Qualified immunity denied for unlawful entry to home in search for murder suspect


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In 2018, the Shreveport Police Department (SPD) received a tip that a murder suspect, Christian Combs, was hiding at either 1906 State Street or 1913 State Street in Shreveport, Louisiana. The arrest warrant identified Combs as a 33 year-old Black man. Multiple SPD officers, including Defendants John Lee and Derek Barker, met to develop a plan to search the two houses. The officers first searched the 1906 State Street home, but they did not find Combs there. The officers then proceeded to 1913 State Street, the home of Plaintiff Juanita Smith. Barker claims that he, Officer Eli Travis, and one of the detectives went to Smith’s front door. One of them knocked, and Smith answered. They explained they were looking for Combs when Smith answered the door. Smith told them she did not know Combs.

At this point, Plaintiffs’ and Defendants’ stories diverge. The officers asked Smith if anyone else was inside the home, and Smith responded no. However, Smith claims she thought they were only asking if Combs was inside. Another officer, Leo Fartaczek, testified that he was at the front of the house with Barker and asked Smith for consent to enter her home. However, in his police report, Fartaczek stated he “took position in the rear of the residence. Canine Officer Lee was in the rear with me while Barker made contact with the homeowner, Juanita Smith at the front door.” Smith denies that any officer asked her for permission to enter her home. Barker claims he asked Smith to step outside of her home and that she agreed, but Smith claims Barker stepped inside her house to prevent her from going back in. No video or audio exists to confirm or refute what was said or done during this encounter at the front door. Smith ultimately walked out of her house and into her driveway.

During this encounter, Lee, a canine officer, was stationed at the back of the house. He was then called to the front of the house. According to Barker, the two of them switched places and Barker took up a position at the rear of the house. Lee claims that on his way to the front of the house, Barker told him they were “good to go.” Lee also claims he asked Smith if anyone else was inside the house before entering.

Lee contends that he went to the front door and gave three loud warnings telling anyone inside that a police canine was present and they should come out and identify themselves. During the third warning, he says he warned the dog would enter and bite. Smith said she did not hear any warnings before Lee entered the house. But it is undisputed that Lee entered Smith’s home and gave his canine, Dice, the instruction to bite whomever he encountered inside the house. After entering, Dice found Plaintiff Floyd Stewart. According to Lee, he lost sight of Dice when the dog entered the room Stewart was in. Stewart is a Black man who was 78 years old at the time. He was sleeping when he heard noise outside and put his shoes on. When he was leaving the bedroom, Dice bit him.

According to Stewart, he could see an officer standing in the hall when Dice first bit him. Lee says that when he heard Dice engage with someone, he proceeded toward the sound, recognized that the person Dice was biting was not Combs, and immediately got Dice to release the bite. According to Stewart, Dice bit him multiple times. He pushed the dog off once, but the dog came back to bite him again. Meanwhile, Stewart claims Lee stood by while Dice was biting him and did not immediately command Dice to stop the attack. Stewart claims the incident lasted at least a minute before Lee commanded Dice to release the bite. As a result of the attack, Stewart sustained puncture wounds and lacerations to his left thumb, left calf, and left thigh.

Lee had a body camera, and he thought he activated it before he entered Smith’s home. He said it is department policy for canine officers to activate their body cameras once they get their canines out. However, it was switched on only after Dice bit Stewart. In the footage after the search, Lee asks two of the detectives if they talked to Smith at the door. One of the detectives responds that it was Barker who spoke to her. Lee then asks Barker if he “asked” Smith. Barker responds that he did not, and he does not know if anyone did. At this point, it sounds like Lee responds, “I should have asked her.” However, in his deposition, Lee claims he actually said, “he [Barker] should have asked her.” Lee maintained that he asked Smith if anyone else was inside before entering.

Plaintiffs sued Lee and Barker alleging federal claims of unlawful entry and excessive force. Defendants moved for summary judgment asserting qualified immunity. The district court denied the motion. The 5th affirmed and denied qualified immunity as to the unlawful entry but reversed and granted qualified immunity as to the excessive force.


A. Unlawful entry

A1. Constitutional violation

A warrantless intrusion into a person’s home is presumptively unreasonable unless the person consents or unless probable cause and exigent circumstances justify the intrusion. See Gates. There are two forms of consent: explicit and implicit. Implicit consent can be inferred from silence or failure to object to a search only if that silence follows a request for consent. See Staggers. Implicit consent based on silence or failure to object must follow a police officer’s explicit or implicit request for consent. See Escamilla. It is well established that a defendant’s mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent. Without more, silence or passivity cannot form the basis for consent to enter. See Roe.

Defendants claim the district court only identified a factual dispute over whether the officers explicitly requested permission to enter the home. However, the district court identified a broader factual dispute. Namely, whether the officers made a request, explicit or implicit, for permission to enter Smith’s home.

If the officers at the front door did not request permission to enter Smith’s home either implicitly or explicitly, then they could not reasonably believe that Smith’s silence or acquiescence gave them permission to enter. At most, they asked if anyone else was inside the home, but that does not amount to an express or implied request to enter her home. Without such a request, Smith’s silence cannot amount to consent for Barker to enter her home. Accepting Smith’s version of the facts as true, she has sufficiently alleged that Barker violated her Fourth Amendment rights.

Turning next to Smith’s unlawful entry claim against Lee, Defendants argue that it should have been obvious to any person in Ms. Smith’s situation that Cpl. Lee intended to enter her home with a canine, and at no time did Ms. Smith voice any objections or tell any officer on scene that they could not enter her home. Again, if the officers did not request permission to enter Smith’s home either implicitly or explicitly, then they could not reasonably believe that Smith’s silence or acquiescence gave them permission to enter.

According to Smith, the officers asked her if anyone else was inside her home. Barker then stepped into her house to block her from going back inside. She was then told to leave her house and stand in her driveway. The house was surrounded by other officers. There is a genuine factual dispute over whether Lee asked Smith if anyone else was inside her home before entering, so we assume that he did not ask. At this point, Lee went to the front door, entered Smith’s home, and released Dice in the house. As Smith stated, she did not feel she was in a position to object. It was like the police were going to do whatever they wanted regardless of what she had to say. Accepting Plaintiffs’ version of the facts as true, the officers never directed any express or implied request at Smith to enter her home. Without such a request, Smith’s acquiescence cannot amount to consent.

However, there is a crucial fact issue with respect to Lee that the district court did not directly address. Namely, whether Lee reasonably believed the other officers asked for consent before entering Smith’s house. Again, Lee was stationed at the back of the house while the other officers spoke with Smith at her front door. According to Lee, Barker told him they were “good to go” when they traded places, which he understood to mean that the other officers had acquired Smith’s consent. Defendants claim Lee reasonably relied on this statement, so his search of Smith’s residence was not a constitutional violation. Barker’s alleged statement is material because Lee is entitled to reasonably rely on information provided to him by other officers.

While it may have been reasonable in this context for Lee to rely on Barker’s “good to go” statement as communicating that the officers had gained consent, there is a genuine factual dispute as to whether this statement was made. Lee claims Barker would not have told him they were good to go if he did not have Smith’s consent. But Barker admitted at the time of his deposition that he did not ask for consent and did not recall if any other officer had. Accepting Plaintiffs’ version of the facts as true, Lee entered Smith’s home without implicitly or explicitly requesting Smith’s consent to enter and without any basis to believe that any other officer had acquired Smith’s consent to enter. Accordingly, Smith has sufficiently alleged that Lee violated her Fourth Amendment rights.

A2. Clearly established

It is well established that a defendant’s mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent. See Roe. Accepting Plaintiffs’ version of the facts as true, the officers did not implicitly or explicitly request permission to enter, but Barker and Lee entered her home anyway. Every reasonable officer would know they cannot enter a house based on the occupant’s silence without first making an implicit or explicit request to enter. Lee and Barker are not entitled to qualified immunity from Smith’s unlawful entry claims at this stage.

B. Excessive force against Stewart

The district court found that Stewart had alleged a constitutional violation after applying the Graham {see SCOTUS Graham v. Connor, 490 U.S. 386 (1989)} factors to Stewart. It concluded that an officer cannot commit an unauthorized entry into a private residence and then release a police dog on whomever happens to be inside. There are two problems with this analysis. First, while Stewart was not suspected of any crime and posed no threat to others, he is not the proper subject of the Graham inquiry because he is not the suspect the officers were looking for. In this scenario, the factors should be applied to Combs. Second, Stewart’s excessive force claim is separate and distinct from Smith’s unlawful entry claim, so we analyze the use of force without regard to the lawfulness of Lee’s entry.

Applying the first Graham factor (severity of crime) to Combs, he was wanted for second degree murder—undoubtedly one of the most severe offenses. As to the second factor (immediate threat), the arrest warrant alleged that Combs shot and killed another man, so the officers had reason to believe he was dangerous. One officer claimed that the person who provided the tip on Combs’ whereabouts also stated that Combs was armed. Lastly, the officers believed that Combs was hiding at the time. Given the apparent danger of this suspect and situation, Lee’s decision to deploy Dice with the command to bite and hold the first person he found inside the house was reasonable.

In the alternative, Stewart argues that the duration of the dog bite was objectively unreasonable. Stewart, however, has not raised a genuine, material fact issue that the law was so clear that no reasonable officer facing a similar situation would have acted as did Officer Lee.

According to Stewart, he heard some commotion outside and got up from his bed. He walked toward the bedroom door and met Dice, who started to bite him on his leg. At this point, Lee was not in the bedroom, but was at the nearby hallway door to the living room. It is undisputed that Dice started biting Stewart outside of Lee’s line of sight. Dice bit Stewart on the lower leg; Stewart pushed him off; Dice then bit Stewart on the hand; Stewart kicked him off; Dice finally bit Stewart on the thigh. Only then did Lee appear in the bedroom doorway. Stewart yelled three or four times “get your dog off,” and within three seconds, Lee released Dice. Lee’s testimony adds that Dice did not respond to his initial verbal command, but let go after Lee grabbed Dice’s collar while still giving the command. When pressed at his deposition to state how long the dog was biting him, Stewart responded, “I couldn’t say.” Later, in his sworn declaration, Stewart stated that he believed Dice was biting him for “at least a minute.”

This train of events distinguishes Cooper, the only binding precedent cited by Stewart. In Cooper, we held that subjecting a compliant and non-threatening arrestee (DUI) to a lengthy dog attack was objectively unreasonable.

For several reasons, Cooper does not squarely govern the specific facts at issue in this case. First, this is not a case where the officer is accused of siccing a police dog on an unarmed and compliant suspect. As discussed above, Lee was on the hunt for a murderer, not a drunk driver. Second, unlike the officer in Cooper, Lee did not see the initial bite. Rather, he sent Dice into the house and heard the dog encounter someone, whom he fully expected to be the murder suspect. Third, Dice was biting Stewart for some amount of time before Lee appeared in the bedroom doorway. In contrast, the officer in Cooper was present for the complete duration of the bite. Fourth, Lee released Dice before handcuffing Stewart. Finally, Lee did not order an already- compliant, unarmed suspect to further prostrate himself while being bitten. In fact, the only commands given were from Stewart to Lee to “get your dog off,” which Lee did a few seconds later.

In sum, no precedent establishes under analogous circumstances how long a bite is too long. Thus, a jury could not find that every reasonable officer would have known that a K9-trained dog had to be released more quickly. Even if Officer Lee mistakenly permitted Dice to bite Stewart for a minute, qualified immunity shields him from suit as well as liability.