USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1814
JOANNE JOYCE, INDIVIDUALLY
AND AS EXECUTRIX OF THE ESTATE OF
JAMES D. JOYCE,
Plaintiff, Appellant,
v.
TOWN OF TEWKSBURY, MASSACHUSETTS,
JOHN R. MACKEY, ALFRED DONOVAN
AND ROBERT BUDRYK,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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Selya, Boudin, Stahl and Lynch, Circuit Judges.
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April 29, 1997
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OPINION EN BANC
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Robert LeRoux Hernandez with whom Law Offices of Robert L.
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Hernandez were on brief for appellant.
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Larry W. Yackle with whom John Reinstein was on brief for
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American Civil Liberties Union of Massachusetts, amicus curiae.
Leonard H. Kesten with whom Deidre Brennan Regan, Kurt B.
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Fliegauf and Brody, Hardoon, Perkins & Kestin were on brief for
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appellees.
Per Curiam. We are concerned on this appeal with the
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decision of the district court granting summary judgment on
one of the several claims that have been litigated in this
case, specifically, a claim that police entry into a house
without a search warrant violated the Fourth Amendment.
Review is de novo and the facts are set forth in the light
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most favorable to the party opposing summary judgment. Le
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Blanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993),
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cert. denied, 511 U.S. 1018 (1994).
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Late on the evening of August 6, 1989, officers Alfred
Donovan and Robert Budryk arrived at the home of Joanne and
James Joyce ("the Joyces") in Tewksbury, seeking to arrest
the Joyces' son, Lance Joyce. Although Lance did not live
with his parents, the police had received a call earlier in
the evening from Lance's ex-girlfriend informing them that he
was there. Allegedly, an outstanding warrant existed for
Lance's arrest on a charge of violating a chapter 209A
domestic restraining order. Mass. Gen. Laws ch. 209A, 7.
Lance answered the officers' knock at the Joyces' side
door, opening the interior door but keeping the outer screen
door closed. Officer Budryk told Lance that the officers had
a warrant for his arrest, and asked him to step outside.
Instead, Lance retorted "ya right" and withdrew from the
doorway, calling for his mother. The police followed him.
Joanne Joyce, who had been asleep, then came downstairs to
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find her son and the police officers standing in her dining
room. Her husband entered the room a few minutes later.
The Joyces asked the officers what was going on and
whether they had a warrant; the officers explained that they
were there to arrest Lance and that a warrant for his arrest
existed, although they did not have it with them. James
Joyce left the room with a third officer (who had arrived
separately) to call the police department, which confirmed
Donovan and Budryk's understanding that there was an
outstanding warrant for Lance's arrest.
While her husband was gone, a scuffle ensued between the
police officers and Joanne Joyce. Joanne Joyce admits that
she protested Lance's immediate arrest, although she denies
pushing the police officers away. One of the officers
grasped Joanne Joyce's upper arms and moved her aside,
allowing them to handcuff Lance and secure his arrest; Joanne
Joyce claims that one of the officers threatened to kill her
unless she got out of the way. Joanne Joyce was charged with
assault and battery but acquitted in a state court jury trial
in February 1990.
In April 1990, the Joyces brought suit alleging that the
officers, the chief of police and the town had violated 42
U.S.C. 1983 and the Massachusetts Civil Rights Act, Mass.
Gen. Laws ch. 12, 11I. The section 1983 claims were based
upon alleged violations of the Fourth and Fourteenth
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Amendments during the officers' entry without a search
warrant into the Joyce home and claimed use of excessive
force in arresting Lance Joyce. The Joyces also claimed that
the officers had committed assault and battery, intentional
infliction of emotional distress and malicious prosecution,
and that the town had negligently trained and supervised the
officers in violation of the Massachusetts Tort Claims Act,
Mass. Gen. Laws ch. 258.
The defendants moved for summary judgment on the issue
of illegal entry. Citing United States v. Santana, 427 U.S.
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38 (1976), they said that the police had not violated the
Fourth Amendment because they entered the Joyce home in
pursuit of Lance Joyce whom they were in the process of
lawfully arresting. The district court granted defendants'
motion by margin order, explaining that "[t]here is no
evidence in the record to support [that] the entry was in
violation of the Fourth Amendment."
A jury trial followed. The record indicates that only
three of the remaining claims were presented at trial: a
section 1983 claim alleging that the officers had violated
the Fourth Amendment by using excessive force to arrest Lance
Joyce, causing his mother injury; a malicious prosecution
claim; and a Massachusetts Civil Rights Act claim based on
the alleged threat by the officers to Joanne Joyce during the
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altercation. The jury returned a verdict for the defendants
on all counts.
Joanne Joyce then appealed on her own behalf and as
executrix of the estate of James Joyce. She asked not only
for reversal of the summary judgment grant on the illegal
entry claim but also for a new trial on the other claims,
arguing that the trial of the latter claims was tainted
because the jury was not allowed to consider unlawful entry
as one of the circumstances incident to the excessive force,
malicious prosecution and MCRA claims. A panel of this court
affirmed the district court's grant of summary judgment.
Joanne Joyce then petitioned for rehearing en banc,
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supported by the American Civil Liberties Union as amicus
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curiae. Both urge that the officers' entry, without a search
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warrant, violated the Fourth Amendment; they distinguish
Santana on the ground that the suspect there was standing in
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public space (just outside her house) when the police engaged
her, while Lance Joyce was inside his parents' home
throughout. Joyce also argues that the underlying offense,
violation of a restraining order, is not a felony under
Massachusetts law.
In considering the petition for rehearing en banc, we
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concluded that the claim against the officers might be
foreclosed by qualified immunity. Accordingly, we requested
supplemental memoranda. Having considered the memoranda, we
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have decided to grant rehearing en banc, withdraw the panel
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opinion, and substitute this opinion as the en banc court's
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resolution of the appeal. Because qualified immunity turns
primarily on an appraisal of existing case law, oral argument
has been deemed unnecessary.
When the police enter the home of the person they wish
to arrest, the arrest warrant suffices for entry if "there is
reason to believe the suspect is within." Payton v. New
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York, 445 U.S. 573, 603 (1980). But even when armed with an
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arrest warrant, police must generally have a search warrant
to enter lawfully a third person's home. Steagald v. United
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States, 451 U.S. 204, 212-13 (1981). However, a third
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person's house may be lawfully entered without a search
warrant if exigent circumstances exist, Steagald, 451 U.S. at
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213-14, and exigent circumstances include "hot pursuit."
Santana, 427 U.S. at 42-43; Hegarty v. Somerset County, 53
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F.3d 1367, 1374 (1st Cir.), cert. denied, 116 S. Ct. 675
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(1995).
Here, the defendants claim that Santana justified their
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entrance into the Joyce home because they were in hot pursuit
of Lance Joyce. Joanne Joyce and the ACLU respond that
police first engaged Santana when she was outside her home,
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standing directly on her threshold. Ultimately, they argue
that to uphold the entry in this case creates a slippery
slope, allowing the police to enter without a search warrant
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if the police merely suspect that the person sought is inside
the house.
The governing case law under the Fourth Amendment does
not yield very many bright line rules. This is not
surprising since the ultimate touchstone is one of
reasonableness: the hot pursuit is only one of several well-
established examples of "exigent circumstances" that make it
reasonable for the police to enter without obtaining a search
warrant. See Minnesota v. Olsen, 495 U.S. 91, 100 (1990);
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Hegarty, 43 F.3d at 1374. Conversely, we are not impressed
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by the slippery slope argument: entry where an arrest is not
already in progress, or where the offense is truly trivial,
would present quite a different case.
But even within this reasonableness framework, the
present case is not entirely straightforward. Santana's
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exception likely does not turn on whether the individual is
standing immediately outside or immediately inside the house
when the police first confront him and attempt an arrest.
And, the fact that Massachusetts classifies the alleged
violation here as a misdemeanor does not reduce it to a
"minor offense," see Welsh v. Wisconsin, 466 U.S. 740, 753
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(1984); we agree with the panel that "domestic violence and
violations of protective orders are among the more grave
offenses affecting our society."
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On the other hand, we have no information as to whether
Lance Joyce's conduct that gave rise to the protective order
involved actual violence, although the police may have had
some basis for concern apart from the protective order.1 We
have ourselves suggested that certain "mitigating factors"
may undermine an exigency showing, including any inadequacy
in the opportunity afforded for a peaceable surrender and the
fact that entry occurs at nighttime. Hegarty, 43 F.3d at
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1374. So, there are arguments to be made on both sides.
The Supreme Court cases, with Steagald at one pole and
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Santana at the other, do not definitively resolve our own
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case. Even a quick review of lower court cases reveals that
there is no settled answer as to the constitutionality of
doorway arrests. See State v. Morse, 480 A.2d 183, 186 (N.H.
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1984) (collecting cases); 3 W. LaFave, Search and Seizure
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6.1(e) (3d ed. 1996) (same). Circuit court precedent is also
divided, with some decisions helpful to the police in this
case and others less so.2
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1The police officers' testimony at trial indicated that
Lance had a drinking problem (information which was
corroborated by Mrs. Joyce's testimony), had been placed in
protective custody ten or eleven times and arrested once or
twice by the Tewksbury police, had resisted arrest or tried
to escape on prior occasions, and that officer Donovan had
been involved in a few of the earlier incidents.
2Compare, e.g., United States v. Rengifo, 858 F.2d 800,
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804-05 (1st Cir. 1988), cert. denied, 490 U.S. 1023 (1989)
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and United States v. Carrion, 809 F.2d 1120, 1123, 1128 & n.9
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(5th Cir. 1987) with United States v. McCraw, 920 F.2d 224,
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229-30 (4th Cir. 1990) and United States v. Curzi, 867 F.2d
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Given the unsettled state of the law, we have no
hesitation in concluding that the officers in this case are
protected by qualified immunity which protects public
officials against section 1983 liability so long as they
acted reasonably. Hunter v. Bryant, 502 U.S. 224, 228
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(1991); Anderson v. Creighton, 483 U.S. 635, 639 (1987). As
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the Supreme Court has said, qualified immunity "provides
ample protection to all but the plainly incompetent or those
who knowingly violate the law." Malley v. Briggs, 475 U.S.
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335, 341 (1986). The aim is to protect those who might
otherwise be deterred from official duties for fear that an
innocent mistake would create personal liability.
The critical point here is that officers Donovan and
Budryk are "entitled to qualified immunity [so long as] their
decision was reasonable, even if mistaken." Hunter, 502 U.S.
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at 229 (emphasis added); see Veilleux v. Perschau, 101 F.3d
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1, 3 (1st cir. 1996). Thus, the officers are not liable
unless in the circumstances of this case it is reasonably
well-established, and should therefore have been clear to the
officers, that the entry without a search warrant was
unlawful. Because it is not even clear that there was a
violation--a point that we do not decide--there certainly was
no violation so patent as to strip the officers of qualified
immunity.
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36, 40 (1st Cir. 1989).
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The Joyces also sued the town under section 1983,
alleging that its failure to properly train and supervise the
officers resulted in their unlawful entry of her home.
Municipal liability under section 1983 is not vicarious, see
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St. Louis v. Prapotnik, 485 U.S. 112, 128 (1988), and
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municipalities do not enjoy qualified immunity, Owen v. City
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of Independence, 445 U.S. 622, 650 (1980). Consequently, it
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is not impossible for a municipality to be held liable for
the actions of lower-level officers who are themselves
entitled to qualified immunity. Walker v. Waltham Housing
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Auth., 44 F.3d 1042, 1047 (1st Cir. 1995).
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However, our rationale here for granting qualified
immunity to the officers--that the unsettled state of the law
made it reasonable to believe the conduct in this case
constitutional--also precludes municipal liability.
Tewksbury could not have been "deliberately indifferent" to
citizens' rights, Bowen v. City of Manchester, 966 F.2d 13,
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18 (1st Cir. 1992), in failing to teach the officers that
their conduct was unconstitutional. We need not decide
whether the Joyces have pointed to evidence suggesting that
the officers' conduct was endorsed by a municipal policy.
See St. Hilaire v. City of Laconia, 71 F.3d 20, 29 (1st Cir.
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1995), cert. denied, 116 S. Ct. 2548 (1996).
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There is some cost in not deciding the Fourth Amendment
issue on the merits, even in the form of dictum. But the en
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banc court is agreed that qualified immunity applies, and
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there is less consensus about the underlying constitutional
issue. Indeed, some members of the en banc court consider
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that Donovan and Budryk's entry into the Joyce home was of
very doubtful legality under the Fourth Amendment.
Resolution can properly await a case where the issue is
decisive, as it could easily be on a suppression claim where
qualified immunity does not apply.
The panel opinion is withdrawn and, for the reasons
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given above, the judgment of the district court is affirmed
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on grounds of qualified immunity.
Concurrence follows.
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TORRUELLA, Chief Judge (concurring). Resolving this
TORRUELLA, Chief Judge (concurring).
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damages suit on qualified immunity grounds is entirely
appropriate, because the parties exercised the opportunity to
brief this issue, and because the issue of qualified immunity can
be "resolved with certitude on the existing record." United
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States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990)
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(appellate court has discretion, in the exceptional case, to
"reach virgin issues"); see also Nat'l Ass'n of Social Workers
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v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995). One would think
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that a Fourth Amendment right cannot possibly be deemed "clearly
established" from the point of view of the defendant police
officers when a total of seven judges, including the district
court, the appellate panel, and finally the en banc First Circuit
court, are themselves in disagreement as to the precise scope of
that right.
I write separately, however, only because I believe
that my dissenting brothers, in their efforts to show how
Steagald v. United States, 451 U.S. 204 (1981) is controlling,
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have lost sight of the touchstone of Fourth Amendment law, which
is reasonableness. See U.S. Const. Amend. IV ("The right of the
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people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
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violated . . . .") (emphasis added). Our strong and deep-seated
intuitions regarding the sanctity of the home obviously inform
the determination of what kinds of searches are, and are not,
reasonable. We follow the Supreme Court's lead in these
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difficult determinations, but where the unique facts of a case do
not fall squarely under any one Supreme Court precedent, as here,
we cannot help but consider the reasonableness of the particular
search at issue.
We know from Santana that it may be reasonable to
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follow a fleeing suspect from the threshold of a private
residence into that residence, without a search warrant, for the
purpose of effectuating an arrest. Santana, 427 U.S. at 43 ("[A]
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suspect may not defeat an arrest which has been set in motion in
a public place, and is therefore proper under [United States v.
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Watson, 423 U.S. 411 (1976)], by the expedient of escaping to a
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private place."). We also know from Steagald that it is
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certainly not reasonable to simply enter a third party's
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residence without a search warrant, in the absence of exigent
circumstances, in the belief that the subject of an arrest
warrant is inside. One may seek to subsume the present case
under either Santana or Steagald -- but either way, this
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requires that we draw some conclusions regarding their scope. In
drawing the outlines of the "exigent circumstances" or "hot
pursuit" exception, I find myself naturally turning to
reasonableness.
The precise question, then, is whether it is
reasonable for police officers, who are acting on an arrest
warrant arising from the commission of a jailable offense, who
are standing a few feet away from, and face-to-face with, the
subject of that arrest warrant (separated only by a transparent
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outer screen door), who have informed the same subject that he
must step outside because he is under arrest, and who then find
that the arrestee refuses to cooperate and retreats into the
residence, to follow that arrestee into the house in order to
effectuate the arrest. (And add to this the fact that although
the residence belonged technically to a third party, a suspect's
parents' residence is often looked upon as approximating his own
residence.) Because I believe, on these facts, that the
officers' entry and arrest was reasonable, I conclude that this
case falls under the "hot pursuit" rationale discussed in
Santana. Let us not lose sight of reasonableness in our efforts
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to follow precedents that are, on occasion, not clearly
determinative.
This said, it may be that this particular damages
suit, with its spotty record, is not the best context in which to
define those "exigent circumstance" parameters on the merits. I
am confident, moreover, that these defendants are fully entitled
to qualified immunity. After all, this is not a case in which
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the police entered an unrelated third-party's home in search of
an arrestee without any process at all -- such action would
clearly violate Steagald -- although some members of this court
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may question whether the process that was followed here was
enough to satisfy the Fourth Amendment.
Concurrence follows.
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LYNCH, Circuit Judge (concurring). While I am
LYNCH, Circuit Judge (concurring).
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sympathetic to the very strong arguments that the police
violated the Fourth Amendment, I join the per curiam. That
the judges of this court so strongly disagree about whether
there was a Fourth Amendment violation means that the law in
this area is not so clearly established as to make the
officers' actions objectively unreasonable. Anderson v.
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Creighton, 483 U.S. 635 (1987); St. Hilaire v. City of
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Laconia, 71 F.3d 20 (1995). The officers are entitled to
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immunity, given the state of the law in 1989.
Dissent follows.
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SELYA, Circuit Judge, with whom STAHL, Circuit
SELYA, Circuit Judge, with whom STAHL, Circuit
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Judge, joins (dissenting). Though the Fourth Amendment has
Judge, joins (dissenting).
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fallen on hard times, a woman's home remains her castle. The
en banc court, seeking cover under the doctrine of qualified
immunity (a doctrine which, as I understand it, was neither
briefed nor argued to the panel), effectively condones an
unconstitutional encroachment on the sanctity of the home.
Although I applaud the withdrawal of the panel opinion, I
cannot in good conscience join the opinion of the en banc
court; that opinion admittedly edges closer to the holding
demanded by clearly established law, but stops short of
adhering to it and, thus, perpetuates a constitutionally
intolerable result. Respectfully and regretfully, I dissent.
As the en banc court faithfully relates, the
doctrine of qualified immunity protects state actors whose
actions are reasonable, if mistaken. But qualified immunity
does not shield violations of clearly established
constitutional principles merely because the specific factual
situation in which a violation arises has novel features. As
the Supreme Court recently noted in the immunity context,
"general statements of the law are not inherently incapable
of giving fair and clear warning, . . . a general
constitutional rule already identified in the decisional law
may apply with obvious clarity to the specific conduct in
question, even though the very action in question has not
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previously been held unlawful." United States v. Lanier, 117
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S. Ct. 1219, 1227 (1997) (citation, brackets, and internal
quotation marks omitted). This is exactly such a case.
In the absence of exigent circumstances and
nothing in the instant record suggests any exigency, let
alone demonstrates exigency to an extent that might carry the
day on summary judgment the Fourth Amendment prohibits a
warrantless, non-consensual entry by the police into a
suspect's home in order to arrest him. See Payton v. New
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York, 445 U.S. 573, 576 (1980). Of course, once the police
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procure a valid arrest warrant, they may enter the suspect's
home for the limited purpose of effecting the arrest. See
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id. at 603. But even then, the police may not enter a third
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person's home without consent, a search warrant (in
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contradistinction to an arrest warrant), or exigent
circumstances. See Steagald v. United States, 451 U.S. 204,
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205-06, 212-15 (1981).
In this case the police transgressed the clearly
established rule laid down by the Steagald Court. The
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plaintiff, Joanne Joyce, was not herself a suspect. Yet the
defendant officers entered her home without her consent,
without a search warrant, and in the absence of any exigent
circumstances. To be sure, the defendants had an arrest
warrant for the plaintiff's son, Lance Joyce, but that is
scantconsolation becauseLance didnot livein hismother's home.
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In stitching together a qualified immunity defense
from this poor-quality cloth, the en banc court relies
heavily indeed, almost exclusively on United States v.
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Santana, 427 U.S. 38 (1976). The court's reliance strikes me
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as misplaced. Santana is an "exigent circumstances" case; it
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stands only for the proposition that when the police confront
a suspect whom they have probable cause to arrest in a public
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place, and the suspect subsequently flees into her own home,
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they may pursue and arrest her. See id. at 42-43. That
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proposition has no application here for two reasons (each of
which is independently sufficient to defenestrate the en banc
court's reasoning).
First, under Steagald, warrantless non-consensual
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searches of a third person's home are only excused by exigent
circumstances. 451 U.S. at 205-06. Santana involved exigent
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circumstances: the hot pursuit of a fleeing suspect from a
public place into a private one. 427 U.S. at 42-43. In this
case, by contrast, there is simply no evidence of any need
for pursuit hot, cold, or lukewarm. Certainly, the mere
fact that Lance Joyce, prompted by police action, moved from
one part of his mother's home to another did not create any
cognizable exigency. See United States v. Curzi, 867 F.2d
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36, 40-43, 43 n.6 (1st Cir. 1989) (explaining that police
officers cannot use exigent circumstances that they have
created to justify a warrantless search).
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Second, and equally important, the record is
pellucid that Lance was not in a public place when the
officers first confronted him; although he opened an interior
door, he remained completely within the house and kept an
exterior weather door between himself and the officers
entirely shut. While the en banc court blithely asserts that
Santana does not turn on whether the individual whom the
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police desire to apprehend is inside or outside a house when
the first contact occurs, this distinction makes every bit of
difference.3 The rule prohibiting warrantless invasions of
third parties' homes emerged in Steagald, a case that
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followed and interpreted Santana. Rather than extending
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Santana, Steagald, 451 U.S. at 214 n.7, 222, reinforces
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Payton, a case in which the Supreme Court concluded that
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"physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed." 445 U.S.
at 585 (citation omitted). Consequently, "the Fourth
Amendment has drawn a firm line at the entrance to the
house." Id. at 590. The Constitution does not equivocate on
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3. Recent Supreme Court case law confirms that police action
directed at individuals within the confines of a dwelling is
subject to intense constitutional scrutiny. The
constitutional requirement to "knock and announce,"
established in Wilson v. Arkansas, 115 S. Ct. 1914, 1915-16
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(1995), pertains only when the subject of the arrest warrant
is within a dwelling. The elevation of this requirement to
constitutional status can only be understood in terms of the
special protection granted those persons who are within a
private home's confines when the police first arrive on the
scene.
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this point. See United States v. Berkowitz, 927 F.2d 1376,
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1388 (7th Cir. 1991) ("Payton did not draw the line one or
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two feet into the home; it drew the line at the home's
entrance."); State v. Morse, 480 A.2d 183, 186 (N.H. 1984); 3
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W. LaFave, Search and Seizure 6.1(e) (3d ed. 1996). Nor
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should we.
In sum, I believe that the officers' entry into a
third party's home in the absence of consent, a search
warrant, or exigent circumstances plainly violated Steagald
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and thus violated the homeowner's clearly established Fourth
Amendment rights. See United States v. McCraw, 920 F.2d 224,
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228-29 (4th Cir. 1990) (rejecting use of Santana when door to
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dwelling was only partially opened from within). By hedging
on this point, the en banc court not only denies the
plaintiff her day in court but also invites the proliferation
of such incidents. Since we will be seen as sanctioning that
which we are unwilling to condemn, I respectfully dissent.
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