Smith v. Charleston County et al
Filing
135
OPINION AND ORDER: The Court finds that Defendants Lindsay, Jacko, Wean, and Wiedemann are not entitled to qualified immunity for their violations of Plaintiff's Fourth Amendment rights. Accordingly, for the reasons stated above, Defendants motion for summary judgment on the qualified immunity issue (ECF No. 60) and oral motion for qualified immunity are Denied. Signed by Honorable Bruce Howe Hendricks on 8/13/2019. (vdru, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
)
)
Plaintiff, )
)
)
vs.
)
)
JAMES L. JACKO, ZACH LINDSAY,
JOHN WIEDEMANN, and MATTHEW )
)
WEAN, in their respective individual
)
capacities,
)
Defendants. )
______________________________ )
AKILIOU SMITH,
Civil Action No. 2:16-655-BHH
OPINION AND ORDER ON
QUALIFIED IMMUNITY
This matter is before the Court on the issue of qualified immunity. The jury trial in
this case was completed on June 21, 2019. (ECF No. 120.) After the jury was excused,
the Court directed the parties to submit, within seven days, briefs in support of their
positions on qualified immunity. (Id.) Plaintiff Akiliou Smith (“Plaintiff” or “Smith”) filed his
memorandum in opposition to Defendants’ motion for qualified immunity on June 28,
2019. (ECF No. 128). Defendants James L. Jacko (“Jacko”), Zach Lindsay (“Lindsay”),
John
Wiedemann
(“Wiedemann”),
and
Matthew
Wean
(“Wean”)
(collectively
“Defendants”), filed their memorandum in support of qualified immunity on the same day.
(ECF No. 129.) Plaintiff filed a response to Defendants’ memorandum on July 3, 2019.
(ECF No. 130.) The issue is ripe for disposition and the Court now issues the following
ruling.
BACKGROUND AND SUMMARY OF TRIAL EVIDENCE
In this damages action brought pursuant to 42 U.S.C. § 1983, Plaintiff alleged that
1
Defendants violated his rights under the Fourth Amendment to the U.S. Constitution to
be free from the unreasonable search of his home, from the unreasonable seizure of his
person, and from the use of excessive force. It is undisputed that Defendants possessed
neither a warrant nor consent when Defendant Jacko kicked in the door of Plaintiff’s
home, entered along with Defendants Wean and Wiedemann, seized Plaintiff in the
kitchen area, and removed him from the home in handcuffs. The testimonial,
documentary, and electronic evidence at trial established the following facts.
On December 17, 2015, Ms. Angeline Foggy came home to her house on Ghana
Street to find an unknown man sitting on her sofa watching television. By Ms. Foggy’s
description the man was African American, had an afro haircut of approximately one to
two inches in length, was of slim build weighing approximately 150 pounds, stood
approximately five foot five inches (5’5”) tall, had a small amount of facial hair, and was
wearing jeans and a jean jacket. She further estimated that the man was between
twenty-five (25) and thirty (30) years old. Ms. Foggy called 911 and told the man—who
gave his name as “Shawn Freeman”—to leave, which he did, walking directly past her
while she stood on the porch near the doorway on the phone. Ms. Foggy gave her
description of the intruder to the 911 operator and to the Sheriff’s Deputies that
eventually responded to her house. While Ms. Foggy was still on the phone with 911,
now standing inside her doorway, the trespasser returned to her yard in an attempt to
retrieve his belongings, which he had left inside the house in a plastic storage bin and a
backpack. Ms. Foggy told him to leave her yard and he complied without having
retrieved his belongings. More than thirty (30) minutes elapsed between the time Ms.
2
Foggy called 911 and the Sheriff’s Deputies responded to her home. While the Deputies
were responding to the scene, the 911 dispatcher gave a caution over the radio for a
“Deshawn Freeman,” a forty-one (41) year old black male who had a previous conviction
for assault on a police officer. However, the dispatcher clarified that the name “Deshawn
Freeman” was not a perfect match for the name provided by the intruder, “Shawn
Freeman.”
Ms. Foggy informed the Sheriff’s Deputies that her laptop had been moved from
its usual place on her bedside table to the living room. At some point, the Deputies
discovered that the trespasser had gained access to Ms. Foggy’s home by removing an
air conditioning unit from the window. The 911 dispatch call was elevated from a
trespass to a burglary because the Deputies deemed removal of the air conditioner to be
an indication that the suspect may have intended to steal Ms. Foggy’s belongings, such
as her laptop, while inside the home.
At all times relevant to the case, Defendant Lindsay was a Sheriff’s Deputy with
Charleston County and a K-9 handler. On the night in question, Lindsay responded to
Ms. Foggy’s house with his K-9, Zeus, a German shepherd weighing approximately
eighty (80) pounds. Lindsay was wearing green tactical BDU pants, a black shirt, and a
black tactical vest with Velcro patches indicating he was a member of the Sheriff’s Office.
Zeus was also wearing a K-9 vest that had the word “Sheriff” on it. Lindsay testified that
Ms. Foggy told her description of the trespass/burglary suspect to Defendant Jacko first,
then Jacko relayed the information to Lindsay. After giving Zeus time to gain a scent to
track, Lindsay set off into the neighborhood following Zeus who was pulling hard, which
3
showed that Zeus was not merely sniffing around but was following a scent. Zeus turned
onto Kano street, on which Plaintiff’s home is located.
When Zeus neared the end of Plaintiff’s driveway, he lifted his head indicating an
“air scent.” The significance of the air scent meant only that Zeus detected a person in
close vicinity, not that the scent he smelled in the air somehow matched the scent he
had been tracking on the ground. In his trial testimony, Lindsay confirmed that Plaintiff
was on his property for the duration of their interaction, and that Plaintiff did nothing
illegal when Lindsay observed him. Lindsay further testified that when he first saw
Plaintiff, he did not believe Plaintiff was posing a threat to anyone. Lindsay stated that he
saw Plaintiff “lurch behind a vehicle” parked in the driveway, which caused Lindsay to
shine a flashlight on the vehicle. It was dark on the evening in question, and multiple
witnesses testified that the bulb in the street light at the end of the driveway was not
functional.
For his part, Plaintiff disputed that he lunged behind the vehicle in the driveway.
He was outside taking out the trash when someone at the end of the driveway pointed a
flashlight at him and said, “Hey you, come here.” Plaintiff stated that the tone of this
verbal command, the fact that he did not recognize the individual, the fact that the
individual had a large dog with him, and the fact that Plaintiff is “not too fond of dogs,”
caused him to run back into his house. In his report, Lindsay stated that he said, “Show
me your hands,” to Plaintiff in the driveway. Jacko, who was also on scene at the time,
stated that Lindsay said, “Sheriff’s Office, stop.” At trial, Lindsay was not certain what he
said because in high stress situations one often cannot remember exactly what was said.
4
Lindsay and Plaintiff offered conflicting testimony about whether Plaintiff struggled
to enter the house when he ran to the door. Lindsay stated that from his perspective
Plaintiff’s entry was “a little bit abnormal,” that he “jiggled the door handle,” and it
“appeared to be a struggle” for him to get into the house. These conclusions led Lindsay
to have a “gut feeling” that “maybe [Plaintiff] doesn’t know this residence or belong at this
residence.” Lindsay further testified that he “had no clue” if Plaintiff was the suspect from
Ms. Foggy’s house or not, which is why he “showed restraint and did not deploy [his]
dog.” For his part, Plaintiff denied that he had any trouble getting into his own house and
stated that he did not fumble at the door.
The door in question opened directly into the home’s kitchen. When Plaintiff
reentered the house he locked the door, told his mother in law (“Ms. Davis”)—who was
sitting at the kitchen table with Plaintiff’s wife (“Mrs. Smith”) and children—that someone
was chasing him with a dog, and followed her advice to call 911 and report the situation.
The substance of Plaintiff’s 911 call corroborates that he was not initially aware that the
individual in the driveway with a dog was a law enforcement officer. Plaintiff began
relaying Mrs. Smith’s observations of the individuals outside the door to the 911
operator, such as, “They got guns and stuff.” Plaintiff testified that when the Sheriff’s
Deputies ultimately entered the house and he realized they were law enforcement
officers, he was confused, “When they said I needed to go outside, I didn’t even know
why they wanted me outside.”
Defendant Lindsay testified that when he followed Plaintiff and ran up to the door
he heard yelling and screaming from inside the residence before he pounded on the
5
door. He denied using any profanity when trying to gain entry into the home. Ms. Davis
and Mrs. Smith both testified that no one was screaming or yelling in the kitchen until an
unidentified individual began pounding on the door and shouting, “Open the fucking
door.” They stated that the children began crying when the pounding began. Ms. Davis
and Mrs. Smith further testified that when Ms. Davis asked the individuals who they
were, they responded, “This is the fucking police!” Defendants repeatedly denied this
assertion, stating that as Sheriff’s Deputies they would never refer to themselves as “the
police.” Ms. Davis testified that she responded to the Deputies’ demand that she open
the door by saying, “I have my kids in here.” Ms. Davis further testified that one of the
individuals on the other side of the door said, “You have a fugitive in your house,” to
which she responded, “He’s not a fugitive, he’s my son in law.”
Defendant Lindsay was the first Sheriff’s Deputy to attempt to force entry into the
home, but was unsuccessful because he had Zeus with him on the stoop. Defendant
Jacko joined Lindsay at the door and Lindsay told Jacko to kick the door in. After two
unsuccessful front-kicks, Jacko successfully back-kicked the door in, forcing the lock
through the wood of the doorframe. Whereupon Jacko, knocked off balance by his kick,
fell off the stoop, collided with Zeus, was bitten by Zeus, drew his service weapon, then
holstered the weapon when he saw women and children sitting at the kitchen table.
Lindsay stayed outside the home with Zeus while Jacko entered the dwelling,
followed shortly thereafter by Defendants Wean and Wiedemann. Once in the home,
Jacko never asked Ms. Davis, Mrs. Smith, or the children seated at the kitchen table
whether they were safe. When Ms. Davis and Mrs. Smith confronted Jacko about his
6
unauthorized entry into the house, he stated, “We need to speak to him and see him,”
referring to Plaintiff. Jacko acknowledged, in his testimony, that no one in the kitchen
appeared to be in physical danger. Walking through the kitchen, Jacko encountered
Plaintiff in a hallway where the kitchen and living room meet. Asked what conclusions he
drew upon observing Plaintiff up close, Jacko responded, “I didn’t have any immediate
conclusion at that time. I just knew that a man may have forced entry into the home.”
Plaintiff, who is five foot and seven inches (5’7”) in height, and weighed 220 pounds, was
wearing his Atlantic Pest Control uniform, consisting of khaki cargo pants, a green
company polo shirt, and a green company jacket bearing the Atlantic Pest Control
emblem. He was clean shaven due to a company policy that did not allow facial hair, and
his hair was closely cut also due to company requirements. None of the Deputies that
entered the home asked Plaintiff for his name or identification, but simply told him that he
needed to come outside.
Jacko attempted to seize Plaintiff and place him in handcuffs. Plaintiff repeatedly
questioned the Sheriff’s Deputies why he was being detained and why they were
requiring him to leave the dwelling rather than talking to him inside the home. Jacko
initially had trouble getting the handcuffs on Plaintiff, but the extent of Plaintiff’s
resistance was to pull his hand away and put his arms at his sides when Jacko grabbed
his hand. Wean helped Jacko get one of Plaintiff’s hands into the handcuffs. Wiedemann
never touched Plaintiff, but drew his taser and held it at the “low ready” position in order
to gain Plaintiff’s compliance with Jacko’s efforts to handcuff him. At one point,
Wiedemann pointed the taser at Plaintiff and told him that he needed to comply and
7
come outside the home, which Plaintiff ultimately did. Mrs. Smith testified that when she
verbally objected to Defendants’ actions toward her husband, Wiedemann responded,
“Shut up or I’ll tase you too.” Wiedemann denied making any such statement.
Once Plaintiff was standing in his driveway in handcuffs, Deputy Wean drove
around the corner to Ms. Foggy’s house and brought her to Plaintiff’s driveway in order
to identify him as the suspect from the trespass/burglary. Ms. Foggy testified that one of
the Deputies shined a light on Plaintiff, at which point she told them that Plaintiff was not
the trespass/burglary suspect. When asked at trial whether Plaintiff “looked the same” as
the suspect, Ms. Foggy responded, “no.” When asked if Plaintiff even looked close to the
suspect in appearance, Ms. Foggy responded, “no.” Plaintiff testified that from his
vantage point in the driveway he observed Ms. Foggy shake her head inside Defendant
Wean’s Sheriff’s vehicle, but that the Deputies did not take the handcuffs off of him at
that time. Defendants first ran a search on Plaintiff through the National Crime
Information Center to determine whether he had any outstanding warrants prior to
releasing him.
Deputy Brian Moniz (“Moniz”) was working the same squad as the named
Defendants on the evening in question. He responded to Ms. Foggy’s house and
received her description of the suspect. When Lindsay was on the stoop of Plaintiff’s
home and Jacko breached the door, Moniz was about twenty (20) yards away,
maintaining a perimeter in the front yard. Moniz observed Plaintiff when he was removed
from the home and escorted to the driveway in handcuffs. Moniz testified that when
Plaintiff walked out of the door into the porch light he was able to see that Plaintiff was
8
“not close” to the weight given in the description of the trespass/burglary suspect.
At the conclusion of trial, the Court instructed the jury on the law, including the
following charge regarding exigent circumstances:
It is a basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively unreasonable
subject to certain exceptions. The presence of exigent circumstances is
one such exception to the warrant requirement.
In determining whether an exigency existed when the search
commenced, you must determine whether the circumstances would cause
law enforcement officers to form an objectively reasonable belief that an
emergency existed that required immediate entry to render assistance or
prevent harm to persons or property within.
For law enforcement officers to successfully assert the exigent
circumstances doctrine, they must possess a reasonable suspicion that
such circumstances exist at the time of the search or seizure in question.
Exigent circumstances vary from case to case, and a determination of the
issue is of necessity fact-specific. Examples of such exigencies might
include, but are not limited to, risk of danger to law enforcement or to other
persons inside or outside a dwelling. When policemen, firemen, or other
public officers are confronted with evidence which would lead a prudent
and reasonable official to see a need to act to protect life or property, they
are authorized to act on that information, even if ultimately found
erroneous. This version of exigent circumstances is called the “emergency
doctrine.”
For exigent circumstances to have existed to justify the Defendants’
warrantless entry into the home under the emergency doctrine, the
defendants must have had an objectively reasonable belief that an
emergency existed inside the home that required immediate entry to render
assistance or prevent harm to persons or property within. The defendants
bear the burden of demonstrating the existence of such exigent
circumstances. This “emergency exigency” exception to the warrant
requirement justifies entry as part of the service and protective functions of
the police as opposed to their law enforcement functions.
In order for exigent circumstances to justify a warrantless entry of a
home, the conduct of law enforcement preceding the exigency must be
reasonable in the same sense. Therefore, the exigent circumstances
exception applies when law enforcement does not gain entry to the
premises by means of an actual or threatened violation of the Fourth
Amendment. This means that if law enforcement creates the exigency by
engaging in or threatening to engage in conduct that violates the Fourth
Amendment, the forced entry of the home that follows is unconstitutional.
9
After due deliberation, the jury found that Defendants Jacko and Lindsay violated
Plaintiff’s right to be free from unreasonable searches under the Fourth Amendment.
(ECF No. 122 at 1.) The jury further found that Defendants Jacko, Wiedemann, and
Wean violated Plaintiff’s right to be free from unreasonable seizure under the Fourth
Amendment. (Id. at 2.) Thereafter, the Court posed the following special interrogatory to
the jury regarding Defendants Jacko and Lindsay: “Based on what he knew at the time,
did Deputy [Jacko/Lindsay] have an objectively reasonable belief that an emergency
existed that required immediate entry to render assistance or prevent harm to persons or
property within Plaintiff Akiliou Smith’s house?” (ECF No. 122-1 at 1–2.) The jury
responded, “No,” with respect to both Defendants Jacko and Lindsay. (Id.) The Court
posed the following special interrogatory to the jury regarding Defendants Jacko and
Wean: “Based on what he knew at the time that he entered the residence, did Deputy
[Jacko/Wean] have an objectively reasonable belief that he had probable cause to arrest
Plaintiff Akiliou Smith?” (Id.) The jury responded, “No,” with respect to both Defendants
Jacko and Wean. (Id.) Finally, the Court posed a slightly different special interrogatory to
the jury regarding Defendant Wiedemann: “Based on what he knew at the time, did
Deputy John Wiedemann have an objectively reasonable belief that he possessed
probable cause to assist the other Deputies in seizing Plaintiff Akiliou Smith?” (Id. at 2.)
The jury responded, “Yes,” with respect to Defendant Wiedemann. (Id.)
LEGAL STANDARD
The doctrine of qualified immunity protects government officials performing
discretionary functions from civil damage suits so long as the conduct in question does
10
not “violate clearly established rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). If the constitutional right of a § 1983
plaintiff was clearly established at the time of the alleged violation, such that an
objectively reasonable official in the defendant’s position would have known of the right,
that official is not entitled to immunity. See id. Conversely, “If the law at that time was not
clearly established, an official could not reasonably be expected to anticipate subsequent
legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not
previously identified as unlawful.” Id.
The [qualified immunity] doctrine is intended to “balance[ ] two important
interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (quoting Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 172 L.Ed.2d 565 (2009)). It “gives
government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who
knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 5, 134 S. Ct. 3, 187
L.Ed.2d 341 (2013) (internal quotation marks and citation omitted).
Hupp v. Cook, No. 18-1845, 2019 WL 3330443, at *3 (4th Cir. July 25, 2019).
In determining whether qualified immunity applies, the Court must determine: (1)
whether Plaintiff has alleged the deprivation of an actual constitutional right; and, (2)
whether that right was clearly established at the time of the alleged violation. Wilson v.
Layne, 526 U.S. 603, 609 (1999). Moreover, “whether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful official action generally
turns on the ‘objective legal reasonableness’ of the action[,] assessed in light of the legal
rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483
U.S. 635, 639 (1987) (citing Harlow, 457 U.S. at 818–19). “The burden of proof and
11
persuasion with respect to a claim of qualified immunity is on the defendant official.”
Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citing Gomez v. Toledo, 446 U.S.
635, 640–41 (1980)).
The legal determination of whether the right in question was “clearly established,”
depends in substantial part on the level of generality at which the relevant legal rule is
conceived. See Anderson, 483 U.S. at 639. The U.S. Supreme Court has discussed this
question of generality versus particularity in the following manner:
For example, the right to due process of law is quite clearly established by
the Due Process Clause, and thus there is a sense in which any action that
violates that Clause (no matter how unclear it may be that the particular
action is a violation) violates a clearly established right. Much the same
could be said of any other constitutional or statutory violation. But if the test
of “clearly established law” were to be applied at this level of generality, it
would bear no relationship to the “objective legal reasonableness” that is
the touchstone of Harlow. Plaintiffs would be able to convert the rule of
qualified immunity that our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of extremely abstract rights.
Harlow would be transformed from a guarantee of immunity into a rule of
pleading. Such an approach, in sum, would destroy “the balance that our
cases strike between the interests in vindication of citizens’ constitutional
rights and in public officials’ effective performance of their duties,” by
making it impossible for officials “reasonably [to] anticipate when their
conduct may give rise to liability for damages.” Davis, supra, 468 U.S., at
195, 104 S. Ct., at 3019. It should not be surprising, therefore, that our
cases establish that the right the official is alleged to have violated must
have been “clearly established” in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is protected
by qualified immunity unless the very action in question has
previously been held unlawful, see Mitchell, supra, 472 U.S., at 535,
n.12, 105 S. Ct., at 2820, n.12; but it is to say that in the light of preexisting law the unlawfulness must be apparent. See, e.g., Malley,
supra, 475 U.S., at 344–345, 106 S. Ct., at 1097–1098; Mitchell, supra,
472 U.S., at 528, 105 S. Ct., at 2816; Davis, supra, 468 U.S. at 191, 195,
104 S. Ct., at 3017, 3019.
12
Anderson, 483 U.S. at 639–40 (emphasis added). “[G]eneral statements of the law are
not inherently incapable of giving fair and clear warning, and in other instances a general
constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question, even though ‘the very action in question has [not]
previously been held unlawful.’” United States v. Lanier, 520 U.S. 259, 271 (1997)
(quoting Anderson, 483 U.S. at 640).1 Moreover, the Fourth Circuit Court of Appeals has
stated, “the nonexistence of a case holding the defendant’s identical conduct to be
unlawful does not prevent the denial of qualified immunity.” Edwards v. City of
Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (citing Jean v. Collins, 155 F.3d 701, 708
(4th Cir. 1998) (en banc)).
DISCUSSION
The Court notes, and Defendants concede (see ECF No. 129 at 1), that the jury,
through its verdict, has already determined the first prong of the qualified immunity
analysis. Specifically, the jury determined that Defendants Jacko and Lindsay violated
Plaintiff’s right to be free from unreasonable searches under the Fourth Amendment, and
that Defendants Jacko, Wiedemann, and Wean violated Plaintiff’s right to be free from
unreasonable seizure under the Fourth Amendment. (See ECF No. 122.) The remaining
question for the Court’s determination is whether the rights Defendants were found to
have violated were clearly established at the time of the constitutional violations. See
1
In Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court expounded upon the phenomenon of general
statements of law serving as the basis for “clearly established” rights for purposes of qualified immunity
analysis, stating: “Our opinion in Lanier thus makes clear that officials can still be on notice that their
conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly
rejected a requirement that previous cases be ‘fundamentally similar.’ Although earlier cases involving
‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly
established, they are not necessary to such a finding. The same is true of cases with ‘materially similar’
facts.” Id. at 741.
13
Wilson, 526 U.S. at 609.
The presumptive unconstitutionality of law enforcement entering a private home
without a warrant is clearly established. Brigham City v. Stuart, 547 U.S. 398, 403 (2006)
(citing Groh v. Ramirez, 540 U.S. 551, 559 (2004)). “No reasonable officer could claim to
be unaware of the basic rule, well established by [Supreme Court] cases, that, absent
consent
or
exigency,
a
warrantless
search
of
the
home
is
presumptively
unconstitutional.” Groh, 540 U.S. at 564. The Supreme Court has discussed various
exigencies that constitute exceptions to the warrant requirement as follows:
[B]ecause the ultimate touchstone of the Fourth Amendment is
“reasonableness,” the warrant requirement is subject to certain exceptions.
Flippo v. West Virginia, 528 U.S. 11, 13, 120 S. Ct. 7, 145 L.Ed.2d 16
(1999) (per curiam); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.
507, 19 L.Ed.2d 576 (1967). We have held, for example, that law
enforcement officers may make a warrantless entry onto private property to
fight a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509,
98 S. Ct. 1942, 56 L.Ed.2d 486 (1978), to prevent the imminent destruction
of evidence, Ker v. California, 374 U.S. 23, 40, 83 S. Ct. 1623, 10 L.Ed.2d
726 (1963) (plurality opinion), or to engage in “‘hot pursuit’” of a fleeing
suspect, United States v. Santana, 427 U.S. 38, 42, 43, 96 S. Ct. 2406, 49
L.Ed.2d 300 (1976). “[W]arrants are generally required to search a person’s
home or his person unless ‘the exigencies of the situation’ make the needs
of law enforcement so compelling that the warrantless search is objectively
reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S.
385, 393–394, 98 S. Ct. 2408, 57 L.Ed.2d 290 (1978).
One exigency obviating the requirement of a warrant is the need to assist
persons who are seriously injured or threatened with such injury. “‘The
need to protect or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent an exigency or emergency.’” Id., at
392, 98 S. Ct. 2408 (quoting Wayne v. United States, 318 F.2d 205, 212
(C.A.D.C.1963) (Burger, J.)); see also Tyler, supra, at 509, 98 S. Ct. 1942.
Accordingly, law enforcement officers may enter a home without a warrant
to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury. Mincey, supra, at 392, 98 S. Ct. 2408; see
also Georgia v. Randolph, ante, at 118, 126 S. Ct. 1515, 1525, 164 L.Ed.2d
208 (“[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
14
occurred or is about to (or soon will) occur”).
Brigham City, 547 U.S. at 403–04. The exigent circumstance invoked by Defendants in
this case was the “emergency doctrine.” “This particular exigency is expressed as one of
reasonably perceived ‘emergency’ requiring immediate entry as an incident to the
service and protective functions of the police as opposed to, or as a complement to, their
law enforcement functions.” United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992), as
amended (May 21, 1992). In the Fourth Circuit, to successfully invoke this doctrine as an
exception to the warrant requirement “the person making entry must have had an
objectively reasonable belief that an emergency existed that required immediate entry to
render assistance or prevent harm to persons or property within.” Id. (citations omitted).
In the instant case, there was no fire to be fought, there was no risk of destruction
of evidence, and Defendants were not engaged in “hot pursuit” of a fleeing suspect.2 The
Court finds that the evidence at trial did not support an objectively reasonable belief on
the part of Defendants that an emergency existed requiring immediate entry into
Plaintiff’s home to render assistance or prevent harm to persons or property within. Said
another way, no reasonable officer in Defendants’ position and equipped with the same
information possessed by Defendants would conclude that such an emergency existed.
This finding is substantiated by the jury’s verdict on the unreasonable search claim, and
responses to the special interrogatories relevant to that claim. (See ECF Nos. 122 &
122-1.) The Sheriff’s Deputies did not arrive to the neighborhood to investigate Ms.
2
In a pretrial motions hearing, Defendants conceded that the “hot pursuit” doctrine was not applicable to
the facts of the case and confirmed that they were not raising a “hot pursuit” theory to substantiate an
exception to the warrant requirement. (See Defs.’ Resp. in Opp’n to Pl.’s Mot. to Exclude Certain Test. of
Expert Don L. Wieder, ECF No. 103 at 1–2 (“[D]efendants do not claim that they entered the plaintiff’s
residence subject to the ‘hot pursuit’ exception to the warrant requirement.”).)
15
Foggy’s allegations of a trespasser/burglar until more than thirty (30) minutes after she
called 911. During that time, the trespasser/burglar walked directly past Ms. Foggy
standing on the porch of her home without any threat of violence or indication of intent to
destroy property. The trespasser/burglar subsequently returned to Ms. Foggy’s yard
while she was still on the phone with 911 in an effort to retrieve his belongings. He did
not threaten Ms. Foggy in any way during this subsequent interaction, and when Ms.
Foggy told him to leave her yard he complied without having retrieved his belongings
and without further incident. There was no allegation that the suspect from Ms. Foggy’s
home was armed.
Defendant Lindsay’s observations of Plaintiff outside his home were insufficient to
support reasonable suspicion as to the presence of exigent circumstances. Given the
context that Plaintiff’s build, weight, clothing, lack of facial hair, and haircut did not match
the trespass/burglary suspect from the home intrusion at Ms. Foggy’s, any reasonable
official in Defendants’ position would understand that kicking in the door of a private
dwelling without a warrant in order to pursue an individual that had done nothing wrong
and merely retreated from his driveway into the privacy of his home violates the rights
guaranteed by the Fourth Amendment. The discrepancy of seventy (70) pounds between
the suspect’s described weight and Plaintiff’s actual weight would register to a
reasonable officer not simply as the result of an inapt description by Ms. Foggy, but as a
factor tending to exclude Plaintiff from consideration as a suspect. Indeed, the Court is
hard pressed to find any facts other than Plaintiff’s race and gender,3 articulated by
3
An argument can be made that Plaintiff’s height—5’7”—also reasonably matched Ms. Foggy’s description
of the suspect—5’5”—but one can draw opposing conclusions from the nature of this discrepancy—
namely, that it exemplifies reasonable proximity or constitutes identifiable difference with regard to height.
16
Defendants, that could have led them to believe that Plaintiff was the home intrusion
suspect. These facts were clearly not enough to justify warrantless entry into the home. If
a man cannot run from one area of his property into his home without risking a forceful
breach of the door so that police can allay their concern that he might be up to no good,
then the protections of the Fourth Amendment mean little enough.
Moreover, Defendants failed to articulate reasonable suspicion to support the
presence of an emergency justifying warrantless entry to prevent harm to persons or
property. The greater weight of evidence at trial—namely, Ms. Davis and Mrs. Smith’s
testimony—supported the notion that there was no yelling and screaming inside the
house prior to Defendant Lindsay pounding on the door and ordering that it be opened.
But even if one were to adopt Lindsay’s assertion that he heard yelling and screaming
inside the kitchen before he began pounding on the door, it would not constitute
reasonable suspicion of circumstances implicating the emergency doctrine. Warrantless
intrusion into a private dwelling must be justified by a strong government interest in
preserving life and/or preventing serious harm. It is simply insufficient for law
enforcement officers to cite uncertainty about the conditions inside a home as the
evidentiary predicate necessary to substantiate the emergency exception to the warrant
requirement. General appeals to concern for occupants’ safety do not constitute specific,
articulable facts demonstrating the need for assistance or the presence of an imminent
threat of harm. This is to say nothing of the fact that it would be equally reasonable for an
officer in Defendant Lindsay’s position to conclude that any commotion in the kitchen
was the result of a household member unexpectedly running back inside, at night,
17
scared by an individual in the driveway with a large dog who was demanding compliance
with orders. One would need to indulge any number of assumptions to get from the
detection of a commotion inside a dwelling, to the conclusion that emergency assistance
or harm prevention was required. The evidence presented at trial did not bear the weight
of those assumptions.
Furthermore, Defendants’ actual behavior after kicking in the door of Plaintiff’s
home is strikingly incongruous with their invocation of the emergency doctrine. When the
door swung open, Defendant Jacko immediately saw Ms. Davis, Mrs. Smith, and the
children sitting at the kitchen table, yet he never asked them whether they were in
distress or whether Plaintiff was an intruder before barging into the home. In fact, Ms.
Davis and Mrs. Smith were openly objecting to the Deputies’ entry, a fact which
Defendants appear to have completely ignored. When he encountered Plaintiff in the
hallway, Defendant Jacko failed to ask Plaintiff for his name or identification prior to
seizing him, basic investigative procedure which could have immediately eliminated
Plaintiff as a suspect and curtailed the scope of the search. In short, Defendants actions
in breaching the door and entering the home were objectively unreasonable.
Finally, Defendants failed to present sufficient evidence at trial to support probable
cause to arrest Plaintiff once they had unconstitutionally breached the door of his home.
The “general right to be free from an unlawful arrest is of course clearly establishedunder the [F]ourth [A]mendment, police officers must have probable cause before they
arrest a suspect.” Ferguson v. Taylor, 933 F.2d 1001, *2 (4th Cir. 1991). “Probable cause
exists where ‘the facts and circumstances within [the officers’] knowledge and of which
18
they had reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that’ an offense has been or is being committed.”
Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (quoting Carroll v. United States,
267 U.S. 132, 162 (1925)).
“Probable cause is determined by a ‘totality-of-the-circumstances’
approach.” Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017) (citing
Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983)). The inquiry “turns on two factors: ‘the suspect’s conduct as known
to the officer, and the contours of the offense thought to be committed by
that conduct.’” Id. (quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir.
2016)). While [the Court] look[s] to the information available to the officer
on the scene at the time, [it] appl[ies] an objective test to determine
whether a reasonably prudent officer with that information would have
thought that probable cause existed for the arrest. Graham, 831 F.3d at
185. Evidence sufficient to secure a conviction is not required, but probable
cause exists only if there is sufficient evidence on which a reasonable
officer at the time could have believed that probable cause existed for the
arrest. Wong Sun v. United States, 371 U.S. 471, 479, 83 S. Ct. 407, 9
L.Ed.2d 441 (1963).
Hupp v. Cook, No. 18-1845, 2019 WL 3330443, at *4 (4th Cir. July 25, 2019). In the
context of a qualified immunity inquiry, the objective reasonableness standard applies
and the ultimate question is not whether the defendant officers “actually had probable
cause, but only ‘whether a reasonably well-trained officer in [the defendants’] position
would have known’” that he lacked probable cause. Ferguson, 933 F.2d 1001 at *2
(quoting Malley v. Briggs, 475 U.S. 335, 345 (1986)). The Court finds that the answer to
this question is plainly that no reasonable officer would have believed that the facts and
circumstances within Defendants’ knowledge were sufficient to warrant the belief that
Plaintiff had been or was committing a crime. Thus, Defendants Jacko, Wean, and
Wiedemann’s conduct was objectively unreasonable in seizing Plaintiff, using a drawn
19
taser to compel his compliance, pointing a taser at him and indicating an intent to deploy
it if he did not come outside, handcuffing him, and removing him from his home. This
finding is substantiated by the jury’s verdict on the unreasonable seizure claim, and
responses to the special interrogatories relevant to that claim. (See ECF Nos. 122 &
122-1.)4
It should first be noted that the unconstitutionality of the warrantless search that
gave Defendants access to Plaintiff’s home renders any subsequent, warrantless seizure
occurring inside the home unconstitutional in the first instance. But even an independent
analysis of the seizure reveals that a reasonably well-trained officer in Defendant Jacko’s
position would have known that he lacked probable cause to arrest Plaintiff because
Plaintiff’s build, bodyweight, facial hair, haircut, and clothing were all notably different
than Ms. Foggy’s description of the trespass/burglary suspect. Once armed with
knowledge of Plaintiff’s features and appearance, a reasonable officer would have
excluded Plaintiff from consideration as a suspect. Moreover, a reasonable officer would
not have considered Plaintiff’s actions outside the home as sufficient to support the
4
It is of no material import that the jury answered the special interrogatory posed regarding Defendant
Wiedemann in the affirmative, thereby indicating their consensus that he had “an objectively reasonable
belief that he possessed probable cause to assist the other Deputies in seizing [Plaintiff].” (See ECF No.
122-1 at 2 (emphasis added).) The Court posed this interrogatory with slightly different wording than the
correlative interrogatories posed regarding Defendants Jacko and Wean in an attempt to avoid confusing
the jury about Wiedemann’s role in the seizure. Specifically, the Court intended to craft the question in a
manner that reflected the state of the evidence, which was that Jacko and Wean laid hands on Plaintiff and
placed him in handcuffs, while Wiedemann stood nearby with his taser drawn and never touched Plaintiff.
In retrospect, the Court acknowledges that this different wording appears to have created more confusion
than it alleviated. Ultimately, however, the Court’s inartful drafting of one special interrogatory does not
alter the plain fact that Wiedemann’s actions were an integral part of a constellation of Deputy behavior
that compelled Plaintiff’s submission to the handcuffing and unwanted removal from his home. In other
words, Wiedemann’s conduct, as a legal matter, was no less culpable than the other Defendants in
effectuating the unconstitutional arrest. Moreover, it is undisputed that Wiedemann had no additional,
articulable information, above and beyond that possessed by Jacko and Wean, which would alter the
probable cause and objective reasonableness inquiries as to Wiedemann individually. Accordingly, the
Court has analyzed the qualified immunity question uniformly for all three Defendants found liable under
the unreasonable seizure theory.
20
presence of probable cause.5 Mere retreat into one’s own residence, even after having
been hailed by law enforcement, does not render one subject to seizure, however brief.
Defendants Wean and Wiedemann, by their own testimony, had even less information
about Plaintiff’s conduct than Defendants Lindsay and Jacko. Therefore, there is no
viable argument to be made that their actions in seizing Plaintiff were justified when
Jacko’s actions were not. Accordingly, Defendants’ conduct viz a viz the seizure was
objectively unreasonable, and they are not entitled to qualified immunity.
Defendants argue “that there is no precedent—much less a controlling case or
robust consensus of cases—finding a Fourth Amendment violation under the
circumstances encountered by the deputies in this case.” (ECF No. 129 (citing District of
Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018)6.) But this argument misses the
point. It is, no doubt, a rare case indeed where law enforcement officers would kick in the
locked door of a private dwelling without a warrant and against the express wishes of the
5
In their brief, Defendants argue that the Court’s application, after due deliberation, of the probable cause
standard, rather than the reasonable suspicion standard, to the factual scenario presented at trial
demonstrates that the law was not clearly established as to the constitutionality of the seizure in question:
“Defendants submit that the law on which standard applies under these circumstances was not so clearly
established on December 7, 2015, that Defendants could have known that they needed more than
reasonable suspicion and exigent circumstances to detain Plaintiff for eleven minutes before releasing
him.” (See ECF No. 129 at 4–9.) However, the Court notes that its findings with regard to qualified
immunity as to the unreasonable seizure would be the same even if the Court had ruled that the seizure in
question was an investigative detention, requiring reasonable suspicion, instead of an arrest, requiring
probable cause. This is because the trial evidence was devoid of specific, articulable facts to justify the
seizure under any standard. As more fully articulated above, the inferences that a reasonable officer would
draw in light of his experience and the circumstances at issue would tend to exclude Plaintiff from
consideration as the Ghana Street suspect, and would not support the presence of exigent circumstances.
See Terry v. Ohio, 392 U.S. 1, 21 (1968) (“[I]n justifying the particular intrusion the police officer must be
able to point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.”). Accordingly, Defendants’ conduct was objectively unreasonable
under either a reasonable suspicion or a probable cause rubric.
6
In Wesby, the Supreme Court stated: “While there does not have to be a case directly on point, existing
precedent must place the lawfulness of the particular arrest beyond debate. Of course, there can be the
rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear even though existing
precedent does not address similar circumstances. But a body of relevant case law is usually necessary to
clearly establish the answer with respect to probable cause.” 138 S. Ct. at 590 (internal citations and
quotation marks omitted).
21
occupants on the other side of the door. This conduct smacks of Hollywood action
movies more than responsible local policing. It is correspondingly unsurprising, therefore,
that there is apparently no case incorporating these precise facts in finding the absence
of qualified immunity.
In sum, Defendants are not entitled to qualified immunity in the instant case
because their actions with respect to both the search and seizure were not objectively
reasonable. See Harlow, 457 U.S. at 818. The Court finds that Defendants could have
easily anticipated that their conduct would give rise to liability for damages, and that the
shield of qualified immunity is therefore unnecessary to ensure that they, or other law
enforcement officers faced with similar circumstances, are not chilled in the performance
of their duties. See Davis v. Scherer, 468 U.S. 183, 195 (1984). Defendants exercised
their power irresponsibly, and by plain incompetence trammeled Plaintiff’s Fourth
Amendment rights. See Hupp, 2019 WL 3330443, at *3. The applicable law, with respect
to warrantless entry into a private dwelling, exigent circumstances, the emergency
doctrine, and probable cause to arrest, was all clearly established. Therefore,
Defendants’ written motion for summary judgment on the qualified immunity issue (ECF
No. 60) and oral motion for qualified immunity at the close of trial, as more fully briefed in
their memorandum in support of qualified immunity (ECF No. 129), are denied.
CONCLUSION
After careful consideration of the relevant motion, memoranda, responses, and
replies, and in light of the evidence presented at trial, the Court finds that Defendants
Lindsay, Jacko, Wean, and Wiedemann are not entitled to qualified immunity for their
22
violations of Plaintiff’s Fourth Amendment rights. Accordingly, for the reasons stated
above, Defendants’ motion for summary judgment on the qualified immunity issue (ECF
No. 60) and oral motion for qualified immunity are DENIED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
August 13, 2019
Charleston, South Carolina
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