Estate of Redd Ex Rel. Redd v. Love , 848 F.3d 899 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 13, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
THE ESTATE OF JAMES D. REDD,
M.D., by and through Jeanne H. Redd, the
personal representative for and on behalf of
Plaintiffs Decedent James D. Redd, and his
heirs as an individual in a survivorship
action and in a wrongful death action,
Plaintiff - Appellant,
v. No. 16-4010
DANIEL LOVE, Bureau of Land
Management Special Agent, in his
individual capacity,
Defendant - Appellee,
LAUREN GOOD, Special Agent Bureau
of Land Management, in her individual
capacity; DAVID KICE, BLM Special
Agent, in his individual capacity; DAN
BARNES, Bureau of Land Management
Special Agent, in his individual capacity;
JON EDWARDS, Special Agent Bureau of
Land Management, in his individual
capacity; SETH FOOTLIK, FBI Special
Agent, in his individual capacity; BRENT
RANGE, Special Agent Bureau of Land
Management, in his official capacity;
JENNIFER VANDERVEER, Special
Agent Bureau of Land Management, in her
individual capacity; SELMA SIERRA,
Former BLM Agent Director, in her
individual capacity; JUAN PALMA, BLM
Utah Director, in his individual capacity;
LYNDA VITI, FBI Special Agent, in her
individual capacity; NEIL ROGERS, FBI
Special Agent, in his individual capacity;
DIANE EDEN KISABETH, FBI Agent, in
her individual capacity; GIBSON M.
WILSON, FBI Special Agent, in his
individual capacity; TIMOTHY
FUHRMAN, FBI Special Agent In Charge,
in his individual capacity; JAMES
MCTIGHE, FBI Special Agent In Charge,
in his individual capacity,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:11-CV-00478-RJS)
_________________________________
Shandor S. Badaruddin, (Edward P. Moriarity, with counsel on the briefs), Moriarity &
Badaruddin, Missoula, Montana, for Plaintiff-Appellant.
Laura K. Smith, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern and Sonia K. McNeil, Attorneys, with counsel on the brief),
United States Department of Justice, Washington, D.C., for Defendant-Appellee.
_________________________________
Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
In June 2009, as part of a federal law-enforcement investigation known as
“Operation Cerberus,” FBI and Bureau of Land Management (“BLM”) agents
arrested twenty-three people and searched twelve properties in and near three Utah
cities—Blanding, Monticello, and Moab. The operation targeted persons possessing
and trafficking in Native American artifacts illegally taken from the Four Corners
2
region of the United States.1 One day after agents searched Dr. James D. Redd’s
home, arrested him as part of this operation, and released him on bond, Dr. Redd
committed suicide.
Dr. Redd’s Estate (“the Estate”) sued sixteen named FBI and BLM agents and
twenty-one unnamed agents under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), claiming that the agents had violated Dr.
Redd’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The district
court granted the Defendants’ motions to dismiss all of the Estate’s claims except
one—a Fourth Amendment excessive-force claim against the lead BLM agent, Daniel
Love. Later, on qualified-immunity grounds, the district court granted Agent Love
summary judgment on that final claim. The Estate appeals the district court’s
dismissal of the excessive-force claim. We affirm.
BACKGROUND
I. Operation Cerberus
To deal with the problem of people illegally taking and trafficking Native
American artifacts from federal lands, BLM agents and FBI agents jointly
investigated these crimes occurring in southern Utah and the Four Corners region. As
part of their investigation, the two agencies arranged controlled sales of illegally
taken artifacts. Agent Love served as the lead BLM agent for the operation. After
1
This region includes the southeastern corner of Utah, the southwestern corner
of Colorado, the northeastern corner of Arizona, and the northwestern corner of New
Mexico.
3
presenting a judicial officer an affidavit about these undercover transactions, the
agents obtained many search and arrest warrants, including warrants to arrest Dr. and
Mrs. Redd and to search their house.2
On June 10, 2009, twelve teams of BLM and FBI agents simultaneously
executed search warrants at different locations in and near Blanding, Monticello, and
Moab, Utah. Each team assigned to the scattered search locations comprised between
eight and twenty-one federal agents and at least one cultural specialist. Upon
completing their assigned searches, agents reported to other search locations to help
as needed.
Team members were concerned for their safety because some local citizens
had previously acted hostilely toward federal officials. Partly for that reason, each
team had an operations plan identifying its target location and any expected
obstacles. FBI and BLM policy required agents to wear soft body armor and to carry
a firearm when executing warrants or when confronting potentially dangerous
situations. For a high-risk search at one house, the FBI’s Salt Lake City SWAT team
furnished ten members to assist in executing that search warrant.
2
Before the search, a grand jury indicted Dr. Redd on one count of
“receiv[ing], conceal[ing], and retain[ing] property belonging to an Indian tribal
organization, with a value of more than $1,000 . . . knowing such property to have
been embezzled, stolen, or converted . . . in violation of 18 U.S.C. § 1163 and 2.” R.
vol. 1 at 201. The property referenced in the indictment was an “effigy bird pendant.”
Id. Mrs. Redd was indicted for several additional counts of receiving and selling
tribal property.
4
Based on evidence seized during the searches, the agents arrested twenty-three
people for allegedly possessing or trafficking stolen Native American artifacts.
Sixteen of the arrestees, including Dr. and Mrs. Redd, resided in Blanding, Utah.
II. Search and Arrest Warrants for the Redds
The operations plan for the team assigned to search the Redds’ house advised
that three adults and one child lived there—Dr. and Mrs. Redd, their adult daughter
Jericca Redd, and her minor son. The plan further advised that the Redds’ house
stood on elevated terrain, making its one-eighth-of-a-mile-long driveway visible from
the house. Before arriving, the agents didn’t know whether the Redds owned guns, or
whether anything prevented entry onto the property or barricaded the house.
Upon arriving, the agents knocked on the front door. When Mrs. Redd
answered, agents arrested her without incident and took her to the kitchen. Agents
took Jericca Redd to the piano room upstairs.3 Dr. Redd wasn’t then at the house, but
agents arrested him when he arrived home at 6:55 a.m. Dr. and Mrs. Redd waived
their Miranda rights and spoke with the agents, at least intermittently, until no later
than 10:34 a.m., when the agents drove the Redds to Monticello, Utah for booking.4
Jericca Redd drove her parents back to their house after their initial court
appearances in Moab, Utah. When the Redds arrived home at about 5:00 p.m., agents
3
Jericca Redd’s son had slept over at a friend’s house the night before, so he
wasn’t home on the day of the search.
4
Dr. Redd’s questioning ended at 9:30 a.m., but Mrs. Redd’s questioning
continued past then.
5
were still searching the house, so the Redds waited outside for them to finish. By
about 5:30 p.m., the agents had completed their search, and the Redds reentered their
house. The next day, Dr. Redd committed suicide.
III. Number of Agents
The parties disagree about how many agents were on the Redds’ property
during the search and arrests. An official list of search locations and agents (“Search
Warrant Locations List”) shows that those directing the entire operation apportioned
130 agents among the twelve locations. Each search location had between eight and
twenty-one agents. The Search Warrant Locations List shows that at least one
“cultural specialist” was also assigned to each search location. R. vol. 7 at 784–85. A
list of command agents and their locations (“Command Locations List”) identifies
twenty command agents unassigned to any particular location. These command
agents moved between search warrant locations and command-post locations as
needed.
The Search Warrant Locations List shows that those directing the operation
assigned twelve agents to the Redds’ house. Upon arriving at and departing from the
Redds’ house, all agents were required to sign a log identifying their arrival and
departure times. This sign-in log reveals that twelve agents and one cultural specialist
were present when Dr. Redd arrived home at 6:55 a.m. When Dr. Redd arrived, some
of these agents were already inside the house with Mrs. Redd and Jericca Redd, so
Dr. Redd initially encountered fewer than twelve agents. Two agents met Dr. Redd at
the end of the driveway and escorted him to the garage, and two other agents joined
6
them in questioning Dr. Redd inside the garage. Beyond this, the record provides no
help in determining how many agents Dr. Redd saw that morning.
The Estate agrees that the initial team comprised no more than twelve BLM
and FBI agents and one cultural specialist. It also agrees that a team this size was
lawful. But the Estate contends that over the course of the hours-long search of the
Redds’ house, as many as sixty-nine agents arrived there. In support, it relies on a
simple but problematic mathematical calculation.
First, it contends that 150 agents participated in the searches, pointing to an
FBI press release saying that “[t]he law enforcement operation was conducted on
June 10, 2009 by approximately 150 agents and employees from the FBI and the
BLM.” R. vol. 17 at 1237. Second, it subtracts from this figure 91 agents—those
identified by Agent Love as searching at locations other than the Redds’ house. From
this, the Estate argues that it is “reasonable to infer that one or more, and likely more,
of the remaining sixty-nine agents (150 minus 91) were at the Redd Home.”5
Appellant’s Opening Br. at 25. But Agent Love’s list of agents searching the eleven
locations besides the Redds’ house in southern Utah that day totals 122 agents and
employees6 (not 91 as the Estate says). This means that at most, twenty-eight agents
were not listed at a specific search location.
5
We gather that the Estate’s subtraction should have resulted in fifty-nine and
not sixty-nine.
6
This does not include any of the command agents listed in the Command
Locations List, but it does include “archeologists,” whom the parties also refer to as
7
As additional support to show a large number of agents on the Redds’
property, the Estate relies on the Declaration of Jericca Redd, who says she saw “as
many as 50 agents at any one time,” not specifying where or when she saw them,
instead saying only that they had been “everywhere.” R. vol. 17 at 1241, 1243.
Perhaps to help confirm her estimate, Jericca Redd also recounts that she heard Agent
Love call other agents on a telephone to come assist in searching the Redds’ house.
But she also says she left the house “sometime after 12:00 pm” to pick up her parents
from their court appearance in Moab. Id. at 1244. So she was able to see agents who
arrived at the Redds’ house after her parents had left for booking in Monticello.7
Agent Love disputes the Estate’s calculations. He testified that no more than
twenty-two agents were at the Redds’ house while Dr. Redd was there between 6:55
a.m. and 10:34 a.m.8 He also testified that some agents came to the Redds’ house
after completing their assigned searches to help identify and catalog the unexpectedly
cultural specialists throughout the record. R. vol. 17 at 1041; R. vol. 7 at 773. Agent
Love described the cultural specialists as employees of BLM. Seven cultural
specialists ultimately assisted the search at the Redds’ house. For simplicity, we
don’t distinguish between agents and employees in this opinion.
7
After agents took Dr. and Mrs. Redd to Monticello, but before Jericca left to
drive them back to Blanding, the log shows that sixteen additional agents arrived at
the Redds’ property.
8
According to the district court, the Estate brought its excessive-force claim
under the Fourteenth Amendment’s unreasonable-seizure provision. Along this same
line, the parties assert and agree that the relevant time period was “that time during
which [Dr. Redd] was seized and at home to experience the alleged unconstitutional
show of force . . . [which] was between the hours of 6:55 a.m. and 10:34 a.m., on
June 10, 2009.” Appellant’s Opening Br. at 37.
8
high number of artifacts found at the Redds’ house. To support his count, Agent Love
relied on the sign-in log at the Redds’ house.9 Twenty-two agents signed the log
before agents took Dr. Redd and Mrs. Redd to Monticello for booking. Among these
twenty-two agents, Agent Love included nine agents who arrived sometime before
the agents took Dr. and Mrs. Redd to Monticello, Utah, including four FBI SWAT-
team members.
IV. Appearance of Agents
The Estate also presented evidence that some agents wore SWAT-like gear. By
the Estate’s account, the agents who first entered the home to arrest Mrs. Redd “were
heavily armed” and “appeared to be wearing bullet proof vests or some sort of body
armor or flak jacket.” Id. at 1242. Jericca Redd says that the agents’ “appearance was
more like military than the police officers I am accustomed to seeing,” and likened
their attire to that of a SWAT-team member shown in a government exhibit. Id.
According to Jericca Redd, the agents’ guns “looked like machine guns,” and were
not “pistols or rifles.” Id. She concedes that some agents entering the house were not
as heavily armed. She also clarifies that the agents “all had guns, but they did not all
have their guns out.” Id. at 1243.
9
The Estate argues that the sign-in log is inaccurate and urges us not to rely on
it in determining the number of agents. To support this claim, it points out that one
agent admittedly did not sign the log until three hours after arriving at the house.
From this, the Estate argues that more agents also might have failed to sign the log.
We agree with the district court that one agent’s signing the log late doesn’t render
the entire sign-in log unreliable.
9
Agent Love testified that only four SWAT-team members assisted in the Redd
search, and that they arrived after Dr. Redd was inside the garage.10 He also said that,
except for the four SWAT-team members and the cultural specialists, all the other
agents wore soft body armor (also called bulletproof vests) and carried guns, as
required under BLM and FBI policy. Viewing the evidence in the light most
favorable to the Estate, we assume that the first set of agents wore soft body armor
and carried firearms.
V. District Court Proceedings
After Dr. Redd’s suicide, the Estate, as well as Dr. Redd’s heirs and Mrs.
Redd, filed this Bivens action, claiming wrongful-death damages.11 As mentioned, the
Estate’s sole claim on appeal was that Agent Love used excessive force in violation
of the Fourth Amendment by sending a large number of heavily armed federal agents
to execute the Redds’ warrants. Agent Love moved for summary judgment on
qualified-immunity grounds.
10
The SWAT-team members positioned themselves outside the house after
agents overheard a caller leave a threatening voicemail message for them, but this
didn’t happen until after Dr. and Mrs. Redd had left the property.
11
It simultaneously sued various governmental agencies and employees under
the Federal Tort Claims Act. The district court granted summary judgment in favor of
the United States in that case. Estate of Redd v. United States, 171 F. Supp. 3d 1229,
1240 (D. Utah 2016) (“Defendant’s use of 12 heavily armed agents, dressed in body
armor . . . was reasonable and did not amount to an unconstitutional showing of
force.”). The Estate’s appeal is pending in this court.
10
After considering the evidence about the number of agents, including the sign-
in log and Jericca Redd’s Declaration, the district court found that a maximum of
twenty-two agents—counting the initial twelve that Jericca Redd had described as
clothed in SWAT-like gear—were present somewhere on the Redd’s property before
agents drove Dr. and Mrs. Redd away at 10:34 a.m.12 Relying on Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001), the district court granted
Agent Love’s summary-judgment motion on qualified-immunity grounds. Addressing
the first prong of the qualified-immunity analysis, the district court concluded that
“the . . . agents’ mere presence at the home and proximity to Dr. Redd, without more,
did not create an excessive show of force.” Estate of Redd v. Love, No. 2:11-cv-
00478-RJS, 2015 WL 8665348, at *12 (D. Utah Dec. 11, 2015). And addressing the
second prong, the district court concluded that
not every reasonable officer would have been on notice that it would be
unlawful to deploy twelve SWAT-like agents and a cultural specialist to
execute a warrant and then call nine additional agents to help search a
home and catalog substantial physical evidence for a nonviolent offense
at the home of a nonviolent person.
Id. at *14. The Estate appealed.
12
The Estate offers us nothing to show that Dr. Redd would have seen all or
even most of these agents. He would have seen only those agents in view when he
came and left. At both times, some of the agents were searching the house or
interviewing Mrs. Redd. Additionally, the district court described the agents as
wearing SWAT-like gear only because Jericca Redd had described their attire as
similar to that shown in Agent Love’s exhibit showing a SWAT agent. But the agents
actually wore soft body armor as required by agency policy.
11
DISCUSSION
I. Standard of Review
We review de novo a grant of summary judgment that is based on qualified
immunity. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “[Q]ualified
immunity . . . is both a defense to liability and a limited ‘entitlement not to stand trial
or face the other burdens of litigation.’” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Once a defendant asserts
qualified immunity, “the burden shifts to the plaintiff to establish (1) a violation of a
constitutional right (2) that was clearly established” at the time of the violation.
Puller, 781 F.3d at 1196 (citing Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.
2007) (en banc)). We may decide which of these two prongs to address first, and
need not address both. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 n.2 (10th Cir.
2009) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
To meet the “heavy two-part burden” necessary to overcome a qualified-
immunity defense, plaintiffs must point to admissible evidence in the record. Medina
v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). “We review the evidence in the light
most favorable to the nonmoving party.” Puller, 781 F.3d at 1196 (quoting Cortez,
478 F.3d at 1115). But we need not make unreasonable inferences that are
unsupported by the record. See Llewellyn v. Allstate Home Loans, Inc., 711 F.3d
1173, 1187 (10th Cir. 2013) (“Although our summary judgment standard requires us
to view the facts in the light most favorable to the non-moving party, it does not
require us to make unreasonable inferences in favor of the non-moving party.”
12
(quoting Carney v. City & Cty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008)))
(internal quotation marks omitted).
II. Qualified Immunity
We address only the first prong of the qualified-immunity analysis, whether
Agent Love violated Dr. Redd’s constitutional rights. See Thomson, 584 F.3d at 1312
n.2. The Estate asserts that Agent Love violated Dr. Redd’s Fourth Amendment
rights by using excessive force in executing his arrest warrant.13 We evaluate
excessive-force claims using the Fourth Amendment’s objective-reasonableness
standard. See Brosseau v. Haugen, 543 U.S. 194, 197 (2004). In this context,
qualified immunity turns on “whether the officers’ actions [were] ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Thomson, 584 F.3d at 1313 (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). In determining this, we must balance
“‘the nature and quality of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at stake.” Graham, 490
U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Factors relevant to
this inquiry include “the severity of the crime at issue, whether the suspect poses an
13
In the third claim of its Complaint—the one now before us on appeal—the
Estate alleges that Agent Love is responsible for having “violated Plaintiff James D.
Redd’s rights under the Fourth Amendment of the Constitution of the United States
by violating Plaintiffs’ right to be secure from excessive force.” R. vol. 2 at 388. The
district court concluded that the Estate brought this claim “under only the Fourth
Amendment’s prohibition on unreasonable seizures.” Redd, 2015 WL 8665348, at *9.
The Estate hasn’t taken issue with the district court’s view of the claim, so we only
review its decision on excessive force during Dr. Redd’s seizure.
13
immediate threat to the safety of the officers or others, and whether [the suspect] is
actively resisting arrest or attempting to evade arrest by flight.” Id.
To satisfy its summary-judgment burden under the first prong of the qualified-
immunity analysis, the Estate must produce evidence sufficient to show that Agent
Love employed excessive force in violation of Dr. Redd’s Fourth Amendment rights.
See Brosseau, 543 U.S. at 197. The Estate bases its excessive-force claim on the
number of agents at the Redds’ house and their appearance. Specifically, it alleges
that Agent Love used excessive force by deploying more than fifty agents wearing
bullet-proof vests and carrying guns to execute the warrants. But the Estate offers no
proof that Dr. Redd even saw fifty agents before being transported to Monticello,
Utah. Moreover, it doesn’t claim that the agents used excessive force by physically
abusing Dr. Redd or pointing firearms at him.
A. Number of Agents
The parties dispute how many agents participated in the search at the Redds’
house.14 At about 6:55 a.m., immediately after Dr. Redd drove up his driveway,
agents arrested him. Everyone agrees that twelve agents and a cultural specialist were
then at the Redd property, and that some of these agents were inside the house with
14
“[B]ecause Fourth Amendment rights are personal rights that cannot be
asserted vicariously, the Estate may recover only for the injuries Dr. Redd suffered
personally.” Redd, 2015 WL 8665348, at *9 (citing Rakas v. Illinois, 439 U.S. 128,
133–34 (1978); Coleman-Johnson v. Chi., Ill. Police Officers, No. 95 C 3455, 1996
WL 417568, at *4 (N.D. Ill. July 22, 1996)) (internal footnotes omitted). So only the
agents that Dr. Redd saw or would likely have seen before he left for Monticello for
booking are relevant to our analysis.
14
Mrs. Redd and Jericca Redd. Moreover, everyone agrees that after arresting Dr.
Redd, agents took him to the garage. Except for a visit to the bathroom, located
immediately inside the home from the garage, Dr. Redd remained inside the garage
until 10:34 a.m., when agents took him to Monticello, Utah. When describing Dr.
Redd’s arrest and voluntary questioning, the record documents refer to just five
agents: Agent Barnes, Agent Vanderveer and three “unidentified agent[s].” R. vol. 2
at 376–88.
Perhaps Dr. Redd saw additional agents when he was briefly outside his garage
before being taken to Monticello, but the record doesn’t give us a fair idea how many
agents might have been in his sight. For help, we look to the sign-in log, which
reveals that of the twenty-two agents who had been at the house between 6:55 a.m.
and 10:34 a.m., only sixteen remained when Dr. Redd left his property. Because
some agents were inside the Redds’ house searching, not all sixteen remaining agents
would have been in Dr. Redd’s sight by the time he left the property.
In supporting its excessive-force claim, the Estate relies in part on Graham and
Holland. First, it argues that all three Graham factors—specifically, “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether [the suspect] is actively resisting arrest or attempting
to evade arrest by flight”—weigh heavily in its favor. 490 U.S. at 396. So, the Estate
argues, we shouldn’t go any further than applying these factors, and should instead
determine that Agent Love’s conduct was objectively unreasonable based solely on
these factors. But Graham itself noted that “[t]he test of reasonableness under the
15
Fourth Amendment is not capable of precise definition or mechanical application.”
Id. (alteration in original) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). And it
noted that the Fourth Amendment reasonableness analysis always depends on
whether the totality of the circumstances justified the conduct at issue. Id. (quoting
Garner, 471 U.S. at 8–9).
The Fourth Amendment reasonableness analysis is not limited to the three
Graham factors. Here, an analysis based strictly on the Graham factors wouldn’t
reach all the circumstances relevant in considering the Estate’s Fourth Amendment
claim. See Brosseau, 543 U.S. at 197–99 (explaining that while Garner’s and
Graham’s principles guide courts in determining whether there was a constitutional
violation, excessive force claims must still be judged on an objective reasonableness
standard). Graham involved just one defendant whom police arrested without a
warrant in a public setting. 490 U.S. at 389. Because Graham’s circumstances differ
so greatly from those in this case, its framework doesn’t fit the constitutional
question here.
Second, in supporting its excessive-force claim, the Estate also relies on
Holland, 268 F.3d at 1183. There, we evaluated excessive-force claims arising from a
sheriff’s deploying seven SWAT-team deputies and three uniformed non-SWAT
deputies to execute a search warrant and misdemeanor-arrest warrant. Id. We also
evaluated the SWAT team’s conduct while doing so. Id. During the nighttime search
and arrest, the SWAT team wore green camouflage clothing without law-enforcement
markings and hoods covering their faces except for their eyes. Id.
16
Upon arriving at the residence, the SWAT-team deputies approached three
people playing basketball in front of the house, one just eight years old, pointed
firearms at them, and ordered them to lie face down on the concrete. Id. at 1183–84.
On their way to the house, they encountered a second minor and ordered him at
gunpoint to lie on the ground. Id. at 1184. Still outside the home, a SWAT-team
member encountered a four-year old girl, who ran into the house screaming after
seeing the SWAT-team members. Id. As the young girl ran, a SWAT-team member
trained his firearm’s laser on the girl’s back. Id. The SWAT-team members then
entered the house and held several people inside at gunpoint. Id. The home’s
occupants also contended that the SWAT team had entered the home without
knocking and announcing their presence. Id.
In evaluating whether the SWAT team’s conduct amounted to excessive force,
we observed that “[t]he decision to deploy a SWAT team to execute a warrant
necessarily involves the decision to make an overwhelming show of force—force far
greater than that normally applied in police encounters with citizens.” Id. at 1190.
But we ultimately concluded that “the force invoked by the decision to deploy” the
SWAT team was not excessive under the Fourth Amendment. Id. at 1191 (emphasis
in original). In those particular circumstances, which presented a possibility of
violence from the suspect, we concluded that deploying heavily armed SWAT
deputies in unmarked gear obscuring the deputies’ faces was not objectively
unreasonable. See id. In so holding, we noted that the deputies expected to—and
indeed did—find several people besides the suspect at the suspect’s residence, and
17
that they also found firearms there. Id. On this basis, we awarded the sheriff and
deputies qualified immunity against the excessive-force claim based upon their
SWAT gear.15 Id. at 1192.
Agent Love had equally good—if not better—reason to deploy many agents to
search the Redds’ expansive home and provide for officer safety. Although not facing
an allegedly violent misdemeanant as in Holland, the agents in Operation Cerberus
had ample reason to believe that they were entering a hostile environment. The Estate
acknowledges the historical tension between federal powers and some of Blanding’s
citizenry. And importantly, recent history shows instances of violence from some of
the local citizenry against federal employees and agents working there.16 We
certainly can’t say that the agents acted imprudently in “anticipat[ing] hostility from
the suspects and members of the community.” R. vol. 7 at 784.
Moreover, in particular, Agent Love had an objectively reasonable basis for
safety concerns in arresting the Redds and searching their home. Though the agents
expected to find only three adults and a child, the agents knew that the Redds also
15
But we denied qualified immunity against the excessive-force claims arising
from the conduct of the deputies allegedly pointing firearms at children and failing to
knock and announce their presence, even though no one was injured. Id. at 1197. In
the present appeal, the Estate raises no corresponding claims of mistreatment of Dr.
Redd.
16
Agent Love submitted several newspaper articles beginning in 2008 showing
episodes involving hostility and violence directed at federal agents in southern Utah.
In fact, one article mentions that a 1986 federal operation concerning archaeological
items “strained relations with the federal government, which residents already
regarded as arrogant and intrusive.” R. vol. 18.3 at 1379. These news articles show
that the agents had reason for safety concerns while executing the search warrants.
18
had two adult sons. And the agents had particular reason to believe that the Redds
might be hostile to the federal government. In a highly publicized and locally
controversial criminal case in 1995, federal agents arrested Dr. Redd and Mrs. Redd
for desecrating a dead body while they were digging for Native American artifacts.
Finally, Dr. Redd’s status as a physician did not eliminate the federal agents’
concerns that arresting him and his wife might provoke a response.
The reasonableness of these safety concerns was borne out when a man the
agents believed was one of the Redds’ sons called the Redds’ house and left two
threatening voicemails, prompting the four FBI SWAT-team members to take
defensive positions to protect against possible violence. The first call came at 11:55
a.m. with the caller saying, “Is anybody there? I know somebody’s there. A whole
bunch of you. You gonna pick up the phone? All right. I’ll be . . . there in a little bit.
Be ready.” R. vol. 13 at 914. The second call came at 1:13 p.m., and the caller said,
“Hey, you guys still too scared to answer the phone? Don’t touch anything of mine.
Trust me. You don’t want to.” Id.
Further, beyond safety concerns, Agent Love had an objectively reasonable
basis to deploy the numerous agents at the Redds’ house. The search required
locating, sorting, and cataloging more than 800 Native American artifacts—a job
requiring many personnel. And allowing other agents to help at the Redds’ house
after completing their searches elsewhere was also objectively reasonable. Otherwise,
it appears that agents could not have finished the search by day’s end, leaving the
Redds unable to return to their house that day. Cf. Mountain Pure, LLC v. Roberts,
19
814 F.3d 928, 931, 933 (8th Cir. 2016) (holding that it was reasonable for thirty-five
law enforcement agents to search a 100,000-square-foot bottling facility).
Nor has the Estate offered any cases holding that law-enforcement officers
acted with excessive force by virtue of the number of officers deployed to execute a
search warrant and arrest warrant. But we have located several cases in which courts
have found no excessive force despite similar numbers of officers being deployed.17
We leave open the possibility that sending a large number of agents to execute a
search warrant and arrest warrant for a nonviolent crime can amount to excessive
force. But this isn’t that case. Again, the Estate presents insufficient evidence about
how many agents Dr. Redd even saw. And the Estate does not suggest on appeal that
the agents—however many Dr. Redd saw—acted aggressively or threateningly
toward him.18 In view of the need to search an expansive home for sometimes tiny
17
See, e.g., United States v. Rizzi, 221 F. App’x 283, 286 (4th Cir. 2007)
(“[T]he mere fact that twenty-four officers took part in the execution of the warrant
did not render its execution unreasonable under the Fourth Amendment.”); United
States v. Sanders, 104 F. App’x 916, 922 (4th Cir. 2004) (concluding that expansive
scope of search reasonably justified sending forty law enforcement officers dressed
in bullet-proof vests and carrying sidearms to execute a search warrant for financial
documents in an office building); Crosby v. Paulk, 187 F.3d 1339, 1343, 1348 (11th
Cir. 1999) (concluding that it was reasonable for more than forty law enforcement
officers to assist in executing an administrative search of a nightclub and to conduct
identification checks for 400 club patrons); United States v. Simon, No. 3:10–CR–56
RM, 2010 WL 4236833, at *12 (N.D. Ind. Oct. 20, 2010) (concluding that it was
reasonable for eleven armed agents wearing body armor and flak jackets to search a
4,000-square-foot house for evidence of tax fraud from the morning until 5:00 p.m.).
18
The district court dismissed the Estate’s claims that agents acted with
excessive force by using harsh language to humiliate Dr. Redd, falsely accusing him
20
objects, as well as a legitimate concern for officer safety, the totality of the
circumstances justified the number of agents executing the search and arrest warrants
at the Redds’ house.
B. Appearance of Agents
The Estate contends that Agent Love also acted with excessive force in
deploying the agents in SWAT-like gear. But this decision rested outside Agent
Love’s authority—BLM and FBI policy required the agents to wear soft body armor
and carry guns. The BLM manual requires that “[w]hen in uniform, all [law
enforcement officers] will wear the primary firearm, and handcuffs at all times” and
that “[law enforcement officers] who are engaged in duties that may expose them to
high risk enforcement incidents such as search warrants, arrest warrants or felony
vehicle stops, must wear soft body armor.” R. vol. 8 at 797, 807. Similarly, FBI
policy requires that agents “must be armed at all times when on official duty” and
that “[i]mmediate access to the handgun and security are paramount.”19 R. vol. 10 at
830. Further, the policy declares that “[w]earing of body armor . . . is mandatory
during planned arrests, execution of search warrants and surveillances which can
reasonably be expected to culminate in a confrontation with armed and dangerous
of crimes, and refusing to let him use the restroom with dignity. The Estate did not
appeal this dismissal.
19
Nor is the policy afoul of our cases governing excessive force. Because “the
right to arrest an individual carries with it the right to use some physical coercion to
effect the arrest,” it isn’t always unreasonable for officers to use their weapons to
control a situation. Holland, 268 F.3d at 1192 (citing Thompson v. City of Lawrence,
Kansas, 58 F.3d 1511, 1516 (10th Cir. 1995)).
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subject(s).” Id. at 833. So if the FBI and BLM agents’ outer wear appeared
intimidating, it was due to these policies and not to Agent Love’s actions.
Thus, even interpreting the facts most favorably to the Estate, we see no
constitutional violation. Agent Love’s conduct—deploying twenty-two agents
wearing soft body armor and carrying firearms in compliance with agency policy—
was not objectively unreasonable under the circumstances. With this in mind, we of
course also agree with the district court’s conclusion that the Fourth Amendment
right at issue in this case wasn’t clearly established. Thus, we conclude that Agent
Love was entitled to qualified immunity.
CONCLUSION
Because the district court correctly granted qualified immunity to Agent Love,
we AFFIRM the district court’s grant of summary judgment awarding Agent Love
qualified immunity.
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