Fatima Vangel v. Nicholas Szopko, et al

Filing

OPINION filed: AFFIRMED; decision not for publication. David W. McKeague, Circuit Judge (AUTHORING); Richard Allen Griffin, Circuit Judge and Raymond M. Kethledge, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0633n.06

FILED

Case No. 15-2465
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FATIMA VANGEL,
Plaintiff-Appellee,
v.
NICHOLAS SZOPKO, AARON
FRANCKOWIAK, TIMOTHY WALSH,
JOANNE BEEDLE-PERR, AND
CHRISTOPHER PELLERITO,
Defendants-Appellees,
and
PAT THOMAS, et al.,
Defendants.

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Nov 30, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION

BEFORE: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.
McKEAGUE, Circuit Judge. Defendant Police Officers Nicholas Szopko and Aaron
Franckowiak entered Plaintiff Fatima Vangel’s home to arrest her after they responded to a 911
call from her adult son James saying that she had assaulted him. She sued the Officers alleging
that their warrantless entry violated her Fourth Amendment rights. The district court granted
summary judgment in favor of the Officers holding that exigent circumstances justified their
entry and thus no Fourth Amendment violation occurred. We AFFIRM.
In July 2009, James Vangel left the house he shared with his mother Fatima and called
911. James told the 911 operator that his mother had “just went psycho,” attacked him, and that

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a relative, Ali Chahine, had to pull his mother off him. In response to the 911 operator’s
questioning, James also said that his mother had a gun but that he did not think she would be
violent with the police. He added, however, “Can you please hurry up? I’m scared. I don’t
know what [my mother and Chahine will] do.”
The 911 operator dispatched the Dearborn Heights Police to the scene. She relayed to
Officers Szopko and Franckowiak, via their in-car computer, the following:
19:27:04: MOTHER ATTACKED THE SON
19:27:38: REF RESC. FEMALE IS IN THE HOUSE WITH HER BROTHER IN
LAW.
19:27:48: RIPPED THE CLOTHES, THREW GLASS AT THE CALLER
19:28:21: VANGEL/FATIMA/F 08/21/1958
19:28:33: FEMALE HAS GUN IN HER CLOSET
19:29:11: UNK[NOWN] DRUGS/ALCOHOL
19:29:37: CALLER IS WAITING AT THE CORNER OF ROSS/GULLEY.
19:29:49: FEMALE IS SCREAMING AT THE SUBJ[ECT] FROM THE
HOME.
19:30:55: DOES NOT BELIEVE THEY WILL BE VIOLENT WITH OFC
19:31:16: FEMALE WAS THROWING ROCKS AT THE CALLER
(R. 46-2 Dispatch Log, Pg ID 1157-58).
When Officers Szopko and Franckowiak arrived, they found James standing on a street
corner down the block from his house. James’s shirt was ripped open, and he told the Officers
that his mother had attacked him, scratched him, and thrown a decorative glass ball at him. He
also told the officers that Chahine had to pull his mother off him during the attack. The Officers
say James reiterated to them that Fatima was acting “psycho.” They placed James in their patrol
car and then parked in front of the house.
When the Officers approached the house, the front door was swung open but the glass
storm door was shut. Chahine had exited onto the porch and met the Officers there. The
Officers spoke with Chahine briefly, and James confirmed from the backseat of the police cruiser
that Chahine had not attacked him.
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Everyone outside the house at this point—Chahine, the Officers, and James—agrees that
the Officers could see Fatima in the front hallway through the storm door as they approached.
Chahine and the Officers also say that Fatima retreated towards the back of the house as the
Officers approached the door. Fatima says, however, that she exited a bathroom into the front
hallway just as the Officers were opening the storm door and entering the house. In any event,
the Officers entered the house while Fatima stood in the front hallway and arrested her. She
faced a domestic violence charge and eventually pled no contest.
Fatima later sued Officers Szopko and Franckowiak, as well as several other defendants,
under 42 U.S.C. § 1983 asserting civil rights violations based on this incident and another from
2012.

Her complaint alleged that the Officers violated her Fourth Amendment rights, as

incorporated by the Fourteenth Amendment, during this 2009 arrest. Specifically, she says that
the Officers’ entry was unlawful because they failed to obtain a warrant. See Payton v. New
York, 445 U.S. 573, 576 (1980) (holding that the Fourth Amendment “prohibits the police from
making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine
felony arrest”). Defendants moved for summary judgment based on qualified immunity. The
district court granted the motion as to this 2009 incident because it found exigent circumstances
justified the warrantless entry.
We review a district court’s grant of summary judgment based on qualified immunity de
novo and view the facts in the light most favorable to plaintiff. Davenport v. Causey, 521 F.3d
544, 550 (6th Cir. 2008). “Qualified immunity gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the law.” Chappell v.
City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (quotation marks and citations omitted).

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The doctrine applies irrespective of “whether the official’s error was a mistake of law or a
mistake of fact, or a mistake based on mixed questions of law and fact.” Id.
To overcome qualified immunity, Fatima must make two showings: first, that the
Officers’ conduct violated a constitutional right; second, that the right was clearly established at
the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). We may address
either prong first. Id. at 236. Her failure on either prong ends her case. See Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (“If the law . . . did not clearly establish that the officer’s
conduct would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation.”).

With the clearly-established prong, “[i]t is important to

emphasize that this inquiry must be undertaken in light of the specific context of the case, not as
a broad general proposition.” Id. (quotation marks and citations omitted). A reasonable officer
must “understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987).

So we ask here whether clearly established law showed that exigent

circumstances did not exist in this situation. See id. at 640–41. And Fatima fails to show that the
Officers’ exigency determination, even if mistaken, contradicted clearly established law in this
particularized sense.
The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures. The “physical entry of
the home is the chief evil” the Amendment’s language contemplates. United States v. United
States District Court, 407 U.S. 297, 313 (1972). Thus, it is a “basic principle of Fourth
Amendment law that searches and seizures inside a home without a warrant are presumptively
unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Payton v. New York,
445 U.S. 573, 586 (1980)) (quotation marks omitted).

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But sometimes “the exigencies of the situation make the needs of law enforcement so
compelling” that a warrantless entry “is objectively reasonable under the Fourth Amendment.”
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (quotation marks and citation omitted).
As a general proposition, “the risk of danger to the police or to other persons inside or outside
the dwelling” may make warrantless entry reasonable. Minnesota v. Olson, 495 U.S. 91, 100
(1990) (quoting approvingly this formulation by the Minnesota Supreme Court); see also
Georgia v. Randolph, 547 U.S. 103, 118 (2006) (“[I]t would be silly to suggest that the police
would commit a tort by entering . . . to determine whether violence (or threat of violence) has
just occurred or is about to (or soon will) occur.”). In a specific case, we ask whether the facts
would justify a belief in an objectively reasonable officer that entry into the home was necessary
because of “real immediate and serious consequences that would certainly occur were a police
officer to postpone action to get a warrant.” Ewolski v. City of Brunswick, 287 F.3d 492, 501
(6th Cir. 2002) (quotation marks, alterations, and citations omitted). We look at the totality of
the circumstances viewed from the officers’ perspective at the time the incident occurred. See
United States v. Johnson, 9 F.3d 506, 508 (6th Cir. 1993).
Here, the Officers cite considerations that support a reasonable belief that exigent
circumstances existed. To begin with, they responded to a call potentially fraught with risk: a
domestic disturbance. See United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)
(“Indeed, more officers are killed or injured on domestic violence calls than on any other type of
call.”) (citing Hearings before Senate Judiciary Committee, 1994 WL 530624 (Sept. 13, 1994)
(statement on behalf of National Task Force on Domestic Violence) (F.D.C.H.). Further, the
victim they encountered had sustained visible injuries, described his mother as acting erratically,
and told them that she had access to a gun in her closet. The Officers, like the district court, rely

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on an unpublished case from this circuit to assert that these facts, combined with the observation
that Fatima might retreat into the house, established exigent circumstances. See Lawrence v.
Bloomfield Twp., 313 F. App’x 743, 747 (6th Cir. 2008) (finding exigent circumstances where
officers: (1) responded to a 911 call concerning domestic violence; (2) encountered a bloody
victim; and (3) encountered an individual in the home who responded belligerently and
defensively).
Fatima makes some sensible points in response. An exigency justifying warrantless entry
is less apparent where, as here, the officers have information that the suspect is alone in the
house. Cf. Ewolski, 287 F.3d at 503 (discussing the importance innocent victims inside the
house plays in some exigency determinations). Further, a weapon’s mere presence in a home
does not constitute a sufficiently exigent circumstance to justify warrantless entry. See, e.g.,
United States v. Tatman, 397 F. App’x 152, 163 (6th Cir. 2010) (“The presence of a weapon can
create an exigent circumstance if ‘the government is able to prove they possess information that
the suspect was armed and likely to use a weapon or become violent.’”) (quoting United States v.
Bates, 84 F.3d 790, 795 (6th Cir. 1996) (emphasis added)). Fatima plausibly argues that the
Officers faced a situation less obviously dire than most cases where an exigency exception to the
warrant clause applies.
Still, she has not shown the Officers’ determination that exigent circumstances justified
entry—if a mistake—was an objectively unreasonable mistake under clearly established law.
Like the officers in Lawrence, the Officers here responded to a 911 call about a domestic dispute
and found a victim that appeared to have been attacked. Domestic dispute calls are dangerous, in
part, because emotions run high. And the Officers had reports of violent behavior that raised red
flags about Fatima’s current mental and emotional state. Cf. Thacker v. City of Columbus,

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328 F.3d 244, 254–55 (6th Cir. 2003) (finding plaintiff’s belligerency relevant to exigency
calculation); United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993) (finding “irrational,
agitated, and bizarre” behavior contributed to a finding of exigent circumstances). The Officers
did not need to accept James’s assurance that he did not “think” or “believe” his mother would
be violent with them. Given what they heard about Fatima’s behavior, that she reportedly had a
gun in her closet, and that she could retreat into the house, they acted quickly to prevent her from
potentially gaining access to her gun. That she was the only one in the home lessened the risk of
danger. But only to a point—Fatima could obviously shoot a gun through the storm door at
James or the Officers.
This case implicates an area entitled to the strongest Fourth Amendment protection: the
home. But it also implicates a compelling law-enforcement interest: the prevention of violence.
Even if the Officers erred in balancing these interests, we cannot say that their error was
objectively unreasonable under clearly established law.
We hold that the Officers are entitled to qualified immunity. Thus, we AFFIRM.

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