respondents.
______________________________________
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 04-0160
The Honorable Susan Watters, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
W. Scott Green (argued), Patten, Peterman, Bekkadahl & Green, PLLC,
Billings, Montana
For Respondents:
Kevin Gillen (argued) and Ryan Nordlund, Deputy Yellowstone County
Attorneys, Billings, Montana
____________________________________
Argued: May 1, 2006
Submitted: May 10, 2006
Decided: September 6, 2006
Filed:
______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Plaintiff Dan Cassady (Cassady) brought a 42 U.S.C. § 1983 (§ 1983) claim
against Yellowstone County Sheriff’s Department, and officers Deputy Shane Skillen,
Deputy Brent Wegner, Sergeant Vince Wallis, and Lieutenant Mike Schieno (collectively
the Officers), in their individual capacities. The claim alleged civil rights violations
stemming from the Officers’ failure to knock and announce their presence before entering
Cassady’s home, and the Officers’ alleged excessive use of force against Cassady. The
Thirteenth Judicial District Court, Yellowstone County, determined as a matter of law
that the Officers were entitled to qualified immunity. Cassady appeals.
¶2 We consider the following issues on appeal:
¶3 1) Did the District Court commit error when it granted the Officers qualified
immunity from Cassady’s § 1983 claim based on the Officers’ failure to knock and
announce their presence?
¶4 2) Did the District Court commit error when it determined that the Officers did
not use excessive force and, consequently, were entitled to qualified immunity from
Cassady’s § 1983 claim?
FACTS AND PROCEDURAL HISTORY
¶5 What began as a violent incident between father and son one evening in
Broadview, Montana, ended the next morning with a SWAT team firing tear gas to
remove a shooting victim from his own home.
¶6 Cassady and his then seventeen-year old son, Robert Cassady (RJ), lived in the
back portion of a building in which Cassady also operated the Broadview Bar, in
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Yellowstone County. Cassady and RJ initially argued on the evening of May 8, 2001,
before the incident escalated into physical violence. RJ retreated to the house of his
friend and neighbor, Robert Conover (Conover), after the fight. RJ told Conover that the
altercation ended when he had hit his father repeatedly over the head with a baseball bat,
and that he did not know whether Cassady was dead or alive. Cassady’s blood soaked
RJ’s pants. Conover, a first responder, drove to Tim Hancock’s (Hancock) house and
requested Hancock accompany him to the Broadview Bar to check on Cassady’s welfare.
Conover and Hancock entered the building and announced their presence. They found
Cassady talking on the phone. Conover inquired whether Cassady was all right, and
Cassady responded, “I’m walking, I’m talking, that’s all, does it look like I’m all right?”
Cassady then ordered the men to leave the premises. They complied.
¶7 Conover returned home and called 911. He informed the police what he knew of
the evening’s events, including Hancock’s observation that he saw a shotgun in
Cassady’s home. Deputy Skillen, Deputy Wegner, and Sergeant Wallis of the
Yellowstone County Sheriff’s Department arrived at Conover’s home. The Officers
interviewed Conover and RJ and learned that Cassady had sustained head injuries from a
baseball bat and that he had been drinking alcohol. Dispatch also informed the Officers
that Cassady had a “history of gunplay.” The Officers stated that they proceeded to the
Cassady residence to check on Cassady’s medical status and investigate further the
circumstances surrounding the incident with RJ.
¶8 Dispatch called Conover after the Officers left to ask if Conover had a key to the
Cassady residence. RJ provided Conover a key to his home for the Officers’ use. RJ told
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Conover to inform the Officers that they needed to announce themselves when they
entered the bar or else his father would think that they were burglars. Lieutenant
Schieno, also of the Yellowstone County Sherriff’s Department, appeared at the Conover
residence. Conover met him outside and gave him RJ’s key. Officer Schieno asked
Conover twice if the Officers had RJ’s permission to enter the home. Conover confirmed
that the Officers did have RJ’s permission to enter his home. Conover neglected,
however, to relay RJ’s warning that the Officers needed to announce themselves.
¶9 The Officers arrived at the Cassady residence and requested that dispatch call
Cassady and ask him to come outside to discuss what had happened with his son.
Dispatch called Cassady twice. He did not answer the phone. Conover’s wife, Ann,
testified later that Cassady was talking to her on the phone intermittently during these
hours.
¶10 The parties dispute what happened next. Three of the four Officers’ affidavits
state that they shined flashlights in the windows and announced themselves as law
enforcement while they walked the building’s perimeter. One of these Officer’s taped
statements, taken the morning after the incident, included this information. Cassady’s
affidavit contains no mention of flashlights or announcements coming from outside his
home. Cassady’s affidavit states that he had retired to his residence when he “heard
intruders enter the bar.”
¶11 The Officers had decided to enter the building through the front door with their
weapons drawn. Officer Schieno used the front door key provided by Conover,
discovered that turning the key had actually locked the door, and unlocked it again. The
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Officers did not knock or announce their presence as they entered through the front door.
The Officers’ taped statements and affidavits consistently relayed that the group entered
the building “very quietly,” and were making a conscious effort to do so.
¶12 The room where the Officers entered was dark. Deputies Skillen and Wegner
proceeded to the right, while Lieutenant Schieno and Sergeant Wallis moved to the left.
Wallis and Schieno immediately noticed a laser light targeted on Schieno’s face. The
Officers knew the laser to be consistent with a gun sight device. What Officers described
as “lots of verbalization” occurred during the next few moments. The Officers
announced repeatedly and loudly that they were the Sheriff’s Department, and
continually ordered Cassady to drop his weapon. Cassady ignored the Officers’ demands
and maintained the laser sight on Schieno. Wallis fired his gun in Cassady’s direction.
¶13 The Officers then retreated from the building. When Cassady did not emerge,
they established a perimeter and medical staging area outside the building. Law
enforcement’s attempts to communicate with Cassady and convince him to leave the
building throughout the night were unsuccessful. The Yellowstone County SWAT team
eventually shot tear gas into the residence around five o’clock the next morning. Cassady
emerged, and law enforcement transported him to a local hospital where he received
treatment for a gunshot wound to his abdomen, for a bullet fragment in his upper right
chest, and for multiple injuries he sustained from the encounter with his son. Law
enforcement transferred Cassady again later in the day to the Yellowstone County
Detention Facility. They charged him with felony assault on a peace officer and family
partner member assault.
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¶14 Cassady entered a plea of not guilty on both charges. He did not pay the $200,000
bail and remained in the county jail. Cassady moved the court to reduce his bail to
$50,000 on August 27, 2001, after serving 110 days in jail. The court granted his motion.
Cassady posted bail and the court set trial for January 22, 2002. The State dismissed the
partner family member assault charge immediately preceding trial. The jury found
Cassady not guilty of felony assault on a peace officer following a four-day trial.
¶15 Cassady then brought a civil action against Yellowstone County and the Officers.
The action included a § 1983 claim that stated generally that the defendants “violated
plaintiff’s civil rights and deprived him of his rights under 42 U.S.C. § 1983.” The
District Court analyzed the § 1983 claim under both the United States Constitution and
Montana case law. Cassady’s complaint also claimed that the Officers committed
various other torts against him.
¶16 The court granted the Officers’ summary judgment motion to dismiss some of the
tort claims, and granted the Officers qualified immunity for the § 1983 claim. Cassady’s
claims for negligence, assault, and negligent infliction of emotional distress proceeded to
a four-day trial. The jury issued a defense verdict. Cassady now appeals the order
granting qualified immunity to the Officers for the § 1983 claim based on the alleged
constitutional violations arising from the Officers’ failure to knock and announce and
their alleged use of excessive force.
STANDARD OF REVIEW
¶17 We review de novo a district court’s decision to grant qualified immunity.
Losleben v. Oppedahl, 2004 MT 5, ¶ 13, 319 Mont. 269, ¶ 13, 83 P.3d 1271, ¶ 13. We
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also review de novo the issue of whether exigent circumstances exist. State v. Anyan,
2004 MT 395, ¶ 18, 325 Mont. 245, ¶ 18, 104 P.3d 511, ¶ 18 (citing United States v.
Furrow (9th Cir. 2001), 256 F.3d 805, 811).
DISCUSSION
¶18 Qualified immunity is “an immunity from suit rather than a mere defense to
liability,” and, consequently, “it is effectively lost if a case is erroneously permitted to go
to trial.” Saucier v. Katz (2001), 533 U.S. 194, 200-01, 121 S.Ct. 2151, 2155-56, 150
L.Ed.2d 272. Qualified immunity seeks to “avoid excessive disruption of government
and permit the resolution of many insubstantial claims on summary judgment.” Saucier,
533 U.S. at 202, 121 S.Ct. at 2156. Thus, the court must engage in a two-part test to
determine whether government officials are entitled to qualified immunity for a claim
brought pursuant to § 1983, so that the issue of immunity can be resolved “at the earliest
possible stage in litigation.” Saucier, 533 U.S. at 201, 121 S.Ct. at 2156, (citing Hunter
v. Bryant (1991), 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589.
¶19 The court must determine initially if, when viewed in the light most favorable to
the party asserting the injury, the offending conduct violated a constitutional right.
Losleben, ¶ 14; Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. Only when the conduct
violated plaintiff’s constitutional right should the court then proceed to ask whether the
constitutional right was clearly established at the time of the violation in light of the
specific context of the case. Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. If the officer’s
actions were objectively reasonable given the circumstances, summary judgment based
on qualified immunity is appropriate. Saucier, 533 U.S. at 205, 121 S.Ct. at 2158.
7
ISSUE ONE
¶20 Did the District Court commit error when it granted the Officers qualified
immunity from Cassady’s § 1983 claim based on the Officers’ alleged failure to knock
and announce their presence?
¶21 a) Did Officers violate Cassady’s constitutional right to be free from unreasonable
searches and seizures and his constitutional right to privacy when they failed to knock
and announce their presence as they conducted a warrantless entry into his home with
their weapons drawn?
¶22 The Officers claim that the presence of both exigent circumstances and consent
obviated the knock and announce requirement and, consequently, they did not violate
Cassady’s constitutional rights when they entered his home unannounced. The Officers
claim alternatively that if the law did in fact require them to knock and announce, they
substantially complied with the rule before entering Cassady’s home.
¶23 We note initially that the District Court’s order states that it is “undisputed that the
[Officers] failed to announce their presence prior to entry into [Cassady’s] residence.”
The Officers’ brief states, however, that they substantially complied with knock and
announce when they “shouted at Cassady from outside the bar, shined flashlights in the
windows, knocked on the door and had dispatch telephone Cassady repeatedly.” The
Officers’ motion for summary judgment does not include a substantial compliance
argument. As such, the Officers failed to present this theory in the District Court, and we
will not consider it for the first time on appeal. Bekkedahl v. McKittrick, 2002 MT 250,
¶¶ 31-32, 312 Mont. 156, ¶¶ 31-32, 58 P.3d 175, ¶¶ 31-32.
¶24 In Anyan, we determined that law enforcement officers violated various
defendants’ constitutional rights to be free from unreasonable searches and seizures when
8
the officers failed to knock and announce their presence when executing a warrant on a
drug house. Anyan, ¶ 2. The case represented the first time this Court considered the
knock and announce rule’s application in the context of criminal law. Anyan, ¶ 20. We
recognized that concerns for privacy, reduction in the potential for violence, and
preventing the destruction of private citizens’ property as the underlying policies
requiring law enforcement to knock and announce their presence. Anyan, ¶ 22.
¶25 We consequently established the rule that “an officer serving a search warrant
must comply with the knock and announce requirement unless there are exigent
circumstances present . . . .” Anyan, ¶ 33. We noted that we rendered our decision
pursuant to the Fourth Amendment of the United States Constitution and federal
authority, but that since Article II, Sections 10 and 11 of the Montana Constitution
provide even greater privacy protections than the federal constitution, the Montana
Constitution provided an independent basis for our holding that the forced entry and
subsequent search were unreasonable. Anyan, ¶¶ 20, 61.
¶26 We must now address a situation where officers entered a private residence
without a warrant and did not knock and announce their presence. In doing so, we deem
the same policy considerations applicable whether law enforcement enter a home under
an exception to the warrant requirement or whether officers enter armed with a warrant.
We also recognize an additional policy reason for requiring law enforcement to knock
and announce when they do not have a warrant that we did not articulate in Anyan: the
occupant’s opportunity to comply.
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¶27 First, we deem the potential privacy violation greater where police enter a
residence without a warrant because law enforcement’s entry into the home is not
inevitable as it is in situations where police hold a warrant. See Richards v. Wisconsin
(1997) 520 U.S. 385, 393 n.5, 117 S.Ct. 1416, 1421 n. 5, 137 L.Ed.2d 615 (referring to
the “brief interlude between announcement and entry with a warrant. . . .”); Hudson v.
Michigan (2006), __ U.S. __, 126 S.Ct. 2159, 2006 WL 1640577 (stating that the
interests protected by knock and announce “do not include the shielding of potential
evidence from the government's eyes.”). Further, when the police enter warrantless, the
privacy interest protected by the knock and announce rule integrates with the interest in
providing the occupant the opportunity to comply with the law.
¶28 In Wilson, 514 U.S. 927, 115 S.Ct. 1914, the Court recognized that providing
individuals the opportunity to comply represented one foundation of the knock and
announce requirement at common law. Common law courts required law enforcement
officers to identify themselves and “make request to open doors . . . for perhaps he did
not know of the process, of which, if he had notice, it is to be presumed that he would
obey it . . . .” Wilson, 514 U.S. at 931-32, 115 S.Ct. at 1917 (citing Semayne’s Case
(K.B. 1603), 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-96). See also Richards, 520
U.S. at 393 n.5, 117 S.Ct. at 1421 n. 5.
¶29 The reduction in the potential for violence provides an additional policy reason
that applies equally when officers enter a private residence unannounced either with or
without a warrant. Expanding on the purpose of the knock and announce rule to diminish
the potential for violence, we noted that unannounced breaking and entering into a home
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“could quite easily lead an individual to believe that his safety was in peril and cause him
to take defensive measures which he otherwise would not have taken” had he known that
a warrant had been issued to search his home. Anyan, ¶ 23 (citing State v. Bamber, (Fla.
1994), 630 So.2d 1048, 1050); See also Hudson, __ U.S. at __, 126 S.Ct. at 2165 (stating
that one of the interests in the knock and announce rule “is the protection of human life
and limb, because an unannounced entry may provoke violence in supposed self-defense
by the surprised resident.”).
¶30 The present case represents the consummate example of when officer compliance
with the knock and announce rule would address privacy concerns, provide the
opportunity for the homeowner to comply with law enforcement, and also reduce the
potential for violence. Officer Wallis’s affidavit stated that the purpose for entry into the
residence “was two-fold: first, a welfare check was in order due to the reports of injury
and our inability to communicate with Dan Cassady and, second, to further the
investigation into the altercation.” Officer compliance with knock and announce would
have afforded Cassady the opportunity to answer the door, and simultaneously provided
the Officers the opportunity to accomplish peacefully the purposes of their presence at his
home. In fact, law enforcement may never have had to enter his home and invade his
privacy at all.
¶31 In light of this reasoning, we conclude that an officer must comply with the knock
and announce requirement when he or she enters a home without a warrant unless exigent
circumstances exist that would present a threat of physical violence or the likelihood that
evidence would be destroyed. See Anyan, ¶ 33. Exigent circumstances to justify a
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warrantless entry, however, may not always obviate the knock and announce
requirement. Law enforcement and courts still must evaluate the circumstances in each
situation on a case by case basis, adhering to the “flexible requirement of reasonableness”
implicated whenever law enforcement interests are present. Wilson, 514 U.S. at 934, 115
S.Ct. at 1918.
¶32 We turn now to the issue of whether exigent circumstances obviated the knock and
announce requirement under the present circumstances. The government bears the
burden of proving that exigent circumstances existed, and an “unjustified yet sincere
belief in exigent circumstances does not justify non-compliance with the knock and
announce rule.” Anyan, ¶ 34. We have applied the same definition of exigent
circumstances to warrantless entries as we have to exceptions to the knock and announce
rule. Compare Anyan, ¶ 34 (defining exigent circumstances serving as exceptions to the
knock and announce rule), with State v. Saxton, 2003 MT 105, ¶ 26, 315 Mont. 315, ¶ 26,
68 P.3d 721, ¶ 26 (defining exigent circumstances serving as exceptions to the warrant
requirement in addition to probable cause).
¶33 Exigent circumstances are those circumstances that “would cause a reasonable
person to believe that entry (or other relevant prompt action) was necessary to prevent
physical harm to the officers or other person, the destruction of relevant evidence, the
escape of a suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts.” Anyan, ¶ 34. The Officers here never have asserted a concern that
Cassady would escape, destroy relevant evidence, or otherwise frustrate their efforts.
Officer safety then remains the sole potential exigent circumstance.
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¶34 Although “peril to officers may well demonstrate an exigency, mere unspecified
fears about that possibility will not.” Anyan, ¶ 43. Even if the officers have actual
knowledge that firearms are within a residence, such information standing alone is
insufficient to create an exigency. Anyan, ¶ 44. Nonetheless, a criminal record reflecting
violent tendencies, or a verified reputation of a suspect’s violent nature can be sufficient
information to forego knock and announce procedures. Anyan, ¶ 44. And most
importantly, courts must consider the totality of the circumstances when analyzing a
knock and announce case involving exigent circumstances. For example, in Richards,
520 U.S. at 395, 117 S.Ct. at 1422, the Court rejected Wisconsin’s blanket exception to
the knock and announce requirement in felony drug cases, despite the fact that the cases
customarily present exigent circumstances. The Court rendered it the courts’ duty to
“determine whether the facts and circumstances of the particular entry justified
dispensing with the knock-and-announce requirement.” Richards, 520 U.S. at 395, 117
S.Ct. at 1422.
¶35 Thus, the knowledge that Cassady had a shotgun inside his home—standing
alone—does not justify Officers’ noncompliance with the knock and announce rule.
Anyan, ¶ 44. Dispatch had informed the Officers, however, that Cassady had a “history
of gunplay.” The Officers learned further details of Cassady’s gunplay history when
Conover told them that Cassady had shot at teenagers peering in the windows of his bar.
On the other hand, Officers also knew that Cassady had not threatened Conover and
Hancock when they had checked on him earlier in the evening, and that Cassady had no
record of threatening law enforcement. Finally, the Officers reported that the purposes of
13
their visit to Cassady’s home were to conduct both a welfare check and to question him
about the fight with his son. Neither task inherently triggers a concern for officer safety.
¶36 We must view the facts alleged in the light most favorable to Cassady. Taking the
facts alleged and the law together, we must assess the situation faced by the Officers. In
considering the totality of these circumstances, we conclude that any possibility of
Cassady demonstrating violence against the Officers did not rise to the level of relieving
the Officers of their constitutional duty to knock and announce their presence. The
Officers failed to carry the burden that exigent circumstances obviated the necessity to
knock and announce in the circumstances of the present case.
¶37 The Officers also argue that the consent RJ granted them to enter the home
rendered compliance with the knock and announce rule unnecessary. The Officers cite
U.S. v. Hatfield (4th Cir. 2004), 365 F.3d 332, in support of this argument. We note
initially that the Fourth Circuit applied the federal constitution in Hatfield, and that the
Montana Constitution provides additional privacy protections not found in the federal
constitution. See Article II, §§ 10, 11, Mont. Const.; Anyan, ¶ 61. Moreover, the
circumstances in Hatfield are distinguishable from the present case.
¶38 In Hatfield, the court reviewed an order suppressing evidence authorities gathered
when they appeared at Hatfield’s house to serve a state felony warrant for his arrest and
knocked, but did not identify themselves as law enforcement. Hatfield, 365 F.3d at 334.
Hatfield, from inside his home, voluntarily responded to the knock at the door with “[t]he
door is open; come on in.” Hatfield, 365 F.3d at 340. The reviewing court concluded
14
that Hatfield’s consent eliminated any Fourth Amendment violations with regard to the
officers’ entry into his home. Hatfield, 365 F.3d at 340-41.
¶39 We consider the fact that RJ had provided his consent, indirectly through Conover,
while he was at Conover’s house down the road, rather than from inside the home, as
significant in the instant case. Consent granted from a person not physically present in
the home that law enforcement seek to enter does not fulfill the purposes of the knock
and announce requirement. RJ’s consent did not render Cassady aware that law
enforcement was on his property, that he was not in peril, and that he did not need to take
defensive measures that he otherwise may not have taken. See Anyan, ¶ 23. This Court
has never held—nor do we now—that consent given that may serve as an exception to
the warrant requirement automatically renders compliance with the knock and announce
rule unnecessary. Thus, the Officers’ “damned if they did [enter], damned if they didn’t
[enter]” argument promulgated during oral argument confuses the method of entry with
the legality of the entry.
¶40 Moreover, RJ qualified any consent he gave, indirectly through Conover, with his
advice that Conover warn any of the Officers entering the home to “make sure that you
announce yourself when you go in the door . . . or dad will think it’s a burglar.” RJ did
not consent to the activity here—law enforcement’s stealth entry into Cassady’s home
without informing Cassady of their identity and purpose. We reject the Officers’
argument that the indirect consent that they received from RJ before entering the home
alleviated the Officers’ duty to knock and announce under the present circumstances.
15
¶41 The Officers here had every opportunity to identify themselves and request entry.
In light of our decision in Anyan, the enhanced privacy rights in Sections 10 and 11 of the
Montana Constitution, the lack of exigent circumstances, lack of a warrant, and the
Officers’ failed consent argument, we conclude that the Officers violated Cassady’s
constitutional rights under the Fourth Amendment of the United States Constitution when
they entered his home without announcing their presence. As we noted in Anyan,
however, Article II, Sections 10 and 11 of the Montana Constitution provide even greater
privacy protections than the federal constitution, and consequently, the Montana
Constitution serves as an independent basis for our holding. See Anyan, ¶¶ 20, 61. This
conclusion, however, does not end our analysis. We now turn to the issue of whether the
Officers’ failure to knock and announce was reasonable for purposes of determining
qualified immunity.
¶42 b) Was the knock and announce rule clearly established in the context of the
situation the Officers confronted when entering Cassady’s home?
¶43 A constitutional right is clearly established if it would be clear to a reasonable
officer that his or her conduct was unlawful in the situation he or she confronted.
Saucier, 533 U.S. at 202, 121 S.Ct. at 2156. The Officers conceded at oral argument that
the Supreme Court’s decision in Wilson, 514 U.S. 927, 115 S.Ct. 1914, had clearly
established knock and announce. We must examine the Officers’ conduct in light of the
circumstances the Officers confronted specifically in Broadview on May 8, 2001,
however, and not “as a broad general proposition.” Saucier, 533 U.S. at 201, 121 S.Ct. at
2156. And although an “unjustified yet sincere belief in exigent circumstances does not
16
justify non-compliance with the knock and announce rule,” Anyan, ¶ 44, the same
principle does not apply for the purpose of analyzing the second prong of qualified
immunity. A sincere but unjustified belief would entitle officers to qualified immunity in
light of the fact that law enforcement may make “reasonable mistakes as to the legality of
their actions” and still enjoy qualified immunity. Saucier, 533 U.S. at 206, 121 S.Ct. at
2159.
¶44 An array of factors culminated in Broadview that evening that could have led
reasonable officers to mistakenly believe that compliance with the knock and announce
rule was unnecessary. These factors include Cassady’s unresponsiveness when the
Officers attempted to contact him, and RJ’s indirect permission to enter the home.
¶45 The Officers did not know Cassady’s exact medical status by the time they arrived
at his home, but they did know that he had sustained significant blood loss from the
blows RJ had inflicted with the baseball bat. Cassady failed to answer phone calls that
dispatch placed to his home, and he did not emerge from the residence when the Officers
shined lights in the windows. Thus, it was reasonable for the Officers to interpret
Cassady’s unresponsiveness as signifying that Cassady was physically unable to respond,
either because he was unconscious or dead. The Officers reasonably believed that
knocking and announcing their presence was unnecessary in the situation they
confronted.
¶46 It was equally reasonable for the Officers to interpret Cassady’s unresponsiveness
to mean that Cassady was “lying in wait” for them. The Officers knew that Cassady was
very angry, had sustained head injuries, and that he had been drinking alcohol. Dispatch
17
had also informed them that Cassady had once shot at people on his property. Coupled
with his perceived unresponsiveness at the Officers’ attempts to contact him, we deem
the Officers’ determination that Cassady was on the offensive that evening as reasonable.
The Officers held the reasonable belief that entering the home in stealth mode would
increase officer safety in the circumstances presented, thereby serving as an exigent
exception to the knock and announce requirement.
¶47 Finally, RJ’s indirect consent could have led a reasonable officer to mistakenly
believe that they did not need to comply with the knock and announce rule. The fact that
the Officers held a key to the front door could have led them to conclude that they had
received not only the authority to enter, but also the authority to do so unannounced. The
better practice would have been for the Officers to have obtained consent from an
authorized person on the premises that the Officers want to search, or at least directly
from RJ. Nevertheless, we cannot attribute fault to the Officers for Conover’s failure to
inform them that RJ premised his consent, given through Conover, on the condition that
the Officers identify themselves before entry. See also discussion at ¶ 39, above.
¶48 We are mindful of our duty to analyze the second prong of the Saucier test by
examining the specific context of the situation confronting the Officers in Broadview that
evening, and not as a mere theoretical exercise. See Saucier, 533 U.S. at 201-02, 121
S.Ct. at 2156. The Supreme Court recently reiterated this point in Brosseau v. Haugen
(2004), 543 U.S. 194, 199, 125 S.Ct. 596, 599, 160 L.Ed.2d 583, when it deemed it error
for the Ninth Circuit to apply the general tests for excessive use of force from Tennessee
v. Garner (1985), 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1, and Graham v. Connor
18
(1989), 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443, to conclude that an officer was
not entitled to qualified immunity from a plaintiff’s § 1983 claim. Instead, the Court
remanded to consider whether the law was clearly established in a more “‘particularized
sense’” to answer the question of qualified immunity. Brosseau, 543 U.S. at 199, 125
S.Ct. at 599. See also United States v. Banks (2003), 540 U.S. 31, 41-42, 124 S.Ct. 521,
528, 157 L.Ed.2d 343 (criticizing the Ninth Circuit for distorting the totality of the
circumstances principle and replacing it with a “four-part scheme” for analyzing whether
exigent circumstances presented an exception to the knock and announce rule).
¶49 In light of this direction, we conclude that it was reasonable for the Officers to
believe that their conduct was lawful in the particular circumstances that they confronted
in Broadview that evening. Brosseau, 543 U.S. at 199, 125 S.Ct. at 599. These
circumstances included Cassady’s perceived unresponsiveness, and the apparent, but
nonetheless insufficient, consent that the Officers had received from one of the home’s
residents. See ¶ 39, above. The Officers are consequently entitled to qualified immunity
from Cassady’s § 1983 claim. Saucier, 533 U.S. at 202, 121 S.Ct. at 2156.
ISSUE TWO
¶50 Did the District Court commit error when it determined that the Officers did not
use excessive force and, consequently, were entitled to qualified immunity from
Cassady’s § 1983 claim?
¶51 Cassady premised a portion of his § 1983 claim on allegations that the Officers
used excessive force against him when Wallis shot Cassady. Cassady argues on appeal
that the Officers’ alleged unlawful entry cannot be divorced from the excessive force
19
claim. Cassady asserts that the Officers’ failure to knock and announce transformed the
Officers’ subsequent force into an automatic violation of his constitutional rights.
¶52 Cassady fails to cite any authority, however, in support of this argument. Further,
the Supreme Court has demonstrated a recent tendency to analyze the method of entry
separate from subsequent events. For example, in Hudson, __ U.S. __, 126 S.Ct. at 2159,
the Court concluded that the exclusionary rule did not apply to evidence obtained from
officers’ illegal entry into defendant’s home when the officers violated the knock and
announce rule. The Court’s analysis included the reasoning, inter alia, that “manner of
entry was not a but-for cause of obtaining the evidence.” Hudson, ___U.S. at ___, 126
S.Ct. at 2164. We reject Cassady’s contention that the method of entry somehow affects
the manner in which we analyze the Officers’ actions after entry. We turn then to the
Officers’ actions.
¶53 The Fourth Amendment permits a police officer to use only such force as is
objectively reasonable under the circumstances. Graham, 490 U.S. at 395, 109 S.Ct. at
1871. An officer’s use of deadly force is reasonable if the officer has probable cause to
believe that the suspect posed a significant threat of death or serious physical injury to the
officer or others. Garner, 471 U.S. at 11-12, 105 S.Ct. 1694 at 1701; see also § 45-3-
102, MCA (providing that a person “is justified in the use of force likely to cause death or
serious bodily harm only if he reasonably believes that such force is necessary to prevent
imminent death or serious bodily harm to himself or another . . .”). Courts should
determine the reasonableness of a particular use of force from a reasonable officer on the
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scene’s perspective, and not with the 20/20 vision of hindsight. Anyan, ¶ 47 (citing
Banks, 540 U.S. at 39, 124 S.Ct. at 527).
¶54 Wallis observed a laser sight on Schieno’s face immediately upon the Officers’
entry into the home. Wallis knew that the laser likely originated from a gun aimed at his
partner. The Officers identified themselves as law enforcement and ordered Cassady
repeatedly to drop his weapon. Cassady nonetheless maintained the laser on Schieno.
Wallis then shot at Cassady. Wallis had probable cause to believe that Cassady posed a
significant threat of injuring Schieno, and Wallis shot at Cassady to prevent serious
bodily harm to his partner. Garner, 471 U.S. at 11, 105 S.Ct. at 1701; § 45-3-102, MCA.
We conclude that the Officers did not use excessive force against Cassady and,
consequently, did not violate Cassady’s constitutional rights. Cassady has failed to
establish the first prong of the Saucier test in that the Officers did not violate his
constitutional rights. Thus, the District Court did not err when it granted the Officers
qualified immunity for Cassady’s § 1983 claim premised on the Officers’ alleged use of
excessive force. See Saucier, 533 U.S. at 200-01, 121 S.Ct. at 2155-56.
¶55 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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Justice Jim Rice concurring.
¶56 I disagree with the Court’s assessment of the circumstances leading to the covert
entry. The circumstances presented a sufficient threat to the officers’ safety to justify
their determination to make a no-knock entry. In Anyan, we said the following about
whether safety concerns amount to “exigent circumstances”:
“[T]he presence of a weapon creates an exigent circumstance,
provided the government is able to prove they possessed
information that the suspect was armed and likely to use a
weapon or become violent. Evidence that firearms are within
a residence, by itself, is not sufficient to create an exigency to
officers when executing a warrant. However, threats to an
officer’s safety, a criminal record reflecting violent
tendencies, or a verified reputation of a suspect’s violent
nature can be enough to provide law enforcement officers
with justification to forego the necessity of knocking and
announcing their presence.”
Bates, 84 F.3d at 795 (internal citations omitted). “A concern for police
safety must be based upon prior knowledge or direct observation that the
subject of the search keeps weapons and that such person has a known
propensity to use them.”
Anyan, ¶ 44. In State v. Ochadleus, 2005 MT 88, 326 Mont. 441, 110 P.3d 448, we
instructed that officers may make a no-knock entry when they had a “reasonable
suspicion of exigency.” Ochadleus, ¶ 56.
¶57 Here, it was known that Cassady had a weapon, had a “history of gunplay,” had
fired at others before, had earlier been in a violent fight with his son, had taken blows to
the head that evening, and may have been intoxicated. One can quibble with whether the
decision to proceed covertly was the best exercise of judgment, but given these
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conditions, it was certainly reasonable “to believe that entry . . . was necessary to prevent
physical harm to the officers . . . .” Anyan, ¶ 34.
¶58 Thus, the officers’ judgment to proceed covertly was justified by circumstances
giving rise to a reasonable suspicion of exigency that threatened their safety. Therefore, I
concur in the Court’s decision but disagree with its rationale, and I would not reach the
second prong of the qualified immunity inquiry. On Issue Two, I agree with the Court’s
analysis of the excessive force claim.
/S/ JIM RICE
Justice James C. Nelson specially concurs.
¶59 I concur in the result we reach today, but not in all of the Court’s reasoning.
¶60 First, with respect to Cassady’s knock-and-announce claim, I agree with the Court
that the Officers’ failure to knock and announce their presence prior to entering
Cassady’s home violated his constitutional right to be free from unreasonable searches
and seizures. As we explained in State v. Anyan, 2004 MT 395, 325 Mont. 245, 104 P.3d
511,
a mere suspicion that weapons would be at a residence does not provide an
exigency for the officers’ failure to properly knock and announce their
presence. “Our cases have made it clear that generalized fears about how
drug dealers usually act or the weapons that they usually keep is not enough
to establish exigency.” United States v. Granville (9th Cir. 2000), 222 F.3d
1214, 1219. Evidence that firearms are within the residence or that a
particular defendant is armed is not by itself sufficient to create an
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exigency. [United States v. Becker (9th Cir. 1994), 23 F.3d 1537, 1541];
United States v. Marts (8th Cir. 1993), 986 F.2d 1216, 1218. There must be
specific information to lead the officers to a reasonable conclusion that the
presence of firearms raises concerns for the officers’ safety. [United States
v. Moore (10th Cir. 1996), 91 F.3d 96, 98].
Anyan, ¶ 44. Here, as the Court observes, any possibility of Cassady’s demonstrating
violence against the Officers did not rise to the level of relieving them of their
constitutional duty to knock and announce their presence. ¶ 36.
¶61 I further agree with the Court that the Officers are entitled to qualified immunity
on the knock-and-announce violation, though it is not clear from the Court’s Opinion on
what authority the Court is relying for our conclusion that the Officers’ mistakes as to the
legality of their actions were objectively “reasonable.” See Saucier v. Katz (2001), 533
U.S. 194, 205, 121 S.Ct. 2151, 2158 (“If the officer’s mistake as to what the law requires
is reasonable . . . , the officer is entitled to the immunity defense.” (emphasis added)). I
also question whether it was “reasonable” for the Officers to forego knocking and
announcing their presence based on the belief that doing so was “unnecessary,” ¶ 45,
given that the exceptions to the knock-and-announce requirement are based on
exigencies, not lack of necessity, ¶ 31.
¶62 Lastly, with respect to Cassady’s excessive force claim, I agree with the Court that
the Officers’ use of force following their entry into Cassady’s home was not excessive
and, therefore, did not constitute a constitutional violation. As the Court states, Sergeant
Wallis observed a laser sight on Lieutenant Schieno’s face immediately upon their entry
into Cassady’s home; Wallis knew that the laser likely originated from a gun aimed at
Schieno; the Officers identified themselves as law enforcement and repeatedly ordered
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Cassady to drop his weapon; and Cassady did not comply. Given these circumstances,
Wallis had probable cause to believe that Cassady posed a significant threat of death or
serious physical harm to the officers—Schieno in particular. Cf. Tennessee v. Garner
(1985), 471 U.S. 1, 11-12, 105 S.Ct. 1694, 1701 (“[I]f the suspect threatens the officer
with a weapon . . . , deadly force may be used if necessary to prevent escape, and if,
where feasible, some warning has been given.”). Accordingly, Wallis’s shooting at
Cassady was objectively reasonable under the circumstances.
¶63 With these caveats, I concur in the decision of the Court.
/S/ JAMES C. NELSON
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