Peay, et al v. Murphy, et al

Filing 920100928

Opinion

U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT

U n i t e d States Court of Appeals T e n t h Circuit

FILED

S e p t e m b e r 28, 2010

E l i s a b e t h A. Shumaker C l e r k of Court

M I K E PEAY; COLLEEN PEAY; M A T T H E W PEAY; MEGAN PEAY, Plaintiffs-Appellees, v. J O A N N MURPHY; WADE BERRY; R O B RIDING; DAVID SORENSEN; S T E V E N SHAWN CHIPMAN, Defendants-Appellants. N o . 09-4198 ( D . C . No. 2:05-CV-01083-DB) ( D . Utah)

O R D E R AND JUDGMENT * B e f o r e BRISCOE, Chief Judge, McKAY and HARTZ, Circuit Judges.

A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist in the determination o f this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, t h e r e f o r e , ordered submitted without oral argument. Defendants, a group of law enforcement entities and officers from Utah

This order and judgment is not binding precedent, except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1 , 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).

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C o u n t y , Utah, have filed this interlocutory appeal seeking to challenge the district c o u r t ' s denial of summary judgment as to plaintiffs' claim that defendants v i o l a t e d their Fourth Amendment rights during the execution of a search warrant a t plaintiffs' residence. Plaintiffs have moved to dismiss the appeal for lack of i n t e r l o c u t o r y jurisdiction. After reviewing the matter, we agree with plaintiffs t h a t we lack jurisdiction over the issues presented, and we accordingly grant p l a i n t i f f s ' motion and dismiss the appeal. I F a c t u a l background O n December 26, 2003, Wade Berry, a deputy with the Utah County S h e r i f f ' s Office, prepared an affidavit in support of a search warrant for the r e s i d e n c e of Michael Peay and his family, located at 4624 Kestrel Way, Eagle M o u n t a i n , Utah. Berry presented the affidavit to a Utah state district judge who f o u n d probable cause to search the residence for a marijuana grow operation and a u t h o r i z e d a no-knock warrant. A t approximately 11:00 p.m. on January 4, 2004, a group of law e n f o r c e me n t officers, including a S.W.A.T. team, executed the warrant. In doing s o , the officers used a ram to break down a door and aggressively yelled as they e n t e r e d the residence. The officers forcibly removed Mrs. Peay from a couch and p l a c e d her roughly on the floor. Mr. Peay was tackled from behind by the o f f i c e r s , handcuffed, placed in leg restraints, and tasered. He was also allegedly 2

p u n c h e d and kicked on repeated occasions. After Mr. and Mrs. Peay were r e s t r a i n e d , the officers searched the residence but found no evidence of a ma r i j u a n a grow operation. According to the Peays, the officers ransacked the r e s i d e n c e , broke windows, smashed holes in walls, smashed at least two doors, a n d ate some candy and drank a bottle of soda found in one of the bedrooms. The P e a y s also alleged that they lost several pets as a result of the officers' actions, a n d that the officers damaged a dresser, the backyard fence, a water bed, and a rocker/recliner. P r o c e d u r a l background O n December 29, 2005, the Peays filed this action against Utah County, the U t a h County Sheriff's Department, the Utah County Major Crimes Task Force, a n d numerous law enforcement officers involved in the search of their residence. The complaint alleged several claims under 42 U.S.C. § 1983, including claims t h a t the Peays' Fourth Amendment rights were violated because defendants (a) l a c k e d probable cause for the search, (b) executed the search warrant in an i mp r o p e r , unreasonable and excessive manner (the unreasonable execution claim), a n d (c) used excessive force in restraining Mr. and Mrs. Peay. On March 27, 2009, defendants moved for summary judgment, purportedly " o n all of the Plaintiffs' claims." Memorandum in Support of Summary Judgment M o t i o n at 2. The introductory section of the supporting memorandum asserted, in p a r t i c u l a r , that "[w]ith respect to the individual defendants, they [we]re all 3

e n t i t l e d to qualified immunity because their conduct did not violate a clearly e s t a b l i s h e d constitutional right of the Plaintiffs of which a reasonable officer w o u l d have known." Id. The body of the supporting memorandum, however, a d d r e s s e d only the excessive force and lack of probable cause claims. No me n t i o n was made of plaintiffs' unreasonable execution claim. P l a i n t i f f s , in their memorandum in opposition to defendants' summary j u d g me n t motion, noted that defendants' motion failed to address the u n r e a s o n a b l e execution claim: Although Defendants' Memorandum states they are seeking s u mma r y judgment on "all of the Plaintiffs' claims," it fails to a d d r e s s Plaintiffs' Fourth Amendment claim for the unreasonable ma n n e r in which the search warrant was executed. The Fourth A me n d me n t forbids every search that is unreasonable. Ker v. C a l i f o r n i a , 374 U.S. 23, 33 (1963). Destruction of property that is n o t reasonably necessary to effectively execute a search warrant may v i o l a t e the Fourth Amendment. Tarpley v. Greens, 684 F.2d 1, 9 ( D . C . Cir. 1982). The extensive damage to Plaintiffs' real and p e r s o n a l property during the execution of the search warrant is u n c o n t r o v e r t e d . See Plaintiffs' Fact Nos. 25, 26, 27. If Defendants s o me h o w seek summary judgment on this issue, Plaintiffs seek leave o f Court to file an additional response related thereto. P l a i n t i f f s ' Memorandum in Opposition at 10 n.1. Although defendants filed a r e p l y brief in support of their motion for summary judgment, it again failed to me n t i o n the unreasonable execution claim. T h e district court held a hearing on defendants' summary judgment motion o n July 31, 2009. At the outset, the district court asked defense counsel to outline t h e specific claims that were being asserted by plaintiffs. When asked by the 4

d i s t r i c t court whether he agreed with defense counsel's outline of the claims, p l a i n t i f f s ' counsel stated: I agree with everything except they are missing a major element [ b e c a u s e ] . . . they have not included in any of their briefs ­ and they h a v e not responded to my brief ­ the manner in which the search w a r r a n t was executed, meaning breaking windows, breaking ma t e r i a l s . They have never briefed that. That is an issue for all four o f the plaintiffs, so that's a still pending claim. It's a Fourth A me n d me n t claim for unreasonable execution of the search warrant. Hearing Tr. at 6-7. Defense counsel responded that he "did not, quite frankly," r e c o g n i z e that as a separate claim. Id. at 7. Defense counsel made no attempt t h e r e a f t e r to argue that the individual defendants were entitled to qualified i mmu n i t y on the claim. After hearing additional argument from plaintiffs' c o u n s e l regarding the unreasonable execution claim, the district court ultimately ruled: As to the claim for destruction of property to the house, I find t h a t [plaintiffs' counsel] has persuaded me that is an issue. If all of h i s facts are taken as true, the breaking of personal property in the h o u s e , and the breaking of the windows into the camper when they k n e w they had keys they could try, I suppose in taking those in the l i g h t most favorable to the plaintiff at this juncture, which I must, a n d recognizing there will no doubt be actual disputes about what h a p p e n e d inside the house, taking it all in favor of the plaintiff, I will f i n d there is a sufficient case to go to the jury and whether there was e x c e s s i v e force used on the house. I d . at 66. On September 24, 2009, the district court issued a memorandum decision a n d order memorializing its rulings from the summary judgment hearing. App. at

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3 4 . The only mention of the unreasonable execution claim was the following: " c o n c e r n i n g the Peays' claim that the search was unreasonable due to law e n f o r c e me n t ' s destruction of property, the Court denied the defendants' motion . . . ." Id. at 35. O n October 23, 2009, defendants filed a notice of appeal from the district c o u r t ' s September 24, 2009 memorandum decision and order. O n February 11, 2010, approximately three days after receiving a copy of d e f e n d a n t s ' opening appellate brief, plaintiffs moved to dismiss the appeal for l a c k of jurisdiction. II O u r jurisdiction generally extends only to "appeals from . . . final decisions o f the district courts." 28 U.S.C. § 1291. "While a denial of summary judgment i s not the type of order immediately appealable to this court, we do have i n t e r l o c u t o r y jurisdiction over denials of qualified immunity at the summary j u d g me n t stage to the extent that they turn on an issue of law." Zia Trust Co. ex r e l . Causey v. Montoya, 597 F.3d 1150, 1152 (10th Cir. 2010) (internal quotation ma r k s and brackets omitted). In other words, "a district court's denial of a claim o f qualified immunity, to the extent that it turns on an issue of law, is an a p p e a l a b l e `final decision' within the meaning of 28 U.S.C. § 1291 n o t w i t h s t a n d i n g the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 5 1 1 , 530 (1985). 6

G i v e n these jurisdictional principles, the threshold question in resolving p l a i n t i f f s ' motion to dismiss is whether the district court's summary judgment r u l i n g constituted a denial of qualified immunity from plaintiffs' unreasonable e x e c u t i o n claim. After examining the record in this case, we are persuaded the d i s t r i c t court did not address whether defendants were entitled to qualified i mmu n i t y from this claim; indeed, defendants made no cognizable arguments, e i t h e r in their pleadings or at the summary judgment hearing, that would have s q u a r e l y presented that issue to the district court. Instead, the district court d e n i e d summary judgment on the unreasonable execution claim for two basic r e a s o n s : (1) because of defendants' failure to recognize and address the claim in t h e i r summary judgment pleadings and related oral arguments; and (2) because p l a i n t i f f s presented sufficient evidence from which a jury could find in their favor o n that claim. As a result, we conclude the district court's denial of summary j u d g me n t on the unreasonable execution claim is not an appealable final decision u n d e r 28 U.S.C. § 1291, and we therefore lack jurisdiction to entertain d e f e n d a n t s ' appeal. P l a i n t i f f s ' motion to dismiss the appeal for lack of interlocutory j u r i s d i c t i o n is GRANTED and the appeal is DISMISSED. E n t e r e d for the Court M a r y Beck Briscoe C h i e f Judge 7

09-4198, Peay v. Murphy H A R T Z, Circuit Judge, concurring: I am not convinced that we lack jurisdiction to hear this appeal. The d e f e n d a n t s moved for summary judgment on all claims on the ground of qualified i mmu n i t y . The district court granted summary judgment on all but one claim. The defendants now appeal the denial of summary judgment on that claim. The g r o u n d for the denial is irrelevant. Indeed, the defendants could appeal even if t h e district court simply held its decision in abeyance while the case proceeded. See Workman v. Jordan, 958 F.2d 332, 335­36 (10th Cir. 1992). We have j u r i s d i c t i o n to the extent that the defendants raise abstract issues of law in support o f reversal. B u t jurisdiction does not get the defendants very far. We rarely consider an i s s u e on appeal that was not presented to the district court. In this case, the d e f e n d a n t s raised not a single argument in district court in favor of qualified i mmu n i t y on the remaining claim. We should therefore affirm the decision below.