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Police officers who entered and searched home and seized firearm–all without a warrant– are not civilly liable

Krysta Sutterfield v. City of Milwaukee, No. 12-2272 (7th Cir. May 9, 2014)

Nine hours after obtaining a § 51.15 emergency detention order, Milwaukee police officers forcibly entered Sutterfield’s home without a warrant, opened a locked container, and seized the handgun and concealed carry licenses that were in the container. Sutterfield filed a civil rights suit against them, but the district court granted summary judgment in favor of the defendants. The Seventh Circuit affirms in a long (76-page) decision with plenty to digest, even though it declines to resolve some of the constitutional issues raised because they were not preserved or fully argued. The court does conclude the entry was justified because the police reasonably believed Sutterfield was going to harm herself. And the court assumes the search of the closed container and  seizure of the gun were unlawful, but holds the officers are immune from civil liability.

This case started when Michelle Bentle, Sutterfield’s psychiatrist, called 911 to report Sutterfield had come to an appointment wearing an empty gun holster and expressed suicidal thoughts (“I guess I’ll go home and blow my brains out”). In response to Bentle’s call, police tried unsuccessfully to locate Sutterfield at her home. About three hours after her first call, Bentle contacted police again to tell them Sutterfield had called and said she needed no assistance and Bentle should call off the search for her. Bentle didn’t say whether Sutterfield still posed a danger to herself, but police proceeded to obtain an emergency detention statement under § 51.15. Due to a shift change and time spent tracking down information (including whether Sutterfield had checked into any hospitals), police didn’t return to Sutterfield’s home till almost nine hours after Bentle’s original report.

Sutterfield refused to admit or engage with the police except to say repeatedly she was fine. The police eventually forced their way in and took Sutterfield into custody. The police then did a protective “sweep” of the home, during which they forced open a locked, soft-sided compact disc carrying case. Inside they found a handgun and concealed-carry firearm licenses from multiple jurisdictions. Believing that Sutterfield had a juvenile son, the police seized the gun to keep it out of the son’s hands as well as to forestall Sutterfield using it on her release from the hospital.

Sutterfield sued the City of Milwaukee and the individual police officers under 42 U.S.C. §1983, contending her Second and Fourth Amendment rights were violated by the warrantless entry into her home, the seizure of her person, the search of the case containing the gun, and the seizure of the gun and concealed-carry licenses. The court acknowledges that “[t]he intrusions upon Sutterfield’s privacy were profound” (slip op. at 14), but it affirms the lower courts grant of summary judgment on her claims, as follows:

Detention of Sutterfield

Sutterfield suggests that [§ 51.15] is unconstitutional to the extent that it permits the seizure of a person without the authorization of a judicial officer. But she fails to support her contention with any citation of authority or legal analysis.” (Slip op. at 17). Many, if not most, states have laws similar to § 51.15, and while that doesn’t mean those laws are necessarily constitutional, “given the ubiquity of such statutes, and the legitimacy of the interests in both personal and public safety underlying such statutes, a contention that an emergency detention is per se unconstitutional without prior judicial authorization demands much more than a conclusory argument to that effect.” (Slip op. at 18).

Warrantless Entry into Sutterfield’s Home

The defendants cited three doctrines as justification for the warrantless entry into Sutterfield’s home: 1) the community caretaking doctrine; 2) the exigent circumstances doctrine; and 3) the emergency aid doctrine. The court discusses these doctrines at length (slip op. at 19-35), noting their “overlapping and uncertain boundaries” (slip op. at 38) and “the challenges in deciding which doctrine governs a particular set of facts” (slip op. at 32). The court decides the entry was justified under the emergency aid doctrine, which recognizes that a warrantless entry into  a home is appropriate when police have an urgent purpose other than to arrest a suspect or to look for evidence of a crime, such as rendering aid to an occupant reasonably believed to be in distress or immediate need of assistance. (Slip op. at 28-29).

Although the emergency aid doctrine was once considered to be separate from (but related to) the exigent circumstances exception, Brigham City, Utah v. Stuart, 547 U.S. 398, 403-04 (2006), effectively made the former a subset of the latter. In Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir. 2013), the court relied on Brigham City to sustain a warrantless entry into a home where police had reason to believe the occupant might be suicidal, and the court concludes that, as in Fitzgerald, the officers in this case had objectively reasonable grounds on which to believe that Sutterfield might harm herself even in light of the delay, Bentle’s second call, and Sutterfield’s statements that she was fine. (Slip op. at 30-32, 36-37). 

To say, as Sutterfield does, that given the passage of time and her own assurances to the officers that she was fine, that there was no longer any emergency, and that the officers should have heeded her demands that they leave, is to engage in the very sort of second-guessing that we eschewed in Fitzgerald. How were the officers to know that Sutterfield was competent to assess the state of her own mental health or that, regardless of what she herself said, there was no longer any risk that she might harm herself? Only a medical professional could make that judgment, and the officers had prepared and were executing a section 51.15 statement for the very purpose of having her evaluated by such a professional.

The court acknowledges the “outstanding questions about the extent to which the exigent circumstances exception to the warrant requirement, and the emergency aid subset of exigency precedent, apply to a situation like this one” (slip op. at 37), and gives particular attention to the nine-hour delay, which militates against a finding of emergency and shows there was time to get a warrant or other authorization from a judge (slip op at 37-46). But it concludes that nine hours is not automatically long enough for the emergency to have dissipated: 

…[A]lthough we agree with Sutterfield that emergencies do not last forever, it would be folly for us to try to declare ex ante some arbitrary cut-off that would apply to all emergency aid cases. Even in this case, it is not at all clear to us, nor would it have been to the police, that the mere passage of time without apparent incident was sufficient to alleviate any concern that Sutterfield might yet harm herself. … And the parties have given us no information about how long a threat of suicide could be thought to impose an imminent danger of harm to the person who made it; certainly nothing in this record suggests that such a threat necessarily diminishes with the passage of a few hours or with the suicidal individual’s assurances that she is fine. (Slip op. at 39).

The court also concludes the failure to get a warrant doesn’t matter in the context of the emergency aid context, given the nature of  justification for the entry. While some emergency aid cases repeat the customary language about the lack of time to seek a warrant, e.g., Fitzgerald, 707 F.3d at 730, the court posits it is more accurate to say that a warrant is unavailable in the emergency aid context. (Slip op. at 40-41). A warrant requires probable cause to believe there is criminal activity afoot or that evidence of a crime will be found in a particular place, while  in emergency aid cases, where the police are acting to protect someone from imminent harm, there may be no suspicion of wrongdoing at the moment that the police take action. (Slip op. at 41).

It may be, then, that probable cause in the emergency aid context is not reason to believe a crime is occurring or has been committed, but reason to believe that someone is in need of aid and there is a compelling need to act. See Hanson v. Dane County, Wis., 608 F.3d [335,] 338 [(7th Cir. 2010)] (“probable cause just means a good reason to act”); United States v. Jenkins, 329 F.3d 579, 581–82 (7th Cir.2003) (reason to believe that occupant of home, who did not respond to 911 call-back, was ill, injured, or under threat of violence) … This framing of the inquiry suggests that whether there was time to seek a warrant loses its relevance in the emergency aid subset of exigency cases. The passage of time may remain relevant as a measure of whether there was a true emergency justifying the intrusion into someone’s home, but not in terms of whether a warrant could have been sought. (Slip op. at 41-42).

Indeed, given the absence of suspected criminal activity, it’s not clear there was any route for a warrant or other judicial authorization of the entry, as § 51.15 contains no procedure for such authorization and the parties have not clearly identified an alternative method for some sort of authorization. (Slip op. at 15-16, 42-45). Thus:

… What the Fourth Amendment requires in all cases is reasonableness,.. and without knowing what, if any, alternative process was available to the police, we are not prepared to say that the warrantless entry into Sutterfield’s home was unlawful under the circumstances presented to them. The police acted out of legitimate concern for Sutterfield’s safety and well-being (in other words, there is no hint that they were using the emergency as a pretext to look for evidence of a crime), they acted consistently with section 51.15, and the circumstances generally meet the criteria for a warrantless entry articulated in Brigham City and applied in Fitzgerald, in that it was objectively reasonable for the officers to believe that their intervention was required in order to prevent Sutterfield from harming herself, notwithstanding her own protestations to the contrary…. (Slip op. at 46).

As the court rightly says, there is “a lack of clarity in Fourth Amendment case law as to the appropriate legal framework that should be applied to warrantless intrusions motivated by purposes other than law enforcement and evidence-gathering.” (Slip op. at 15-16). Regardless of whether you agree with the court’s ultimate application of the emergency aid doctrine, its long discussion of the competing doctrines isn’t a bad place to start if you’re grappling with the issue. Moreover, the court’s version of the emergency aid exception may well be cited to justify warrantless entries in future cases.

As to the other two doctrines: The exigent circumstances doctrine allows a warrantless entry into a dwelling when there is a pressing need for the police to enter but no time for them to secure a warrant because, e.g., an occupant is injured or in danger of imminent injury, an occupant poses a danger to others, there is a risk a suspect may escape, or there’s a need to prevent the imminent destruction of evidence. (Slip op. at 27-28). However, the doctrine’s premise is “a time-urgent need to act that makes resort to the warrant process impractical.” (Slip op. at 32). Here, nine hours elapsed from Bentle’s first call to the entry into Sutterfield’s home, and it’s unclear what kind of warrant the police could have been expected to obtain given they didn’t suspect criminal activity. Thus, this doctrine is “ill-suited to assistance searches like the one in this case, where there was no reason to suspect anyone of committing a crime.” (Slip op. at 33-34).

The community caretaking doctrine recognizes that police sometimes act not for criminal law enforcement purposes but to protect members of the public, and searches conducted for that purpose are exempt from the warrant requirement. This doctrine is “potentially … the best fit for this case,” as it focuses on the beneficent purpose for the entry, leaves more room than the exigent circumstances or emergency aid doctrines for the delay in entering, and, being exempt from the warrant requirement, obviates the need to analyze why there wasn’t time to get a warrant. (Slip op. at 20-22, 35-36).

But the Seventh Circuit has adopted a very narrow version of this doctrine, holding it authorizes only automobile searches, not entry into a home, based on its strict reading of Cady v. Dombrowski, 413 U.S. 433 (1973), the case establishing the doctrine. See United States v. Pichany , 687 F.2d 204, 207-09 (7th Cir. 1982). (Slip op. at 20-21, 24-25). By contrast, other jurisdictions—including Wisconsin, e.g., State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592—take a broader view, and in particular hold it may authorize a home entry. (Slip op. at 25-27, 62-67). That is no doubt why the defendants don’t rely on the doctrine on appeal, with the result that the court doesn’t reconsider Pichany or otherwise resolve whether the narrow or broad reading of Cady is the correct one.

Regardless of the Seventh Circuit’s version of the doctrine, the police could have reasonably believed their entry was justified by the doctrine as understood and applied by Wisconsin courts—in particular, Pinkard and State v. Horngren, 2000 WI App 177, 238 Wis. 2d 347, 617 N.W.2d 508. Therefore, they are entitled to qualified immunity, which shields a government official from suit when the official is performing a discretionary function and his conduct does not violate clearly established rights of which a reasonable person would have known. (Slip op. at 59-60, 62-68).

Search of the Locked Case

Opening the locked compact disc case was a significant step beyond the protective “sweep” search authorized by Maryland v. Buie, 494 U.S. 325 (1990), as the container was innocuous—i.e., not plainly contraband or a dangerous weapon—was obviously too small to be hiding a person, and could have contained almost anything. (Slip op. at 47). The defendants do not develop an argument that police have authority to search the premises, including closed containers, for firearms when they lawfully enter it because the occupant may harm herself and they have reason to believe the person owns a firearm—something that would, the court notes, be a license to conduct virtually a top-to-bottom search of the home. (Slip op. at 49-50). The court therefore assumes the search of the case was unlawful.

However, the court concludes the officers are protected by qualified immunity based on the broad test from Pinkard, which turns on whether the police acted for a community-caretaking purpose and whether, under the totality of the circumstances, the public interest served by the police action outweigh the intrusion upon the individual’s privacy:

Here, there is no question that the police searched the compact disc case not for law enforcement purposes but rather out of a safety concern. And the police might reasonably have concluded that although forcing open the case was a significant intrusion upon Sutterfield’s privacy, it was amply justified by the public interest in protecting both her safety and well-being as well as that of anyone else who either lived with her or had access to her home, including in particular a minor. Given the nature of Sutterfield’s threat to harm herself and her physician’s report that she likely possessed a gun, police had reason to look for any firearm that Sutterfield might use to harm herself…. (Slip op. at 71).

The court doesn’t decide the legality of the “sweep” itself, as Sutterfield conceded a sweep was authorized if the entry to her home was legal. (Slip op. at 47).

Seizure of the Gun

Given its assumption that the search of the closed case violated the Fourth Amendment, the court makes the same assumption with respect to the seizure of the gun from the case. (Slip op. at 51). And, for the same reasons it applied to the unlawful search, the court concludes a reasonable police officer might have thought, upon discovery of the gun, that he was authorized by his community caretaking function to seize the gun for safekeeping. (Slip op. at 71-73).

Given the breadth that the Wisconsin courts have given to the community caretaking doctrine, and the fact-specific balancing of public versus private interests in which they engage when the police take action as they did here to safeguard an individual’s wellbeing, a police officer might think he would be authorized to seize an obvious implement of harm from an individual who has threatened to kill herself and is being taken into custody pursuant to section 51.15 for an emergency mental health evaluation…. (Slip op. at 71).

The court emphasizes that despite its assumption about unlawfulness of the seizure of the gun, it is not deciding that question, as there are “powerful arguments in favor of the temporary seizure of the gun as a prudential measure” which are laid out in the qualified immunity discussion. (Slip op. at 56). And, while Sutterfield also argues the seizure of the gun violated her Second Amendment rights, the court does not address her argument beyond noting courts have only just begun to address this kind of claim in light of District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). (Slip op. at 57-59). Finally, Sutterfield’s claim about the seizure of her concealed-carry licenses does not present a separate Fourth Amendment issue, the court says, and in any event the record does not show anything more than a de minimis injury; thus, the court doesn’t explore the matter further. (Slip op. at 56)

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