United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 17, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-30780
_____________________
MICHAEL E. MICHALIK, JR., Individually and on behalf of the
minor child, Hannah E. Michalik; DEBORAH P. MICHALIK, his wife,
Plaintiffs - Appellees,
versus
MIKE HERMANN, Deputy Sheriff; ET AL.,
Defendants,
KEVIN GUILLOT; PAUL TOYE; MIKE HERMANN, Deputy Sheriff;
HARRELL CLARK; SHENNANDOAH JONES; ERIC LEVIS,
Defendants - Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
Before REAVLEY, JOLLY, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This § 1983 and Bivens Fourth Amendment related case has its
origins in the search of the home of Michael and Deborah Michalik
(“the Michaliks”). The search was conducted under a warrant issued
as part of an investigation into a New Orleans drug operation,
involving several local, state, and federal officers. The search
failed to uncover any evidence of illegal activity, and the
Michaliks brought suit against those involved in the procurement
and execution of the warrant. The Michaliks contend that the
officers relied on stale information to claim that Mr. Michalik’s
step-brother stashed drugs at their home.
In the over five years since the complaint was filed, the case
has provided an ever-shifting web of claims and defendants. At
issue in these consolidated appeals is the district court’s denial
of qualified immunity to six defendants-appellants on various
claims relating to the procurement of the search warrant, the
search of the home, and/or the forcible entry of the home. See
Michalik v. Hermann, 2003 WL 21805037 (E.D. La. Aug. 4, 2003).
We hold that Levis and Toye are entitled to qualified immunity
for claims based on the procurement of the warrant because neither
prepared, presented, nor signed the application for the search
warrant. Accordingly, we REVERSE the district court’s denial of
qualified immunity as to (1) Levis and Toye on claims relating to
the procurement of the warrant and (2) Toye on claims relating to
the search of the home. However, we hold that material issues of
fact exist as to the conduct of Guillot, Hermann, Clark and Jones
in the forcible entry of the home. Accordingly, we DISMISS this
interlocutory appeal as to those claims for want of jurisdiction.
I
A
In early 1998, Officer Paul Toye (“Toye”) of the New Orleans
Police Department and Agent Eric Levis (“Levis”) of the federal
2
Drug Enforcement Agency (“DEA”)1 began separate investigations of
a drug ring in New Orleans, Louisiana. Toye and Levis combined
their efforts, and the investigation broadened to include police
authorities in Jefferson, St. Bernard, and St. Tammany Parishes.
In August 1998, the New Orleans Police Department requested
wiretaps through the Louisiana State Police. Trooper John
Fitzpatrick (“Fitzpatrick”) became the case agent for the Louisiana
State Police. The wiretaps were concluded in early November 1998.
Search warrants were then issued for seventeen houses, and arrest
warrants were issued for thirty-three individuals. Fitzpatrick was
the sole affiant on the Application for Search Warrant for 406 E.
St. Jean Baptiste in Chalmette, Louisiana, the Michaliks’ home. An
arrest warrant was also issued for Mr. Michalik’s step-brother,
Gene J. Taglialavore (“Taglialavore”). Taglialavore had resided at
406 E. St. Jean Baptiste from 1989 to 1991, but his permanent
address was in Nevada at the time the warrant was issued.
The search warrant was executed by eight to ten officers of
various jurisdictions on November 18 at approximately 5:30 a.m.
Only four of the executing officers have been explicitly identified
by name: Kevin Guillot (“Guillot”) of the New Orleans Police
Department; and Mike Hermann, Harrell Clark, and Shennandoah Jones,
all of the St. Bernard Parish Sheriff’s Department (collectively,
the “St. Bernard defendants”). The Michaliks were detained for
1
Levis was on detail to the DEA from the St. Bernard Parish
Sheriff’s Office Bureau of Narcotics.
3
approximately two hours while the house was searched. No drugs or
other evidence of illegal activity was found in either the initial
search or in a second search conducted with the use of a drug dog.
The Michaliks filed their original complaint in November 1999,
alleging that their home was searched unlawfully because the
officers relied on stale information to determine that Taglialavore
had stashed drugs at 406 E. St. Jean Baptiste. In their original
complaint, they sought damages and other relief based on alleged
violations of the U.S. Constitution and Louisiana state law against
the federal, state, and local law enforcement officers and their
respective agencies and governmental entities, including the United
States.
Because of the number of parties and claims involved, the
procedural posture of this case is exceptionally complicated. We
will relate only what is necessary to understand the issues on
appeal.
On November 20, 2001, the Michaliks filed their first amended
and supplemental complaint, adding a claim under the Federal Tort
Claims Act (“FTCA”) against the United States, alleging violations
of 42 U.S.C. §§ 1985 and 1986.2 The United States, along with
other named federal defendants, filed a motion to dismiss the
2
The United States previously had been dismissed without
prejudice by the district court in October 2000 for failure to
serve. Thereafter, the district court granted the United States’
motion to dismiss all named and/or fictitious federal employees on
sovereign immunity grounds.
4
Michaliks’ amended complaint. The district court dismissed the
claim with prejudice because the Michaliks failed to exhaust their
administrative remedies before filing, and more than six months had
elapsed from the date on which the plaintiffs actually exhausted
their administrative remedies. See 28 U.S.C. §§ 2675(a) and
2401(b).
The Michaliks submitted two additional amended complaints,
naming federal defendants in their personal capacities and alleging
the dual status of Levis as a DEA agent and member of the St.
Bernard Parish Sheriff’s Department.
B
We now turn to recount the procedural history of this
litigation with respect to each defendant-appellant, beginning with
Levis. Levis filed no answer to the Michaliks’ third amended
complaint, but instead filed a motion to dismiss, asserting
qualified immunity and the judgment bar provision of the FTCA, 28
U.S.C. § 2676. The district court denied Levis’s motion to dismiss
and similarly denied Levis’s motion to reconsider. On May 27,
2003, Levis filed a motion for summary judgment, again raising
qualified immunity and the FTCA judgment bar. The district court
denied the motion for summary judgment on August 4. Levis now
appeals the district court’s order denying him both dismissal on
FTCA grounds and qualified immunity on federal law claims relating
to the procurement of the warrant.
5
We next consider Toye and Guillot of the New Orleans Police
Department. On January 8, 2003, the district court granted summary
judgment on the basis of qualified immunity, dismissing all federal
claims against all defendants, including Toye and Guillot. The
Michaliks filed a Federal Rule of Civil Procedure 59 motion,
arguing that the court’s grant of summary judgment was premature in
view of ongoing discovery. The district court granted the
Michaliks’ motion in part, reinstating federal claims against Toye
as to the procurement of the search warrant. On May 19, the New
Orleans Police defendants filed for summary judgment on the
remaining claims. In its August 4 order, the district court
dismissed all claims against every named New Orleans Police
defendant, except Toye and Guillot. The district court reinstated
the federal claims against Guillot, noting that material issues of
fact exist as to Guillot’s role in the forcible entry of the
Michaliks’ home. The district court also reinstated claims against
Toye regarding the search and forcible entry of the home, as well
as the procurement of the search warrant as noted above. Toye and
Guillot now appeal the district court’s order.
Finally, we turn to the St. Bernard defendants. On December
3, 2003, the St. Bernard defendants filed a motion for summary
judgment on the basis of qualified immunity. The district court
granted qualified immunity to the St. Bernard defendants on all
federal excessive force claims arising out of the search itself,
ordering the federal claims dismissed with prejudice. The district
6
court denied the Michaliks’ motion for reconsideration,
specifically holding that the police action during the search was
objectively reasonable. On May 5, 2004, the St. Bernard defendants
filed a separate motion for summary judgment to dismiss all
remaining state law claims. In its August 4 order, the district
court granted summary judgment to the St. Bernard defendants for
state law claims arising out of the procurement of the warrant, and
also held as a matter of law that the officers’ conduct inside the
house was not unreasonable under state tort law principles. The
district court, however, denied the motion for summary judgment as
to Hermann, Clark, and Jones on the federal and state law claims in
conjunction with the forcible entry of the Michaliks’ home. The
St. Bernard defendants now appeal.
To sum up, the six defendants-appellants appeal the denial of
qualified immunity for the following claims: (1) federal claims
only against Levis for procurement of the warrant; (2) federal and
state claims against Toye for procurement of the warrant, search of
the home, and forcible entry of the home; (3) federal and state
claims against Guillot for forcible entry of the home; (4) federal
and state claims against the St. Bernard defendants for forcible
entry of the home.3
3
The Michaliks have moved to dismiss each of the defendants’
appeals. These motions were carried with the case, but we do not
separately address these motions in this opinion. We consider the
arguments advanced in the motions briefing in conjunction with the
arguments raised in the merits briefing in arriving at our
conclusions.
7
II
The denial of a motion for summary judgment is generally not
a final, appealable order over which we have jurisdiction. Under
the collateral order doctrine, however, “a small class of
interlocutory orders that (1) conclusively determine, (2) important
issues, which are separate from the merits of the action, and (3)
which would be effectively unreviewable on appeal from a final
judgment, are deemed ‘final’ for the purposes of appeal.” Reyes v.
City of Richmond, Texas, 287 F.3d 346, 350 (5th Cir. 2002)
(internal quotation and citation omitted). A district court’s
denial of qualified immunity, to the extent that it turns on an
issue of law, is an appealable decision under the collateral order
doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Johnson
v. Jones, 515 U.S. 304, 313-18 (1995). We have no jurisdiction to
hear an interlocutory appeal, however, when a district court’s
denial of qualified immunity rests on the basis that genuine issues
of material fact exist. See Reyes, 287 F.3d at 350-51.
We review a district court’s denial of summary judgment de
novo, applying the same standard as the district court. See
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.
2003). Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). Any
8
reasonable inferences are to be drawn in favor of the non-moving
party. Gowesky, 321 F.3d at 507 (citations omitted).
Evaluating qualified immunity is a two-step process. First,
we determine whether the plaintiff has alleged a violation of a
clearly established constitutional or statutory right. See Siegert
v. Gilley, 500 U.S. 226 (1991). A right is clearly established if
its contours are “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000)
(internal citations omitted). If the plaintiff has alleged a
violation of a clearly established right, the next step for us is
to determine whether the official’s conduct was objectively
reasonable under the law at the time of the incident. See Sanchez
v. Swyden, 139 F.3d 464, 467 (5th Cir. 1998) (citations omitted).
The plaintiff bears the burden of proving that a government
official is not entitled to qualified immunity. See, e.g., Bennett
v. City of Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989).
A
(1)
We begin by examining the district court’s denial of qualified
immunity to Levis and Toye for claims related to procurement of the
search warrant.4 The district court concluded that neither Levis
4
The claims at issue are a federal Bivens action, Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), and a 42 U.S.C. § 1983 action against Toye for
Fourth Amendment violations based upon their roles in procuring the
9
nor Toye were subject to Franks liability5 because the Michaliks
identified no false statement attributable to Levis or Toye that
appeared anywhere in the warrant application. Nevertheless, the
district court denied qualified immunity to Levis and Toye, finding
that there were material factual disputes as to whether they were
liable under Malley v. Briggs, 475 U.S. 335 (1986). The district
court concluded that if the officers are ultimately found to have
played a significant enough role in procuring the warrant, their
conduct may expose them to liability under the principles of
Malley. 2003 WL 21805037, at *11-12. So, let us examine Malley
and the district court’s application of it to this case.
In Malley, the officer in charge of the investigation
presented criminal complaints to the state judge charging the
defendants with felony marijuana possession. The complaints were
accompanied by supporting affidavits signed by the officer and by
unsigned arrest warrants for the judge’s signature. 475 U.S. at
337-39. On the basis of the complaints and affidavits, the judge
warrant.
5
The Supreme Court held in Franks v. Delaware that an officer
may be liable when he “makes a false statement knowingly and
intentionally, or with reckless disregard for the truth” that
results in a warrant being issued without probable cause regardless
of whether he signed the application or was present when the
affiant appeared before the judge. 438 U.S. 154, 155-56 (1978).
The Fifth Circuit has interpreted Franks liability to also include
liability for an officer who makes knowing and intentional
omissions that result in a warrant being issued without probable
cause. See Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997),
abrogated in part by Kalina v. Fletcher, 522 U.S. 118 (1997).
10
signed and issued the warrants. Id. The defendants were arrested,
tried, and acquitted. Id. They then brought a § 1983 claim
against the affiant officer, charging that he violated their Fourth
Amendment rights by applying for warrants without a showing of
probable cause. Id. The officer contended that he was entitled to
absolute immunity from suit because the state court judge had
approved, executed, and issued the warrants, exonerating the
officer from further liability. Id. at 339-45. The Supreme Court
described the issue thusly: “. . . the degree of the immunity
accorded a defendant police officer in a damages action under 42
U.S.C. § 1983 when it is alleged that the officer caused the
plaintiffs to be unconstitutionally arrested by presenting a judge
with a complaint and a supporting affidavit which failed to
establish probable cause.” Id. at 337 (emphasis added). The Court
concluded that such an officer is not entitled to absolute
immunity. The Court further held, however, that the officer who
applies for a search warrant may be entitled to qualified immunity
if his actions are objectionably reasonable. Throughout its
opinion, the Court made clear that the specific and narrow question
before it was “whether a reasonably well-trained officer in
petitioner’s position would have known that his affidavit failed to
establish probable cause and that he should not have applied for
the warrant.” Id. at 345 (emphasis added). Thus, our reading of
the case makes clear to us that Malley specifically decided only
11
whether the officer who actually presents or applies for the
warrant is liable.
The district court here, however, stated that “[t]he
principles enunciated in Malley apply not only to those officers
who sign and present the warrant to the issuing judge but also to
those officers who prepare the warrant application.” 2003 WL
21805037, at *10. The district court cited Bennett v. City of
Grand Prairie, 883 F.2d 400, as support for this understanding of
Malley. We agree with the district court that Bennett seems to
move the Malley holding a step forward.
In Bennett, several officers were engaged in the
investigation, preparation, and presentation of the facts that
ultimately were presented to the magistrate judge who issued the
arrest warrant. 883 F.3d at 401-03. The detective in charge of
the investigation prepared, but did not present, the supporting
affidavit. Id. Under the procedures of that police department,
the affiant -- the officer who actually signed and presented the
affidavit to the judge -- acted only in a perfunctory role; that
is, he had no knowledge of the facts, but depended solely upon the
supplied affidavit.6 Id. The investigators, the detective in
6
Under such circumstances, we were prompted to chide police
departments to “seek to provide magistrates with warrant
applications from the law enforcement official most directly
involved in the investigation and most directly involved with the
facts stated in the affidavit.” Id. at 407.
12
charge, and the affiant were sued under § 1983 for effecting an
arrest without probable cause. Id.
Our opinion in Bennett focused primarily on the question of
whether probable cause supported the arrest of the two plaintiffs
-- not on the nuances of liability under Malley. We were concerned
largely with the detective who prepared the affidavit, and we
addressed in particular the reliability of the facts that he used
to make allegations in the affidavit. With respect to the narrow
Malley issue, we must say that the opinion is not absolutely clear
that the detective’s liability rested explicitly on Malley. We did
assume, for purposes of assessing the detective’s Fourth Amendment
liability and his entitlement to qualified immunity, that the facts
known to the detective would be insufficient to give him probable
cause to arrest the defendant and that the facts in the affidavit
that he prepared were insufficient to establish probable cause for
the arrests. Id. at 408. In assuming the detective’s Fourth
Amendment liability as the preparer of the affidavit, we made only
a short reference to Malley: “A police officer may be held liable
in his individual capacity for filing an application for an arrest
warrant without probable cause, the Supreme Court held in Malley v.
Briggs.” Id. at 409 (emphasis added). Citing Malley, we noted
that with respect to the detective the question was “‘whether a
reasonable well-trained officer in [the defendant’s] position would
have known that his affidavit failed to establish probable cause
and that he should not have applied for the warrant.” Id. Without
13
addressing that the detective had not, in fact, applied for the
warrant, we went on to find that the detective’s actions were
objectively reasonable and he was entitled to qualified immunity.
We will return later to the district court’s application of Malley
to deny qualified immunity to Levis and Toye on the warrant claims.
(2)
Turning now to the Michaliks’ arguments concerning the warrant
claims, they primarily urge that we lack appellate jurisdiction
because the denial of qualified immunity here is based on issues of
fact relating to Levis’s and Toye’s role in procuring the warrant.
Johnson, 515 U.S. at 313; Reyes, 287 F.3d at 350-51. This
argument, however, assumes that there is no issue of law regarding
the applicability of Malley and that Malley applies to the alleged
facts.
In contending that Malley establishes liability for non-
affiant officers, the Michaliks argue that the Supreme Court has
cautioned against reading references to “officer” narrowly when
considering reasonableness under the Fourth Amendment -- that the
term “officer” should encompass more persons that a single officer.
They acknowledge that Malley addressed specifically the liability
of the affiant officer, but giving an inclusive meaning to
“officer,” they assert that the requirements of Malley are
applicable to any officer, however involved in the procurement
process, who had no reasonable ground for believing that the
14
warrant was properly issued.7 In support, they cite United States
v. Leon as holding that the Fourth Amendment’s exclusionary rule is
appropriate where officers have no reasonable ground for believing
that the warrant was properly issued. 468 U.S. 897, 923 n.24
(1984). The Michaliks point out that the Supreme Court in Malley
said that the “same standard of objective reasonableness applied in
the context of a suppression hearing in Leon defines the qualified
immunity accorded an officer whose request for a warrant allegedly
caused an unconstitutional arrest.” 475 U.S. at 345.
On the other hand, Levis and Toye assert that Malley only
applies to affiant officers and that an extension of liability to
non-affiant officers is inconsistent with the Malley rationale
because such officers do not have the opportunity to consider the
application as a whole and thus cannot make reasonable judgment as
to whether the warrant is truly supported by probable cause.
Furthermore, Levis and Toye contend that such an extension would
have adverse effects on legitimate law enforcement functions by
7
The Michaliks further assert that the collective knowledge
doctrine/fellow officer rule is applicable to Levis. Citing a
district court opinion from Massachusetts, the Michaliks argue that
a non-affiant participant cannot use another officer as a shield.
United States v. Bater, 830 F.Supp. 28, 36-37 (D. Mass. 1993)
(considering facts analogous to Leon). We find this reasoning
unpersuasive here for the reasons articulated by the district
court. 2003 WL 21805037, at *4.
Nor are we persuaded by the Michaliks’ arguments regarding
supervisory capacity. The district court correctly noted “that the
foundation upon which personal civil liability for constitutional
torts and the doctrine of qualified immunity are based is
individual conduct not imputed acts.” 2003 WL 21805037, at *4.
15
discouraging officers from providing information to be used in a
warrant application.8
(3)
Our understanding of Malley liability differs somewhat from
the district court and from the parties. Our analysis of Bennett
convinces us that, according to this precedent, liability under
Malley may lie not only against the affiant, but also against an
officer who is in the position of the detective in Bennett, that
is, an officer who actually prepares the warrant application with
knowledge that a warrant would be based solely on the document
prepared.9 Such an officer is in a position to see the whole
picture, to understand his responsibility, and thus fully to assess
probable cause questions. Accordingly, such an officer, who is not
the affiant, may be held liable, along with the affiant, under the
principles of Malley. We are unwilling, however, to extend such
liability on the basis of Bennett, under the Malley rationale,
8
Neither Levis nor Toye provide us any helpful guidance in
interpreting Bennett. Toye does not cite Bennett in his briefs,
and Levis simply notes that “Bennett did not . . . hold that an
officer could be subject to liability under Malley for preparing a
warrant, or discuss the issues that would pertain to establish such
a new rule of law.”
9
We do not read Bennett to extend Malley liability to the two
other officers involved in the investigation and sued by the
plaintiffs. Such fleeting reference to the conduct and liability
of these officers is insufficient for us to draw any conclusion in
relation to Malley. Id. at 408. To be sure, however, it would
extend Malley’s holding beyond its underlying rationale to hold any
officer liable for the arrest warrant who neither prepared nor
presented the application.
16
beyond the affiant and person who actually prepared, or was fully
responsible for the preparation of, the warrant application. Here,
it is undisputed that no officer other than Fitzpatrick, the
affiant officer, was responsible for the preparation or
presentation of the warrant application to the judge. Although
issues of fact may exist as to the roles that Levis and Toye played
in the investigation, and in providing some of the information to
Fitzpatrick, these issues of fact are not material to the warrant
claim because none of the evidence suggests that Levis and/or Toye
prepared or presented the warrant or were fully responsible for its
preparation or presentation. Accordingly, we hold that the
district court erred in denying qualified immunity to Levis and
Toye on claims related to the procurement of the search warrant.10
B
We next consider the denial of qualified immunity to Toye for
claims relating to the actual search of the house itself.
Concluding that material issues of fact exist as to whether Toye
was present during the search, the district court noted that if
Toye were present at the search,
then Toye would be additionally liable for
executing the warrant. The Court has already
10
Levis also appeals the district court’s denial of summary
judgment asserting that he is entitled to have the Bivens claims
dismissed on account of the FTCA’s judgment bar provision, 28
U.S.C. § 2676. Because our finding that Levis is entitled to
qualified immunity on the Bivens action ends the litigation against
him on this claim, we need not address claims with respect to §
2676.
17
determined that the executing officers were
entitled to qualified immunity based upon
their lack of knowledge upon which to question
the seemingly valid warrant. However, the
same reasoning would not apply to an officer
in Toye’s position who because of his
participation in procuring the warrant perhaps
should have known that probable cause was
lacking.
2003 WL 21805037, at *12 (citing Mendenhall v. Riser, 213 F.3d 226,
231-32 (5th Cir. 2000)).
To the point, the basis of denying qualified immunity to Toye
on claims relating to the search was based on his liability in
procuring the warrant. We have exonerated him from that liability
under Malley. Toye can no more be charged with knowledge of
probable cause than can the other executing officers. It follows
that the district court erred in denying Toye qualified immunity
for the search of the house. The factual dispute as to whether
Toye was present at the time of the search is obviously irrelevant
to this determination.
Accordingly, we reverse the district court’s denial of
qualified immunity to Toye on claims related to the search of the
Michaliks’ home.
C
We finally consider the claims against Toye, Guillot, and the
St. Bernard defendants relating to the forcible entry of the
Michaliks’ home. These claims are referred to by the parties and
the district court as the knock and announce claims. The district
court denied qualified immunity to these defendants because issues
18
of fact remain as to whether the entry was reasonable under state
law and the Fourth Amendment. See 2003 WL 21805037, at *14. The
district court specifically noted that “[a]ssuming that the
officers did in fact knock, a point which in and of itself is not
clear, the Court questions whether the officers waited long enough
for the Plaintiffs to respond . . . .” Id. Taking the evidence in
the light most favorable to the Michaliks, the district court
stated that it “would have no choice but to conclude that the
officers announced their presence simultaneously with breaching the
door.” Id. Because the officers had not pointed to any evidence
to justify such an entry, the district court concluded that
qualified immunity was inappropriate.11 Id.
Guillot and the St. Bernard defendants argue that the
Michaliks have offered no evidence that the officers acted
unreasonably. They further and correctly note that the usual
summary judgment burden of proof is altered in the case of a
qualified immunity defense. Bazan v. Hidalgo County, 246 F.3d 481,
11
Guillot and the St. Bernard defendants argue that the
district court erred in considering the knock and announce claim
because the Michaliks never alleged the claim at any time before
oral argument on the summary judgment motion. The Michaliks assert
that the knock and announce claim was first briefed in the January
2004 Motion for Reconsideration, and furthermore, common law knock
and announce principles are part of any Fourth Amendment
reasonableness inquiry. See Wilson v. Arkansas, 514 U.S. 927
(1995). The district court noted that even though the knock and
announce claim was raised for the first time “at this late stage,”
it considered the issue because it is a part of the Fourth
Amendment reasonableness inquiry. We defer to the district court
in its management of this case and its ruling on this matter.
19
489 (5th Cir. 2001). An officer need only plead his good faith,
which then shifts the burden to the plaintiff, who must rebut the
defense by establishing that the officer’s allegedly wrongful
conduct violated clearly established law. Id. The plaintiff bears
the burden of negating the defense and cannot rest on conclusory
allegations and assertions but must demonstrate genuine issues of
material fact regarding the reasonableness of the officer’s
conduct. Id. Guillot and the St. Bernard defendants assert that
the Michaliks have not demonstrated that there was a failure to
knock and announce in this case. They assert that the Michaliks
never alleged that there was a failure to knock and announce their
presence or a failure to wait a reasonable time before entering the
plaintiffs’ home. Even if there were a failure, they assert that
uncontroverted facts demonstrate that their actions were
objectively reasonable in the light of the circumstances.
Toye additionally argues that no evidentiary basis exists for
determining that he may have been present during the forcible entry
or search of the Michaliks’ home. He contends that he has
presented documentary evidence proving that, during the execution
of the warrant at the Michaliks’ home, he was executing a search
warrant at another location in connection with the same “bust”.
The Michaliks argue material issues of fact preclude our
jurisdiction over the interlocutory appeal of this claim; there is
conflicting testimony as to who used the battering ram, who entered
the residence first, how long the officers waited, and whether
20
there was a knock and announcement at all. Furthermore, the
Michaliks assert that Toye’s presence at the Michaliks’ home when
the entry was made is disputed, pointing to testimony of Guillot as
well as evidence questioning the veracity of Toye’s documentary
evidence. In the light of the conflicting testimony, the Michaliks
further assert that the officers’ failure to present sufficient
evidence of exigent circumstances makes summary judgment
inappropriate.
Based on our review of the record, we cannot dispute that
material issues of fact remain as to the knock and announce claims.
Although Guillot and the St. Bernard defendants properly explain
the burdens of the respective parties, the district court found
that more than conclusory allegations and bare assertions underlie
the Michaliks’ contentions regarding the facts. It seems to us
that the arguments of Toye, Guillot, and the St. Bernard defendants
do not focus on the existence of evidence, but instead on the
weight that should be given to it. We thus conclude that these
material issues of fact deprive this court of jurisdiction to
entertain this interlocutory appeal asserting qualified immunity to
Toye, Guillot, and the St. Bernard defendants.
III
For the foregoing reasons, we hold that the district court
erred by denying qualified immunity to (1) Levis and Toye on claims
relating to the procurement of the search warrant and (2) Toye on
21
claims relating to the search of the Michaliks’ home.12 Because the
district court found that material issues of fact exist, we dismiss
for lack of jurisdiction the appeal of claims related to the
forcible entry of the Michaliks’ home by Toye, Guillot, Hermann,
Clark, and Jones. Stated differently, the only claims that remain
to be tried are those claims against Toye, Guillot, Hermann, Clark,
and Jones for the forcible entry of the home. Accordingly, we
remand the case for further action and proceedings not inconsistent
with this opinion.
REVERSED and RENDERED, in part;
DISMISSED, in part; and REMANDED.
12
It follows that qualified immunity is also granted to Toye
with respect to the concomitant state law claims relating to the
procurement of the search warrant and search of the Michaliks’
home. The appeals of state law claims remaining against Guillot,
and the St. Bernard defendants are dismissed in accordance with our
dismissal of the appeal of federal claims for want to jurisdiction.
22
Michalik v. Hermann
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-08-18
Citations: 422 F.3d 252
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