Attocknie Ex Rel. M.P. v. Smith , 798 F.3d 1252 ( 2015 )


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  •                                                                      FILED
    United States Court of Appeals
    PUBLISH                   Tenth Circuit
    UNITED STATES COURT OF APPEALS              August 24, 2015
    Elisabeth A. Shumaker
    TENTH CIRCUIT                Clerk of Court
    NICOLE ATTOCKNIE, personal
    representative of the estate of Aaron Scott
    Palmer, as mother and next friend of
    M.P., a minor child, and individually,
    Plaintiff - Appellee,
    v.                                                 No. 14-7053
    SHANNON SMITH, individually and in
    his official capacity as Sheriff of
    Seminole County, Oklahoma,
    Defendant - Appellant,
    and
    KENNETH CHERRY; TAMMY WALL,
    individually and in her official capacity as
    Administrator of Seminole County
    Special Programs,
    Defendants.
    ___________________________
    NICOLE ATTOCKNIE, personal
    representative of the estate of Aaron Scott
    Palmer, as mother and next friend of
    M.P., a minor child, and individually,
    Plaintiff - Appellee,
    v.                                                 No. 14-7054
    KENNETH CHERRY,
    Defendant - Appellant,
    and
    SHANNON SMITH, individually and in
    his official capacity as Sheriff of
    Seminole County, Oklahoma; TAMMY
    WALL, individually and in her official
    capacity as Administrator of Seminole
    County Special Programs,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF OKLAHOMA
    (D.C. No. 6:13-CV-00158-JHP)
    Richard N. Mann, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendant
    - Appellant Kenneth Cherry.
    Jordan L. Miller (Chris J. Collins and Philip W. Anderson, with him on the briefs),
    Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for Defendant - Appellant
    Shannon Smith.
    Jack Mattingly, Jr., Mattingly & Roselius, PLLC, Seminole, Oklahoma, (Tanner W.
    Hicks, Oklahoma City, Oklahoma, with him on the briefs), for Plaintiff - Appellee Nicole
    Attocknie.
    Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.
    HARTZ, Circuit Judge.
    2
    On August 25, 2012, Aaron Palmer was shot dead by Deputy Sheriff Kenneth
    Cherry immediately after Cherry barged into Aaron’s home in Seminole, Oklahoma.
    Having been commissioned by Seminole County Sheriff Shannon Smith, Cherry was
    serving as a compliance officer for the county’s drug-court program. He was at Aaron’s
    house to execute a year-old bench warrant for the arrest of Aaron’s father, Randall
    Palmer, for failure to appear in court and failure to comply with his performance contract
    with the drug court. Cherry thought he saw Randall in Aaron’s garage earlier in the day,
    and he arranged for support from other law-enforcement officers to apprehend Randall.
    When he returned to the area with other officers, he allegedly saw somebody who
    appeared to be Randall running through the garage into the house. He then sped to the
    front door of the house with gun drawn, pushed the door open, and fired his gun at Aaron,
    who was standing a few feet from the door, allegedly with a knife in his hand. Randall
    was not found on the premises.
    Aaron’s widow, Nicole Attocknie (Plaintiff), brought suit under 42 U.S.C. § 1983
    on behalf of herself, Aaron’s child, and Aaron’s estate in the United States District Court
    for the Eastern District of Oklahoma. The suit claimed that (1) Cherry violated Aaron’s
    Fourth Amendment rights by unlawfully entering the house and using excessive force,
    and (2) Smith (who was not present when Aaron was shot) violated Aaron’s Fourth
    Amendment rights by failing to train or supervise Cherry.1 Cherry and Smith both raised
    1
    Other claims were brought but are not at issue on appeal.
    3
    the defense of qualified immunity, but the district court denied their motions for summary
    judgment. On appeal Cherry argues that he is entitled to qualified immunity on the
    grounds that his entry into Aaron’s house was justified by a hot pursuit of Randall (or at
    least the law was not clearly established to the contrary in August 2012) and that his use
    of force was appropriate in the face of a deadly weapon (the knife allegedly in Aaron’s
    hand). Smith argues for qualified immunity on the ground that his failure to train or
    supervise Cherry did not show deliberate indifference to Aaron’s constitutional rights.
    We affirm the denials of qualified immunity to Cherry and Smith. Hot pursuit is
    the sole justification offered by the defendants for Cherry’s entry of Aaron’s home. But
    Plaintiff presented sufficient evidence that Cherry was not in hot pursuit of Randall when
    he entered the home and that the entry was therefore unlawful. And because the use of
    force would only have been necessary as a result of the entry, a jury could properly find
    that the unlawful entry caused Aaron’s death. We therefore need not address whether the
    force used by Cherry upon his entry was in itself unreasonable and excessive. As for
    Smith, he cannot obtain relief on the only grounds he preserved in district court because
    they are based on a view of the evidence rejected by the district court.
    We first discuss the doctrine of qualified immunity and our jurisdiction. We next
    address the facts and law relevant to Cherry’s defense of qualified immunity and then we
    address Smith’s defense.
    4
    I.     QUALIFIED IMMUNITY AND JURISDICTION
    “The doctrine of qualified immunity protects government officials from liability
    for civil damages insofar as their conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have known.” Pearson v.
    Callahan, 
    555 U.S. 223
    , 231 (2009) (internal quotation marks omitted). The doctrine
    “balances two important interests—the need to hold public officials accountable when
    they exercise power irresponsibly and the need to shield officials from harassment,
    distraction, and liability when they perform their duties reasonably.” 
    Id. If a
    defendant
    asserts qualified immunity, the plaintiff has the burden to show that “(1) the defendant
    violated a constitutional right and (2) the constitutional right was clearly established” at
    the time of the challenged conduct. Morris v. Noe, 
    672 F.3d 1185
    , 1191 (10th Cir. 2012)
    (internal quotation marks omitted); see 
    Pearson, 555 U.S. at 232
    . In general, “[t]he law
    is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if
    the clearly established weight of authority from other courts shows that the right must be
    as plaintiff maintains.” Dodds v. Richardson, 
    614 F.3d 1185
    , 1206 (10th Cir. 2010)
    (internal quotation marks omitted). “This is not to say that an official action is protected
    by qualified immunity unless the very action in question has previously been held
    unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be
    apparent.” 
    Id. (internal quotation
    marks omitted). We review de novo the denial of a
    summary-judgment motion based on qualified immunity. See 
    Morris, 672 F.3d at 1189
    .
    5
    Some of the usual rules governing appellate jurisdiction do not apply in the
    qualified-immunity context. Under 28 U.S.C. § 1291, appellate jurisdiction is limited to
    the review of final decisions, which ordinarily are decisions that end the litigation on the
    merits so that nothing remains for the court to do but to execute the judgment. See, e.g.,
    Allstate Sweeping, LLC v. Black, 
    706 F.3d 1261
    , 1266 (10th Cir. 2013). Orders denying
    summary judgment do not satisfy this general rule. But because qualified immunity
    protects public employees from the burdens of litigation as well as from liability, an order
    denying a summary-judgment motion asserting qualified immunity may be treated as a
    final decision under the collateral-order doctrine insofar as the appeal from such an order
    raises abstract legal questions. See 
    id. at 1266‒67.
    This limited interlocutory jurisdiction
    permits us to review “whether the set of facts identified by the district court is sufficient
    to establish a violation of a clearly established constitutional right” but not “whether the
    district court correctly identified the set of facts that the summary judgment record is
    sufficient to prove.” 
    Morris, 672 F.3d at 1189
    (internal quotation marks omitted).
    Plaintiff contends that we lack jurisdiction because the district court based its
    denial of the summary-judgment motions on the existence of fact questions that must be
    resolved by a jury before the legal issues may be addressed. We have jurisdiction,
    however, because we may determine whether Cherry and Smith are entitled to qualified
    immunity by applying clearly established law to the facts for which the district court said
    there was sufficient supporting evidence. See id.; Medina v. Cram, 
    252 F.3d 1124
    , 1130
    6
    (10th Cir. 2001). For context, we will also refer to some uncontroverted facts; and we
    will address some of Cherry’s flawed arguments based on his version of events.
    II.    CHERRY’S APPEAL
    A.     Factual Background
    In May 2011, Randall Palmer pleaded guilty in Seminole County District Court in
    two cases on felony charges of selling methamphetamine. He requested admission into
    the county’s drug-court program and agreed to abide by the terms of a performance
    contract, one of which was the requirement that he attend all court sessions. He
    apparently failed to do so, and on September 9, 2011, a bench warrant issued, citing as
    the crime “Failure to Appear/Non-Compliance with Performance Contract.” Aplt. App.
    (Smith), Vol. 3 at 1227 (full capitalization omitted). The warrant stated no address.
    Randall had lived at 1931 Killingsworth Avenue in Seminole through 2008, but thereafter
    the only residents were his son Aaron, Plaintiff, their three-year-old daughter, and their
    foster son. Although he no longer lived there, Randall would come to the house when
    Plaintiff was not there.
    Cherry testified that on August 25, 2012 (almost a year after issuance of the
    warrant) he saw a person he presumed to be Randall in Aaron’s garage. He did not
    attempt to take Randall into custody at that time. Instead, he contacted the Seminole
    Police Department to enlist their assistance and then met with several police officers at a
    convenience store in Seminole to plan Randall’s arrest. They arranged that Cherry would
    lead the other officers to Aaron’s house, where some officers would follow Cherry as he
    7
    went to the front of the house and others would cover the back to prevent Randall’s
    escape.
    Cherry testified that when he returned to the neighborhood of Aaron’s house, he
    saw somebody who appeared to be Randall running through the garage into the house.
    He immediately ran to the front door with gun drawn yelling “police,” pushed the door
    open, and “[w]ithin two seconds” shot Aaron, who was standing a few feet from the door,
    allegedly holding a knife. Aplt. App. (Cherry), Vol. II at 510, 513.2 Randall was not
    found on the premises.
    B.     Unlawful Entry
    In arguing for qualified immunity on Plaintiff’s claim of unlawful entry into
    Aaron’s home, Cherry’s brief on appeal relies on only one legal theory—hot pursuit of a
    fleeing felon. Although it mentions the bench warrant in one sentence, it cites no law
    concerning the authority the warrant gave him.3 Cherry’s hot-pursuit argument cannot
    withstand scrutiny. It is founded on two legal errors.
    2
    A knife was found in the foyer of the home after the shooting. Cherry’s statements
    about whether he saw a knife before shooting are somewhat inconsistent. It is not
    disputed that Aaron had just been preparing a hamburger when Cherry barged in.
    3
    This is probably wise. Even if the warrant authorized a search of Aaron’s home for
    Randall—a doubtful proposition itself under our case law, see Valdez v. McPheters,
    
    172 F.3d 1220
    , 1225–26 (10th Cir. 1999) (entry of residence is permissible under
    arrest warrant only if officer reasonably believes suspect resides there)—it would not
    overcome the requirement that the officer must knock and wait a reasonable time before
    entering, see, e.g., Hudson v. Michigan, 
    547 U.S. 586
    , 589 (2006).
    8
    First, Cherry claims that he thought he saw Randall running into Aaron’s house
    from the garage just before he barged into the house himself, and that his belief is all that
    matters. But the law is clear that Cherry’s belief must be reasonable. See Heien v. North
    Carolina, 
    135 S. Ct. 530
    , 539 (2014) (“The Fourth Amendment tolerates only reasonable
    mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.
    We do not examine the subjective understanding of the particular officer involved.”);
    Armijo ex rel. Armijo Sanchez v. Peterson, 
    601 F.3d 1065
    , 1071 (10th Cir. 2010) (Fourth
    Amendment analysis focuses on the objective reasonableness of the challenged conduct
    in the totality of the circumstances). And Cherry does not confront the possibility that a
    jury might reasonably refuse to credit his belief as reasonable. It could well find that
    Cherry is not telling the truth about seeing someone running, or at least that he was not
    reasonable in inferring that the person he saw was Randall, especially given other
    evidence that Randall was not seen by anyone else at the time and was not found there
    after the shooting.
    Second, even if we assumed that Cherry had a reasonable belief that Randall had
    just entered the home, Cherry’s hot-pursuit-of-a-fleeing-felon argument is still fatally
    flawed as a matter of law. He identifies no felony other than Randall’s drug offenses.
    Cherry appears to believe that once a person has committed a felony, he is fair game for
    “hot pursuit” whenever he is spotted. This is a gross misunderstanding of the law. At the
    time of the shooting, clearly established law on hot pursuit required an “immediate or
    continuous” pursuit of a suspect from the crime scene. Welsh v. Wisconsin, 
    466 U.S. 9
    740, 753 (1984); see United States v. Santana, 
    427 U.S. 38
    , 42–43 (1976); Warden v.
    Hayden, 
    387 U.S. 294
    , 298–99 (1967). Yet Randall’s drug felonies were more than a
    year in the past.
    Cherry relies on Santana, 
    427 U.S. 38
    , and Stanton v. Sims, 
    134 S. Ct. 3
    (2013), as
    support for his conduct. But both cases featured a pursuit that began in a public place and
    immediately continued into private property. In Santana, officers arrested a woman who
    had just obtained drugs at a house and sold them to an undercover officer. See 
    Santana, 427 U.S. at 40
    . When the woman said she had paid a “Mom Santana” for the drugs, the
    officers promptly returned to the house, where Santana was standing in the doorway. 
    Id. The Supreme
    Court said that the officers could pursue Santana when she retreated into
    the house. See 
    id. at 42‒43.
    Similarly, in Stanton an officer was pursuing a man who had
    committed the offense of disobeying the officer’s order to stop. See 
    Stanton, 234 S. Ct. at 4
    . The officer pursued the man into a fenced-in yard. See 
    id. Not only
    are the facts
    unlike those here, but Stanton confirmed that there had been no hot pursuit in Welsh,
    
    466 U.S. 740
    , because “there was no immediate or continuous pursuit of Welsh from the
    scene of a crime.” 
    Id. at 6
    (brackets and internal quotation marks omitted).
    Cherry’s entry of Aaron’s home was clearly contrary to well-established law. He
    is not entitled to qualified immunity on the claim of unlawful entry. And because a
    reasonable jury could determine that the unlawful entry was the proximate cause of the
    fatal shooting of Aaron, cf. Martinez v. Carson, 
    697 F.3d 1252
    , 1255‒56 (10th Cir. 2012)
    (reasonable jury could find unlawful seizure was the proximate cause of later prolonged
    10
    detention), we need not decide whether Cherry used excessive force when he confronted
    Aaron.
    III.     SMITH’S APPEAL
    A.     Background
    Cherry started working as a drug-court compliance officer on July 25, 2012. His
    prior experience included seven months as a volunteer reserve police officer for the City
    of Wewoka, Oklahoma, and two years as a corrections officer in Oklahoma. The
    Oklahoma Council on Law Enforcement Education and Training (“CLEET”) had no
    record that Cherry had received any formal law-enforcement training.
    Tammy Wall, Cherry’s supervisor as Seminole County Special Programs
    Administrator, testified that she has no formal law-enforcement training and has never
    worked in law enforcement. She is not qualified to train officers on law-enforcement
    duties, and neither she nor her agency provide such training to drug-court compliance
    officers. Wall left it to Smith to ensure that the deputy sheriffs who worked as drug-court
    compliance officers were trained. Smith, however, did not check to see what training
    Cherry had before he commissioned him, and left it to Wall to train and supervise Cherry,
    despite knowing that Wall was not CLEET-certified and had no law-enforcement training
    or expertise.
    Smith commissioned Cherry two days before Cherry began work as a compliance
    officer. In district court it was disputed whether Smith or Wall was Cherry’s employer,
    but the court determined that Smith was the employer and Smith acknowledges that this
    11
    status is settled for purposes of this appeal. (To deny summary judgment the court
    needed to determine only that there was substantial evidence that Smith was the
    employer.)
    B.     Plaintiff’s Legal Claim
    Plaintiff’s theory of individual liability against Smith is that Smith knew Cherry
    would be required to serve warrants and make arrests; Smith had a duty to train and
    supervise Cherry because of the foreseeable risk that Cherry would violate the
    constitutional rights of citizens absent adequate training and supervision; despite this,
    Smith failed to provide any training or supervision to Cherry; Smith was deliberately
    indifferent to the risk to the public from his failure to train or supervise Cherry; Cherry
    violated Aaron’s clearly established Fourth Amendment rights; Smith’s failure to train or
    supervise Cherry foreseeably caused Cherry to violate Aaron’s constitutional rights; and
    at the time of the shooting the law was clearly established that Smith had a duty to train
    and supervise Cherry and would be liable to a victim of Cherry’s unconstitutional acts in
    these circumstances. See generally Wilson v. Montano, 
    715 F.3d 847
    , 856–58 (10th Cir.
    2013) (stating requirements for supervisory liability under § 1983), cert. denied,
    
    134 S. Ct. 426
    (2013); Poolaw v. Marcantel, 
    565 F.3d 721
    , 732–33 (10th Cir. 2009)
    (same). Smith moved for summary judgment in the district court, raising the defense that
    he was entitled to qualified immunity. The court denied the motion.
    Smith challenges the denial of his motion on several grounds. First, he argues that
    we should reverse because the district court failed to rule on his qualified-immunity
    12
    defense and because Plaintiff failed to respond to his qualified-immunity argument
    below. We disagree. The district court denied the motion. That is the only prerequisite
    for us to review a legal challenge to the denial. If the district court failed to address an
    issue, we can still reverse on that ground if the issue was preserved and is meritorious.
    See Sac & Fox Nation v. Norton, 
    240 F.3d 1250
    , 1264‒67 (10th Cir. 2001) (appellate
    court reverses on a question of law not reached by the district court); Lowe v. Town of
    Fairland, 
    143 F.3d 1378
    , 1380 (10th Cir. 1998) (reviewing appeal from denial of motion
    for qualified immunity despite district court’s failure to address the issue). Likewise, any
    failure by Plaintiff to respond to Smith’s summary-judgment motion is irrelevant in light
    of the district court’s denial of the motion. To be sure, if the court had granted the
    motion, Plaintiff would be significantly restricted on any appeal because all arguments
    not made in the district court would have been forfeited. See Richison v. Ernest Grp.,
    Inc., 
    634 F.3d 1123
    , 1128, 1130‒31 (10th Cir. 2011). But as appellee, Plaintiff can raise
    arguments for affirmance supported by the record. See 
    id. at 1130.
    The important procedural failure in this case is not Plaintiff’s or the district court’s
    but Smith’s. His motion for summary judgment did not raise any ground on which we
    can reverse. The argument section of the motion devotes four pages to Plaintiff’s § 1983
    claim against him in his individual capacity. It notes, correctly, that because he was not
    personally involved in the August 25, 2012 incident until after the shooting, his liability
    could only be as a supervisor. Next it summarizes his view of the law of supervisory
    liability and argues that he is not liable under that law because (1) Cherry did not violate
    13
    the Constitution and (2) even if he did, “Cherry was not an employee or officer of Sheriff
    Smith.” Aplt. App. (Smith), Vol. 1 at 255. It then summarizes his view of the law of
    qualified immunity but concludes that “[t]he second stage of qualified immunity analysis,
    whether a right was ‘clearly established’ need not even be performed, as Defendant Smith
    did not personally violate Plaintiff’s constitutional rights in any way whatsoever.” 
    Id. at 256‒57
    (footnote omitted).
    Smith raised no argument below that he would be entitled to qualified immunity
    even if Cherry was his employee. Yet given his concession that he cannot challenge on
    appeal the district court’s determination that Cherry was his employee, this foregone
    argument would be his only path to reversal. Because he does not argue on appeal that
    the district court committed plain error, we do not address that possibility. See 
    Richison, 634 F.3d at 1130
    ‒31. We affirm the denial of qualified immunity.
    IV.    CONCLUSION
    We DENY Plaintiff’s motion to dismiss this appeal for lack of jurisdiction and
    AFFIRM the district court’s denial of the defendants’ motions for summary judgment
    based on qualified immunity.
    14