Cabell v. Rousseau

130 F. App'x 803
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 30, 2005
DocketNo. 04-1258
StatusPublished
Cited by4 cases

This text of 130 F. App'x 803 (Cabell v. Rousseau) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cabell v. Rousseau, 130 F. App'x 803 (7th Cir. 2005).

Opinion

ORDER

On suspicion that Juliush Cabell was a member of a methamphetamine distribution ring, federal and state law enforcement officers executed search and arrest warrants at his southern Indiana home on March 12, 1999. A gun battle ensued in which two officers were wounded; Cabell emerged from the melee unscathed and was arrested. He then brought this lawsuit, claiming that the ten defendant officers entered his house in violation of the Fourth Amendment, and used excessive force against him and his property during the shootout. The wounded officers brought state-law counterclaims for assault and battery. The district court granted summary judgment for the officers in all respects, and Cabell now appeals. We affirm.

At summary judgment Cabell failed to file a statement of material facts disputing the officers’ factual assertions, as required by Local Rule 56.1(b) of the Southern District of Indiana. The district court therefore deemed Cabell to have admitted the officers’ version of events, S.D. Ind. R. 56.1(e), a decision that Cabell has not challenged. We therefore recount the facts before the district court as presented in the officers’ uncontested statements of material facts, and draw from them any reasonable inferences in Cabell’s favor. See Curran v. Kwon, 153 F.3d 481, 485-86 (7th Cir.1998); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921-23 (7th Cir.1994).

The search of Cabell’s residence was a part of a multi-site raid organized by the Drug Enforcement Administration and executed with the help of local law enforcement. At an intelligence briefing two days before the warrants were executed, DEA agent Daniel Rousseau told leaders of the [805]*805Evansville Police Department’s SWAT team that of all the suspects Cabell posed the highest risk of violence. Rousseau showed the officers a surveillance photograph believed to depict Cabell carrying an assault rifle while walking from his car to the back door of his house. Rousseau also stated that Cabell had a street reputation for violence (he had been charged with battering a law enforcement officer, resisting arrest, and aggravated battery), that the house was equipped with surveillance cameras, and that another house to be raided was just blocks from Cabell’s, so they should expect trouble from the neighbors.

The SWAT team initiated the videotaped raid at 6:30. One officer knocked loudly three times and yelled, “Search warrant! Search warrant!” and within seven seconds the outer door had been pried open and the inner door breached with a battering ram. Another officer then moved into the doorway behind a well-marked police shield, shouting, “Police, search warrant!” Cabell fired a single shot from inside the residence, and several officers again yelled, “Police, search warrant, search warrant!” Cabell answered with three more shots at the officers standing on the porch. Officer Hurt was struck in the face below his mouth, and Officer Rizen was struck in his bulletproof vest. At this point seven of the officers returned fire in the direction of the muzzle flashes coming from inside the house; in six seconds they discharged 105 rounds while the men on the porch retreated to safety. During that time Cabell fired one more shot at the officers.

Several moments later, unprompted by the officers, Cabell’s wife exited the house holding a small child and was ordered to join the SWAT team in the street. Then Cabell himself left the house and walked toward the street. An officer ordered Ca-bell into a prone position, directed him to show that his hands were empty, and then instructed him crawl to the officers’ position behind a police vehicle. After being handcuffed, Cabell stated that his son was still in the house. The officers were wary at first, suspecting that a barricaded gunman was lying in wait and would attack them if they approached the house, but eventually entered and found the boy.

Based on evidence recovered at the house, an indictment was returned against Cabell for using a deadly weapon to forcibly resist law enforcement officers performing official duties, see 18 U.S.C. § 111. The evidence was suppressed, however, upon the district court’s conclusion that the officers had violated the knock-and-announce statue, 18 U.S.C. § 3109. United States v. Cabell, No. EV 99-13-CR-01 Y/H, 1999 WL 1938855 (S.D.Ind. Nov.15, 1999). The officers asserted that they complied with the statute and advanced no argument that exigent circumstances permitted them to forego the statute’s requirements. The district court found that the approximately two seconds between the SWAT team’s knock and its breach of the outer door was an insufficient as a matter of law. Id. at *3. The court also noted the testimony of Cabell’s wife at the hearing; she stated that the surveillance photograph purporting to show Cabell armed with an assault rifle was actually a picture of another individual holding a BB gun. Id. at *1 n. 1.

In response to this lawsuit, the district court bifurcated Cabell’s claims and those of Officers Hurt and Rizen, first granting summary judgment on Cabell’s claims. The court held that the high potential for danger in the raid created exigent circumstances that excused compliance with the knock-and-announce requirement of the Fourth Amendment, and held that the officers did not as a matter of law use ex[806]*806cessive force in exchanging gunfire with Cabell. In a separate entry the court granted summary judgment on Hurt’s and Rizeris counterclaims, reasoning that the officers had introduced uncontested evidence that Cabell had battered them, entitling them to damages.

Cabell first .attacks the resolution of his knock-and-announce claim. He acknowledges that police officers can make an immediate, unannounced entry if there are exigent circumstances — for example, if the suspect’s awareness of the search would increase the danger to the officers or to others. United States v. Banks, 540 U.S. 31, 36-37, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003); Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997); Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); United States v. Gillaum, 372 F.3d 848, 855 (7th Cir.2004). Nevertheless, Ca-bell contends that this case did not present such circumstances. Whether he is right is a mixed question of law and fact that we review de novo. United States v. Kempf, 400 F.3d 501, 502-03 (7th Cir.2005); United States v. Bailey, 136 F.3d 1160, 1164 (7th Cir.1998). Our review focuses on the totality of the circumstances known to the officers at the time of the search. Gillaum, 372 F.3d at 855.

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130 F. App'x 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabell-v-rousseau-ca7-2005.