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Torts: Qualified Immunity of Police Officers

Posted by Ted A. Schmidt | Aug 09, 2019 | 0 Comments

Torts: Qualified Immunity of Police Officers

City of Caldwell v. Winfield, D.C. No. 1:16-cv-00359 (9th Cir. July 25, 2019) (J. Graber)


Police officers sought to arrest Fabian Salinas, a gang member with outstanding felony arrest warrants for violent crimes. Plaintiff's grandmother reported to the police that Salinas may be in her daughter's house.  While staking out the plaintiffs' house, plaintiff was seen outside the house. She was asked if Salinas was inside. She said he “might be.” She was told if she didn't cooperate she could “get in trouble” for harboring a felon with outstanding arrest warrants. Plaintiff feared she had no choice but to consent to a search of her house claiming she did not “voluntarily” consent to the subsequent search. 

 Officers tear gassed her house and ultimately entered the house after breaking a window only to find Salinas was not present.  Plaintiff and her children could not live in her house for two months due to broken glass and tear gas saturated possessions. The City of Caldwell paid for a hotel and her children for three weeks and paid her $900 for damaged personal property.  She brought this action for damages based upon violation of her civil rights and the consequence of an unreasonable search and seizure.

 The trial court ruled the police were not justified in the search and therefore were without qualified immunity.  The Ninth Circuit Court of Appeals reversed and remanded finding absent controlling Ninth Circuit or United States Supreme Court authority holding such conduct to be unreasonable, the officers were entitled to qualified immunity for their actions.

 The court of appeals found the following facts created a reasonable belief the consent was voluntary:

“Time passed between his threat to arrest Plaintiff for concealing Salinas' whereabouts and his request for consent, during which [the officer] walked away from Plaintiff; Plaintiff nodded her assent when [the officer]  returned and asked her for ‘permission to get inside [her]house' to arrest Salinas; Plaintiff handed Richardson her house key without being asked for it; Plaintiff knew that Salinas was a wanted felon; and [the officer] did not threaten to arrest Plaintiff for withholding consent for the officers to enter her home.”

 As to the scope of the search and particularly the use of tear gas which damaged plaintiff's property, the court found, [g]iven that Defendants thought they had permission to enter Plaintiff's house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it is not obvious, in the absence of a controlling precedent, that Defendants exceeded the scope of Plaintiff's consent by causing the teargas canisters to enter the house in an attempt to flush Salinas out into the open.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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