Cassady v. Yellowstone County Sheriff

143 P.3d 148

2006 MT 217

333 Mont. 371

Dan CASSADY, Plaintiff and Appellant, v. YELLOWSTONE COUNTY MONTANA SHERIFF DEPARTMENT, a Political Subdivision; Sergeant Vince Wallis, an individual; Lieutenant Mike Schieno, an individual; Deputy Shane Skillen, an individual; and Deputy Brent Wegner, an individual, Defendants and Respondents.

No. 05-517.

Supreme Court of Montana.

Argued May 1, 2006.

Submitted May 10, 2006.

Decided September 6, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

For Appellant: W. Scott Green (argued), Patten, Peterman, Bekkadahl & Green, PLLC, Billings, Montana.

For Respondents: Kevin Gillen (argued) and Ryan Nordlund, Deputy Yellowstone County Attorneys, Billings, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Plaintiff Dan Cassady (Cassady) brought a 42 U.S.C. § 1983 (§ 1983) claim against Yellowstone County Sheriff's Department, and officers Deputy Shane Skillen, Deputy Brent Wegner, Sergeant Vince Wallis, and Lieutenant Mike Schieno (collectively the Officers), in their individual capacities. The claim alleged civil rights violations stemming from the Officers' failure to knock and announce their presence before entering Cassady's home, and the Officers' alleged excessive use of force against Cassady. The Thirteenth Judicial District Court, Yellowstone County, determined as a matter of law that the Officers were entitled to qualified immunity. Cassady appeals.

¶ 2 We consider the following issues on appeal:

¶ 3 1) Did the District Court commit error when it granted the Officers qualified immunity from Cassady's § 1983 claim based on the Officers' failure to knock and announce their presence?

¶ 4 2) Did the District Court commit error when it determined that the Officers did not use excessive force and, consequently, were entitled to qualified immunity from Cassady's § 1983 claim?

FACTS AND PROCEDURAL HISTORY

¶ 5 What began as a violent incident between father and son one evening in Broadview, Montana, ended the next morning with a SWAT team firing tear gas to remove a shooting victim from his own home.

¶ 6 Cassady and his then seventeen-year old son, Robert Cassady (RJ), lived in the back portion of a building in which Cassady also operated the Broadview Bar, in Yellowstone County. Cassady and RJ initially argued on the evening of May 8, 2001, before the incident escalated into physical violence. RJ retreated to the house of his friend and neighbor, Robert Conover (Conover), after the fight. RJ told Conover that the altercation ended when he had hit his father repeatedly over the head with a baseball bat, and that he did not know whether Cassady was dead or alive. Cassady's blood soaked RJ's pants. Conover, a first responder, drove to Tim Hancock's (Hancock) house and requested Hancock accompany him to the Broadview Bar to check on Cassady's welfare. Conover and Hancock entered the building and announced their presence. They found Cassady talking on the phone. Conover inquired whether Cassady was all right, and Cassady responded, "I'm walking, I'm talking, that's all, does it look like I'm all right?" Cassady then ordered the men to leave the premises. They complied.

¶ 7 Conover returned home and called 911. He informed the police what he knew of the evening's events, including Hancock's observation that he saw a shotgun in Cassady's home. Deputy Skillen, Deputy Wegner, and Sergeant Wallis of the Yellowstone County Sheriff's Department arrived at Conover's home. The Officers interviewed Conover and RJ and learned that Cassady had sustained head injuries from a baseball bat and that he had been drinking alcohol. Dispatch also informed the Officers that Cassady had a "history of gunplay." The Officers stated that they proceeded to the Cassady residence to check on Cassady's medical status and investigate further the circumstances surrounding the incident with RJ.

¶ 8 Dispatch called Conover after the Officers left to ask if Conover had a key to the Cassady residence. RJ provided Conover a key to his home for the Officers' use. RJ told Conover to inform the Officers that they needed to announce themselves when they entered the bar or else his father would think that they were burglars. Lieutenant Schieno, also of the Yellowstone County Sheriff's Department, appeared at the Conover residence. Conover met him outside and gave him RJ's key. Officer Schieno asked Conover twice if the Officers had RJ's permission to enter the home. Conover confirmed that the Officers did have RJ's permission to enter his home. Conover neglected, however, to relay RJ's warning that the Officers needed to announce themselves.

¶ 9 The Officers arrived at the Cassady residence and requested that dispatch call Cassady and ask him to come outside to discuss what had happened with his son. Dispatch called Cassady twice. He did not answer the phone. Conover's wife, Ann, testified later that Cassady was talking to her on the phone intermittently during these hours.

¶ 10 The parties dispute what happened next. Three of the four Officers' affidavits state that they shined flashlights in the windows and announced themselves as law enforcement while they walked the building's perimeter. One of these Officer's taped statements, taken the morning after the incident, included this information. Cassady's affidavit contains no mention of flashlights or announcements coming from outside his home. Cassady's affidavit states that he had retired to his residence when he "heard intruders enter the bar."

¶ 11 The Officers had decided to enter the building through the front door with their weapons drawn. Officer Schieno used the front door key provided by Conover, discovered that turning the key had actually locked the door, and unlocked it again. The Officers did not knock or announce their presence as they entered through the front door. The Officers' taped statements and affidavits consistently relayed that the group entered the building "very quietly," and were making a conscious effort to do so.

¶ 12 The room where the Officers entered was dark. Deputies Skillen and Wegner proceeded to the right, while Lieutenant Schieno and Sergeant Wallis moved to the left. Wallis and Schieno immediately noticed a laser light targeted on Schieno's face. The Officers knew the laser to be consistent with a gun sight device. What Officers described as "lots of verbalization" occurred during the next few moments. The Officers announced repeatedly and loudly that they were the Sheriff's Department, and continually ordered Cassady to drop his weapon. Cassady ignored the Officers' demands and maintained the laser sight on Schieno. Wallis fired his gun in Cassady's direction.

¶ 13 The Officers then retreated from the building. When Cassady did not emerge, they established a perimeter and medical staging area outside the building. Law enforcement's attempts to communicate with Cassady and convince him to leave the building throughout the night were unsuccessful. The Yellowstone County SWAT team eventually shot tear gas into the residence around five o'clock the next morning. Cassady emerged, and law enforcement transported him to a local hospital where he received treatment for a gunshot wound to his abdomen, for a bullet fragment in his upper right chest, and for multiple injuries he sustained from the encounter with his son. Law enforcement transferred Cassady again later in the day to the Yellowstone County Detention Facility. They charged him with felony assault on a peace officer and family partner member assault.

¶ 14 Cassady entered a plea of not guilty on both charges. He did not pay the $200,000 bail and remained in the county jail. Cassady moved the court to reduce his bail to $50,000 on August 27, 2001, after serving 110 days in jail. The court granted his motion. Cassady posted bail and the court set trial for January 22, 2002. The State dismissed the partner family member assault charge immediately preceding trial. The jury found Cassady not guilty of felony assault on a peace officer following a four-day trial.

¶ 15 Cassady then brought a civil action against Yellowstone County and the Officers. The action included a § 1983 claim that stated generally that the defendants "violated plaintiff's civil rights and deprived him of his rights under 42 U.S.C. § 1983." The District Court analyzed the § 1983 claim under both the United States Constitution and Montana case law. Cassady's complaint also claimed that the Officers committed various other torts against him.

¶ 16 The court granted the Officers' summary judgment motion to dismiss some of the tort claims, and granted the Officers qualified immunity for the § 1983 claim. Cassady's claims for negligence, assault, and negligent infliction of emotional distress proceeded to a four-day trial. The jury issued a defense verdict. Cassady now appeals the order granting qualified immunity to the Officers for the § 1983 claim based on the alleged constitutional violations arising from the Officers' failure to knock and announce and their alleged use of excessive force.

STANDARD OF REVIEW

¶ 17 We review de novo a district court's decision to grant qualified immunity. Losleben v. Oppedahl, 2004 MT 5, ¶ 13, 319 Mont. 269, ¶ 13, 83 P.3d 1271, ¶ 13. We also review de novo the issue of whether exigent circumstances exist. State v. Anyan, 2004 MT 395, ¶ 18, 325 Mont. 245, ¶ 18, 104 P.3d 511, ¶ 18 (citing United States v. Furrow (9th Cir.2000), 229 F.3d 805, 811).

DISCUSSION

¶ 18 Qualified immunity is "an immunity from suit rather than a mere defense to liability," and, consequently, "it is effectively lost if a case is erroneously permitted to go to trial." Saucier v. Katz (2001), 533 U.S. 194, 200-01, 121 S.Ct. 2151, 2155-56, 150 L.Ed.2d 272. Qualified immunity seeks to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Saucier, 533 U.S. at 202, 121 S.Ct. at 2156. Thus, the...