Irma Woodward, a single woman, individually, as Statutory Wrongful Death trustee of Michael Duncklee and personal representative of Estate of Michael Duncklee, Plaintiff-Appellee,
City of Tucson, a political subdivision of the state of Arizona; Robert Soeder, an individual; and Allan Meyer, an individual, Defendants-Appellants.
and Submitted July 13, 2017 San Francisco, California
from the United States District Court No. 4:15-cv-00077-RM
for the District of Arizona Rosemary Marquez, District Judge,
Michael W.L. McCrory (argued), Principal Assistant City
Attorney; Michael G. Rankin, City Attorney; City
Attorney's Office, Tucson, Arizona; for
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
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and
Eduardo C. Robreno, [*] District Judge.
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.
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
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.
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.
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
ROBRENO, District Judge.
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.
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
FACTUAL AND PROCEDURAL HISTORY
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.
The district court summarized the facts of the case as
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
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. 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 ...