Relying mostly on their version of events, Craig Billings, a Murray County Oklahoma deputy sheriff, and Steve Watkins and Tony Simpson, police officers with the City of Sulphur, Oklahoma police department, appeal from the district court's denial of their motion for summary judgment based on qualified immunity. But the Mascorros have a different version. Because, as the district court concluded, the issues are fact bound, we lack jurisdiction to consider the officers' arguments with respect to all but one claim of error. As the evidence and reasonable inferences regarding that single claim, hot pursuit of a traffic offender, taken in the light most favorable to the Mascorros demonstrates a violation of a clearly established constitutional right, we affirm.
Joshua Burchett is Christina Mascorro's son and Jose Mascorro's stepson. At the time of these events, Joshua was 17 years old. At 11:30 p.m. on July 23, 2007, Billings noticed Joshua was driving without taillights and turned around to pull him over. Joshua did not stop but drove two blocks to his parents' house, ran inside, and hid in the bathroom.
The front door is the only door to the Mascorro house. The Mascorros claim they woke to Billings kicking the door in a rage, swearing, threatening and ordering someone to open it and come outside. Christina testified to the following. She did not at first understand to whom Billings was referring. When Jose opened the door, Billings drew his gun, pointed it at Jose's head and yelled, "On your knees, mother f* * * *r!" (Appellant Billings Appendix at p. 115.) Christina raised her voice to ask Billings to calm down and tell them what he wanted because she could not understand him. Billings answered, "I want the mother F'er driving that car out here now." (Appellants Watkins & Simpson Appendix at 158.) After asking Billings what car he meant, Christina noticed her son's car in the driveway and said "That's my son's car. Oh, my gosh, what did he do?" (Id. at 158). Jose asked Billings if he had a warrant. As Christina started to turn away from the door Billings sprayed her in the face with pepper spray, and then stepped into the house and sprayed her again. Billings then sprayed Jose and Christopher, Christina's 14-year-old son, directly in the face as Christina retreated to the back bedroom to call 911. At some point after she completed her call, Officer Watkins retrieved her from the bedroom and led her outside.
According to Jose's testimony he retreated to the kitchen to try to wash the pepper spray from his face. "[A]s soon as [he] kn[e]w" another officer, later identified as Simpson, entered the kitchen and led him out of the house.
A number of other officers were present at the house when the Mascorros were taken outside. According to Christina's testimony, before Joshua was removed from the home, Billings approached her, pushed her up against a wall, and demanded to know where he was. When one of the officers suggested calling an ambulance Billings said, "No one is calling any ambulance." (Appellants Watkins & Simpson Appendix at p. 259). At some point, she requested an ambulance but Billings responded she did not need one. Nevertheless, an ambulance was called to the scene. Billings arrested Christina and Jose and cuffed them in the ambulance. Other officers escorted them with Christopher to the hospital. The three Mascorros were treated and released from the hospital, at which point officers took Christina and Jose to jail. They were both charged with obstructing a police officer in the performance of his duties and Christina was charged with aggravated assault and battery on a police officer because Billings alleged and subsequently testified that she poked him in the chest when he was standing at the front door before he sprayed her. They were released on bond later the same day. The state court eventually quashed the arrest and dismissed the charges, concluding Billings had entered the house illegally because no exigent circumstances justified his warrantless entry.
The Mascorros brought this action against Billings, Watkins and Simpson
The officers contend the district court erred in denying them qualified immunity
As to the Mascorros' unlawful entry claim, however, the officers argue their entry into the home was justified by probable cause to arrest Joshua for a traffic offense coupled with the exigent circumstances necessarily attending the pursuit of a fleeing suspect.
To defeat the officers' claim of qualified immunity, the Mascorros must show (1) the officers violated their constitutional or statutory rights, and (2) the violated rights were clearly established at the time of the events in question. Shroff v. Spellman, 604 F.3d 1179, 1188 (10th Cir.2010). We have discretion to determine which prong of the immunity defense to address first, in light of the circumstances of the case at hand, and may resolve the question by finding either requirement is not met. Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir.2009) (citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009)).
"It is a basic principle of Fourth Amendment law that searches and
The officers justify their warrantless entry into the Mascorro home by probable cause to arrest Joshua coupled with an exigent circumstance — pursuit of a fleeing suspect.
In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the Supreme Court concluded the exigent
Four years later the Court again addressed the issue of a warrantless arrest in a home. In Payton v. New York, it reiterated the requirement for police to have either a warrant or an ability to articulate exigent circumstances in order to enter a home even where circumstances would otherwise permit a warrantless arrest for a felony. 445 U.S. at 590, 100 S.Ct. 1371. That is so because "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id.
Again addressing the question of warrantless entry, in Welsh v. Wisconsin, the Supreme Court noted "the Court in [Payton] explicitly refused to consider the sort of emergency or dangerous situation, described in our cases as `exigent circumstances,' that would justify a warrantless entry into a home for the purpose of either arrest or search." 466 U.S. at 742, 104 S.Ct. 2091 (quotation omitted). Officers arrested Welsh in his home for a drunk driving offense after he left his vehicle at the scene of an accident. Id. at 740, 104 S.Ct. 2091. The underlying exigency in Welsh was not pursuit, but preservation of evidence based on the need to collect blood and breath samples before alcohol dissipated from Welsh's system. Id. at 753, 104 S.Ct. 2091. The Court decided the officers violated the Fourth Amendment by entering Welsh's home at night without a warrant to arrest him for a noncriminal traffic offense.
Immediately after Welsh, we decided Bledsoe v. Garcia, 742 F.2d 1237, 1241 (10th Cir.1984). In Bledsoe, officers had probable cause to arrest for the misdemeanor violation of absence without leave from military duty (A.W.O.L.) and permitted the arrestee to reenter his parents' home to tell his mother he was going to jail. Id. at 1238. Officers heard the residents of the house react with profanity and yelling as someone told the arrestee he was "not going anywhere with that son-of-a-bitch." Id. Bledsoe's mother came to the door and told the officers they "were not coming in." Id. The officers nevertheless entered the home in pursuit of the arrestee, who escaped. Id. We held the occupants' disturbing reaction, coupled with resistance to the officers' efforts and the possibility of flight, justified the warrantless entry. Id. at 1241. Acknowledging the requirement imposed by Welsh, we characterized the A.W.O.L. violation as a "serious offense" pointing out it was a misdemeanor "just below the general definition of a felony" and held it was not error for the district court to fail to instruct the jury on exigent circumstances where "undisputed evidence" showed exigent circumstances existed. Id. ("Nevertheless, giving consideration to the gravity of the A.W.O.L. offense as we must in evaluating the exigency of the circumstances and the circumstances as a whole, we hold that the exception of exigent circumstances applied here.") (citation omitted).
We do not find the circumstances here amount to the kind of exigency excusing an officer from obtaining a warrant before entering a home. The intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted,
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (citations omitted). "It 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. at 199, 125 S.Ct. 596 (quotation omitted). We do not view the relevant precedent "cast at a high level of generality" but look for "clear law (clear answers) that would apply to the situation at hand."
The constitutional right was clearly established for purposes of qualified immunity if it would have been clear to a reasonable officer at the time the officers entered the Mascorro house that their entry was unlawful under the circumstances presented. Fogarty v. Gallegos, 523 F.3d 1147, 1155 (10th Cir.2008). For a right to be clearly established there must be Tenth Circuit or Supreme Court precedent close enough on point to make the unlawfulness of the officers' actions apparent. Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010). In the alternative, "the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Id. (quotations omitted).
Relevant precedent clearly prohibits police from routinely entering a person's home to effectuate a warrantless arrest (even if the officers have probable cause to believe the person committed a felony), see Payton, 445 U.S. at 576, 100 S.Ct. 1371, and a minor offense does not permit warrantless entry into the home except in the most extraordinary of circumstances.
While hot pursuit of a felon might be sufficient, neither the Supreme Court nor this Court
We do not rely on generalities in our application of the "clearly established" standard here. The specific and identifiable facts of the relevant cases make clear the sort of exigent circumstances permitting officers to enter a suspect's home without a warrant in pursuit of the suspect — they must involve a serious offense coupled with the existence of an immediate and pressing concern such as destruction of evidence, officer or public safety, or the possibility of imminent escape. These officers do not even argue such concerns were present or that the traffic violation for which Billings had probable cause to arrest Joshua constituted a serious offense. No reasonable officer would have thought pursuit of a minor for a mere misdemeanor
Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996) (quoting Fundiller v. City of Cooper City, 777 F.2d 1436, 1441-42 (11th Cir. 1985)). The district court concluded there was a question of fact regarding the timing of the officers' arrival, which calls into question whether, in fact, they had the opportunity to intervene at some point during the spraying and whether their subsequent acts were reasonable even if they lacked the opportunity to prevent the use of the pepper spray in the first instance.
Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir.2008) (citations and quotations omitted).
Aquino, 836 F.2d at 1271 (discussing Santana as "hot pursuit of a fleeing felon") (citation and quotation omitted). Billings claims his prior drug-related contact with Joshua led him to believe Joshua might have drugs concealed on his person but he offers nothing approaching probable cause to arrest Joshua for any drug crime. In any event, the district court found there was no basis for entry based on any imminent destruction of evidence and we will not consider the argument based on Billings' version of the facts.