Gould v. Davis ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CLARENCE GOULD, SR., individually
and as husband; LENA GOULD, as
wife,
Plaintiffs-Appellees,
v.
ANDREW S. DAVIS; LEE RUSSO,
Corporal; PHILIP CRUMBACHER, Police
Officer,
Defendants-Appellants,
No. 97-1777
and
BALTIMORE COUNTY; JOHN DOE, I;
JOHN DOE, II; JOHN DOE, III; JOHN
DOE, IV; JOHN DOE, V; LISA
ALLEWALT-HANNON, Police Sergeant;
MARTIN LIPPY, Police Officer;
MICHAEL PRENDERGAST, Police
Officer,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge.
(CA-95-3116-H)
Argued: January 26, 1998
Decided: December 31, 1998
Before ERVIN and WILLIAMS, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the majority opin-
ion, in which Judge Goodwin joined. Judge Williams wrote a dissent-
ing opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Edward Beverungen, Assistant County Attorney,
Towson, Maryland, for Appellants. Lauren Ruth Calia, ISRAELSON,
SALSBURY, CLEMENTS & BEKMAN, L.L.C., Baltimore, Mary-
land, for Appellees. ON BRIEF: Virginia W. Barnhart, County
Attorney, Jeffrey Grant Cook, Assistant County Attorney, Towson,
Maryland, for Appellants. Paul D. Bekman, ISRAELSON, SALS-
BURY, CLEMENTS & BEKMAN, L.L.C., Baltimore, Maryland, for
Appellees.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Andrew Davis, Lee Russo, and Philip Crumbacher ("the officers")
are police officers in Baltimore County, Maryland who appeal the dis-
trict court's denial of their motion for summary judgment based on
qualified immunity. In this § 1983 action, the officers are accused of
violating Clarence Gould's Fourth Amendment right to be free from
unreasonable searches when they sought and executed a "no-knock"
search warrant. We agree with the district court that the officers are
not entitled to qualified immunity because the constitutional right at
issue was clearly established at the time of the events in question and
was a right of which a reasonable officer would have known. For the
reasons below, we affirm the district court's denial of summary judg-
ment.
I.
Clarence Gould, Sr. ("Gould" or "Gould, Sr."), his wife, Lena, and
their granddaughter, Brittany, reside in Baltimore County at 3806
Milford Mill Road. On October 16, 1992, Clarence Gould, Jr.
2
("Gould, Jr."), the Goulds' son, was arrested and detained as a suspect
in a series of robberies that had occurred in the area of Liberty Road
in Baltimore County. Gould, Jr. was apprehended after robbing at
gunpoint the Pizza Hut on Liberty Road. The following day, police
brought Daniel McCoy into custody and interviewed him in connec-
tion with the robbery of the Pizza Hut. McCoy informed police that
he was the driver of Gould, Jr.'s getaway car in the Pizza Hut robbery
as well as in several other robberies in the Liberty Road area. McCoy
also stated that after some of the robberies he drove Gould, Jr. to his
father's house on Milford Mill Road, and that Gould, Jr. frequently
stayed at his parents' home. At the time that police were interviewing
McCoy, Gould, Jr. was also in police custody, and police had already
obtained a warrant and conducted a search of Gould, Jr.'s home.
Based on this information, the officers applied for a search warrant
to search Gould, Sr.'s home. In their application for a warrant, the
officers averred that they had probable cause to believe that evidence
of the Liberty Road robberies could be found at Gould, Sr.'s home:
baseball caps, several shirts, a jacket, sunglasses, two handguns, a
pair of jeans, and United States currency.
Most importantly for purposes of this appeal, the officers requested
that the warrant be issued as a "no-knock" warrant. This would allow
the officers to forcibly enter the home without announcing their pres-
ence and waiting a reasonable time for the Goulds to answer the door.
The officers believed that the seriousness of the crime of which
Gould, Jr. was accused, and the fact that the officers sought to recover
two handguns, justified a departure from the "knock and announce"
requirement in executing a warrant at Gould, Sr.'s home.
A Baltimore County Circuit Court judge issued the search warrant
for Gould, Sr.'s home very early in the morning on October 18, 1992.
Later that morning, between 5:00 and 6:00 a.m., the officers smashed
the front door of Gould's home by means of a battering ram and forci-
bly entered with their weapons drawn without first knocking or other-
wise announcing their presence. Gould was asleep at the time and did
not hear the police as they entered the home, nor did he hear the offi-
cers yelling, "Police, everybody get down," while they ran upstairs
toward his bedroom. Gould's first recollections were the sound of
footsteps running up the stairs and a loud noise when the banister
3
gave way. Gould feared that intruders had broken into his home and
he made his way to the bedroom closet where he kept a handgun.
Officer Davis was the first to arrive in the bedroom. When he saw
Gould with a weapon in his hand, he fired his weapon, missing Gould
but hitting the wall beside him. Fragments from the bullet struck
Gould in the arm, chest, and abdomen. Gould was hospitalized and
treated for his wounds.
Gould filed an action in federal district court against the police
officers and Baltimore County alleging that the defendants violated
various federal and state laws in their request for and execution of the
search warrant. Lena Gould joined her husband's action seeking dam-
ages for loss of consortium. The district court bifurcated the proceed-
ings so that the claim against Baltimore County is no longer part of
this action and therefore not before us. The district court also granted
the officers' motion for summary judgment on several federal law
counts, as well as on the state law causes of action, and that decision
is also not before us. The district court, however, denied the officers'
motion for summary judgment based on qualified immunity on one
claim -- Gould's § 1983 claim that the officers violated his constitu-
tional right to be free from unreasonable searches in the application
for and execution of the no-knock warrant. On appeal, the officers
argue that the district court erred in denying their claim of qualified
immunity from liability.
II.
The district court's denial of a claim of qualified immunity, to the
extent it turns on an issue of law, is an appealable"final decision"
within the meaning of 28 U.S.C. § 1291 under the collateral order
doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). However, we lack
jurisdiction to review the district court's order"insofar as that order
determines whether or not the pretrial record sets forth a ``genuine'
issue of fact for trial." Johnson v. Jones , 515 U.S. 304, 320 (1995).
Gould argues that there are disputed questions of material fact that
deprive this court of jurisdiction to hear this interlocutory appeal.
Indeed, the district court's order denied summary judgment, in part,
because it believed there are "disputed questions of fact" as to
4
whether reasonable officers would have believed they acted lawfully
in securing and executing the no-knock warrant. J.A. at 303. The dis-
trict court noted that the officers claimed that they "reasonably
believed that the averments contained in their application and affida-
vit [for the warrant] constituted probable cause." J.A. at 303. The dis-
trict court then pointed to "countervailing evidence which would
support plaintiffs' contention that it was not reasonable for [the offi-
cers] to believe that probable cause existed for issuance of this ``no
knock' warrant." J.A. at 304.
While the district court is correct that different facts in evidence
could be used to support different conclusions as to whether the offi-
cers deserve qualified immunity, this does not indicate a factual dis-
pute, but rather, a question of law. The district court's order does not
point to disputed questions of fact, but rather, disputed legal infer-
ences that could be drawn from what is an undisputed factual record.
For example, the conflict between the officers' assertion that they
were reasonable in their belief that their actions were lawful and
Gould's assertion that such a belief was unreasonable is not a factual
conflict. The actual, subjective beliefs of the officers are irrelevant in
resolving the immunity question. See Anderson v. Creighton, 483
U.S. 635, 641 (1987) ("The relevant question . . . is the objective
(albeit fact-specific) question whether a reasonable officer could have
believed [the] search to be lawful in light of clearly established law
and the information the searching officers possessed. [The officer]'s
subjective beliefs about the search are irrelevant."). For this reason,
the "reasonableness" of the officers' decision in applying for and exe-
cuting the warrant is a legal question that must be determined from
the perspective of what a reasonable officer would have known about
clearly established law, given the facts available to the officers at the
time they acted. Here, there is no dispute about what information the
officers had before them when they applied for and executed the no-
knock warrant; the only question is whether the hypothetical "reason-
able officer" would have known, given those undisputed facts, that his
conduct was in violation of clearly established constitutional law. For
this reason, we have jurisdiction to review the district court's order.
III.
Qualified immunity protects government officials from suits for
civil damages arising out of the exercise of their discretionary func-
5
tions. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981). This immunity
is available when the conduct of a government employee "does not
violate clearly established statutory or constitutional rights of which
a reasonable person would have known." Id. We have divided this
standard into a three-part analysis. First, we must identify the right
allegedly violated; second, we must decide whether the right was
clearly established at the time of the alleged violation; and third, we
must determine whether a reasonable person in the officer's position
would have known that his or her actions violated that right. Smith v.
Reddy, 101 F.3d 351, 355 (4th Cir. 1996).
A.
Under the first prong, Gould alleges that the officers violated his
Fourth Amendment right to be free from unreasonable searches by the
police. More specifically, Gould claims that the officers' decision to
seek and execute a no-knock search warrant of his home violated his
Fourth Amendment rights. The officers concede that this claim, if
true, alleges a violation of a constitutional right.
B.
The second prong of the qualified immunity analysis inquires
whether the right at issue was clearly established at the time the
alleged violation took place. Under our court's precedent, the right
must be defined with some specificity: "In determining whether the
specific right allegedly violated was ``clearly established,' the proper
focus is not upon the right at its most general or abstract level, but at
the level of its application to the specific conduct being challenged."
Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The second
prong of the qualified immunity analysis must take into account the
specific facts and context of the alleged violation. See Maciariello v.
Sumner, 973 F.2d 295, 298 (4th Cir. 1992) ("[T]he manner in which
this right applies to the actions of the official must also be apparent.").
In short, "[o]fficials are not liable for bad guesses in gray areas; they
are liable for transgressing bright lines." Id. (citations omitted).
Defined at its appropriate level of specificity, then, Gould's claim is
that the officers, given the circumstances of their investigation of
Gould, Jr., exceeded their constitutional authority in seeking and exe-
cuting a no-knock search warrant of Gould, Sr.'s home.
6
We must begin our analysis with a survey of the state of the law
in the Fourth Circuit in October 1992 with regard to the "knock and
announce" requirement under the Fourth Amendment. The first ques-
tion is whether it was clearly established law in 1992 that the Fourth
Amendment required officers to knock and announce their presence,
and wait a reasonable period of time, prior to entering a dwelling. In
their brief, the officers concede that the knock and announce require-
ment has been clearly established law in the Fourth Circuit since at
least 1985. See Appellants' Br. at 14; Mensh v. Dyer, 956 F.2d 36, 40
(4th Cir. 1991); Simons v. Montgomery County Police Officers, 762
F.2d 30, 32 n.1 (4th Cir. 1985).
The officers also concede that it was clearly established law in
October 1992 that police need not comply with the knock and
announce requirement under certain "exigent circumstances." See
Appellants' Br. at 14; Simons, 762 F.2d at 32-33 & n.2; United States
v. Jackson, 585 F.2d 653, 662 (4th Cir. 1978). 1 Exigent circumstances
can justify an entry without any knock and announcement "if there is
a likelihood that the occupants will attempt to escape, resist or destroy
evidence." Jackson, 585 F.2d at 662; see also Sabbath v. United
States, 391 U.S. 585, 591 (1968) (exigent circumstances include dan-
ger to police officers); Katz v. United States , 389 U.S. 347, 355 n.16
(1967) ("[O]fficers need not announce their purpose before conduct-
ing an otherwise authorized search if such an announcement would
provoke the escape of the suspect or the destruction of critical evi-
dence."); Simons, 762 F.2d at 32 n.2 ("[The] likelihood of destruction
_________________________________________________________________
1 Under this circuit's precedent, the exact contours of the Fourth
Amendment knock and announce requirement, and the exception to this
requirement under exigent circumstances, are informed by reference to
the federal knock and announce statute. See 18 U.S.C. § 3109 (1994)
("The officer may break open any outer or inner door or window of a
house . . . to execute a search warrant, if, after, notice of his authority
and purpose, he is refused admittance . . . ."); Simons, 762 F.2d at 33("[T]he rule incorporated in § 3109 is merely expressive of the common
law rule and thus is equally applicable in the state context."); see also
United States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994) ("Because
this statute encompasses the constitutional requirements of the fourth
amendment, it not only governs federal searches by federal agents, but
also provides the proper framework for analyzing the execution of state
search warrants." (quotation omitted)).
7
of evidence will constitute exigent circumstances . . . ."); United
States v. Couser, 732 F.2d 1207, 1208 (4th Cir. 1984) (exigent cir-
cumstances include possible destruction of evidence).
The parties agree, then, that the following was clearly established
law in October 1992: the officers were required by the Fourth
Amendment to knock and announce their presence, and wait a reason-
able time for a response, prior to entering Gould's home; and, this
requirement could only be excused if exigent circumstances justified
immediate entry. With this background in mind, we turn now to the
officers' basic argument in this court -- that the exigent circum-
stances doctrine was not sufficiently defined in 1992 so that a reason-
able officer would know he was violating clearly established law in
seeking and executing a no-knock warrant under the circumstances of
this case.
First, the officers argue that they are entitled to qualified immunity
because the doctrine of exigent circumstances was not clearly estab-
lished in 1992 and, indeed, remains unclear to this day. Appellants'
Br. at 25. We disagree. As we discussed above, countless Supreme
Court and Fourth Circuit cases prior to 1992 held that the doctrine of
exigent circumstances basically encompasses officer safety and the
destruction of easily-disposed evidence. See, e.g., Sabbath, 391 U.S.
at 591; Katz, 389 U.S. at 355 n.16; Simons, 762 F.2d at 32 n.2;
Jackson, 585 F.2d at 662; see also Bonner v. Anderson, 81 F.3d 472,
477 (4th Cir. 1996) (Wilkinson, C.J., dissenting) (quoting Jackson,
and finding that the exigent circumstances doctrine was "plainly indi-
cated" by Fourth Circuit caselaw in September 1992). In order to find
that the law in a given area is clearly established,"there need not be
a prior case directly on all fours." Pinder v. Johnson, 54 F.3d 1169,
1173 (4th Cir. 1995) (en banc); see DiMeglio v. Haines, 45 F.3d 790,
804 (4th Cir. 1995) ("This is not to say that an official action is pro-
tected by qualified immunity unless the very action in question has
previously been held unlawful . . . ."). Instead,"[t]he contours of the
right must be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640 (1987); see DiMeglio, 45 F.3d at 804("[I]n the light of pre-existing law the unlawfulness must be appar-
ent."). We believe it would have been "sufficiently clear" and "appar-
ent" to a reasonable officer in October 1992 that failure to knock and
8
announce prior to entering Gould's home could only be justified by
a fear for officer safety or a fear that the evidence sought in the war-
rant could be easily destroyed.
Second, and in the alternative, the officers argue that if the defini-
tion of exigent circumstances was clearly established in 1992, then a
reasonable officer would have believed that the circumstances of this
case justified dispensing with the knock and announce requirement in
the search of Gould's home. On this point, the officers rely on the "of-
ficer safety" component of the exigent circumstances doctrine. The
officers' brief presents the issue this way: In October 1992, clearly
established law provided that "the Defendants' actions were justified
if the exigencies and practicalities of the situation . . . served to
increase the peril of the arresting officer." Appellants' Br. at 31 (quo-
tation omitted).
The officers provide two reasons why they believed they would be
in peril in a search of Gould's home: 1) the crime for which Gould,
Jr. was being investigated was armed robbery and the search warrant
listed two handguns among the items to be seized, and 2) the criminal
history of Gould's children warranted an inference that Gould, Sr.
might shoot the officers if they knocked and announced their presence
before entering. The first of these justifications was put forward in the
officers' affidavit used to secure the warrant, see J.A. at 88, and the
second was propounded in the officers' brief on appeal, see Appel-
lants' Br. at 37 n.9. We cannot accept the officers' argument, and
hold that no reasonable officer in 1992 could have believed that the
decision to seek and execute a no-knock warrant under these circum-
stances was consistent with clearly established law.
Both of the justifications articulated by the officers rely on an
assumption that we cannot accept, and that any reasonable officer
would have rejected as inconsistent with clearly established law in
1992 -- a belief that Gould, Sr. might use a weapon because of the
criminal propensities of his children. If anything is a bedrock princi-
ple of our laws, it is that the law treats each of us as an individual.
The law cannot abide the notion that a child's behavior can be suffi-
cient, by itself, to deprive his father of constitutional rights. In this
case, the officers knew at the time they applied for the warrant, and
when they later broke down Gould's door with a battering ram, that
9
Gould, Sr. had no criminal history and was not involved in the armed
robberies in any way. They also knew that Gould, Jr., the alleged per-
petrator of the crimes under investigation, was in police custody.
Given these circumstances, the officers essentially ask us to hold that
a reasonable officer, in 1992, would have believed that a parent loses
basic, Fourth Amendment protections in his own home when his chil-
dren have been charged in a crime. We think it obvious that the offi-
cers' argument cannot be correct.
Another component of the officers' argument is that a no-knock
warrant was justified because the officers sought to recover handguns
from Gould's home. The officers recognize that Gould, Sr. had never
been arrested, and they had no reason to believe he would use vio-
lence against the police. Nonetheless, the officers suggest that a rea-
sonable officer would have believed that the presence of handguns at
Gould's home, in and of itself, justified a departure from the knock
and announce requirement. If the officers are correct, then the knock
and announcement requirement would never apply in the search of
anyone's home who legally owned a firearm. This clearly was not and
is not the law, and no reasonable officer could have believed it to be
so. We think a reasonable officer would have known that guns do not
fire themselves, and that a justifiable fear for an officer's safety must
include a belief, not simply that a gun may be located within a home,
but that someone inside the home might be willing to use it.2
Finally, the officers argue that the state court judge's decision to
grant the no-knock warrant prohibits a jury from deciding whether a
_________________________________________________________________
2 The officers' brief also suggests that police were involved in a shoot-
ing incident with one of Gould, Jr.'s brothers at Gould, Sr.'s home in
1991. The evidence in the record to support this assertion is scant. Fur-
thermore, Gould points to evidence in the record to support his conten-
tion that the officers had no knowledge of this incident, if indeed it took
place. Inasmuch as the qualified immunity question turns on this issue of
fact (whether an incident took place at Gould's home in 1991, and
whether the officers in this case were aware of it), we are without juris-
diction to review it. Johnson v. Jones, 515 U.S. 304, 311 (1995) (holding
that defendant may not pursue interlocutory appeal of the denial of quali-
fied immunity "insofar as that order determines whether or not the pre-
trial record sets forth a ``genuine' issue of fact for trial").
10
reasonable officer would have believed that a no-knock warrant was
justified under these circumstances. Contrary to the officers' argu-
ment, however, obtaining a warrant is not per se evidence of objective
reasonableness. Malley v. Briggs, 475 U.S. 335, 345 (1986). In
Malley, the Supreme Court rejected a police officer's contention, on
the question of qualified immunity, "that he[was] entitled to rely on
the judgment of a judicial officer in . . . issuing the warrant." Id.[W]here a magistrate acts mistakenly in issuing a warrant
but within the range of professional competence of a magis-
trate, the [police] officer who requested the warrant cannot
be held liable. But it is different if no officer of reasonable
competence would have requested the warrant, i.e., his
request is outside the range of the professional competence
expected of an officer. If the magistrate issues the warrant
in such a case, his action is not just a reasonable mistake,
but an unacceptable error indicating gross incompetence or
neglect of duty. The officer then cannot excuse his own
default by pointing to the greater incompetence of the mag-
istrate.
Id. at 346 n.9. In this case, although the state court judge clearly
neglected his duties in sanctioning a no-knock warrant under these
facts, his incompetence does not excuse the officers' default in bring-
ing the no-knock request to the judge in the first place, as well as their
execution of the warrant later that morning.
In sum, we reject the officers' claim that the exigent circumstances
doctrine was so poorly defined in 1992 that it could not have been
considered clearly established law. We also reject the officers' alter-
native argument that the doctrine of exigent circumstances was well-
defined, and that the circumstances in this case would have led a rea-
sonable officer to fear for his safety in executing a search warrant at
Gould's home. In October 1992, the law was clearly established that
the circumstances of this case did not justify seeking or executing a
no-knock warrant.
C.
In the final prong of the qualified immunity analysis, we must
determine whether a reasonable person in the officers' position would
11
have known that his actions violated the right alleged by the plaintiff.
This prong is the source of some confusion for the parties, who argue
in their briefs about whether "reasonableness" is a question of law, to
be decided by the court, or a question of fact that must be decided by
a jury. See Appellants' Br. at 33 ("The district court erred in refusing
to decide whether the Defendants acted reasonably."); Appellee's Br.
at 22 ("[W]hether the officers' actions were objectively reasonable
cannot be determined by way of summary judgment."). The parties
misconstrue this part of the analysis, however, by arguing over
whether the officers' behavior in this case was"reasonable." The
question in qualified immunity is not whether the officers acted "rea-
sonably" in the sense in which that term is used in tort law. The ques-
tion is whether a reasonable person would have known about
controlling law, once that law is deemed to have been clearly estab-
lished under the second prong. The concept of objective reasonable-
ness, as used in qualified immunity, is not a freestanding evaluation
of the "reasonableness" of an officer's actions. Objective reasonable-
ness provides that the qualified immunity analysis is an objective
inquiry; it signals the Supreme Court's repudiation of a subjective
qualified immunity standard, or "good faith" immunity, in Harlow v.
Fitzgerald, 457 U.S. 800, 815-19 (1982).
The parties' confusion on this matter is understandable, given that
some courts define the right alleged by a § 1983 plaintiff at a very
general level under the second prong and consider the specific factual
circumstances under the third prong. In such cases, the second prong
of the qualified immunity analysis becomes a pro forma recitation of
a general constitutional right, and the real "work" (that is, the consid-
eration of the specific facts of the case) is done under the third prong.
See, e.g., Smith v. Reddy, 101 F.3d 351, 356 (4th Cir. 1996) (holding
that the "right to be arrested only on probable cause" was clearly
established and considering, under the third prong,"whether a reason-
able person in [the officer's] position would have thought her actions
violated that right"). But where, as here, we have defined the right in
the second prong in a well-defined, fact-specific manner, the third
prong will be quite easy to resolve, absent extraordinary circum-
stances:
When the inquiry proceeds to [the third prong], "the immu-
nity defense ordinarily should fail, since a reasonably com-
12
petent public official should know the law governing his
conduct," Harlow, 457 U.S. at 818-19; however, the defen-
dant may still be able to show "extraordinary circumstances"
and "prove that he neither knew nor should have known of
the relevant legal standard." Id. at 819.
DiMeglio, 45 F.3d at 795 n.1 (citations omitted). The officers have
offered no argument why, if their actions were in violation of clearly
established law, a reasonable person would not have been aware of
that law. Accordingly, the officers are not protected by qualified
immunity.
IV.
For these reasons, we affirm the order of the district court denying
the officers' motion for summary judgment based on qualified immu-
nity. Because the officers' decision to seek and execute a no-knock
warrant was in violation of clearly established constitutional law of
which a reasonable person would have known, Gould is entitled to
proceed in this action.
AFFIRMED
WILLIAMS, Circuit Judge, dissenting:
Today the majority holds that officers executing a no-knock search
(pursuant to a warrant issued by a neutral and detached state circuit
court judge that specifically authorized a no-knock search) at a home
where a resident had shot at officers within the previous year are not
entitled to qualified immunity. Because I am convinced that the offi-
cers' conduct did not violate Gould, Sr.'s clearly established constitu-
tional rights, I respectfully dissent.
I.
As the majority correctly notes, police officers are entitled to quali-
fied immunity if, in the performance of their duties, "their conduct
does not violate clearly established . . . constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457
13
U.S. 800, 818 (1982). For the reasons that follow, however, I disagree
with the majority's conclusion that the officers' decision to seek and
execute a no-knock warrant of Gould, Sr.'s home violated his clearly
established Fourth Amendment rights.
As Fourth Circuit case law plainly indicated at the time of the offi-
cers' actions, exigent circumstances could excuse the failure to
"knock and announce." See, e.g., Simons v. Montgomery County
Police Officers, 762 F.2d 30, 32-33 (4th Cir. 1985) (noting that exi-
gent circumstances justify the failure to "knock and announce"); cf.
Wilson v. Arkansas, 115 S. Ct. 1914, 1918 (1995) (noting that not
"every entry must be preceded by an announcement"). As a result, to
avoid summary judgment on qualified immunity grounds, Gould had
to allege facts demonstrating that the established contours of the "exi-
gent circumstances" exception were sufficiently clear at the time of
the incident such that the unlawfulness of the officers' actions was
obvious. I submit that Gould, Sr. simply failed to allege such facts.
Without question, the failure to knock and announce prior to enter-
ing a home can be justified by a fear for officer safety. See, e.g.,
United States v. Jackson, 585 F.2d 653, 662 (4th Cir. 1978) (noting
that the failure to "knock and announce" may be justified if there is
a likelihood that the occupants will resist the police). Here, although
Gould, Jr. was in police custody at the time of the search, the officers
were aware of the extensive criminal history of his siblings. Indeed,
there is evidence that officers were involved in a shooting incident
with one of Gould, Jr.'s brothers at the Gould's home within the pre-
vious year. The majority, however, minimizes the danger that the offi-
cers reasonably believed they faced that night.* Although it was later
determined that Gould, Jr.'s siblings were also in jail (on unrelated
_________________________________________________________________
*The majority states that the officers believed that they would be in
danger at Gould, Sr.'s home because the criminal history of his children
warranted an inference that Gould, Sr. might be violent. See ante at 9.
The officers did not, as the majority suggests, primarily argue that Gould,
Sr. might use a weapon because of the criminal propensities of his chil-
dren. Rather, the officers were concerned that one of Gould's children
might use a weapon. Although it was later determined that all of Gould's
children were in jail at the time of the search, the officers were not aware
of that fact at the time of the incident.
14
charges) at the time of the search, the officers acted reasonably upon
the evidence available to them at the time. Because"officers on the
beat are not afforded the luxury of armchair reflection," Elliott v.
Leavitt, 99 F.3d 640, 642 (4th Cir. 1996), cert. denied, 117 S. Ct.
2512 (1997), their actions must not be judged "with the 20/20 vision
of hindsight," Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Accordingly, I believe that the officers' decision to seek and execute
a no-knock warrant was objectively justified and reasonable.
Even assuming, as the majority argues, that at the time of the
search the officers in question had no knowledge of the prior shooting
incident at the Gould residence or of the criminal record of Gould,
Sr.'s children, I believe that the contours of the"officer safety" excep-
tion to the "knock and announce" requirement were not clearly estab-
lished in 1992 so as to make the unlawfulness of these officers'
actions apparent. See Anderson v. Creighton, 483 U.S. 635, 640
(1987) (noting that "[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing
violates that right"); Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.) (en
banc) (same), cert. granted, 119 S. Ct. 443 (1998). Although the
majority contends that the unlawfulness of the officers' actions was
apparent in 1992, it was only last year, 1997, that the Supreme Court
stated that the officer safety exception would not justify a "no-knock"
search "at a time when the only individuals present in a residence
ha[d] no connection with the [criminal] activity." Richards v.
Wisconsin, 117 S. Ct. 1416, 1421 (1997). Thus, although it is now
clearly established that the officers' conduct -- as portrayed by the
majority -- violated the "knock and announce" requirement, it was
not clearly established that their conduct violated the "knock and
announce" requirement in October 1992.
II.
Because I believe that the officers acted reasonably under the cir-
cumstances and, in the alternative, that there was a lack of clarity in
the law governing the officer safety exception in October 1992, I
would grant the officers qualified immunity.
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