Maddux v. Officer One , 90 F. App'x 754 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-20881
ARLEEN MADDUX,ET AL, Plaintiffs,
ARLEEN MADDUX, Plaintiff-Appellant,
versus
OFFICER ONE; ET AL, Defendants,
CITY OF PASADENA, Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(H-99-CV-855)
BEFORE WIENER and BARKSDALE, Circuit Judges, and FURGESON,*
District Judge.
FURGESON, District Judge:**
Whether to grant a judgment as a matter of law in a civil
rights jury trial can present unique challenges for any district
court. Such was the case for the trial judge in this appeal. We
conclude that the learned court below erred when it granted the
* United States District Judge for the Western District of
Texas, sitting by designation.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
motion and we thus reverse.
Appellant Arleen Maddux’s claim under 42 U.S.C. § 1983 is
premised on an alleged violation of her Fourth Amendment rights.
She alleges that City of Pasadena (“City”) police officers entered
her home intent upon executing a felony arrest warrant, the subject
of which was reasonably believed to be in her residence or that of
a nearby neighbor, in the absence of consent, exigent
circumstances, or a search warrant. She contends that the
officers’ entry contravened the United States Supreme Court’s
holding in Steagald v. United States1 that absent consent, exigent
1 451 U.S. 204 (1983). Petitioner Gary Steagald was indicted on
federal drug charges after Drug Enforcement Administration agents
discovered cocaine in Steagald’s house during their search for the
subject of an outstanding felony arrest warrant. A confidential
informant tipped off the agents that the subject of the warrant could
be reached at the phone number matching that belonging to the Steagald
residence. DEA agents entered the Steagald residence without the
consent of the individual who answered the door and searched for the
subject of the warrant. DEA agents conducted a second search, which
revealed additional incriminating evidence. It was after securing a
search warrant for still another search that DEA agents found the
cocaine. Steagald moved to suppress all evidence uncovered during the
searches, because the DEA agents had failed to obtain a search warrant
before entering the house. The district court denied the motion. A
divided panel of judges of this Circuit affirmed, in reliance on a
previous decision, finding that it was unnecessary for an officer to
obtain a search warrant to enter a third-party premises to arrest the
subject of an arrest warrant, so long as the warrant was valid and the
officer had a reasonable belief that the subject was within the third-
party premises. United States v. Cravero, 545 F.2d 406, 421 (1976),
cert. denied, 430 U.S. 983 (1977). The search at issue in Steagald had
taken place in the absence of either consent or exigent circumstances,
leaving the Court to determine whether the arrest warrant alone was
adequate to protect the Fourth Amendment interests of the third party
whose home DEA agents had entered to search for the subject of the
arrest warrant. Justice Marshall, writing for the majority, held that
“in order to render the instant search reasonable under the Fourth
Amendment, a search warrant was required.” Steagald, 451 U.S. at 222.
In doing so, the majority weighed the additional burden on law
enforcement officers attendant to a warrant requirement against the
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circumstances, or a search warrant, law enforcement officers may
not, consistent with the Fourth Amendment, enter a third-party
residence to apprehend the subject of an arrest warrant.
I. Facts and Proceedings
A. Facts
Maddux, and other Plaintiffs not joining in this appeal,
brought suit against the City and eight of its police officers,
alleging various federal- and state-law causes of action arising
out of City officers’ execution of a valid felony arrest warrant on
June 3, 1998. A confidential informant had advised officers that
the subject of an outstanding felony arrest warrant could be found
at his residence, 2635 Goldenrod in Pasadena. Arleen Maddux and
her husband, James Maddux, lived in a neighboring house at 2631
Goldenrod. Acting on the information furnished by the confidential
informant, an officer surveilled 2635 Goldenrod, as well as
surrounding houses on the block, including the Maddux residence,
before deciding to execute the felony arrest warrant. At the time
the officers converged on the 2600 block of Goldenrod to apprehend
the subject of the felony arrest warrant, Maddux, her husband, and
their son, who also resided with them, were hosting a backyard
barbecue with several friends in attendance.
The parties have throughout offered fundamentally different
“right protected–that of presumptively innocent people to be secure in
their homes from unjustified forcible intrusions by the Government,” and
found that the balance favored the latter.
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accounts of the ensuing events. According to Maddux, as she stood
in the laundry room of her residence, she was suddenly confronted
by an unknown individual who entered without consent, pointed a gun
at her, and demanded to know who was inside her house. Maddux
claims that the individual failed to identify himself as a police
officer and that she assumed that he was an armed intruder. She
believed that her safety, and that of the other individuals in the
house, was in jeopardy. Maddux was unable to answer the
individual’s question and continued to stand in her laundry room,
describing her demeanor as “totally shocked,” “thinking ‘I’m never
going to make it.’” She alleges that the individual pushed her
aside and encountered a guest whom he led at gunpoint to the
backyard of the Maddux residence where others were also being
detained by other officers. Maddux maintains that certain
individuals overheard a police radio transmission advising officers
that the subject of the felony arrest warrant was in fact at the
“corner” house, 2635 Goldenrod.
It was Plaintiffs’, and is now Maddux’s, theory that City
officers thought, based on the surveillance that afternoon, that
the suspect would be found at either 2635 or 2631 Goldenrod.
Acting on that information, Maddux alleges that the officers
intended to, and in fact did, enter both residences without a
search warrant. Officers testifying at trial admitted that exigent
circumstances were lacking. Maddux contends that City officers
entered her residence without consent because they believed, in
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accordance with their knowledge and familiarity with the Pasadena
Police Department’s Rules and Procedures Manual, that they were
authorized to do so inasmuch as available information placed the
subject at one of the two residences.
In contrast, the City contends that when officers arrived at
the neighborhood, they observed several individuals in the backyard
of the Maddux residence, and that a radio transmission advised that
the subject of the felony arrest warrant might be among the
individuals mingling in that group. The City alleges that, before
officers located the subject of the felony arrest warrant, the City
alleges that two officers proceeded to the backyard of the Maddux
residence to secure the surrounding area in consideration of the
safety of the neighbors and the officers involved. Officers
reportedly instructed those present to move either inside the house
or to the front of the house out of harm’s way. Other officers
then requested and obtained consent to enter 2635 Goldenrod, where
they located the subject and took him into custody.
B. Pre-Trial Disposition and Motion for Judgment as a
Matter of Law
The City moved for summary judgment on Plaintiffs’ claim
brought pursuant to § 1983. Plaintiffs argued that the City Police
Department’s written policy, found in its Rules and Procedures
Manual, authorized officers to execute felony arrest warrants on a
private residence, where the subject in fact does not reside but is
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nevertheless believed to be, in violation of Steagald.2 The City
defended the constitutionality of its written policy and attested
to its “long-standing custom and practice” of training and
requiring officers to obtain consent before entering any residence
for purposes of executing a felony arrest warrant. The district
court denied summary judgment, citing the factual issues created by
“the parties’ radically conflicting accounts of the actual events
occurring on June 3, 1998 at the Maddux residence.”
The case proceeded to a jury trial, and at the close of
Plaintiffs’ case, the City orally moved for judgment as a matter of
law, on the grounds that Plaintiffs failed to demonstrate that the
City espoused an official policy or custom allowing officers to
execute arrest warrants in violation of the Constitution or laws of
the United States. The City asserted, to the contrary, that its
practice and custom was to abide by the Constitution and laws of
the United States, as evinced both in its written policy and in its
practice of securing consent before executing a felony arrest
warrant at a third-party residence. According to the City, even
taking as true Plaintiffs’ allegations that one or more officers
entered the Maddux residence in the absence of one of the Steagald
exceptions (consent, exigent circumstances, or a search warrant),
such conduct was in contravention of the City’s official policy.
The City cited as an additional justification for granting
2 The relevant passage, section 90.06 of the Rules and Procedures
Manual, is quoted in full and discussed in greater depth in Section V.
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judgment in its favor Plaintiffs’ inability to identify the officer
alleged to have entered the Maddux residence. The district court
did not reach this argument.
Plaintiffs countered that, in the twenty years since Steagald,
the section of the Rules and Procedures Manual pertaining to the
execution of arrest warrants had not been modified to instruct law
enforcement officers of the steps that are constitutionally
required to search a third party’s residence for the subject of an
arrest warrant. Plaintiffs repeatedly characterized the City’s
written policy as affirmatively unconstitutional in attempting to
persuade the district court that the instructions with regard to
execution of arrest warrants in the Rules and Procedures Manual
were the “moving force” behind the officers’ violation of their
Fourth Amendment rights.
C. The District Court’s Grant of Judgment as a Matter of Law
In publishing its ruling from the bench, the district court
made two findings, either of which would have been decisive of the
Rule 50 motion.
First, even accepting as true Plaintiffs’ version of the
events, i.e., that the officers actually entered the Maddux
residence, the district court was persuaded that the officers had
not acted intentionally. Rather, they had accidentally entered the
Maddux residence in the mistaken belief that the subject of the
arrest warrant would be found at 2631 Goldenrod. The officers’
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negligent violation of Plaintiffs’ constitutional rights would not,
according to the district court, be cognizable in a § 1983 claim.
The district court raised this issue sua sponte; the City did not
argue the absence of a constitutional deprivation as a basis for
its Rule 50 motion.
Under the twin assumptions that the officers had (1)
intentionally (2) entered the Maddux residence, the district court
then addressed the City’s contention that Plaintiffs had failed to
demonstrate that the City, by means of an official policy, was
responsible for the alleged deprivation of Plaintiffs’
constitutional rights. In doing so, the district court shifted its
focus to the quantum of evidence adduced to show that an official
policy or custom was the impetus for the deprivation of Plaintiffs’
constitutionally-protected rights. The issue then before the
district court was whether the officers, in entering the Maddux
residence in the absence of the Steagald exceptions, acted in
accordance with a policy officially adopted and promulgated by the
City with deliberate indifference to the known and obvious
consequence that the policy could subvert Plaintiffs’
constitutional rights.
With regard to evidence presented, the district court found
that the City’s official policy was to train and require its
officers to obtain consent before entering a residence of a third
party to execute a felony arrest warrant. In the judgment of the
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district court, if consent was required as a matter of course in
every instance in which an arrest warrant was to be executed, as
the City maintained that it was, then the City’s custom and
practice could not be interpreted as running afoul of the Fourth
Amendment. The City, according to the district court, relied upon
“one of three methods that the officers could employ and still be
in compliance with the constitutional requirements of . . .
executing an arrest warrant at the home of a third party, which is
consent, exigent circumstances, or a search warrant.” The district
court commended this custom the City had in place as having been
“designed to assure that constitutional violations would not
result.”
The district court reasoned that with this policy in place
Plaintiffs were unable to show that the City acted intentionally to
deprive them of their right under the Fourth Amendment to be free
from an unreasonable search of their home. In the perceived
absence of any evidence of a policy statement, custom, or practice
enacted by the City in deliberate indifference to the
constitutional rights of its citizens, the district court
determined that the issue of municipal liability under § 1983 could
not proceed to the jury.
The record indicates that the assistant chief of police, and
those officers who had been called by the Plaintiffs as adverse
witnesses, were avowedly unaware that a United States Supreme Court
opinion had distinguished the privacy interests with which law
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enforcement officers had to contend in executing arrest warrants.
But the district court found that the City’s dereliction in
altering its Rules and Procedures Manual, so as to reflect the
distinctions made in Steagald, fell short of the necessary showing
of deliberate indifference. She noted, “the fact that they were
negligent in not understanding or training or explaining to their
officers that an additional method of assuring that constitutional
violations would not result in the securing of a search warrant,
does not result in municipal liability.”
Thus, the district court held that if the officers in fact
acted in violation of the City’s policy, the negligence of those
officers could not be attributed to the City under a theory of
respondeat superior. The United States Supreme Court indeed has
consistently rejected arguments for imposing vicarious liability on
municipalities for the actions of their employees under § 1983
since its decision in Monell v. Department of Social Services.3
Although Plaintiffs argued that the written policy regarding
the planned execution of arrest warrants in the Rules and
Procedures Manual was affirmatively unconstitutional, the district
court insisted that the City trained officers to get consent first.
In fact, the district court’s scrutiny of the language in the Rules
and Procedures Manual was confined to its assessment that the
written policy did not, by omission or otherwise, convey that a
3 436 U.S. 658 (1978).
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search warrant was not required to enter a third-party residence.
In conclusion, the district court noted the absence of any
“legally sufficient evidentiary basis for a jury to find for any of
the plaintiffs with respect to the allegations in the lawsuit.”
The district court then proceeded to grant the motion for judgment
as a matter of law in favor of the City as to all Plaintiffs, and
to dismiss the jury.
II. Standard of Review of Judgment as a Matter of Law
On appeal, Maddux broadly phrases the issue as whether the
City is liable for the conduct of its officers in entering the
Maddux residence in the absence of the Steagald exceptions, in
light of the Pasadena Police Department’s Rules and Procedures
Manual’s seeming endorsement of such unconstitutional measures.
Specifically, Maddux takes issue with the district court’s two
dispositive findings: (1) that the officers did not act
intentionally, if at all, and (2) that the City’s official policy
was to require and train its officers to get consent before
entering all private premises to execute felony arrest warrants.
Federal Rule of Civil Procedure 50(a)(1) permits a district
court during a jury trial to enter judgment as a matter of law
against a party with respect to a claim or a defense, but only if
that party “has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find
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for that party on that issue.”4 We review de novo a district-court
ruling on a motion for judgment as a matter of law. 5 Thus, like
the district court, we must review the record as a whole, taking
care to draw all reasonable inferences in favor of the nonmoving
party and to abstain from making credibility determinations or
weighing the evidence presented to us. Likewise, as to evidence
supporting the moving party, we must credit only that which is
uncontradicted, unimpeached, and unattributable to interested
witnesses.6
Judgment as a matter of law is appropriate only in the rare
instance in which the facts and inferences favor one party so
profoundly that reasonable minds could not disagree.7 When
confronted with “evidence of such quality and weight that
reasonable and fair-minded [people] in the exercise of impartial
judgment might reach different conclusions” a district court should
deny the motion for judgment and submit the case to a jury.8 The
4 Fed. R. Civ. P. 50(a)(1); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149 (2000).
5 Anthony v. Chevron, 284 F.3d 578, 582-83 (5th Cir. 2002).
6 Phillips ex rel. Phillips,311 F.3d 369, 373 (5th Cir. 2002),
cert. denied, 123 S. Ct. 2274 (2003) (noting that in Reeves, 530 U.S.
at 150-51, the United States Supreme Court had clarified this as the
approach to be taken in granting judgment as a matter of law).
7 See Piotrowski v. City of Houston, 237 F.3d 567, 576 n.9 (5th
Cir. 2001) (citing Rutherford v. Harris County, 197 F.3d 173, 179 (5th
Cir. 1999)).
8 Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir. 1997)
(quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en
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district court should be mindful, that “it is the function of the
jury as the traditional finder of the facts, and not the Court, to
weigh conflicting evidence and inferences, and determine the
credibility of witnesses.”9
III. Section 1983 and Municipal Liability
Without conferring any substantive rights, § 1983 instead
creates a cause of action against any person who, acting under
color of state law, deprives another of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.10 The United States Supreme Court designated municipalities
as persons to whom § 1983 applies and articulated the standard for
imposition of municipal liability under § 1983 twenty-five years
ago in Monell.11 To establish municipal liability under § 1983 for
the actions of a governing body’s officials, the aggrieved
individual must prove that an official policy is responsible for
the claimed deprivation of the federally-protected right that is at
issue.12
Although official policy is generally to be found in policy
statements, ordinances, regulations, or decisions formally adopted
banc)).
9 Id.
10 42 U.S.C. § 1983.
11 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).
12 Id.
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and promulgated by the governing body or individuals with
policymaking authority, a policy may also be evinced in “a
persistent, widespread practice of city officials or employees . .
. so common and well settled as to constitute a custom that fairly
represents municipal policy.”13 If the official municipal policy
is embodied in a custom, the governing body or policymaking
individuals must have either actual or constructive knowledge that
such custom prevails.14 Actions not attributable to execution of
an official policy, in whatever form, will not subject the
municipality to liability under § 1983.
In prosecuting her claim against the City under § 1983,
Maddux, in addition to establishing the predicate violation of the
underlying constitutional right,15 was required to: identify a
municipal policymaker with actual or constructive knowledge of the
policy that was alleged to have caused her injuries; isolate and
present evidence of the official policy of which she was
complaining; and show that her alleged injuries were incurred as a
result of the law enforcement officers’ execution of that official
13 Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)
(en banc); see also Bd. of County Comm’rs of Bryan County v. Brown, 520
U.S. 397, 405-07 (1997) (citing Monell, 436 U.S. at 690-910.
14 Webster, 735 F.2d at 841.
15 Johnston v. Harris County Flood Control Dist., 869 F.2d 1565,
1573-74 (5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990).
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policy, otherwise referred to as the “moving-force” requirement.16
Thus, our decisions insist upon adequate evidence of “both
municipal culpability and causation,” in order to prevent
imposition of liability founded on a theory of respondeat
superior.17
As long as causation is established, an official policy that
is facially unconstitutional evinces municipal culpability without
more, terminating the inquiry. In contrast, a facially innocuous
policy will support municipal culpability only if it was
promulgated with objective deliberate indifference to the “‘known
or obvious consequences’ that constitutional violations would
result.”18 Thus, this Court has previously concluded that as to
each policy to which a plaintiff is pointing in support of her
claim for municipal liability under § 1983, “it must be determined
whether each one is facially constitutional or unconstitutional.”19
16 Piotrowski v. City of Houston, 237 F.3d 567, 578-80 (5th Cir.
2001)(citing Monell, 436 U.S. at 694); Bennett v. City of Slidell, 728
F.2d 762, 767 (5th Cir. 1984).
17 Piotrowski, 237 F.3d at 578 n.17, 580 (citing Snyder v.
Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998)).
18 Id. at 579 (quoting Bryan County, 520 U.S. at 407). The burden
for proving deliberate indifference is necessarily high, such that “a
showing of simple or even heightened negligence will not suffice.” Id.
(citing Bryan County, 520 U.S. at 407).
19 Id. at 579-80.
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IV. Constitutional Deprivation: Negligent
Conduct vs. Intentional Conduct
A. Finding of Negligent Conduct
Maddux urges that the district court erred when, without
reaching the issue of municipal liability, it found that Plaintiffs
had failed “to establish that the defendants acted intentionally
with respect to the constitutional rights that they [Plaintiffs]
allege have been violated.” Maddux contends that the district court
impermissibly weighed the evidence and determined the credibility
of testifying witnesses at trial when it concluded that the
officers, if they did in fact enter the Maddux residence, did so by
accident, in the mistaken belief that they were supposed to be in
that house and not the one next door. The district court
characterized such a scenario as “negligence which is not
cognizable as a claim in this case.”
Maddux suggests why the officers reasonably believed that the
subject of the arrest warrant might be found at the Maddux
residence and, thus, why at least one officer intentionally entered
the Maddox house looking for the subject of the felony arrest
warrant. Maddux’s sons, Gary Maddux and Bryan Maddux,20 both
testified that they heard police radio transmissions advising
officers that they were at the “wrong house.” Maddux argues that
this testimony, coupled with that of one officer who understood
20 Only Gary Maddux was present during the alleged entry.
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that the subject of the arrest warrant could be found at either of
the two houses on Goldenrod, or that of another officer who thought
the subject was going to be found in the Maddux residence, supports
the equally logical inference that the officers intended to enter
both residences in an attempt to locate the subject, and that any
reference to the “wrong house” could simply have meant that the
subject had been located at the other of the two residences.
Maddux thus insists that the officers had formed a belief that the
subject was in one of the two residences, and that the ensuing
radio transmissions informing the officers that they were in the
“wrong house” served only to advise that the subject was in fact at
2635 Goldenrod and not the Maddux house.
The district court deduced otherwise, concluding that the
evidence only supported the finding that the officers were merely
confused about where they were supposed to be. The transcript of
the trial contains the district court’s observations pursuant to
its ruling:
Even ignoring all of what the defendant officers
have to say about the facts as they occurred on
that day and taken [sic] as true the statements
that were made by the plaintiffs with respect to
the actions of the officers, two of the plaintiffs
testified that while the officer was in the home
and one while he was outside of the home, that they
heard evidence that the officers had not
intentionally but accidentally gone to the wrong
house, which the Court finds makes it difficult if
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not impossible, for the plaintiffs to establish
that the acts of the officers were committed
intentionally.
B. The Testimony
Plaintiffs called nine witnesses over the two-day duration of
their case, including several plaintiffs, officers and others
assembled at the time of the incident, and Assistant Police Chief
Cunningham. A summary of these witnesses’ testimony, with regard
to the issue of whether a predicate constitutional deprivation was
credibly presented, follows.
Two witnesses are of no assistance in this endeavor.21 But,
assessments of the credibility of the seven remaining witnesses,
each of whom offered testimony relevant to this issue, would have
enabled the jury to assess the credibility of the various
conflicting statements and to determine whether the officers, if
they did enter the Maddux residence, did so intentionally.
Bryan Maddux, who arrived as officers were attempting to
locate the subject of the felony arrest warrant, observed officers
in the area surrounding his parents’ house, though not inside the
residence. Bryan Maddux testified that he overheard a radio
transmission telling officers that they were at the “wrong
21 Arleen Maddux testified that she was shocked and feared for
her life while confronting an unknown, armed individual inside her home.
Maddux claims that she did not know that the individual was an officer,
and she was further unable to identify him from among those officers
present at the scene of the arrest. So, she does not claim to have
knowledge of whether the officers realized they were at the “wrong
house.” Assistant Police Chief Cunningham is also silent on the issue,
as he was not present at the scene.
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address.”
Dale Oldfield was among the three individuals — Arleen Maddux
and Gary Maddux included — who claimed that while inside the Maddux
residence, he had encountered an unknown individual clad in black
and displaying a gun.22 Oldfield testified that the unknown
individual asked him who he was and whether he knew another named
individual, presumably the subject of the arrest warrant. After
Oldfield exited the house and walked into the backyard as he had
been instructed to do, he overheard a garbled radio transmission
from which he was unable to distinguish any coherent communication.
But he did note that following the transmission, several of the
officers within his view retreated from the vicinity of the Maddux
residence and converged on the residence at 2635 Goldenrod.
Maddux’s other son, Gary, was living with his parents at the
time and was home that afternoon. He testified that the unknown
individual whom he encountered inside the Maddux residence said
nothing to him other than ordering him to go outside to the
backyard. Gary Maddux complied and, according to him, overheard a
radio transmission informing officers that they were at the “wrong
house.” At that point, Gary Maddux walked back inside his parents’
house without opposition from any officers.
Lieutenant Michael Jackson, the senior officer at the scene,
offered testimony rife with contradictions. He testified that it
22 The district court found that Oldfield had no expectation of
privacy in the Maddux residence, which ruling Oldfield did not appeal.
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was his understanding that although a confidential informant had
identified 2635 Goldenrod as the residence where the subject of the
arrest warrant could be located, the officer who conducted the
preliminary surveillance of the neighborhood had observed unknown
individuals traveling back and forth between 2635 Goldenrod and the
Maddux residence at 2631 Goldenrod. Lieutenant Jackson was among
several officers advised by radio transmission that “there was foot
traffic between the two residences at the time we were in the
area.” He testified that the information he had received indicated
to him that the subject could be “going back and forth between the
backyards of the two [residences] and inside the corner house [2635
Goldenrod].”
Lieutenant Jackson added later that, upon arrival, he and
Officer Tracy Marshall proceeded to the Maddux backyard, but that
their focus was the residence next door where the subject was
believed to be. On cross-examination, Lieutenant Jackson testified
that it was not the intent of the officers executing the arrest
warrant to enter the Maddux residence. But in a followup question
referring Lieutenant Jackson to his earlier averments in a sworn
statement, Lieutenant Jackson acknowledged that, at the time, there
was some reason to believe that the subject might be inside the
Maddux residence, because an attempt might have been made to elude
police and traffic between the two residences had been reported.
Officer Candelari drove the confidential informant to the 2600
block of Goldenrod where the informant identified the house at 2635
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Goldenrod as the residence where the subject of the arrest warrant
could be located. Officer Candelari dropped off the informant and
returned to the area near the 2600 block of Goldenrod to conduct
surveillance of 2635 Goldenrod from a comfortable distance with the
use of binoculars. Significantly, he did not know exactly what the
subject of the warrant looked like; only a bare description of
height, weight, and perhaps hair color had been provided to him.
Officer Candelari testified that during his surveillance, he noted
several individuals who “could have possibly matched that
description.” In his radio transmission, he indicated that he saw
“traffic” going between 2635 Goldenrod and 2631 Goldenrod; he did
not say that he had actually seen the subject or that the subject
would only be found at 2635 Goldenrod, the residence identified by
the informant.
In an effort to clarify his earlier statement, Officer
Candelari then testified that, despite using the word “traffic” in
his radio transmission, he had only seen several individuals in an
area between the two houses, not necessarily traveling back and
forth from one to the other. He testified that he was not certain
what they were doing — only that they were leaving that area
between the two houses, and “disappearing between the two
residences.” What is significant is that these officers only heard
what had been related in the radio transmissions without the
benefit of Officer Candelari’s clarification of what he actually
saw. When the other officers converged on the scene to execute the
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felony arrest warrant, Officer Candelari proceeded with them to
2635 Goldenrod, where consent was given to enter and where the
subject was eventually located. He recalled seeing still other
officers in the front yard of the Maddux residence as well.
Officer Marshall testified that the information he received in
advance of the operation undertaken to execute the felony arrest
warrant indicated that the subject could be located at one of two
houses, either 2635 or 2631 Goldenrod. He understood that
individuals had been seen going back and forth between the two
houses, such that officers were uncertain in which house the
subject would ultimately be found. Officer Marshall and other
officers received this information along with other officers at
what appears to have been an informal briefing immediately
preceding their arrival at the scene. Once there, Officer Marshall
proceeded to the Maddux backyard in order to secure the safety of
the people there and to assist in arresting the subject if he was
located in that vicinity. Officer Marshall agreed with Plaintiffs’
counsel during his direct examination that as far as Officer
Marshall was aware, the subject could have been at the Maddux
residence “just as easily as he could have been at the corner
residence [2635 Goldenrod].” At some point during the time he was
engaged in the backyard of the Maddux residence, Officer Marshall
received a radio transmission informing him that the subject had
been found next door at 2635 Goldenrod. This is consistent with
the Plaintiffs’ explanation that the “wrong house” message meant
-22-
that the subject of the arrest warrant had been located in the
house next door to the Maddux home.
Finally, Officer Isaac Villareal testified that before
arriving at the 2600 block of Goldenrod, he had understood that the
subject would be located at the Maddux residence and not the
neighboring residence at 2635 Goldenrod. He proceeded to the
Maddux residence in the hope of arresting the subject. Officer
Villareal said that he remained outside the Maddux residence,
questioning individuals in the driveway of the home, until he
received a radio transmission alerting him that the subject was at
the other residence.
C. A Question for the Jury
Officer Villareal is apparently the only witness to have
stated unequivocally that he was operating under the assumption
that the subject would be found at the Maddux residence, rather
than the house next door or either of the houses as related by
Officer Candelari, who conducted the surveillance. Officer
Villareal’s testimony was not developed to an extent that either
the district court or the jury could have determined with any
certainty whether he had actually been told that the subject was
supposedly going to be, or could be, found in the Maddux residence,
i.e., whether he believed that information had been obtained that
the subject was believed to be at a third-party residence at 2631
Goldenrod, or whether he was merely confused about the information
-23-
that had been relayed during the briefing for officers
participating in executing the felony arrest warrant. Assuming
that one or more officers did enter the Maddux residence, a patent
variance in the testimony as to whether they did so intentionally
was evident even before Officer Villareal testified.
Bryan and Gary Maddux both reported hearing the same radio
transmission using the words, “wrong house.” Neither of them
overhead anything more substantive that might have clarified what
exactly was meant by the transmission. The district court
concluded, based on the testimony of these two individuals alone,
that only one meaning could have been assigned: that the officers
who purportedly entered the Maddux residence did not do so on
purpose, but in the mistaken belief that the subject was supposed
to be in the house where the Maddux family resided and not in the
one next door at 2635 Goldenrod. Implicit in the ruling was the
district court’s belief that the officers involved never
anticipated that the subject might be located at either house, but
instead had identified one house as the location where the subject
was reasonably expected to be; and that certain officers might have
thought that the Maddux residence was the correct location and
accidentally gone there.
But the equally reasonable inference — and certainly the one
more favorable to Plaintiffs as non-movants — was that advanced by
Maddux during the Rule 50 arguments at the close of her case and in
-24-
the brief she submitted to this Court. According to this theory,
which is amply supported in the testimonial evidence, officers
descended on the 2600 block of Goldenrod with information that the
subject could possibly be found at either of the two residences.
Maddux thus argues that they intended to go into both houses
essentially simultaneously to apprehend the subject of the felony
arrest warrant.
Officer Candelari admitted that he had warned in a radio
transmission relayed to other officers assembling to execute the
arrest warrant that he had seen “traffic” between the two houses.
That he in fact did not see actual travel in and out of the two
residences is irrelevant because the officers relying on his
surveillance were never fully apprised of exactly what he had or
had not seen. With the exception of Officer Villareal, all of the
officers who testified, including Lieutenant Jackson in his
supervisory capacity, acknowledged that it was their understanding
from the outset that, based on the surveillance that had been
conducted, the subject could plausibly have been found in either
house. Officer Marshall in particular conceded that the subject
could have been found in the Maddux residence as easily as in the
residence at 2635 Goldenrod.
Review of the record under the prescribed standard of review
demonstrates that the district court ruled in favor of the City
based in part on its erroneous conclusion that Plaintiffs had
-25-
presented no legally sufficient evidentiary basis from which a
reasonable jury could have found that the predicate constitutional
violation had been proven. In this regard, drawing all reasonable
inferences in favor of Plaintiffs, and without judging the
credibility of witnesses or weighing their testimony, a fact issue
for jury consideration was presented.23
A reasonable jury might have found evidence of a
constitutional deprivation — that the testimonial evidence and
reasonable inferences therefrom did not favor the City so
profoundly that reasonable minds could not disagree. The meaning
of the radio transmission overheard by Bryan and Gary Maddux is
equivocal,24 but more compelling are the portions of the officers’
testimony categorically endorsing Plaintiffs’ — and now Maddux’s
— argument that both residences were targeted as private premises
in which officers could reasonably expect to find the subject of
the felony arrest warrant. The district court thus erred in
determining as a matter of law that, even accepting as true
Plaintiffs’ contention that officers entered the Maddux residence
on June 3, 1998, in doing so, they were at most negligent in
transgressing Plaintiffs’ Fourth Amendment rights.
23 While the district court did not explicitly state that it had
to any extent considered the testimony of the officers called as adverse
witnesses, the testimony had been presented during trial and was
available for consideration.
24 It is unnecessary for the Court to speculate as to whether the
testimony of these two individuals could, without more, have supported
Plaintiffs’ theory of an intentional act.
-26-
The evidence adduced as to whether Maddux’s constitutional
rights were intentionally violated created an issue of fact within
the province of the jury.
V. Official Policy: Written Policy vs. Unwritten Practice
A. Finding by District Court of a Constitutional Policy and
Practice
Even positing an intentional violation of Plaintiffs’
constitutional rights, the district court concluded that judgment
as a matter of law was nevertheless proper because Plaintiffs had
not shown that either the City or its policymakers had promulgated
or adopted an official policy with deliberate indifference to the
known or obvious consequences that constitutional violations would
result. In order to reach that conclusion and grant judgment in
favor of the City, the district court determined the City’s
official policy to be one that requires consent to enter as
prerequisite to execution of arrest warrants.
The district court found that the City had promulgated a
policy designed to avoid constitutional deprivations on the order
alleged by Plaintiffs. Even if officers had in fact entered the
Maddux residence as part of their efforts to apprehend the subject
of the felony arrest warrant, such entry without the validation of
any of the three Steagald exceptions would only have signified the
officers’ direct violation of the City’s policy. The officers, not
the City, would then be the moving force behind any injuries
sustained by Plaintiffs. Neither Plaintiffs at trial nor Maddux in
-27-
her appeal has disputed that the City’s liability for the claimed
constitutional violation cannot be derived from a theory of
respondeat superior.
Instead, Maddux argues that for twenty years the City has
ignored the United States Supreme Court’s decision in Steagald and
affirmatively “enacted and implemented a policy in complete
derogation of this decision and the Fourth Amendment.” According
to Maddux, the district court erred in simply “absolv[ing] the City
of an arrest warrant policy that was in clear violation of the
Fourth Amendment as interpreted in Steagald.”
The question for this Court is whether the City of Pasadena
Police Department’s written policy respecting the planned execution
of arrest warrants constitutes a legally sufficient evidentiary
basis upon which a reasonable jury could have premised the City’s
liability under § 1983 for a violation of Maddux’s Fourth Amendment
interest in being free from an unreasonable search of her home by
City officers. More precisely, did the district court dismiss the
jury after making a factual finding that the City’s unwritten
policy trumps its written policy and requires its officers to
obtain permission from a person in authority before executing a
felony arrest warrant at a private residence? Analysis of this
issue is tangled for reasons evident from our review of the record
in this case.
To begin with, it cannot be argued that the district court
-28-
decided what the City’s policy for executing arrest warrants
entailed. Neither the colloquy between the bench and counsel
during arguments on the Rule 50 motion nor the district court’s
recitation of its findings helps us to understand whether or to
what degree the court considered the significance of the City’s
written policy published in the Rules and Procedures Manual.
The City insisted that both its written policy and its
practice of obtaining consent assured its compliance with the
Constitution and laws of the United States. In other words, either
source of policy was independently capable of surviving scrutiny
for purposes of ferreting out potential municipal liability. The
district court heard this argument without expressing an opinion as
to whether it also thought these two sources of official policy
adhered in equal measure to the Fourth Amendment. The court did
state, however, that “[i]f they’ve got a policy that says you’ve
got to get consent, then they don’t have a policy promulgated with
known or obvious consequences that a constitutional violation would
result.”
Thus, the district court repeatedly characterized the official
policy as one of getting consent, without reconciling the wording
in the Rules and Procedures Manual with an unwritten policy
requiring that consent be obtained; without acknowledging a
possible infirmity in the wording that was overcome by an unwritten
practice; and without stating that the wording, infirm or not, was
-29-
irrelevant by virtue of that unwritten practice.25
B. The Written Policy and Creation of a Fact Issue for the
Jury
Whatever the relationship between the written policy and the
unwritten practice, we conclude that it was error for the district
court to find that the evidence adduced at trial led inexorably to
the conclusion that the City’s policy was to train and require its
officers to get consent as a precondition to entering a private
residence in the course of executing an arrest warrant. That, at
the close of Plaintiffs’ case, the City’s official policy was
benign in all relevant respects was not irrefutable from the
evidence. Rather, this Court is of the opinion that: (1)the
written policy in the Rules and Procedures Manual was indeed
facially unconstitutional; and (2) the evidence in which the
district court so firmly rooted its finding that the City required
its officers to gain consent before entering a private premises to
execute an arrest warrant is conflicting. The district court’s
ruling granting judgment in favor of the City as a matter of law
was therefore incorrect.
To begin with, we shall explain why we have concluded that the
25 The only manner in which the district court overtly examined the
contents of the written policy was done in reference to the City’s
admitted failure to remain abreast of developments in Fourth Amendment
jurisprudence. She found that the City’s failure to incorporate
expressly in its Rules and Procedures Manual the United States Supreme
Court’s holding in Steagald and its implications for entering third-
party residences to execute arrest warrants was extremely neglectful but
insufficient to show deliberate indifference.
-30-
written policy is infirm. It is necessary in doing so to return to
the actual text of the section of the City’s Rules and Procedures
Manual dealing with planned execution of arrest warrants:
90.06 Planned Execution of [Arrest] Warrants
A. A warrant may be served at any time of the day
or night.
B. The warrant may be served at any place, public
or private, where the actor is reasonably
believed to be.
C. When it is necessary for officers to enter a
private premises to execute an arrest warrant,
they will, before entering, announce their
identity and purpose and demand admittance.
D. Announcement of identity and purpose is not
necessary when exigent circumstances exist or
a felony warrant is executed.
E. When officers are refused entry after
demanding admittance, they may forcibly enter
the premises in order to execute a felony
warrant and secure the premises.
Maddux did not premise the City’s liability on either the
global import of section 90.06, or the specific language in
subsection (E.), which is the portion of the written policy that
this Court finds problematic in light of Steagald. Though the
entire Rules and Procedures Manual was admitted into evidence,
Maddux urged below that it was subsection (B.) that by its terms
rendered the written policy facially unconstitutional after
Steagald.
The Court disagrees. Section 90.06 must be read as a single,
cohesive, progressive statement of the City Police Department’s
written policy respecting the planned execution of arrest warrants.
-31-
Subsection (A.) establishes that officers are not restricted as to
when an arrest warrant may be executed; an arrest warrant may be
served at any time. In logical sequence, subsection (B.) adds the
requirement that officers must have a reasonable belief that the
subject will be found at the place referenced in the warrant.
Subsection (C.) then distinguishes the procedure to be followed
when officers reasonably believe that the subject is located at a
private premises: Officers must identity themselves, explain why
they are at the residence, and seek (demand) consent to enter.
Exceptions to the prescriptive content of subsection (C.) round out
the written policy. Subsection (D.) advises that when exigent
circumstances exist or officers have secured a felony arrest
warrant, the identity and purpose requirements may be dispensed
with. And, under subsection (E.), officers in possession of a
felony arrest warrant that is to be executed at a private premises
are expressly licensed to effect a forcible entry if consent to
enter is denied.
It is the second caveat to the general requirements governing
entry of a private premises that is objectionable. Subsection (E.)
permits forcible entry of a private premises without consent,
exigent circumstances, or a search warrant when officers are in
possession of a felony arrest warrant. But if the subject of a
felony arrest warrant does not actually reside at the private
premises, then an officer’s reasonable belief that the subject may
be found there at the time the warrant is being executed does not
-32-
go far enough to protect the privacy rights of the third-party
owner of the premises. This is the issue to which the United
States Supreme Court turned its attention in Steagald.
In Steagald, the Court reasoned that an arrest warrant
constitutes only a judicial finding of probable cause to believe
that the subject committed a felony and a concomitant
authorization to seize the subject.26 An arrest warrant issues to
protect the subject from an unreasonable seizure.27 The Court had
already sanctioned reliance on an arrest warrant alone to enter a
person’s home to effect his arrest, having found in that case that
it was “constitutionally reasonable to require him [a person for
whom probable cause of commission of a felony had been established]
to open his doors to the officers of the law.”28
But if the subject of an arrest warrant is reasonably believed
to be at the home of a third party, as opposed to a public place or
the subject’s home, the limited authority to enter the premises
where the subject is reasonably expected to be is not implicit;
more is required to safeguard the third party’s “privacy interest
in being free from an unreasonable invasion and search of his
home.”29 The arrest warrant, in such circumstances, does not carry
26 Steagald v. United States, 451 U.S. 204, 213 (1981).
27 Id.
28 Payton v. New York, 445 U.S. 573, 602-03 (1980).
29 Steagald, 451 U.S. at 213.
-33-
with it any derivative authority to deprive the third party of his
privacy interest because the warrant did not issue to protect the
third party from an unreasonable search of his home. Officers must
justify such a deprivation with additional evidence that the
subject of the arrest warrant is reasonably believed to be in that
third person’s home.30 A judicial officer has to make such a
determination. An officer’s personal determination — “a judicially
untested determination” — that probable cause exists to enter a
third-party residence, in the absence of exigent circumstances, is
“not reliable enough” to justify a search of that private premises
for the subject of an arrest warrant.31 The Court cited many
examples of the “significant potential for abuse” inherent in a
system administered without the benefit of “the detached scrutiny
of a judicial officer.”32
The holding in Steagald, according to the Court, was dictated
by its earlier reasoning in cases wherein the Court held that, “in
the absence of exigent circumstances . . . judicially untested
determinations are not reliable enough to justify an entry into a
person’s home to arrest him without a warrant, or a search of a
home for objects in the absence of a search warrant.”33 The search
30 Id. at 214 n.7.
31 Id. at 213.
32 Id.
33 Id. at 213-14 (citing Payton v. New York, 445 U.S. 573 (1980)
and Johnson v. United States, 333 U.S. 10, (1948)).
-34-
of a home for a person should entail no less of an assurance that
every effort has been made to guarantee the reasonableness of that
action on the part of law enforcement.34
While subsection (E.) of the Rules and Procedures Manual is a
correct statement of the law apposite to law enforcement officers
entering the home of the subject of an arrest warrant in the
reasonable belief that the subject will be found there, it is
unconstitutional as applied to a third-party private premises where
the subject does not live, regardless of any reasonable belief as
to his whereabouts. Steagald distinguished the two interests at
stake in the latter situation: (1) the suspect’s interest in being
free from an unreasonable seizure, and (2) the third party’s
interest — here, Maddux’s interest — in being free from an
unreasonable search of her home.35 If no exigent circumstances are
apparent and the third party does not give consent for entry, the
search of a third party’s home for purposes of locating the subject
of a felony arrest warrant is “no more reasonable,” as viewed by
the third party, “than it would have been if conducted in the
34 Id. at 214 & n.7 (adding that the second clause of the Fourth
Amendment providing that “no Warrants shall issue but upon probable
cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized,” supports
the conclusion that a determination of probable cause to ensure the
reasonableness of the search of a person’s home for an object is equally
necessary when officers are seeking not an object, but another person).
35 Id. at 216.
-35-
absence of any warrant.”36 The language in subsection (E.) ignores
“the right . . . of presumptively innocent people to be secure in
their homes from unjustified, forcible intrusions by the
Government.”37 The City’s continued maintenance of a written policy
facially inconsistent with established constitutional rights
renders suspect the entirety of the City’s protestations respecting
its purported unwritten policy for execution of arrest warrants.
The record shows that Maddux pleaded, argued, and then adduced
evidence that (1) the City’s official policy on forcible entry of
a third-party residence to execute an arrest warrant, the subject
of which did not reside there, was memorialized in section 90.06 of
the City Police Department’s Rules and Procedures Manual; (2) the
City had every expectation that officers would follow those
published rules and procedures that formed the basis of their
training; (3) the Rules and Procedures Manual is intended to
undergo change to keep pace with evolving law; (4) the Rules and
Procedures Manual had not been amended to comply with Steagald;
(5) the City’s written policy, as embodied in the Rules and
Procedures Manual, was facially unconstitutional in light of this
dereliction; and (6) the City’s argument that an unwritten practice
of training and requiring officers to get consent, even if borne
36 Id.
37 Id. at 222 (acknowledging that in weighing this interest with
that of the Government in enforcing its laws, the Fourth Amendment
recognizes that the balance is struck in favor of protections against
unreasonable searches and seizures).
-36-
out by the evidence, does not dismiss, or neutralize the effect of,
the affirmatively unconstitutional written policy.38 Maddux was
attempting to persuade the jury that officers entered the Maddux
residence in the absence of all of the three Steagald exceptions
and that their actions were sanctioned, as far as they and other
officers with the Pasadena Police Department understood, by the
express terms of section 90.06 in the Rules and Procedures Manual.
The significance of the entire written policy to Plaintiffs’
case is evident insofar as the full text of the Rules and
Procedures Manual is a part of the record, which is replete with
references both to it and section 90.06 respecting the planned
execution of arrest warrants. Counsel for Plaintiffs consistently
questioned the officers in regard to the prominence of the Rules
and Procedures Manual in the officers’ training and the Police
Department’s expectation that they would familiarize themselves
with, and adhere to, the written policy set forth therein.
Officers were also asked specific questions about the methods
prescribed for execution of arrest warrants in the Rules and
Procedures Manual. For example, in questioning Assistant Police
Chief Cunningham, counsel for Plaintiffs asked whether, to his
knowledge, “the manual” drew any distinction between whether the
subject was believed to be at his house or the house of an innocent
38 For example, counsel for Plaintiffs extensively questioned
Assistant Police Chief Cunningham at trial in regard to promulgation of
the written rules and procedures and the emphasis the Police Department
placed on strict compliance with those provisions.
-37-
third party. Assistant Police Chief Cunningham responded that such
a distinction did not exist in the written policy.39 An almost
identical inquiry had earlier been directed to Officer Marshall,
who replied that no provision of the Rules and Procedures Manual
drew such a distinction. Officer Villareal was asked the more
explicit question of whether he understood from his reading of “the
whole section [90.06],” that a felony arrest warrant could be
executed at any place, public or private, where the actor is
reasonably believed to be, even though consent is not given and
exigent circumstances are lacking.40
In analyzing the written policy of the City, we must do so in
the context of the whole. Thus, to confine our consideration to a
subsection that Maddux finds particularly troublesome, narrowly
examining in a vacuum, a single sentence of section 90.06, would be
inconsistent with generally applicable principles of interpretation
regularly employed by this Court in the construction of a
controlling writing.
The district court appears not to have discerned the extent to
39 Assistant Police Chief Cunningham testified, moreover, that he
did not realize until the time his deposition was taken in this case
that the United States Supreme Court had in Steagald made specific
findings with respect to the procedures law enforcement officers must
follow in executing arrest warrants at third-party residences.
40 With his few preceding questions, counsel for Plaintiffs had
been attempting to elicit a response to what the witness believed was
the import of subsections (c) and (d), in addition to (b). Maddux did
not expressly request that the witness read and interpret subsection (e)
as well, but in directing the witness to read the whole section, the
effect is the same.
-38-
which the City’s written policy necessarily ran afoul of the Fourth
Amendment. City officers’ reliance on a facially unconstitutional
written policy conflicted with the testimony offered to show that
officers were in fact trained and required to secure consent before
executing a felony arrest warrant at a third party’s residence.
The written policy provided a legally sufficient evidentiary basis
from which a reasonable jury could have found that the City’s
official policy was other than what the district court found. The
jury could have weighed the discrepant evidence regarding the
City’s official policy and reasonably disbelieved the testimony of
certain of the officers regarding an unwritten consent requirement.
Maddux suggests that the district court “was under the mis-
impression that the policy to seek consent somehow absolved the
City of an arrest warrant policy that was in clear violation of the
Fourth Amendment as interpreted in Steagald.” But to reiterate,
this Court has found no statement in the record that definitively
tells us the manner in which the district court scrutinized the
written policy. Moreover, we note that the jury, once confronted
with the evidence of a written policy such as the one at issue
here, alongside evidence of an alleged practice of training and
requiring officers to obtain consent under circumstances akin to
those at issue here, could find in effect that a policy of seeking
consent absolved the City of its problematic written policy. It is
plausible that the jury could believe that, though the written
-39-
policy had not been updated to reflect current law, officers were
nevertheless trained in protocol that complied with decisional law
interpreting the extent of the Fourth Amendment protection against
unreasonable searches.
As a second matter already adverted to, the record also
discloses that the district court overstated the quantity, and most
probably the quality, of the testimony supporting the City’s claim
that, in practice, its consent requirement ensured the
constitutionality of arrests effected by its officers and any
searches conducted in pursuance thereof. In response to
Plaintiffs’ attempt to explain that officers entered the Maddux
residence in a manner violative of Steagald and that they did so in
accordance with the training that they had received, the district
court rejected that characterization of the City’s official policy
by stating:
Every bit of evidence is that they [the officers]
were trained to get consent. . . . [Y]ou’ve got a
policy in place that, in essence, complies with the
constitutional requirements that are applicable
here, because they have advised their officers to
get consent.41
C. The Testimony
This Court has found notable instances in the trial testimony
41 The district court granted judgment for City as a matter of law
based in part on a finding that the City’s official policy requiring
consent was “designed to assure constitutional violations would not
result.”
-40-
in which it was not at all clear whether at the time of the events
underlying this case certain officers had received training in
regard to, or otherwise knew of, the overarching consent
requirement advanced by the City. Assistant Police Chief
Cunningham testified unequivocally that throughout his tenure with
the Pasadena Police Department, the policy had been to obtain
“permission by a person in authority” before entering a private
residence to execute a felony arrest warrant, but his statements
were not corroborated in a consistent, coherent fashion by
testimony elicited from the four other officers called by
Plaintiffs as adverse witnesses.
For example, Officer Marshall testified that, at the time he
assisted in executing the felony arrest warrant, he understood he
would have needed consent to enter a third-party residence, in the
absence of a search warrant or exigent circumstances. Counsel for
Maddux later used Officer Marshall’s deposition testimony to
impeach his trial testimony:
Q. Okay. And then were you asked: “. . . Since
everyone is saying they did not go into the Maddux
residence, my question to you is, even though you
say you didn’t go into the Maddux residence, was it
your understanding that you had the authority to go
into the Maddux residence had you wanted to do so?”
And your answer?
A. “That did not cross my mind at the time I was
going in the backyard.”
Q. Next question. “As we sit here today, is it your
-41-
understanding that you would have had the authority
to enter the Maddux residence because you had a
felony arrest warrant for [the subject of the felony
arrest warrant]?”
What was your answer?
A. “If the suspect was inside that residence.”
Q. Were you then asked: “So it’s your understanding
that if the suspect is in the residence and you have
a felony arrest warrant for that suspect, then you
have the authority to go into that residence to
arrest that suspect?” What’s your answer?
A. “If the suspect is there.”
In an exchange following the impeachment, Officer Marshall
testified that without consent, a search warrant or exigent
circumstances, he could not enter a residence where the subject of
an arrest warrant was reasonably believed to be.
Likewise, Officer Villareal’s answers to similar questions
were confusing and seemingly inconclusive. On direct examination,
he testified thus:
Q. What were you trained?
A. In order to execute a search warrant–I mean, an
arrest warrant, a felony arrest warrant, we have to
obtain consent prior to going in that house.
Q. What if you don’t obtain consent?
A. Then I’m not going into that house.
Q. You didn’t know that at the time your deposition
was taken, did you?
A. I don’t know that that question was even asked.
I don’t remember.
In reading the relevant portion of Officer Villareal’s
-42-
deposition for the jury thereafter, the following occurred:
Q. “Let’s put us back at the police academy; okay?
And you’ve got an arrest warrant for suspect A and
suspect A is not in suspect A’s house, he’s in B’s
house. Does it make any difference to you in
executing that warrant whether suspect A is in his
own house or whether he’s in B’s house?”
What’s your answer?
A. “It’s a felony warrant. No.”
Q. Okay. Isn’t it true that on May 22nd, 2000, your
understanding is that you had a felony arrest
warrant and didn’t make any difference whether he
was in his own house or an innocent third party’s
house?
A. Correct.
Q. You’ve found out since your deposition that
that’s not the way it works; correct?
A. Correct.
Q. But the way that you were trained by the City
of Pasadena is consistent with what you’ve said in
the deposition, that it didn’t make any difference
which house; correct?
A. Not according to the rules manual, yes.
Q. And according to the way you were trained at the
police academy; correct?
A. Correct.
Q. You also testified in your deposition, did you
not, that the arrest warrant alone gave you the
right to enter the Maddux residence to arrest [the
subject of the felony arrest warrant]?
-43-
A. If I remember correctly, that question I replied
was I never went inside the Maddux residence.
Q. Correct. And I understand that, but the,
hypothetically, that arrest warrant gave you the
authority to enter the Maddux residence to arrest
[the subject of the felony arrest warrant]. It gave
you that authority even though you never went in the
house. Isn’t that what you’ve testified to at your
deposition?
A. Yes.
During the subsequent cross-examination, Officer Villareal
testified that the City’s official policy on executing felony
arrest warrants was to obtain consent to enter a residence, that he
“always practiced that policy,” that this comported with the
training he had received, and that he had never been denied consent
to enter a residence.
Finally, in one of the last series of questions asked of
Officer Villareal on redirect, he was asked to read section 90.06
and answer whether it was his understanding from that section that
a felony arrest warrant could be executed “at any place, public or
private, where the actor is reasonably believed to be, even if you
do not have consent and even if there are not exigent
circumstances.” He indicated that this was his understanding of
the Rules and Procedures Manual, and further, that this was the way
he had been trained “prior to this incident.”
Officer Villareal’s testimony is, in sum, puzzling. Although
he seemed to give a definitive answer on cross-examination
-44-
regarding what the City’s official policy for execution of felony
arrest warrants was at the time of the underlying events, his
answers to questions posed by counsel for Plaintiffs, both at trial
and during his deposition, reasonably undercut the statements he
made during cross-examination.
The testimony of Officers Marshall and Villareal alone was
sufficient to create an issue of fact regarding the existence of a
consent requirement. In particular, Officer Marshall’s, and
possibly Officer Villareal’s, knowledge of what was required to
execute a felony arrest warrant at a private premises, at the time
relevant herein, seems to coincide with section 90.06 of the Rules
and Procedures Manual, according to their own statements. Thus,
reasonable jurors could find that at least these officers were
following, and indeed may only have known of, the procedures set
forth in section 90.06.
At a minimum, the testimony elicited raises a factual question
as to what City officers seeking to execute a felony arrest warrant
at a private premises were trained to do if consent was withheld.
Officer Marshall’s deposition testimony indicated his belief that,
so long as he held a valid felony arrest warrant, his entry by
whatever means necessary was validated. The law does not condone
such a course of action if the subject in fact is not in residence,
no exigent circumstances exist, and no search warrant has been
procured to protect the privacy interest of the third-party owner.
Viewed in the light most favorable to Plaintiffs, this evidence
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conflicts with the evidence that the officers were trained to get
consent, demonstrating that reasonable and fair-minded jurors in
the exercise of impartial judgment might reach different
conclusions on this issue.
Though the City may ultimately prove that it trained its
officers to seek consent before entering a private residence to
execute a felony arrest warrant, the record raises a salient
factual question that precludes judgment as a matter of law. Did
the City and its officers apprehend that if an innocent third party
withheld consent to enter her home, officers would then be unable
to enter forcibly in the absence of exigent circumstances or a
search warrant? It does not appear that officers were made unaware
that in executing a felony arrest warrant, the United States
Supreme Court had drawn from its interpretation of the Fourth
Amendment proscription of unreasonable searches a fundamental
distinction between the circumstances under which law enforcement
officers could lawfully enter the subject’s home, as opposed to
that of an innocent third party. The written policy condoned
forcible entry of a third-party premises despite the absence of the
Steagald exceptions, and certain testimony in the record causes us
to question whether the City in practice went any further in
protecting the privacy interests of third parties caught in the
melee.42
42 Assistant Police Chief Cunningham testified that in his view,
Steagald had not changed the City’s policy in any way. He stated that
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Paradigmatically, a district court regarding a Rule 50 motion
under these circumstances would thoroughly study the entirety of
the written policy, as well as evaluate the testimony of the
officers on the issue of consent. The district court would itself
only rule as to the substance of the City’s official policy if the
facts and inferences favored one party so profoundly that
reasonable minds would be incapable of disagreeing. Beyond cavil,
it is critical that the district court be certain that no factual
issue remains in order to justify taking a case from the jury.
VI. District Court’s Order Excluding Evidence
of an Alleged Similar Incident
As part of an omnibus motion in limine before trial,
Defendants sought to exclude from the jury’s consideration any
evidence relating to an alleged warrantless entry of another third-
party residence by City of Pasadena police officers attempting to
arrest a felony suspect.43 The City argued, among other grounds,
that such evidence was irrelevant, unduly prejudicial, and had the
he had nevertheless “informed” his officers “as a supplement, [or]
additional guidance,” that if consent was withheld when they need to
execute a felony arrest warrant at a third-party residence, they need
a search warrant to ensure that the law is followed. Assistant Police
Chief Cunningham regards Steagald as merely a “supplement” because
according to him,“the issue has never come up” and “[n]o one’s
complained.”
43 The incident in question occurred on March 19, 1998, less than
three months before officers allegedly entered the Maddux residence.
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potential to confuse the issues and mislead the jury. Plaintiffs
intended to use the evidence to prove that, as a result of the
City’s written policy respecting the planned execution of arrest
warrants, a persistent and widespread practice inhered whereby
felony arrest warrants could be executed at the home of a third
party in the absence of exigent circumstances and without first
obtaining consent or a search warrant. The district court granted
that portion of the City’s motion in limine by Order of December 7,
2000.
Maddux submits that the district court erred in granting the
City’s motion for two reasons: (1) the longstanding position of
this Court that a separate, isolated incident is insufficient to
prove a persistent and widespread practice of a municipality
“should not apply where there is a written policy that may be
inferred to cause a persistent practice;” and (2) the evidence of
this “identical situation” is admissible to contradict the City’s
assertion that its officers always sought consent before entering
a private premises to execute a felony arrest warrant.
We review a district court’s evidentiary rulings for an abuse
of discretion, reserving the harmless-error doctrine for any
perceived miscues.44 Although the district court apparently made
no findings on the record in support of its decision, we cannot
44 United States v. Moody, 903 F.2d 321, 326 (5th Cir. 1990) (“The
admission or exclusion of evidence at trial is a matter committed to the
discretion of the trial court.”).
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say, based on the evidence and the arguments before us, that it
abused its discretion in excluding this evidence.
Two affidavits submitted by the couple who owned the home in
the alleged similar incident describe the events attendant to the
City officers’ entry for purposes of apprehending an individual
identified in an arrest warrant.45 Maddux refers us to no other
evidence adduced in support of her contention of error. Insofar as
neither affiant avers facts that would tend to demonstrate that
their home should in fact be considered a third-party residence,
Maddux has not proved that the incident in question was
sufficiently similar to the alleged entry of the Maddux residence.
Further, Maddux provides no sound basis for our departure from this
Circuit’s rule that a persistent and widespread practice so common
and well settled as to constitute a custom or policy cannot be
founded on mere “isolated violations.”46
Maddux sought to introduce evidence of this one incident,
which without more, even assuming its relevance, exemplifies the
45 Ted and Lisa Barta, the owners of the home that City officers
entered on March 19, 1998 for purposes of apprehending an individual
identified as Escobar, each signed affidavits describing the events
attendant to their entry.
46 Bennett v. City of Slidell, 728 F.2d 762, 768 & n.3 (5th Cir.
1984) (“Sufficient duration or frequency of abusive practices, or other
evidence, must warrant a finding of knowledge on the part of the
governing body that the objectionable conduct has become customary
practice of city employees.”).
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type of isolated civil rights violation referred to above.47
Because Maddux was unable to show that the district court clearly
abused its discretion in excluding this evidence, the district
court’s decision as to this portion of the City’s omnibus motion in
limine is affirmed.
VII. Conclusion
Special difficulties confront trial judges charged with
reviewing all of the evidence before them as prelude to ruling on
a motion for judgment as a matter of law in the midst of trial.
Nevertheless, the district court improvidently granted judgment as
a matter of law for the City of Pasadena in this case, which
presented a complicated set of conflicting facts.
We reiterate that judgment as a matter of law at this stage of
the proceedings is appropriate only where the facts and the
inferences resolve themselves into a single reasoned conclusion.
Here, the record contains conflicting evidence as to both the
intent of the officers who allegedly entered the Maddux residence
and the existence of the oral policy and its displacement of the
unconstitutional written one.
Resolution of those disputed fact issues should have been left
to the jury. For these reasons, a new trial must be granted.
REVERSED and REMANDED.
47 Even the “short pattern of conduct” that may sometimes prove
sufficient to demonstrate a custom when the violations are “flagrant or
severe” does not necessarily contemplate one similar incident. Id. at
768.
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