Metropolitan News-Enterprise

 

Monday, April 2, 2018

 

Page 1

 

Ninth Circuit:

Warrantless Entry Justified Though Specific Person Said to Be in Jeopardy Was Found to Be Safe

 

By a MetNews Staff Writer

 

The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment in favor of the defendants in an action claiming that police unlawfully entered an apartment without a warrant in response to a 911 call, in which it was reported that a particular person might be in danger there, even though that person was encountered by arriving officers in safety, wading in a swimming pool.

While exonerating the City of Escondido, the memorandum opinion, filed Feb. 22 and amended Thursday, reverses summary judgment in favor of the two police officers who tackled and handcuffed the elderly father of the apartment owner as he came out of the unit, unarmed and non-threatening in his manner.

Escondido police on May 27, 2013, received a call from the mother of Ametria Douglas, who resided in the apartment with plaintiff Maggie Emmons. The mother reported that during a telephone conversation with her daughter, then 24, there was screaming and yelling in the background, the connection was cut off, and she was unable to reestablish contact.

Police were aware that there had been a domestic violence call relating to an episode in that apartment about a week earlier. However, when they arrived at the scene, Douglas was found in the swimming pool, in no danger.

‘I’m Ametria’

During oral argument in Pasadena on Feb. 6, Emmons’s attorney, Brody McBride, said that Douglas “ID’d herself to the officers” and said, “Hey, I’m Ametria, I live there.”

McBride continued:

“The officers told her, ‘This doesn’t concern you’—basically, ‘Mind your own business.’ ”

He argued that if they had questioned her as to what had occurred in the apartment, whether there had been violence, or if there were weapons present, “the need to conduct a ‘welfare check,’ as the court has framed it, would have ended right there.”  

It didn’t. Officers proceeded to converse with Emmons, who was at a window, in a highly agitated state, and, after consulting with a supervisor, they insisted on entering, doing so after arresting Marty Emmons for blocking their entry.

Apparent Agreement

Questioning of Escondido City Attorney Michael R. McGuinness by members of the panel—Circuit Judges Susan Graber and Andrew D. Hurwitz, along with Algenon L. Marbley, district judge for the Southern District of Ohio, sitting by designation—appeared to signal agreement with McBride that the emergency exception to the warrant requirement dissipated after officers spoke with Douglas.

Nonetheless, the opinion declares:

“Here officers had an objectively reasonable basis to conclude that there was a need to conduct a welfare check….Once inside the apartment, the officers reasonably limited the scope of the search to a welfare check. Furthermore, given the red flags the officers encountered at the scene, a reasonable officer could conclude that the potential emergency did not dissipate even though a woman outside the apartment identified herself as the subject of the 911 call.”

Excessive Force

With respect to the claim of Marty Emmons that excessive force was exerted, the judges at oral argument evinced agreement with him. Marbley said of the father:

“He didn’t come out and threaten violence. He just came out and said, ‘Why are you here?’ and the next thing…they are putting him to the ground and say, ‘You are blocking the door’ and they want to go in.”

He added that the father “was an old guy.”

McGuinness said that the officers acted in a manner promoting safety, prompting the visiting jurist to ask, rhetorically:

“So the Pavlovian response is ‘Take him down and ask questions later?’ ”

Triable Issue

The opinion says:

“As to Mr. Emmons, there is a genuine issue of material fact as to whether separating him from the house was accomplished with excessive force….There is evidence from which a reasonable trier of fact could find that Mr. Emmons was unarmed and non-hostile.”

District Judge Jeffrey T. Miller of the Southern District of California had granted qualified immunity to the two officers based on a lack of existing precedent alerting them to impermissibility of their conduct. The opinion declares:

“The right to be free of excessive force was clearly established at the time of the events in question.”

The case is Emmons v. City of Escondido, No. 16-55771

 

Copyright 2018, Metropolitan News Company