Howell v. Polk ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ALLEN HOWELL, husband; 
PATTI HOWELL, wife,
Plaintiffs-Appellants,
v.
SHEILA SULLIVAN POLK, Yavapai
County Attorney; ROBERT REED,
City of Prescott Police Chief;
DAVID BENNER, City of Prescott
Assistant Police Chief; PAT
HUNTSMAN, Town of Chino Valley No. 06-16418
Police Chief; GEORGE “BUCK”
BUCHANAN, Yavapai County  D.C. No.
CV-04-02280-FJM
Sheriff; DAN SCHATZ, City of
Prescott Valley Police Chief; PAT OPINION
SPENCE, City of Cottonwood Police
Chief; LLOYD JONES, City of
Clarkdale Police Chief; JOE
VERNIER, City of Sedona Police
Chief; JOHN C. WISCHMEYER;
ALLEN MUMA, Jerome Police
Chief; JOHN O’HAGAN, Yavapai
County Sheriff’s Office; DANA
SCHMIDT, Sedona Assistant Police
Chief;

8797
8798 HOWELL v. POLK
PETE HODAP, City of Prescott 
police officer and former
supervisor of the Prescott Area
Narcotics Task Force (“PANT”);
KEL PALGUTA, City of Prescott
Valley police officer and officer of
PANT; RANDY JOHNSON, Yavapai
County Sheriff officer and officer
of PANT; CHRIS WYLIE, City of
Clarkdale police officer and 
officer of PANT; LUCAS
WILCOXSON, City of Sedona police
officer and officer of PANT; MAT
GRONEK, Town of Chino Valley
police officer and officer of
PANT; AMY BONNEY, City of
Prescott police officer,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
April 16, 2008—San Francisco, California
Filed July 16, 2008
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and N. Randy Smith, Circuit Judges.
Per Curiam Opinion
8800 HOWELL v. POLK
COUNSEL
Charles Anthony Shaw, Law Offices of Charles Anthony
Shaw, PLLC, Prescott, Arizona; Krista M. Carman, Warnock,
Mackinlay & Associates, PLLC, Prescott, Arizona, for the
plaintiffs-appellants.
James M. Jellison, Schleier, Jellison & Schleier, P.C., Phoe-
nix, Arizona; Larry Crown, Elan Mizrahi, Jennings, Haug &
Cunningham, Phoenix, Arizona; Thomas Lloyd, Gary D.
Kidd, Prescott Legal Department, Prescott, Arizona, for the
defendants-appellees.
OPINION
PER CURIAM:
The Howells sued members of the Prescott Area Narcotics
Task Force and other municipal and police defendants under
42 U.S.C. § 1983. Plaintiffs claimed, among other things, that
the police unconstitutionally executed a knock-and-announce
search warrant by failing to wait long enough for the Howells
HOWELL v. POLK 8801
to open the door before breaking it down. A jury disagreed,
and found the search to be reasonable. The Howells appeal.
Facts1
Around 6:30 in the morning, a team of police officers
arrived at the Howell residence to execute a search warrant.
The officers were required to knock and announce their pres-
ence before they could use force to enter the home. Wilson v.
Arkansas, 514 U.S. 927, 929 (1995). At trial, witnesses testi-
fied that at least one officer knocked on the door and yelled
“police, search warrant.” The police testified that, because the
front door was a steel-reinforced “security door” that would
take some time to breach, they began to force the door open
when they didn’t hear a response after five to eight seconds
of knocking and yelling. It took the police twenty to thirty
seconds to open the door. At least one officer continued to
yell “police” while the others were forcing entry.
Analysis
1. The district court instructed the jury to determine
whether execution of the search warrant was reasonable given
the totality of the circumstances. The jury found that it was.
On appeal, the Howells argue that the jury should have been
instructed to find only the number of seconds that elapsed
between the first knock and the police starting to break down
the door, and whether that amount of time was reasonable as
a matter of law.
Determining whether the officers’ entry into the house was
reasonable required balancing complex considerations: The
Howells argued that it wasn’t, because the police waited only
five to eight seconds before starting to break down the door.
According to the Howells, few area residents would be awake
1
Because we hear an appeal from a jury verdict, we state the facts con-
sistent with the verdict.
8802 HOWELL v. POLK
—and thus able to dispose of evidence, flee or arm
themselves—at 6:30 in the morning. The police countered
that they had no choice but to start the process quickly
because they knew that the steel security door would take a
while to breach, and if they had waited any longer, the How-
ells would have had time to arm themselves2 or dispose of
evidence. The police further argued that the large picture win-
dow in the front of the house would have given a resident a
vantage point from which to shoot at officers, that the small
size of the house would have allowed the occupants to quickly
hide evidence and that the drugs for which police were look-
ing could have been flushed down the toilet in seconds. See
United States v. Banks, 540 U.S. 31, 40 (2003) (“the opportu-
nity to get rid of [narcotics]” is a factor in how long officers
must wait).
[1] The Howells argue that, because the case requires bal-
ancing competing interests in privacy and law enforcement,
only the district judge may determine whether the conduct
was reasonable. But we frequently entrust juries with the task
of determining the reasonableness of police conduct. For
example, in excessive force lawsuits, the jury is usually
charged with deciding whether the force used by police in
effecting an arrest was reasonable. See Fikes v. Cleghorn, 47
F.3d 1011, 1014 (9th Cir. 1995) (instructing jury to consider
the totality of the circumstances); Forrester v. City of San
Diego, 25 F.3d 804, 806 (9th Cir. 1994) (“[w]hether the
amount of force used was reasonable is usually a question of
fact to be determined by the jury”) (citation omitted). As in
this case, determining whether an officer used excessive force
requires the jury to balance the state’s interest in law enforce-
ment against the plaintiff’s interest in personal security. See
id. (“Determining whether the force used to effect a particular
2
A fear which turned out to be well-founded. As the police were forcing
the door open, Robert Howell retrieved a revolver from his bedroom,
loaded it and fired one shot at the intruders. Upon realizing that the men
at his door were police, he dropped his gun and surrendered.
HOWELL v. POLK 8803
seizure is ‘reasonable’ under the Fourth Amendment requires
a careful balancing of the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.”) If a jury is
capable of weighing the reasonableness of a use of force, then
it is also capable of weighing the reasonableness of an entry
into a building. In other section 1983 lawsuits, the jury
decides whether the police had probable cause to search. See
White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986)
(“[p]robable cause is ordinarily a question for the jury”). If
the jury can weigh probable cause, a tricky and legalistic doc-
trine if ever there was one, then it can also decide whether a
warrant was lawfully executed. The district court didn’t err in
submitting the issue of reasonableness to the jury.
[2] 2. The Howells also appeal the district court’s denial of
their motion for summary judgment.3 They argue that the
court erred in not holding that the search was unreasonable as
a matter of law. While there are some entries that are unrea-
sonable as a matter of law, see, e.g., United States v.
Granville, 222 F.3d 1214 (9th Cir. 2000) (finding, under the
totality of circumstances, that five seconds was unreasonable),
this one was not among them. Plaintiffs lived in a small
house, with a large picture window and a difficult-to-breach
security door. In these circumstances, a jury might have found
the search unreasonable, but was not required to do so. The
district court didn’t err in denying plaintiffs summary judg-
ment on their claim of unlawful entry.
Appellants’ remaining arguments are addressed in the
accompanying memorandum disposition.
3
We have jurisdiction to review the denial of summary judgment despite
the subsequent trial where, as here, a party alleges “an error of law that,
if not made, would have required the district court to grant the motion.”
Banuelos v. Construction Laborers’ Trust Funds, 382 F.3d 897, 902 (9th
Cir. 2004) (citing Pavon v. Swift Transp. Co., Inc., 192 F.3d 902, 906 (9th
Cir. 1999)).
8804 HOWELL v. POLK
AFFIRMED.