Qualified immunity denied after fraudulent search warrant leads to death of homeowner

Note: The 5th segregated Lt. Todd’s appeal from the rest of this case. To see how the 5th decided this matter against Lt. Todd, please click here.


(If you are new to §1983 actions, click here for help)

Patricia Garcia called the police department, claiming that the residents in 7815 Harding Street were involved in selling heroin and possessed various firearms, including machine guns. Dennis Tuttle owned that home, and lived there with Nicholas, his wife. Police officers investigated the home, observed no criminal activity, and forwarded their notes to Lieutenant Marsha Todd, a member of the department’s narcotics division and responsible in part for assigning cases to other narcotics officers.

Todd relayed the information concerning Harding Street to Officer Gerald Goines, an officer in narcotics division Squad 15. Goines then took a series of actions to fraudulently obtain a search warrant for the residence at issue. First, Goines executed an affidavit swearing that a confidential informant told him that the informant purchased heroin from the residence and observed firearms within the home. Based on the affidavit, Goines then applied for and received a no-knock search warrant from a municipal judge.

It turned out that the testimony contained in Goines’s affidavit was false. Goines later admitted that he had not paid any confidential informant to purchase drugs from the Harding Street home. He maintains that he purchased the heroin and witnessed the firearms himself, but Plaintiffs deny that allegation. In any event, Goines and Officer Steven Bryant organized Squad 15 officers to execute the search warrant.

These are Eric Sepolio, Manuel Salazar, Felipe Gallegos, Thomas Wood, Oscar Pardo, Frank Medina, Clemente Reyna, Cedell Lovings, and Nadeem Ashraft. The events that followed are highly contested. Plaintiffs allege that officers fired without provocation, shooting and killing a dog owned by Tuttle and Nicholas. Plaintiffs further allege that officers, both inside the home and outside of it, began firing their weapons after the initial shot was fired. And they allege that all the officers mentioned above were on the scene and involved in executing the warrant. Nor do any of those officers deny being present and participating. Any firing done by Tuttle, Plaintiffs contend, was done purely in defense of himself and his wife. As a result of the gunfire, Tuttle and Nicholas were killed and four officers seriously injured.

Also at issue is Lieutenant Robert Gonzales, the supervisor of Squad 15. Plaintiffs contend that Gonzales was aware that Goines regularly violated City policy relating to confidential informants and regularly lied in order to obtain no-knock search warrants. And they assert that Gonzales knew that Goines had not actually investigated the Harding Street home.

Plaintiffs brought multiple claims against various defendants pursuant to 42 U.S.C. § 1983. As relevant here, they asserted that the officers used excessive force in executing the search warrant and that the officers failed to intervene. As against Gonzales, plaintiffs asserted that Lieutenant Gonzales is directly liable for excessive-force and search-and-seizure, and liable on a failure to supervise theory.

Several of the officers moved to dismiss, asserting qualified immunity. The district court denied summary judgement for excessive force, failure to intervene, direct liability against Lt. Gonzales, and failure to supervise as to Lt. Gonzales. The 5th affirmed as to excessive force and failure to supervise but reversed the district court and dismissed claims based on failure to intervene and direct liability. (Lt. Todd’s case is part of a separate appeal and not discussed below.)


A. Non supervisors – excessive force

We first consider the claims asserted against the officers who did not have a role in supervising other officers. That is, the claims asserted against Sepolio, Salazar, Gallegos, Wood, Pardo, Medina, Reyna, Lovings, and Ashraft. As to those officers, Plaintiffs asserted claims for excessive force and unlawful search-and-seizure.

The district court denied the officers’ motions to dismiss Plaintiffs’ excessive-force claims. To state such a claim, a plaintiff must establish that he was injured as a result of force that was clearly excessive to the need as well as objectively unreasonable in light of the relevant circumstances. See Jackson.

Plaintiffs’ allegations state an excessive-force claim that overcomes qualified immunity. Accepting Plaintiffs’ version of events as true, the officers fired upon Tuttle and Nicholas without provocation. Taken together, the facts alleged are sufficient at the pleading stage. The officers deny that they shot first, as is their right. But such a denial does not override our obligation to accept the well-pleaded facts. We find no error in the district court’s denial of the motions to dismiss these claims.

B. Non supervisors – failure to intervene

The district court denied the officers’ motions to dismiss Plaintiffs’ claims for excessive force and unlawful search-and-seizure based on a failure-to-intervene theory. Such a theory requires a plaintiff to show that an officer was present while another officer violated someone’s constitutional right, was aware of the violation, and had a clear opportunity to intervene but failed to do so. See Bartlett.

With respect to the excessive-force claims, even viewing the allegations in Plaintiffs’ favor, we must conclude that they fail to show that the officers had a sufficient opportunity to intervene while the firefight was in progress. And supposing that the facts as pleaded demonstrate such an opportunity, they certainly do not show a clearly established right to intervention. The same is true with respect to the search-and-seizure claims. The facts as alleged do not show that the officers were involved in obtaining the search warrant or otherwise knew the warrant was obtained fraudulently. It therefore follows that they had no opportunity to intervene and prevent the unlawful search. We thus hold that the district court erred in allowing these claims to proceed. The claims will be dismissed with prejudice because they are futile.

C. Lt. Gonzales – Direct liability

The district court denied Gonzales’s motion to dismiss the excessive force and search-and-seizure claims based on direct liability. We conclude that this was error because Gonzales was not personally involved in obtaining the search warrant or in effectuating the search. Personal involvement is an essential element of demonstrating liability under § 1983. See Delaughter. The facts show that Gonzales had no direct role in the allegedly unlawful activity at issue here. This claim should have been dismissed as a matter of law.

D. Lt. Gonzales – Failure to supervise

The district court denied Gonzales’s motion to dismiss the excessive force and search-and-seizure claims based on a failure-to-supervise theory. A supervisory official may be held liable under section 1983 for the wrongful acts of a subordinate when the supervisory official breaches a duty imposed by state or local law, and this breach causes plaintiff’s constitutional injury.

We have understood this inquiry to contain three elements: (1) that the supervisor failed to train or supervise the subordinate; (2) a causal link between the failure to train or supervise and the constitutional violation; and (3) that the failure to train or supervise amounts to deliberate indifference. See Roberts.

The threshold for pleading a failure-to-supervise claim is high, but we conclude that it is satisfied here. Plaintiffs allege multiple specific instances in which Goines fraudulently obtained a search warrant and in which violence occurred. They further allege that Gonzales—in his capacity as Goines’s supervisor—knew about these infractions, but did nothing to correct them. As such, these allegations present the uncommon case where deliberate indifference may be attributed to an officer’s supervisor. The facts alleged also support the inference that Gonzales failed to supervise Goines, and that a causal link exists between his failure to supervise and the actions that ultimately occurred. The district court did not err in allowing this claim to proceed.