United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Melvin Nonn filed his petition in the Circuit Court of
Madison County, Missouri against defendants Officer Dan
Curtis, the City of Fredericktown, Missouri, and Frederick
Town Police Chief Eric Hovis. Plaintiff claims, among other
things, that his civil rights were violated under 42 U.S.C.
§ 1983 in connection with an incident that took place on
June 9, 2012. Defendant Curtis has moved for partial summary
judgment. The motion has been extensively briefed and is now
ripe for disposition.
following facts are undisputed except where indicated. On
June 9, 2012, defendant Fredericktown police officer Dan
Curtis was dispatched to plaintiff Nonn's residence.
Defendant Curtis knew that there had been a disturbance at
the residence and that somebody claimed that a man had a gun.
When defendant Curtis and another officer, nonparty Jason
Fitzwater, arrived at the home, Curtis spoke with
plaintiff's wife. She was locked outside. Defendant
Curtis watched plaintiff through an open window, which
contained a running box fan, and observed plaintiff drinking
a beer and holding a long firearm. Defendant Curtis watched
plaintiff take the firearm down a hallway and then return
with the firearm. Officer Fitzwater attempted to make contact
with plaintiff by hitting the front door of the residence
with his Maglite. Plaintiff did not respond. Defendant Curtis
determined that he needed to secure the scene and enter the
plaintiff's home without a warrant.
brought this lawsuit claiming, inter alia, that
defendant Curtis unlawfully entered his home and then used
excessive force against plaintiff. Trial is set for April
2018, but defendant Curtis seeks partial summary judgment on
the matter of plaintiff's unlawful entry.
to Rule 56(c), a district court may grant a motion for
summary judgment if all of the information before the court
demonstrates that “there is no genuine issue as to
material fact and the moving party is entitled to judgment as
a matter of law.” Poller v. Columbia Broadcasting
System, Inc., 368 U.S. 464, 467 (1962). The burden is on
the moving party. Mt. Pleasant, 838 F.2d at 273.
After the moving party discharges this burden, the nonmoving
party must do more than show that there is some doubt as to
the facts. Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party bears the burden of setting forth specific
facts showing that there is sufficient evidence in its favor
to allow a jury to return a verdict for it. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
ruling on a motion for summary judgment, the court must
review the facts in a light most favorable to the party
opposing the motion and give that party the benefit of any
inferences that logically can be drawn from those facts.
Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The Court is required to resolve all conflicts of
evidence in favor of the nonmoving party. Robert Johnson
Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210
(8th Cir. 1976). However, the nonmoving party's
allegations must be supported by sufficient probative
evidence that would permit a finding in his favor on more
than mere speculation, conjecture, or fantasy. Mann v.
Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th
Cir. 1992)). With these principles in mind, the Court turns
to the discussion.
United States Constitution's Fourth Amendment generally
requires the police to obtain a warrant before entering a
home. U.S. Const. amend. IV. An exception to the warrant
requirement is the exigent circumstances exception in which
“the needs of law enforcement [are] so compelling that
[a] warrantless search is objectively reasonable under the
Fourth Amendment.” Kentucky v. King, 563 U.S.
452, 460 (2011) (internal citation omitted). “Exigent
circumstances include threats to an individual's life, a
suspect's imminent escape, the imminent destruction of
evidence, or situations where ‘there is a compelling
need for official action and there is no time to secure a
warrant.'” Smith v. Kansas City, Missouri
Police Dept., 586 F.3d 576, 580 (8th Cir. 2009) (quoting
Radloff v. City of Oelwein, 380 F.3d 344, 348 (8th
Cir.2004)). “An action is ‘reasonable' under
the Fourth Amendment, regardless of the individual
officer's state of mind, as long as the circumstances,
viewed objectively, justify the action.” Brigham
City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (internal
puts great weight in the fact that not one but two people
called 911 about the circumstances that evening at
plaintiff's home. Both plaintiff's wife and a
neighbor felt compelled to call 911, but it is unclear
whether defendant Curtis knew those two calls had been made.
Although defendant Curtis did know that plaintiff had
previously been seen with a firearm, at the time Curtis
entered plaintiff's home, the plaintiff was sitting in a
chair playing the guitar. Defendant Curtis had just seen
plaintiff walk his long firearm into another room and return
to his guitar-playing room without the firearm. Curtis
suggests that because plaintiff was seen drinking a beer as
he carried the firearm, he was committing a felony --- the
unlawful use of a weapon. See § 571.030.1(5)
RSMo (“[a] person commits the offense of unlawful use
of weapons…if he or she knowingly…[h]as a
firearm…while he or she is intoxicated”).
Plaintiff argues that there was no evidence he was
intoxicated --- only that he was drinking a beer. However,
the information known to the defendant officer was that
plaintiff had been involved in a heated domestic argument not
long before, and the presence of alcohol under those
circumstances in particular could have caused a reasonable
officer to suspect the individual was intoxicated. The
question here is whether a reasonable officer could have
concluded that exigent circumstances existed, not whether
they actually existed. See Radloff, 380 F.3d at 348.
Plaintiff points out that he had removed the gun from the
room where defendant Curtis saw him, and that any
“emergency” was thus mitigated by the fact that
plaintiff no longer had the gun. However, defendant Curtis
says it was reasonable to believe plaintiff might have
additional firearms in the room with him that were not
visible in light of the night's earlier events.
is disagreement regarding what plaintiff's wife told
defendant Curtis when he arrived at her home. Curtis stated
that plaintiff's wife told him that plaintiff was a
convicted felon. Plaintiff's wife denies that she told
Curtis that plaintiff was a felon, but she does state in her
affidavit that “my husband was inside our home and that
there should not be any gun inside.” (#39-1 at Ex. 8.)
That statement would also suggest to a reasonable officer
that plaintiff should not have had a gun. However, it is
critical to know that plaintiff's wife --- the victim of
the domestic dispute --- was outside with the police officers
the entire time before defendant Curtis entered the home. It
appears that Curtis will argue at trial that plaintiff's
wife gave permission for the police to enter the home, but
she now denies that she gave the officers permission. The
Court finds that, because the wife was outside with Curtis,
and because the plaintiff was inside and posed no immediate
threat to anyone while playing his guitar, there is at best a
question of fact as to whether exigent circumstances existed.
Without an immediate threat present, Curtis could have
obtained a warrant and returned with a SWAT team.
circumstances are typically found where destruction of
evidence or a suspect's escape is imminent, or where
someone is in danger of immediate physical harm.
Smith, 586 F.3d at 580. However, exigency may also
be found where there is a compelling need for official action
and there is no time to secure a warrant. Id. Here,
there was no immediate physical danger because the victim was
locked outside with the police, and the plaintiff was --- at
the time of the police entry --- playing his guitar. Although
“an objectively reasonable belief of a threat to
officer safety” might also justify warrantless entry,
United States v. Quarterman, 877 F.3d 794, 797 (8th
Cir. 2017), there was no immediate threat here.
Quarterman, for example, is distinguishable. There,
officers responded to a domestic call in which a man, whom
they knew to be armed, was making his girlfriend move out and
had been in a “heated verbal altercation” with
the girlfriend's mother that morning. Id. The
girlfriend opened the door, and police saw the man make quick
movements as if reaching for the couch or getting up ---
although they could not see a gun, the officers decided to
enter. Id. The Eighth Circuit held that although the
combination of a domestic dispute and the possibility of a
gun in the home allowed the officers “an objectively
reasonable basis to believe that [the man] was armed and a
threat” to the girlfriend or others. Id. at
799. This case is distinguishable because plaintiff's
wife was, unlike Quarterman's girlfriend, safely outside.
individual is entitled to qualified immunity if his conduct
does not violate clearly established constitutional rights of
which a reasonable person would have known. White v.
Pauly, 137 S.Ct. 548, 551 (2017). Although the Supreme
Court does not require a case directly on point for a right
to be “clearly established, ” the “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Id. (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The
Court finds that defendant Curtis's argument for
qualified immunity fails. There ...