Frunz v. City of Tacoma , 468 F.3d 1141 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN FRUNZ, 
Plaintiff-Appellee,
v.
CITY OF TACOMA, a municipal No. 05-35302
corporation; TACOMA POLICE
DEPARTMENT; ALAN MORRIS, TPD  D.C. No.
CV-03-05709-RBL
Officer, in his individual capacity;
OPINION
GARY T. STRIL, TPD Sergeant;
DAVID ALRED, TPD Officer, in his
individual capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
October 25, 2006—Seattle, Washington
Filed November 13, 2006
Before: Alex Kozinski and Ferdinand F. Fernandez,
Circuit Judges, and Cormac J. Carney,* District Judge.
Opinion by Judge Kozinski
*The Honorable Cormac J. Carney, District Judge for the Central Dis-
trict of California, sitting by designation.
18643
FRUNZ v. CITY OF TACOMA 18645
COUNSEL
Jean P. Homan, Assistant City Attorney, Tacoma City Attor-
ney’s Office, Tacoma, Washington, for the defendants-
appellants.
18646 FRUNZ v. CITY OF TACOMA
Hugh J. McGavick, Law Offices of Hugh J. McGavick,
Olympia, Washington, for the plaintiff-appellee.
OPINION
KOZINSKI, Circuit Judge:
The facts are remarkable. Plaintiff, Susan Frunz, and her
two guests were in Frunz’s home in Tacoma, Washington,
when police surrounded the house, broke down the back door
and entered. The police had no warrant and had not
announced their presence. Frunz first became aware of them
when an officer accosted her in the kitchen and pointed his
gun, bringing the barrel within two inches of her forehead.
The police ordered or slammed the occupants to the floor and
cuffed their hands behind their backs—Frunz for about an
hour, until she proved to their satisfaction that she owned the
house, at which time they said “never mind” and left.
As the officers doubtless knew, physical entry into the
home is the “chief evil against which the wording of the
Fourth Amendment is directed.” United States v. United
States District Court, 407 U.S. 297, 313 (1972); see also Mur-
dock v. Stout, 54 F.3d 1437, 1440 (9th Cir. 1995)
(“[P]rotection of individuals from unreasonable government
intrusion into their houses remains at the very core of the
Fourth Amendment.”). To safeguard the home, we normally
require a warrant before the police may enter. “The right of
privacy was deemed too precious to entrust to the discretion
of those whose job is the detection of crime and the arrest of
criminals . . . . And so the Constitution requires a magistrate
to pass on the desires of the police before they violate the pri-
vacy of the home.” McDonald v. United States, 335 U.S. 451,
455-56 (1948); see also Groh v. Ramirez, 540 U.S. 551, 560
(2004). What extraordinary circumstances justified sundering
the privacy and protection of Frunz’s home without a war-
rant?
FRUNZ v. CITY OF TACOMA 18647
Earlier that afternoon, one Clinton Staples called 911 and
reported that his neighbor, who was out of town, had asked
Staples to keep an eye on his house. Staples had observed
“Susan,” the neighbor’s ex-wife, arrive in a gray Toyota with
Washington license plate 928 EKR; she was in the house and
the car was parked out front. Officers David W. Alred and
Alan R. Morris arrived a few minutes later and checked the
house for signs of break-in. They then knocked at the front
door and got no answer. Before leaving, the police told Sta-
ples to call back if he saw further evidence that the house was
occupied.
About half an hour later, Staples again called 911 to report
that Susan was “now inside the house” and had just answered
the door to a visitor. Staples also mentioned that Frunz was
subject to a restraining order which prohibited her from being
at that location. In fact, Frunz had been ceded the house dur-
ing the divorce proceedings. And, while she was restrained
from going to her ex-husband’s residence, her ex had moved
to California. Frunz had been living in the house for the better
part of a week.
Alred and Morris, joined by other officers (including Ser-
geant Gary T. Stril) arrived at the scene forty minutes later.
They surrounded the house and, without further investigation
or observation, entered and subdued the occupants as
described above. The two guests were able to prove their
identity and were found to have no outstanding warrants.
They were uncuffed and ordered to leave. The officers left
Frunz in handcuffs because she was unable to direct them to
her picture ID or to paperwork showing that she owned the
house. Frunz testified that she was unable to do so because
she was “terrified,” and because Officer Morris kept threaten-
ing her and telling her to “shut up.”1 She was released only
(Text continued on page 18649)
1
Q. And was there one officer who paid particular attention to
you when you were in the living room?
18648 FRUNZ v. CITY OF TACOMA
A. Yes.
Q. What officer would that be?
A. Officer Morrison — Morris.
....
Q. And how did he treat you?
A. He was terrible. He just—
Q. Why, or how?
A. He kept interrogating me. He would ask me, well, what is
your name? And I would tell him it’s Susan Frunz. And he
goes, you’re a burglar. We’re going to take you to jail. They
kept saying that over and over, and then when I would
answer him anything about anything, he would tell me to
shut up. Then he would ask me where my ID was.
Q. And would you answer him?
A. I’d say I don’t know. And I didn’t know where it was.
....
Q. And did he tell you to shut up?
A. Repeatedly.
Q. After he asked you questions, and then you answered? Is
that a yes?
A. Yes. Yes.
Q. Were you crying?
A. Yes, sir.
Q. Did any officer do anything to help you dry your eyes?
A. There was one officer, I don’t know, he said I — he said,
“Can I get a tissue to wipe her face?” Because I was really
crying, and I don’t know who wouldn’t be. And Officer
Morris said, no, that’s not necessary. And I kept telling him
that I was cold. And it just — I felt like that it was never
going to end. I would — you know, I didn’t know what was
going to happen next.
Q. Did he read you your Miranda rights?
FRUNZ v. CITY OF TACOMA 18649
after the officers were able to reach her divorce lawyer, who
confirmed that Frunz owned the house.
Frunz sued Alred, Morris and Stril under 42 U.S.C. § 1983,
claiming constitutional violations for unlawful entry and
search of her home, and for use of excessive force by Alred.2
The jury found against all defendants on all counts, and
awarded $27,000 in compensatory damages and $111,000 in
punitive damages.
The officers appeal, claiming the verdict is not supported
by the evidence and that they are, in any event, entitled to
qualified immunity. The nub of their argument is that their
warrantless entry was justified—or that they could reasonably
have thought it justified—by a burglary in progress. And,
having determined that they needed to enter the house in order
to catch the suspected felons red-handed, they were entitled
to break down the door, draw their weapons, handcuff the
occupants and conduct a protective sweep of the house.
A. Yes, he did. And I did not acknowledge them.
Q. Why not?
A. Because I didn’t feel like I had any rights, anyway, so why
should I mention something that — you know.
Q. You mentioned that he threatened to take you to jail. Did
you respond to that?
A. In the end, towards the end, I just told him, I said “Just take
me to jail and we will sort this out,” so it could just end the
nightmare.
Q. Did it frighten you to be alone in the house with all of these
police officers?
....
A. Yes.
2
She also sued the city and the police department, but the district court
granted summary judgment for the city. Frunz subsequently amended her
complaint to state claims only against the three officers.
18650 FRUNZ v. CITY OF TACOMA
[1] Not so. While the information provided by the neighbor
suggested that unauthorized people may be in the house, it
also made clear that this was not a break-in by strangers. Sta-
ples identified one of the occupants as the neighbor’s ex-wife,
describing her by first name, race and approximate age. The
officers confirmed that there had been no break-in when they
inspected the property during their first visit, and nothing had
changed when the officers stormed the home an hour and a
half later.3 During this first visit to the property, the officers
did not draw their weapons, did not call for back-up and did
not break down the door. Quite reasonably, they knocked and
sought to have a conversation with whoever was inside.
[2] Nothing at all had changed when the vigilant Mr. Sta-
ples made his second call. (He did provide new information
about the restraining order, but this makes no difference, for
reasons we explain below.) If the officers thought it prudent
to knock on the door the first time, they had no possible justi-
3
Officer Alred testified that, as he was about to enter, he noticed a wide-
open door and window, both of which were closed when he had inspected
the house earlier. Alred had not mentioned the open door or window in his
affidavit in support of summary judgment, or in his responses to interroga-
tories. The jury could have found that Alred lied, as his story conflicted
with his testimony that he remembered nothing about his earlier check of
the house. There were many other problems with Alred’s testimony,
including his insistence that one of Frunz’s guests had told him he had
gained entrance to the house by pushing open the window and reaching
in to open the door. The jury could have found this account inconsistent
with the fact that the police released the guest rather than detaining him
after he had supposedly confessed to burglary. Alred also claimed that he
never pointed his gun at Frunz, yet he admitted that he was executing a
plan to use a “draw and direct” technique, a procedure previously
described as “pointing a firearm at somebody.” “It wasn’t like we were
going to stroll into the house,” Alred testified. “We were going to make
an entry into the house. We were going to contact individuals using a draw
and direct. We were going to put them on the floor, and we were going
to take them into custody and determine what kind of crime we had here.”
The jury could reasonably have found that’s exactly what Alred did.
FRUNZ v. CITY OF TACOMA 18651
fication for breaking down the door and drawing their weap-
ons the second time.4
[3] The officers point to the exigency of the situation, but
there was none. Normally, when officers suspect a burglary in
progress, they have no idea who might be inside and may rea-
sonably assume that the suspects will, if confronted, flee or
offer armed resistance. In such exigent circumstances, the
police are entitled to enter immediately, using all appropriate
force. But it was clear from the information available to the
officers here that they were dealing, at worst, with some sort
of spousal property dispute. Even if it was technically a
burglary—and it’s far from clear that the officers had proba-
ble cause to suspect this—it did not present the same risk of
confrontation or flight as a break-in by strangers. The fact that
the suspected intruder had a personal relationship with the
person thought to own the house raised the possibility that she
was there with his permission or had gained possession as a
result of the legal proceedings between them. The officers
also knew that Staples had watched Frunz drive up to the
house, park out front and open the door to a visitor. These
signs of open and lawful occupancy made it far less likely that
what was going on was a burglary and materially diminished
the risk of violent confrontation. Staples, moreover, not only
identified Frunz by name, sex, race and age, but also gave the
description and license plate number of her car. Had she man-
aged to flee the 900-square-foot house that was by then sur-
rounded by at least five police officers, she could easily have
been found by contacting her ex-husband or her divorce law-
yer, or by tracking her car registration. The fact that it took
the police forty minutes to respond to Staples’s second call
confirms the absence of exigency. The delay was no doubt
caused by the low priority the communications officer
4
Indeed, they had less justification. During his second call, Staples men-
tioned that Susan had opened the front door to a visitor. Burglars don’t
usually open the front door when a visitor knocks.
18652 FRUNZ v. CITY OF TACOMA
assigned to the call by coding it as a “security check” rather
than a “burglary in progress.”5
[4] The only new fact the police knew at the time of the
second call that they hadn’t known the first time was that
Frunz might be subject to a restraining order. But the officers
in their testimony and their counsel in summation took the
position that the restraining order “ha[s] no relevance to this
case at all.” And with good reason: The officers never looked
at the restraining order, as they were clearly required to do,
if they wished to rely on it. Beier v. City of Lewiston, 354
F.3d 1058, 1069 (9th Cir. 2004). Defendants’ entire case at
trial was built on the theory that they were facing an emer-
gency so that they had no time to obtain a warrant or conduct
further investigation—indeed, that they had no choice but
immediately to break into Frunz’s home unannounced, guns
in hand, and shackle the occupants.
[5] There was, in fact, much else the officers could have
done. They could have questioned the neighbor as to his last
contact with the husband, in which case they may have
learned that the husband had moved out of the house and was
living in another state. They could have tried to get a phone
number for the husband and asked him whether his ex-wife
was authorized to be in the house. They could have tried to
track down the restraining order.6 They could have checked to
5
The communications officer who processed Staples’ calls testified that
the coding is based only on the caller’s report and that “it’s possible that
the officers will gain information in the course of responding to the call
which would indicate that it’s something entirely other than what the com-
munications officer said it was.” Here, however, the officers gained no
new information when they arrived at the scene. They did not question the
complainant, and they made no additional observations when they arrived
at the property. Rather, they must have made the decision to force their
way into the house based entirely on the information in the two dispatch
reports, as they signaled their intent to enter five seconds after arriving at
the house.
6
Had they done so, they would have learned that no restraining order
had been entered into the electronic database, because the divorce lawyers
FRUNZ v. CITY OF TACOMA 18653
see if the grey Toyota was still in front of the house and run
a check of the license plate. They could have asked the neigh-
bor for Susan’s last name and checked for outstanding war-
rants or any other indication that she might be armed and
dangerous. They could have knocked at the door, as they had
done just an hour and a half earlier, and politely asked the
occupants whether they were entitled to be there. Most impor-
tantly, reasonable officers would have tried to obtain a
warrant—a telephone warrant if they believed it was urgent—
and monitored the house to see if anyone went in or out.7
Bursting through the back door unannounced with guns drawn
and handcuffing the occupants—the owner for a full hour—
was neither necessary nor reasonable in these circumstances.8
apparently neglected to take the necessary steps. While this would not
have disproved the existence of a restraining order, it would have cast
doubt on the accuracy and timeliness of other information provided by
Staples.
7
Sergeant Stril admitted as much:
A. I suppose a person could get a search warrant to investigate
a burglary. It’s not common practice.
Q. The house was surrounded and nobody was going anywhere,
were they?
A. I wouldn’t have thought so.
Q. Curtains were open?
A. As far as I know.
Q. Do you have a hazy memory about that?
A. I remember being in the living room and there were no lights
on and there was enough light to see. So certainly there were
not any thick curtains closed.
8
For that matter, the officers had no reasonable basis for keeping Frunz
in shackles an additional forty minutes after they released her guests. Once
they had determined that the guests were not guilty of burglary, it’s hard
to imagine what crime they could reasonably have suspected she had com-
mitted. The ordeal would have ended much sooner, had the officers taken
off Frunz’s handcuffs at that time and allowed her to search for her ID,
keys or paperwork showing that she was entitled to be in the house.
18654 FRUNZ v. CITY OF TACOMA
No reasonable officer familiar with the law of searches and
seizures could have thought otherwise.
Defendants rely on Murdock, 54 F.3d at 1440-41, but that
case provides them no help. The only similarity between the
two cases is that both plaintiffs owned houses where police
entered without a warrant. In Murdock, however, unlike our
case, “[t]he facts known to the police officers indicated that
a resident was not responding when the circumstances inside
the house strongly suggested that a resident should have been
present.” Id. at 1442.9 The police thus had reason to believe
that “a resident in the house might have been in danger or
injured.” Id. Murdock is also distinguishable because the offi-
cers caused no property damage on entry, and the majority
believed (wrongly it turns out, see LaLonde v. County of Riv-
erside, 204 F.3d 947, 957 (9th Cir. 2000)) that they therefore
needed to show only a “mild exigency” to justify the entry.
Murdock, 53 F.3d at 1442. We have found no authority even
remotely supporting the notion that officers confronted with
the situation here were entitled to ignore the constitutional
requirement of a warrant and probable cause, or to conduct
themselves as the jury must have found they did once they
were inside the house. No reasonable lawyer would have
advised the defendants otherwise.
In short, we must ask: Why is this case here? There may
have been some justification for going to trial because there
were disputed questions of fact about how the officers
behaved during the course of the intrusion into Frunz’s house.
But a jury made up of seven members of the community
heard the evidence and unanimously ruled in Frunz’s favor.
By not only finding defendants liable, but also imposing puni-
tive damages, the jury determined that the officers acted in
reckless or malicious disregard of plaintiff’s constitutional
9
Indeed, Murdock expressly held that the officers did not have probable
cause to enter the house based merely on a neighbor’s report of suspicious
activity and an open door. 54 F.3d at 1441.
FRUNZ v. CITY OF TACOMA 18655
rights. Only the most misguided optimism would cause defen-
dants, and those who are paying for their defense, to appeal
the verdict under these circumstances. Surely, the citizens of
Tacoma would not want to be treated in their own homes the
way the jury found officers Stril, Morris and Alred treated
Frunz and her guests. A prompt payment of the verdict,
accompanied by a letter of apology from the city fathers and
mothers, might have been a more appropriate response to the
jury’s collective wisdom.10
AFFIRMED.
10
Defendants and their counsel shall show cause within 14 days why
they should not be assessed double costs and attorney’s fees for filing a
frivolous appeal. Fed. R. App. P. 38.