Harris v. City and County of Denver

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 25, 2023
• Docket: 22-1007
• Status: Unpublished

Opinion

Appellate Case: 22-1007 Document: 010110803342 Date Filed: 01/25/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 25, 2023 _________________________________ Christopher M. Wolpert Clerk of Court MARQUISE HARRIS, individually; ARTESIA CABRAL, individually, and as next friend of N.C., a minor child,

Plaintiffs - Appellants,

v. No. 22-1007 (D.C. No. 1:19-CV-00572-MEH) CITY AND COUNTY OF DENVER, (D. Colo.) a municipality; CITY OF AURORA, a municipality; SERGEANT KEVIN BARNES, in his individual and official capacity; DETECTIVE DAVID GROSS, in his individual and official capacity; OFFICER MIKE DIECK, in his individual and official capacity; OFFICER TASHA EWERT, in her individual and official capacity; OFFICER JEREMY JENKINS, in his individual and official capacity; OFFICER PAUL JEROTHE, in his individual and official capacity; OFFICER JON MAREK, in his individual and official capacity; OFFICER JEREMIAH MILES, in his individual and official capacity; DETECTIVE LARRY BLACK, in his individual and official capacity; DETECTIVE TONI TRUJILLO, in her individual and official capacity,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT*

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding Appellate Case: 22-1007 Document: 010110803342 Date Filed: 01/25/2023 Page: 2

_________________________________

Before McHUGH, MORITZ, and CARSON, Circuit Judges. _________________________________

The plaintiffs in this 42 U.S.C. § 1983 lawsuit are Marquise Harris, Artesia

Cabral, and their son N.C. (who was roughly one-and-a-half years old when the

events underlying this case occurred).1 After Mr. Harris had been arrested near his

home, Aurora Police Department officers entered the home without a warrant,

removed N.C., and conducted a protective sweep to ensure no one else was inside.

Plaintiffs sued the Aurora officers, alleging they unlawfully entered and searched

their home and unlawfully seized N.C.2 The district court dismissed the unlawful-

seizure claim, and it granted the officers summary judgment on the unlawful-search

claim. Plaintiffs appeal those rulings, and we affirm.

precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Counsel for the Aurora officers filed a suggestion of death informing us that Mr. Harris has died. No one has moved to substitute Mr. Harris’s personal representative as a party, and we take no action based on the suggestion of death. See Fed. R. App. P. 43(a)(1). 2 Plaintiffs also sued the City of Aurora, the City and County of Denver, Denver officers, and Aurora officers who did not participate in the protective sweep. This appeal involves only the claims against the Aurora officers who entered the home.

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I. Background3

Mr. Harris was involved in a shooting in Denver early one morning in 2017.

By the afternoon, police had a warrant to arrest him for murder.4 Mr. Harris lived in

Aurora, Colorado, and Denver police asked Aurora police to help with his arrest.

Aurora deployed two teams of officers—one to arrest Mr. Harris, the other to “set up

on the perimeter to assist with containment.” R. at 388. This appeal involves

officers on the perimeter team who did not participate in the arrest, an event that

occurred without a problem when Mr. Harris left his home to visit a neighbor.

Officers believed a small child (who turned out to be N.C.) remained in the

home, but they did not know if an adult was with him. Denver officers told Aurora

officers “that a search warrant was imminent or pending,” and a Denver officer asked

Aurora officers to perform a protective sweep “to secure the residence for a search

warrant.” R. at 390. “Generally, a protective sweep entails entering a residence and

looking for possible hidden threats that would pose a danger to officer safety—

looking for places where a person could hide.” R. at 392.

As the Aurora officers prepared to enter the home, they became confused

about whether Denver officers were seeking a warrant to search the home after all.

Shortly before they entered the home, one of the officers said that Denver did not

3 The parties agreed about much of the anticipated trial testimony. This section contains undisputed facts and information we gather from the parties’ agreement. 4 According to Plaintiffs’ complaint, the Denver District Attorney’s Office declined to file charges against Mr. Harris after concluding he acted in self-defense. 3 Appellate Case: 22-1007 Document: 010110803342 Date Filed: 01/25/2023 Page: 4

“want the house.”5 R. at 391. Moments later, however, another officer said that “one

of the Denver guys” had just said “they want it.” R. at 392.

The Aurora officers entered the home. After finding N.C. asleep in a living

area, Officer Paul Jerothe removed him from the home and gave him to Ms. Cabral,

who had recently arrived. Officer Jerothe was in the home for roughly one minute.

The other officers who participated in the sweep were in the home for roughly two

minutes. They did not seize evidence; “they only looked in places where a person

could hide.” R. at 395. The Aurora officers then left the scene, and “Denver officers

held the apartment, keeping it secure.” Id. Mr. Harris later allowed Denver officers

to retrieve the clothes he wore during the shooting, and no search warrant ever issued

for the home.

Plaintiffs sued under § 1983. This appeal involves only two of their claims.

First, they alleged Officer Jerothe violated the Fourth Amendment by seizing N.C.

The district court dismissed this claim under Federal Rule of Civil Procedure

12(b)(6). Second, they alleged the Aurora officers who conducted the protective

sweep violated the Fourth Amendment by entering and searching their home. The

district court declined to dismiss this claim under Rule 12(b)(6), but it later granted

the officers summary judgment on the claim. In dismissing the unlawful-seizure

5 Among the Aurora officers, the term “want” means either “a warrant had been issued or a warrant was being written.” R. at 391.

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claim and granting summary judgment on the unlawful-search claim, the district

court concluded the officers were entitled to qualified immunity.

II. Discussion

A. Qualified immunity

When a defendant asserts qualified immunity, in either a motion to dismiss or

a motion for summary judgment, the plaintiff assumes the burden to show (1) the

defendant violated a constitutional right and (2) the constitutional right was clearly

established. See Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019) (motion to

dismiss); Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009)

(summary-judgment motion). Courts have discretion to decide which

qualified-immunity prong to consider first. Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). In this case, the district court’s rulings ultimately rest on the

clearly-established prong, and we address only that prong.

An officer’s “conduct violates clearly established law when, at the time of the

challenged conduct, the contours of a right are sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Frasier v.

Evans, 992 F.3d 1003, 1014 (10th Cir.) (brackets and internal quotation marks

omitted), cert. denied, 142 S. Ct. 427 (2021). To show that law is clearly established

in our circuit, ordinarily the plaintiff must identify “a Supreme Court or Tenth Circuit

decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” Id. (internal quotation

marks omitted). The precedent must establish the right in “the specific context of the

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case, not as a broad general proposition.” Id. (internal quotation marks omitted).

Although we do not require a case directly on point, precedent “must have placed the

statutory or constitutional question beyond debate.” Id. (internal quotation marks

omitted).

B. The Fourth Amendment

The Fourth Amendment prohibits unreasonable searches and seizures. Cnty. of

L.A. v. Mendez, 137 S. Ct. 1539, 1546 (2017). Warrantless searches and seizures

inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573,

586 (1980). Yet not all warrantless searches of a home are unreasonable. See United

States v. Najar, 451 F.3d 710, 713–14 (10th Cir. 2006). The exigent-circumstances

exception to the warrant requirement “permits, for instance, the warrantless entry of

private property when there is a need to provide urgent aid to those inside, when

police are in hot pursuit of a fleeing suspect, and when police fear the imminent

destruction of evidence.” Birchfield v. North Dakota, 579 U.S. 438, 456 (2016).

C. The claim alleging unlawful seizure of N.C.

Before reaching the merits, we reject Officer Jerothe’s argument that we lack

jurisdiction to review the order dismissing the claim alleging that he unlawfully

seized N.C. The district court dismissed the claim under Rule 12(b)(6) nearly two

years before it issued its summary-judgment order. Plaintiffs did not immediately

appeal the dismissal. Officer Jerothe argues that they do not properly appeal it now

because their notice of appeal designates only the summary-judgment order. But the

summary-judgment order adjudicated “all remaining claims and the rights and

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liabilities of all remaining parties.” Fed. R. App. P. 3(c)(5)(A). For that reason,

Plaintiffs’ notice of appeal “encompasses the final judgment,” id., and all orders that

merge into the final judgment, including the order dismissing the unlawful-seizure

claim against Officer Jerothe, see Fed. R. App. P. 3(c)(4).

On the merits, the district court held that even if Officer Jerothe’s conduct

amounted to a seizure, Plaintiffs “failed to point to law clearly establishing that a law

enforcement officer who carries an infant from inside a residence to the outside

where the infant’s mother was present violates the Fourth Amendment.” Suppl. R.

at 26.

We review de novo a dismissal based on qualified immunity. See Thompson v.

Ragland, 23 F.4th 1252, 1255 (10th Cir. 2022). In doing so, we consider the conduct

as alleged in the complaint. Id. at 1256. For purposes of the unlawful-seizure claim,

the allegations in the complaint do not differ in any meaningful way from the

summary-judgment evidence we set out in the background section.

The district court correctly concluded that Plaintiffs failed to show that Officer

Jerothe violated a clearly established right. Arguing otherwise, Plaintiffs appear to

rely on Roska ex rel. Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003), and Malik v.

Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d 1306 (10th Cir. 1999).6 But those

cases differ from this one too much factually to clearly address Officer Jerothe’s

6 Although they had counsel in the district court, Plaintiffs represent themselves on appeal, so we construe their brief liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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conduct. Roska involved allegations that social workers removed a 12-year-old boy

from his home without a warrant and placed him in a foster home because they

believed his mother suffered from Munchausen Syndrome by Proxy. 328 F.3d at

1237–39. And Malik involved allegations that officials obtained an order to remove

a child from her home “in retaliation for a parent’s retaining counsel and through

reckless omission of probative facts to a magistrate.” 191 F.3d at 1316. In short,

Roska and Malik did not clearly establish that Officer Jerothe violated the Fourth

Amendment by removing N.C. from the home.7

D. The claim alleging unlawful entry and search

We turn now to the district court’s summary-judgment order, a ruling we

review de novo viewing the facts in the light most favorable to Plaintiffs. See

Thomson, 584 F.3d at 1311–12. The district court concluded that the evidence

“leaves open the question of whether [the Aurora officers] justifiably acted on the

basis of any of the claimed exceptions” to the warrant requirement. R. at 504.

Even so, the court concluded, Plaintiffs did not show that the officers violated a

clearly established right. We agree.

Plaintiffs again appear to rely on Roska and Malik. But those cases simply do

not speak to the circumstances of this case. The Aurora officers confronted two

7 In addition to suing Officer Jerothe for seizing N.C., Plaintiffs sued other officers under the theory that they failed to intervene against the seizure. Their appellate brief, however, contains no argument supporting the failure-to-intervene theory. For that reason, they have waived any such argument. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). 8 Appellate Case: 22-1007 Document: 010110803342 Date Filed: 01/25/2023 Page: 9

problems: the need to secure the home until a search warrant issued and the

possibility that a baby was alone inside. Although Plaintiffs insist the officers should

have allowed Ms. Cabral herself to retrieve her baby, that option may have

compromised the goal of securing the home. Yet allowing no one to enter may have

compromised the baby’s safety. As the district court put it, the Aurora officers “did

not face a straight-forward situation of temporarily securing a property. They could

not simply contain the residence and prevent anyone from entering it because a

toddler was there, presumably alone.” R. at 514. Given those circumstances, neither

Roska nor Malik clearly established that the Aurora officers violated the Fourth

Amendment by entering the home, removing N.C., and ensuring no one else was

inside.8

Plaintiffs argue that the district court ignored evidence that a Denver sergeant

told the Aurora officers not to enter the home. But they fail to cite any evidence

supporting that claim, see Fed. R. App. P. 28(a)(8)(A), and our review of the record

revealed none.9

8 Plaintiffs fault the district court for focusing on “the final warrantless entry” into their home and ignoring the “initial warrantless entry,” an entry they say occurred when officers “breached” the screen doors “and placed their feet inside in preparation to make their second and final warrantless” entry. Aplt. Br. at 19–20. But Plaintiffs did not raise separate claims based on what they now describe as separate entries, so the district court had no reason to dissect the officers’ conduct into separate events. Besides, the conduct Plaintiffs refer to as the “initial warrantless entry” does not change our analysis. 9 We recognize that Plaintiffs alleged in their complaint that a Denver sergeant told the Aurora officers not to enter the home “until a search warrant could be obtained,” R. at 149, but at the summary-judgment stage, Plaintiffs needed to support 9 Appellate Case: 22-1007 Document: 010110803342 Date Filed: 01/25/2023 Page: 10

Plaintiffs also contend a jury could conclude that Aurora Sergeant Kevin

Barnes, who led the team that entered the home, knew Denver officers did not have a

search warrant and “fabricated the exigent circumstance.” Aplt. Br. at 62. No one

disputes that Denver officers did not have a search warrant; what matters is that

Aurora officers were told that Denver officers were seeking one. On that point, we

understand Plaintiffs to argue that Sergeant Barnes fabricated the idea that Aurora

officers had been told Denver officers were seeking a search warrant for the home.10

But moments before the officers entered the home, Sergeant Barnes’s body-worn

camera captured one officer tell the others that “one of the Denver guys” had just

said they “want” the house. R. at 392. That video footage contradicts Plaintiffs’

argument. And we will not accept a version of facts blatantly contradicted by the

record. See Scott v. Harris, 550 U.S. 372, 380 (2007).

E. New claims

Plaintiffs argue that the officers unlawfully seized Ms. Cabral, unlawfully

searched and seized her vehicle, and unlawfully seized Mr. Harris. But they did not

raise these claims in their complaint, so we will not consider them. See Requena v.

Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018).

their allegations with evidence, see Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997). 10 If Plaintiffs mean to argue that Sergeant Barnes fabricated some other “exigent circumstance,” Aplt. Br. at 62, they do not identify that circumstance, let alone cite evidence supporting their accusation. 10 Appellate Case: 22-1007 Document: 010110803342 Date Filed: 01/25/2023 Page: 11

III. Conclusion

We affirm the district court’s judgment. We grant Plaintiffs’ motions to

proceed without prepaying costs or fees.

Entered for the Court

Joel M. Carson III Circuit Judge