United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 02-21300
_______________________
WAYNE MICHAEL LINBRUGGER II,
Plaintiff - Appellee,
versus
JACK F. ABERCIA, Etc.; Et Al.,
Defendants,
JEFF HAGGARD, Deputy, in his individual capacity as deputy of
Harris County Constable Precinct 1,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Houston Division
Before GARWOOD and JONES, Circuit Judges, and ZAINEY*, District
Judge.
EDITH H. JONES, Circuit Judge:
This is an interlocutory appeal of the district court’s
denial of a motion for summary judgment seeking qualified immunity.
Wayne Michael Linbrugger filed suit pursuant to 42 U.S.C. § 1983,
alleging that appellant Deputy Jeff Haggard, while executing a
*
District Judge for the Eastern District of Louisiana, sitting
by designation.
mental health warrant, unlawfully entered Linbrugger’s apartment
and used excessive force to effectuate a temporary commitment
order. Linbrugger included an assault claim against Haggard under
Texas law. The district court believed that genuine issues of
material fact precluded granting Haggard’s summary judgment motion.
We reverse the denial of summary judgment on the unlawful entry
claim, but lack jurisdiction to address the federal excessive force
and state law assault and battery claims.
I. BACKGROUND
On October 24, 2000, Linbrugger, a 37-year old man living
by himself, repeatedly telephoned his father and ultimately
threatened to kill his sister. Linbrugger’s father knew that his
son, who had been hospitalized for mental illness before, needed
immediate psychiatric treatment. He applied for and obtained a
judicial warrant from the Harris County Psychiatric Center (“HCPC”)
for Linbrugger’s involuntary mental health commitment. Haggard and
two other mental health deputies were assigned to serve the warrant
on Linbrugger that evening.
The deputies contacted Linbrugger’s father to obtain
background information and coordinate his assistance in serving the
warrant. Linbrugger’s father told them he did not believe
Linbrugger was dangerous or had any weapons. The deputies met
Linbrugger’s father at 10:00 p.m. near the entrance to Linbrugger’s
2
apartment complex. As was customary for mental health deputies,
they wore plain clothes and drove at least one unmarked patrol car.
The deputies instructed Linbrugger’s father to knock on
the apartment door and, when Linbrugger answered, to move aside so
the deputies could state their reason for being there. Haggard and
the two other deputies lined up against the outer wall of the
apartment as Linbrugger’s father knocked. Inside, Linbrugger
testified, he heard two knocks on the door and feared he was about
to be burglarized. To scare off intruders, Linbrugger picked up
“The Club,” an anti-theft device used on car steering wheels, and
moved it back and forth to reproduce the sound of a shotgun’s being
cocked. Haggard, indeed, thought he heard the sound of a pump
shotgun. Linbrugger then opened the door to his apartment wide
enough to see who was outside, holding “The Club” as he did so.
Haggard concurs: he saw Linbrugger holding a sword-like object
above his head as the door opened.
From this point, the parties disagree about what
occurred. What is certain is that the deputies then entered the
apartment by pushing on the door. Haggard testified that he first
yelled, “Drop the weapon” while stepping between Linbrugger and his
father, and later yelled “Police, Harris County”. However,
Linbrugger does not recall the deputies identifying themselves. In
addition, Haggard testified, while Linbrugger denies, that
Linbrugger immediately began swinging “The Club” at him.
3
The parties’ accounts continue to conflict over what
happened in the apartment. Haggard asserts that the deputies had
to subdue Linbrugger by force after his repeated attempts to hit
Haggard with “The Club.” Conversely, Linbrugger claims that
although he placed “The Club” on the floor after the officers asked
him if he intended to hit anyone with it, they nevertheless forced
him to the ground. Linbrugger physically resisted the deputies’
attempt to effectuate the warrant. But Linbrugger insists that
Haggard went too far when he placed his knees on Linbrugger’s neck,
choked him, and repeatedly punched him in the face. Haggard denies
using excessive force. The deputies eventually handcuffed
Linbrugger and escorted him to the unmarked police car for
transportation to HCPC. Linbrugger later received medical
treatment for a cut above his eye, a bruised throat, and other
bruises.
II. JURISDICTION AND STANDARD OF REVIEW
This court reviews the district court’s denial of a
summary judgment motion based on a claim of qualified immunity de
novo. Hatfield v. Scott, 306 F.3d 223, 226 (5th Cir. 2002).
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
4
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. Price v. Roark, 256 F.3d 364, 369 (5th Cir.
2001). If no constitutional right has been violated, the inquiry
ends and the defendants are entitled to qualified immunity. Id.
However, if the plaintiff has alleged a constitutional violation,
the court must next determine whether the official’s conduct was
objectively unreasonable under established law. Bazan v. Hidalgo
County, 246 F.3d 481, 490 (5th Cir. 2001).
We have jurisdiction to consider the legal question
whether, taking the plaintiff’s version of the facts as true, the
plaintiff has alleged a violation of clearly established
constitutional law. Roe v. Tex. Dep’t of Protective & Regulatory
Serv., 299 F.3d 395, 400 (5th Cir. 2002). However, “[i]f disputed
factual issues are material to qualified immunity, the denial is
not appealable.” Id. Materiality means that their resolution
might affect the outcome of the case under governing law. Colston
v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998) (on denial of
rehearing en banc). We disagree with the district court’s
evaluation that certain factual disputes were material to Haggard’s
qualified immunity for the unlawful entry claim. Consequently, we
resolve that claim as a matter of law. As will be seen, however,
we agree that material factual disputes preclude a resolution of
Haggard’s qualified immunity concerning Linbrugger’s other claims.
5
III. DISCUSSION
A. Unlawful Entry
Linbrugger asserts that Haggard unlawfully entered his
apartment in violation of the Fourth Amendment’s guarantee against
unreasonable searches and seizures. Generally, the Fourth
Amendment’s guarantees apply in both criminal and civil contexts.
See Soldal v. Cook County, Ill., 506 U.S. 56 (1992); Wooley v. City
of Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000). In addition,
our sister circuits have held that the Fourth Amendment applies
when government officials execute a mental health warrant. See
Doby v. DeCrescenzo, 171 F.3d 858, 871 (3d Cir. 1999); Monday v.
Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997); Gooden v. Howard
County, Md., 954 F.2d 960, 968 (4th Cir. 1992). Thus, we apply
Fourth Amendment standards to this case, while observing that,
although it has not been timely argued here, the balance struck in
the criminal context between an individual’s rights and the
government’s law enforcement imperatives may require modification
in the field of mental health activity.1
1
The First Circuit addressed this issue in McCabe v. Life-Line
Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996), which found
a city policy permitting forcible, warrantless entries by police
officers in possession of an involuntary commitment order
reasonable under the Fourth Amendment. 77 F.3d at 547. The court
held that, under the “special need” exception, the State’s
administrative interest in ensuring that mentally ill persons not
harm themselves or others, which would likely be defeated by
requiring officers to obtain a warrant, outweighed the individual’s
6
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.2 Wilson v.
Arkansas, 514 U.S. 927, 934 (1995). As long as police officers do
not use force, they may attempt to gain entry to a dwelling by
deception. Lewis v. United States, 385 U.S. 206, 211-12 (1966).
Thus, the recruitment of Linbrugger’s father to gain entry into the
apartment, if characterized as a subterfuge, did not violate the
Fourth Amendment.3 Nevertheless, the knock-and-announce rule
continues to apply to a later forcible entry. See Richards v.
Wisconsin, 520 U.S. 385, 388, 395 (1997) (finding that, after a
failed entry by deception, the officers’ noncompliance with the
knock-and-announce requirement was reasonable).
Fourth Amendment interests. Id. at 547-53.
Haggard makes a similar “special needs” argument for the
first time in his reply brief; thus, the argument is waived. See
Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002). Linbrugger’s
motion to strike the portion of Haggard’s reply brief addressing a
mental health “special need” exception is granted.
2
Neither party in this case argues that 18 U.S.C. § 3109, the
“knock and announce” statute, applies to the state officers who
executed the warrant.
3
For purposes of this discussion, we assume that the deputies
used Linbrugger’s father to obtain his cooperative submission to
commitment. Labelling this procedure a “ruse” is unfair to the
authorities, however. Family members are often best equipped to
reason with or calm a mentally ill person. Their presence at the
scene of apprehension is on balance desirable, though it may
occasionally enhance the danger of a violent encounter.
7
Even in the criminal law enforcement context, however,
the Supreme Court holds that “[t]he Fourth Amendment’s flexible
requirement of reasonableness should not be read to mandate a rigid
rule of announcement that ignores countervailing law enforcement
interests.” Wilson, 514 U.S. at 934. 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, 520 U.S. at 394. The
reasonableness of the officer’s decision must be evaluated “as of
the time [he] entered the [dwelling].” Id. at 395. Significantly,
“a police officer views the facts through the lens of his police
experience and expertise.” Ornelas v. United States, 517 U.S. 690,
699-700 (1996). Further opining in regard to arrests pursuant to
criminal warrants, this court has not required officers to demon-
strate “particularized knowledge” that a suspect is armed in order
to justify a no-knock entry. United States v. Washington, 340 F.3d
222, 227 (5th Cir. 2003); see also United States v. Howard, 106
F.3d 70, 75 (5th Cir. 1997); United States v. Rodea, 102 F.3d 1401,
1408 (5th Cir. 1996).
Taking Linbrugger’s version of disputed facts as true,
none of the deputies identified themselves before barging through
8
the door to apprehend him.4 There was a knock, but no formal
“announcement” of their identity and purpose. The question is
therefore whether the Constitution was clearly violated by this
failure.
Linbrugger argues that no exception should be made to the
knock-and-announce rule in this case. He was entitled to resist
what he perceived as a possible home invasion. Because Linbrugger
was acting within his rights of self-defense under Texas law,
Deputy Haggard had no legitimate safety concern justifying his
pretermitting an announcement. Further, Linbrugger asserts that
the officers’ safety concerns were “manufactured.” They mismanaged
the situation in arriving at his apartment late at night,
announcing their presence only with two knocks and jumping out of
nowhere at him when he opened the door. Had the officers knocked
and announced, as required by Linbrugger’s view of the
Constitution, he would not have felt compelled to fight.
What this argument overlooks is that the Fourth
Amendment’s reasonableness standard is not violated merely because,
in cool hindsight, it appears that government officials could have
executed a warrant less intrusively. See United States v. Sharpe,
470 U.S. 675, 686-87, 105 S. Ct. 1568, 1575-76 (1985) (“The
4
The district court discerned fact issues regarding whether
Linbrugger was swinging the Club; whether Haggard announced
himself; and whether Haggard “jumped out of nowhere.” Drawing all
inferences in Linbrugger’s favor, Haggard is entitled to qualified
immunity.
9
question is not simply whether some other alternative was
available, but whether the police acted unreasonably in failing to
recognize or to pursue it.”). Reasonableness, to the contrary, is
judged in light of often rapidly unfolding circumstances, viewed
from the officers’ perspective. United States v. Banks, 124 S. Ct.
521, 527 (2003); Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.
1865, 1872 (1989). These consistent principles infuse Fourth
Amendment reasonableness standards in general and those applicable
to the knock-and-announce rule in particular.
Viewing the execution of the mental health warrant from
the officers’ perspective, Haggard and the other deputies knew,
from the affidavit of Linbrugger’s father, that Linbrugger was
attested to be a threat to himself and others. His father had
sworn that, on the same day, Linbrugger threatened to put a bullet
through his sister’s head, and a judicial officer found these
statements sufficient under state law to commit him involuntarily
for psychiatric treatment. Linbrugger’s father accompanied the
officers precisely to defuse his son’s tension. It was reasonable
for the officers to position themselves out of Linbrugger’s
immediate line of sight so that he would focus on his father when
opening his apartment door. They did not anticipate hearing the
sound of a shotgun being primed, as Linbrugger’s father believed
his son had no weapons. But that sound had to change their
approach. Linbrugger does not contend that more than a few seconds
10
elapsed between his father’s knock at the door, his decision to
pretend to cock a gun, and his opening the door with an arm raised,
holding “The Club.”
Under these circumstances, Linbrugger’s self-defense was,
from the officers’ perspective, imminently threatening to them, to
his father and possibly to himself. Only in hindsight can one
argue that, faced with this sudden development, the officers should
have completed a formal knock-and-announce. That they might have
done so is arguable. That they were constitutionally required to
do so is out of the question. They were permitted to respond
reasonably to a reasonably perceived dangerous situation. Forcing
their way into Linbrugger’s apartment was a reasonable tactic.
Linbrugger also asserts that the officers manufactured
the exigency that permits them to claim an exception from the
knock-and-announce rule. He relies on a footnote in one Fifth
Circuit opinion which implies that the concept of manufactured
exigency can apply to the execution of a search warrant. See Cantu
v. United States, 230 F.3d 148, 153 n.1 (5th Cir. 2000). The
principal holding of Cantu is that the police did not act
reasonably when, with no prior knowledge that Cantu or the
occupants of his residence were armed or dangerous, they attempted
to execute a search warrant by means of a forcible burglar-like
entry in the middle of the night. The footnote, however, notes, in
passing, that “manufactured exigent circumstances” do not justify
11
dispensing with the announcement requirement, “especially when the
initial attempt itself is unreasonable.” Id. (citations omitted).
Cantu does not discuss whether “exigent circumstances” create an
exception to the Fourth Amendment’s warrant requirement. Thus,
whether exigent circumstances, or its converse “manufactured
exigent circumstances”, should apply to the manner in which police
undertake a warranted entry is not clear, nor does Cantu broach
that subject. We assume that in the footnote in question, Cantu
simply drew an analogy to cases involving “manufactured exigent
circumstances”. Moreover, when the police have been judicially
warranted to enter a dwelling, the question of reasonableness
surrounds their decision whether to knock and announce. The test
of reasonableness overlaps and subsumes whether they have
manufactured exigent circumstances that unreasonably dispense with
a knock-and-announce; considering exigent circumstances, and its
converse, seems redundant. It is dubious that Cantu stated a rule
binding on this circuit or that the consideration of manufactured
exigent circumstances adds meaningfully to the knock-and-announce
rule.
Nevertheless, we need not finally dispose of such
questions in this opinion, as the factual predicate for
manufactured exigent circumstances does not exist here. The mental
health officers did not attempt to enter Linbrugger’s apartment in
an unreasonable fashion. They did not create an atmosphere
12
calculated to inflame Linbrugger and excuse a forcible entry.
Instead, it is plain that Linbrugger reacted in an unanticipated
manner to their knocks on the door and events escalated from there.
For all these reasons, Deputy Haggard did not participate
in violating any constitutional law, much less clearly established
constitutional law, when he and the other officers failed to
complete their compliance with the knock-and-announce rule.
According to Saucier v. Katz, because “no constitutional right
would have been violated were the allegations established, there is
no necessity for further inquiries concerning qualified immunity.”
533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001).
B. Excessive Force
This court analyzes a claim of excessive force in the
course of a seizure under the Fourth Amendment. Graham v. Connor,
490 U.S. 386, 388 (1989). To prevail on an excessive force claim,
Linbrugger must show “(1) an injury, which (2) resulted directly
and only from the use of force that was clearly excessive to the
need; and the excessiveness of which was (3) objectively
unreasonable.” Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir.
1996). Haggard maintains that the district court erred in denying
his motion for summary judgment on Linbrugger’s excessive force
claim because his use of force was objectively reasonable in the
circumstances. However, the summary judgment record raises several
questions of material fact that preclude this court’s jurisdiction.
13
As was previously explained, the parties disagree strenuously over
Linbrugger’s actual or perceived provocation and resistance and the
extent and proportion of the deputies’ response. That Linbrugger
suffered some injuries, including a cut above his eye and a bruised
throat, is undisputed.
Given these material factual disputes, the court is
unable to determine whether Haggard used excessive force that was
objectively unreasonable when taking Linbrugger into custody. We
lack jurisdiction to consider the genuineness of these factual
disputes on appeal. See Johnson v. Jones, 515 U.S. 304, 313
(1995); Colston, 146 F.3d at 284.
C. State Law Claim
Linbrugger claims that the same conduct comprising the
excessive force claim, specifically choking and punching, also
constitutes assault and battery under Texas law. Haggard seeks
official immunity from this claim as well. Under Texas law,
government officials have “official immunity from suit arising from
the performance of their (1) discretionary duties in (2) good faith
as long as they are (3) acting within the scope of their
authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653
(Tex. 1994). “[O]rders premised on the denial of qualified
immunity under Texas state law are appealable in federal court to
the same extent as district court orders premised on the denial of
federal law immunity.” Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir.
14
1996). Therefore, “[t]he issue then becomes whether the district
court’s denial of [Haggard’s] summary judgment motion[] on the
issue of immunity turned on a question of law . . . .” Id.
(internal quotations omitted). Because genuine issues of material
fact exist regarding whether Linbrugger attempted to strike Haggard
with “The Club,” Haggard’s actions, and the severity of
Linbrugger’s injuries, this court lacks jurisdiction to consider
this portion of the appeal.
IV. CONCLUSION
For the reasons stated above, we REVERSE that portion of
the district court’s order denying summary judgment based on
qualified immunity for the unlawful entry claim and RENDER judgment
in favor of Haggard as to that claim. We DISMISS that portion of
Haggard’s appeal challenging the district court’s order denying his
motion for summary judgment on Linbrugger’s excessive force and
state law assault and battery claims. Because these claims remain
unresolved, we REMAND this case to the district court for further
proceedings. Linbrugger’s motion to strike those portions of
Haggard’s reply brief advancing a “special needs” argument is
GRANTED.
REVERSED and RENDERED in part; DISMISSED in part; case
REMANDED; motion to strike GRANTED.
15
JAY ZAINEY, District Judge, concurring:
I join in the majority opinion as a correct disposition
under the facts specific to this case. I write separately,
however, to express my disagreement with Haggard’s “special needs”
argument. It is my opinion that the Fourth Amendment mandate that
officers knock and announce their identities, absent exigent
circumstances, applies in the field of mental health activity.
Likewise, I disagree with the First Circuit’s decision in McCabe v.
Life-Line Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996),
discussed in footnote one of the opinion, which held that
warrantless, forcible entries by police officers in possession of
an involuntary commitment order were reasonable under the Fourth
Amendment. Therefore, if Haggard had timely raised the special
needs argument, I would have concluded that a per se exception to
the knock and announce requirement in mental health cases does not
comport with the Fourth Amendment reasonableness requirement.
16