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Woodward v. City of Tucson

United States Court of Appeals, Ninth Circuit

September 15, 2017

Irma Woodward, a single woman, individually, as Statutory Wrongful Death trustee of Michael Duncklee and personal representative of Estate of Michael Duncklee, Plaintiff-Appellee,
v.
City of Tucson, a political subdivision of the state of Arizona; Robert Soeder, an individual; and Allan Meyer, an individual, Defendants-Appellants.

          Argued and Submitted July 13, 2017 San Francisco, California

         Appeal from the United States District Court No. 4:15-cv-00077-RM for the District of Arizona Rosemary Marquez, District Judge, Presiding

          Michael W.L. McCrory (argued), Principal Assistant City Attorney; Michael G. Rankin, City Attorney; City Attorney's Office, Tucson, Arizona; for Defendants-Appellants.

          Matthew F. Schmidt (argued) and Ted A. Schmidt, Kinerk Schmidt & Sethi PLLC, Tucson, Arizona; Scott E. Boehm, Law Office of Scott E. Boehm PC, Phoenix, Arizona; for Plaintiff-Appellee.

          Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and Eduardo C. Robreno, [*] District Judge.

         SUMMARY [**]

         Qualified Immunity

         The panel reversed the district court's denial of qualified immunity to defendant Tucson police officers from plaintiff's claims under 42 U.S.C. § 1983 for unconstitutional seizures and use of excessive force.

         Plaintiff's claims stemmed from the officers' warrantless entry into a vacant apartment and use of deadly force on Michael Duncklee, who aggressively attacked them while growling and brandishing a broken hockey stick inside the apartment. Plaintiff is the representative of the Estate of Michael Duncklee.

         The panel held that plaintiff had standing to assert Fourth Amendment violations as to Duncklee's seizure and the use of force against him. The panel also held, however, that plaintiff lacked standing to assert a Fourth Amendment violation for the warrantless entry and seizure of the vacant apartment. The panel held that the district court appeared to erroneously view the case through a landlord/tenant lens. Although plaintiff described Duncklee as an overnight guest of Amber Watts, the former tenant who was in the apartment with Duncklee, the panel held that Watts had no privacy rights to assign to Duncklee because she had been formally evicted and Watts was aware of this eviction.

         Addressing qualified immunity regarding the seizure of the apartment, the panel held that because Duncklee had no reasonable expectation of privacy in the apartment, plaintiff could not establish that the officers violated Duncklee's Fourth Amendment rights by entering the apartment without a warrant. The panel concluded that the district court erred in denying qualified immunity regarding this claim.

         Addressing qualified immunity regarding the seizure of and use of force on Duncklee, the panel held that reasonable officers in the defendant officers' positions would not have known that shooting Duncklee violated a clearly established right; and that the use of deadly force could be acceptable in such a situation. The panel concluded that the district court erred in denying defendants qualified immunity regarding this claim.

          OPINION

          ROBRENO, District Judge.

         This interlocutory appeal arises from the district court's denial of qualified immunity for Tucson police officers Allan Meyer and Robert Soeder ("Defendants") from Plaintiff's claims under 42 U.S.C. § 1983 for unconstitutional seizures and use of excessive force. The claims stem from the officers' warrantless entry into a vacant apartment and use of deadly force on Michael Duncklee, who aggressively attacked them while growling and brandishing a broken hockey stick inside the apartment.

         Because the district court erroneously denied Defendants qualified immunity regarding both the warrantless entry into the apartment and the use of force on Duncklee, we reverse and remand.

         I. FACTUAL AND PROCEDURAL HISTORY

         As stated by the district court, "[t]his case presents an unusual circumstance in which the facts are largely undisputed, " and as acknowledged by Plaintiff, "[v]ery little is disputed, and certainly nothing that is significant." Answering Brief at 2 (ECF No. 21).[1] The district court summarized the facts of the case as follows:[2]

At 8:58 p.m. on May 21, 2014, the Tucson Police Department ("TPD") received a call from "Zee." Zee reported she was employed by an apartment complex landlord, and former tenants were inside an apartment that was supposed to be empty. Zee stated she did not know how the tenants got inside. She also stated she was not on the scene and had learned of the former tenants' presence from a neighbor who called her, but did not want to leave their name.
When the call was first received, the dispatch operator categorized it as a trespass with a priority level three. On a range of one to four, level one has the highest priority for the most pressing situations, and level four has the lowest priority. At 9:20 p.m., the lead police officer in the area updated the call to note that it could be downgraded to a level four and placed on hold. The officer did so because the property was a vacant location, the person who witnessed the reported activity did not want to be a part of the investigation, there was no one on the scene to verify the allegations, and the owner was not on the scene.
Nearly two hours later, at 11:14 p.m., the operator dispatched the call. Officer Meyer responded and arrived at the apartment at 11:22 p.m. In his deposition, Officer Meyer testified that the metal security door was closed when he arrived. He turned the doorknob of the security door and learned that it was unlocked. He thereafter opened the security door, turned the doorknob of the front door and opened it enough to learn that it was also unlocked, and then closed the front door. Officer Meyer left the security door open. He then radioed for backup on the grounds that he had an apartment with an open door. Officer Soeder responded and arrived on the scene at 11:32 p.m. The officers both stated they did not see any sign of forced entry, although Officer Soeder noted that the security door was swung wide open when he arrived.
At this point, both officers drew their guns, knocked on the door, and announced that they were police. When no one answered the officers' call, they opened the door and entered the apartment. They did not have a warrant. Upon entering the apartment, neither officer called for radio silence. Radio silence is requested when officers encounter a scene that they believe is likely to create an emergency such that they need the radio channels to be clear in case they need to radio for assistance.
Once in the apartment, the officers realized that space in the room was limited because there were numerous belongings stacked against the wall and taking up approximately half of the room. The officers cleared the front living room and determined that no one else was present. They saw a closed door to what is the apartment's only bedroom and could hear a radio playing inside the enclosed room.[3] The officers approached the closed door and arranged themselves such that Officer Soeder was to the left of the door and Officer Meyer was to the right. Officer Meyer then knocked on the ...

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