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  • Jim Chapman

Officers are immune from suit for executing a no-knock warrant on the wrong apartment.

Author: Jim Chapman


In Penate v. Sullivan, ___ F.4th ___, 2023 WL 4446361 (1st Cir. July 11, 2023), Plaintiff/Appellant Isaura Penate filed suit against the City of Worchester, Massachusetts, and certain of the City’s police officers, alleging a violation of her Constitutional rights. Specifically, Penate alleged that the officers—who executed a no-knock search warrant at her apartment—had violated her Fourth Amendment rights against unreasonable searches and seizures and that they had exerted excessive force against her in violation of her Fourth Amendment rights. The United States District Court for the District of Massachusetts entered summary judgment in the Defendants’ favor and against Penate. Penate timely filed her appeal to the United States Court of Appeals for the First Circuit, challenging the District Court’s dismissal of her case.

On appeal, the First Circuit agreed with the District Court that the individual Defendants were entitled to qualified immunity (i.e., they were immune from liability) and that neither the officers nor the City was liable for the other torts under Massachusetts law as alleged by Penate. The following are the relevant facts.

A woman appeared at a rooming house on Main Street in Worcester around 2:30 a.m. on April 12, 2016, wearing only a t-shirt and asking for help because she had been raped. Police were called, and the woman was taken to the hospital. Detective Donna Brissette spoke with the victim around 4:00 a.m. The victim recounted that she had left a club with two men who told her that they knew her brother. The men initially took her to her brother’s apartment. But then, one of the men, who went by the name “Chino,” said that he was having a party at his place, and the woman agreed to accompany him there. The two men and the woman drove there in a silver SUV. Once they arrived at the third-floor apartment, the men sexually assaulted the woman. One man showed the woman a handgun in the waistband of his jeans during the assault. When the men left to get their friends, the victim fled, leaving behind her clothes, a wallet, and her phone.

Around 10:30 a.m. later that day, Detective Brissette drove the woman to the approximate area that she had described as the location of the assault. The woman directed the officer to turn onto Preston Street and, then, identified a building on Preston Street as the location at which she had been assaulted. The woman also said that the gray SUV parked in an adjacent lot to the building looked familiar and could have been the car in which she rode with the assailants. Shortly thereafter, by using Facebook, the victim’s sister located a picture of Chino, and the victim identified him as one of her assailants. At that point, the officers did not attempt to determine whether Chino or the other assailant resided at the building. In Detective Brissette’s estimation, because the police had reason to believe that the crime had occurred at that address, it did not matter who lived there.

That afternoon, Detective George Adams applied for a warrant in order to search Apartment 3 of the building. A judge granted the warrant application at 1:55 p.m., and the search warrant permitted officers to enter the apartment during the day and with announcement. Police officers requested the SWAT team’s assistance because the victim saw a gun during the assault. Detective Daniel Sullivan led the SWAT team executing the search warrant.

The officers’ story about what happened after they arrived at the apartment differed from Penate’s. The officers asserted that the officers knocked and announced their presence multiple times—in English and in Spanish—while they waited to retrieve the proper tool in order to enter the apartment. Conversely, Penate testified that the officers did not knock or announce their presence. Given the standard of review, the First Circuit assumed that the entry occurred without any announcement sufficient to alert Penate.

Upon breaching the door of the apartment with firearms drawn, the officers encountered a hanging sheet behind which Penate—a nineteen year old female who was not conversant in English and who was thirty-eight weeks pregnant—was napping. Penate testified at her deposition that the men were “dressed as soldiers” in combat gear (“with helmets, glasses and everything”) and that they did not identify themselves as police officers.

The officer who was in front of the group executing the search warrant and who was pointing a gun at Penate, asked her to come out from behind the sheet and to raise her hands. After she complied with this directive, the officer, within “several seconds,” lowered his weapon. Penate was then passed off to other officers, and she was taken outside of the apartment.

Once outside, the officers asked Penate questions about Chino, the name by which the victim knew the assailant. Penate denied knowing anyone who went by that name, but eventually, the officers showed the picture that they had received from the victim’s sister that identified Chino to Penate. Again, Penate said that she did not know and that she had never seen that person. Accordingly, the police eventually left Penate’s apartment after finding no evidence of the sexual assault and noting that the premises did not match the description given by the victim. It was the wrong apartment.

As the officers were searching the apartment and while she was waiting outside, Penate told the officers that she was not feeling well, and so, an officer took her into the apartment to sit down. Penate, then, started to experience contractions, and her water broke. Penate went to the hospital after the police left, and she gave birth the following morning, two weeks before her due date. Penate testified that, after the experience with the officers, she suffered from anxiety, depression, nightmares, and insomnia, and she has been diagnosed with post-traumatic stress disorder.

The First Circuit began its consideration of Penate’s appeal by explaining that qualified immunity shields government officials from civil damages unless their conduct violated clearly established statutory or Constitutional rights of which a reasonable person would have known. Whether an official is entitled to qualified immunity is governed by a two-prong analysis, which a court may resolve on either prong. The first prong asks whether the facts alleged or shown by the plaintiff make out a violation of a Constitutional right; the second prong asks whether that right was clearly established at the time of the defendant’s alleged violation. The second prong, in turn, has two aspects. One aspect of the analysis focuses on the clarity of the law. The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs’ Constitutional rights. In order to show that the law was clearly established, a plaintiff has the burden to identify controlling authority or a robust consensus of persuasive authority such that any reasonable official in the defendant’s position would have known that the challenged conduct is illegal in the particular circumstances that he or she faced.

As for her federal Constitution claims, Penate made three arguments as to why the District Court erred in finding that Defendants/Appellants were immune from this suit based upon the doctrine of qualified immunity. First, Penate argued that officers violated her right to be free from unreasonable searches by failing to knock and announce their presence before entering her apartment and by failing to investigate sufficiently before conducting a no-knock entry. Second, Penate contended that the officers violated her right to be free from excessive force by continuing to point a weapon at her for several seconds after realizing that she was not a threat. Third, Penate argued that the officers’ conduct as a whole, including their failure to further investigate before choosing to conduct a SWAT team entry, rendered the entry and seizure unreasonable.

The First Circuit rejected each of Penate’s arguments because the law did not clearly establish that any of the officers’ actions would have constituted a violation of her Fourth Amendment rights. Therefore, the First Circuit agreed with the District Court that the officers were entitled to qualified immunity.

As for her first argument, the First Circuit conceded that the Fourth Amendment (generally) requires that police officers seeking to enter a dwelling announce their identity and purpose before entry. However, the First Circuit noted that there are exceptions to this general rule and opined that there are some circumstances under which an un-announced entry is reasonable under the Fourth Amendment. One such circumstance is a threat of violence.

Here, the officers had a firsthand credible report that one of the suspects had on his person a gun. Because Penate could not cite to a similar case that would have placed the officers on notice that the actions that they were taking violated Penate’s Constitutional rights, the First Circuit held that the officers were immune from her suit for monetary damages based upon the doctrine of qualified immunity.

As for her second argument, the First Circuit explained that excessive force claims are premised on the Fourth Amendment’s right to be free from unreasonable seizures. When officers execute a search warrant, they may seize people who they find on the premises, but they must use reasonable force to effectuate the detention. The reasonableness of the force used in a given situation depends on the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Furthermore, the First Circuit said that pointing a weapon at a non-threatening, compliant individual, even while executing a warrant, can constitute excessive force. However, holding by-standers at gunpoint does not always constitute an excessive use of force. If the pointing of a weapon is both reasonably necessary to secure the officers’ safety and is sufficiently short in duration, there will likely be no Fourth Amendment violation.

In this case, Penate testified that she was held at gunpoint for “several seconds.” But the First Circuit cited to precedent from that court and from the United States Supreme Court which held that it would not have been clear to a reasonable officer in 2016 that pointing a gun for “several seconds” upon warranted entry to an apartment suspected of containing a firearm (and possibly an armed suspect) constituted excessive force or, at least, not so clear that no competent officer could have thought that it was permissible. As such, qualified immunity applied and protected the offers from liability.

As for her third argument, Penate argued that the officers’ actions, as a whole, were unreasonable considering what they knew (and, more importantly, didn’t know) about who they would encounter at the building. Penate noted that the police did not investigate who lived at the apartment, and that, having failed to do so, they used a SWAT team to force the door and to enter without knocking and with guns drawn. This entire course of conduct, Penate claimed, meant that she was seized with force that was unreasonable under the circumstances.

The First Circuit disagreed. According to the First Circuit, even considering the entire course of conduct together, the officers were entitled to qualified immunity because it would not have been clear to a reasonable officer that the combination of those actions violated established law. Simply put, for the same reasons that rendered the no-knock entry not clearly unreasonable, so too no sufficiently established case law made it reasonably clear that the no-knock entry could not be effected with raised guns that were lowered within a few seconds of realizing that a person was not a danger. And, Penate pointed to no case that clearly established that it was clearly unreasonable to use a SWAT team under the circumstances.

Despite its holding, the First Circuit stated that the court did not minimize Penate’s experience, and the court acknowledged her pain and fear. Nevertheless, the First Circuit concluded that it would not have been clear to a reasonable officer that the officers’ conduct violated established law, and the officers were, therefore, entitled to qualified immunity on Penate’s Constitutional claims against them.

Finally, the First Circuit held that the District Court did not err in entering summary judgment in the officers’ favor and against Penate on her claims that the officers violated her rights under Massachusetts law. Therefore, the First Circuit affirmed the District Court’s dismissal of Penate’s case in total.

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