Matthew Corrigan v. DC , 841 F.3d 1022 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2016 Decided November 8, 2016
No. 15-7098
MATTHEW CORRIGAN,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00173)
Elizabeth M. Rademacher, Student Counsel, argued the
cause for appellant. With her on the briefs were Tillman J.
Breckenridge, William R. Cowden, Patricia E. Roberts, and
Jacob M. Derr, Student Counsel.
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the brief were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren L.
AliKhan, Deputy Solicitor General.
Before: ROGERS, BROWN and PILLARD, Circuit Judges.
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Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Circuit Judge BROWN.
ROGERS, Circuit Judge: Following two warrantless
searches of his home by members of the D.C. Metropolitan
Police Department (“MPD”), Matthew Corrigan sued the
District of Columbia and individual MPD officers pursuant to 42
U.S.C. § 1983, for violation of his rights under the Fourth
Amendment to the Constitution. He now appeals the grant of
summary judgment to the defendants, challenging the district
court’s rulings that there was no constitutional violation and that
the officers were entitled to qualified immunity.
Even assuming, without deciding, that the initial
“sweep” of Corrigan’s home by the MPD Emergency Response
Team (“ERT”) was justified under the exigent circumstances
and emergency aid exceptions to the warrant requirement, the
second top-to-bottom search by the Explosive Ordnance
Disposal Unit (“EOD”) after the MPD had been on the scene for
several hours was not. The MPD had already secured the area
and determined that no one else was inside Corrigan’s home and
that there were no dangerous or illegal items in plain sight.
Corrigan had previously surrendered peacefully to MPD
custody. The information the MPD had about Corrigan — a
U.S. Army veteran and reservist with no known criminal record
— failed to provide an objectively reasonable basis for believing
there was an exigent need to break in Corrigan’s home a second
time to search for “hazardous materials,” whose presence was
based on speculative hunches about vaguely described “military
items” in a green duffel bag. And assuming, without deciding,
that the community caretaking exception to the warrant
requirement applies to a home, the scope of the second search
3
far exceeded what that exception would allow. In the end, what
the MPD would have the court hold is that Corrigan’s Army
training with improvised explosive devices (“IEDs”), and the
post traumatic stress disorder (“PTSD”) he suffers as a result of
his military service — characteristics shared by countless
veterans who have risked their lives for this country — could
justify an extensive and destructive warrantless search of every
drawer and container in his home. Neither the law nor the
factual record can reasonably be read to support that sweeping
conclusion.
Because it was (and is) clearly established that law
enforcement officers must have an objectively reasonable basis
for believing an exigency justifies a warrantless search of a
home, and because no reasonable officer could have concluded
such a basis existed for the second more intrusive search, the
officers were not entitled to qualified immunity across the board.
Accordingly, we reverse the grant of summary judgment in part
and remand the case for further proceedings. Upon remand, the
district court can address a remaining claim of qualified
immunity based on reasonable reliance on a supervisor’s order
and Corrigan’s claim of municipal liability, which the district
court did not reach.
I.
Matthew Corrigan is an Army Reservist and an Iraq war
veteran who, in February 2010, was also an employee of the
U.S. Department of Labor’s Bureau of Labor Statistics. On the
night of February 2, 2010, suffering from sleep deprivation, he
inadvertently phoned the National Suicide Hotline when dialing
a number he thought to be a Veterans Crisis Line. When he told
the Hotline volunteer that he was a veteran diagnosed with
PTSD, she asked whether he had been drinking or using drugs
and whether he owned guns. Corrigan assured her that he was
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only using his prescribed medication and was not under the
influence of any illicit drugs or alcohol; he admitted that he
owned guns. The volunteer told him to “put [the guns] down,”
and Corrigan responded, “That’s crazy, I don’t have them out.”
Corrigan Dep. 56:2–5. Despite Corrigan’s assurances that his
guns were safely stored, the volunteer repeatedly asked him to
tell her “the guns are down.” Id. 56:2–14. When asked if he
intended to hurt himself or if he intended to “harm others,” he
responded “no” to both questions. Id. 69:6–18. Frustrated,
Corrigan eventually hung up and turned off his phone, took his
prescribed medication, and went to sleep. Id. 56:10–14; 70:6–7.
The Hotline volunteer proceeded to notify the MPD.
At approximately 11:13 p.m., according to the February
9, 2010, Barricade Report from Lieutenant Glover to the MPD
Chief of Police, officers from the MPD Fifth District were
dispatched to Corrigan’s home for “Attempted Suicide.”
Barricade Rpt. 1. Certain undisclosed “information” led them
“to believe the subject was possibly armed with a shotgun.” Id.Corrigan lived at 2408 North Capitol Street, in Northwest D.C.,
in the basement apartment of a row house that had its own front
and back doors. Upon arrival, the officers thought they detected
a “strong odor” of natural gas and contacted the gas company,
which turned off the gas to the row house. Id.; D.C. Super. Ct.
Tr. 113-14. The officers contacted Lieutenant Glover at home
and he, in turn, gave orders to declare a “barricade situation,”
which meant that the ERT also went to Corrigan’s home. The
MPD Command Information Center advised that Corrigan, a
white male, age 32, had no known criminal record and there
were no outstanding protective orders against him. An ERT
investigator learned that Corrigan was a U.S. Army combat
veteran who had served recently during the Iraq war and owned
a rifle and several handguns. Additionally, he had recently
terminated a romantic relationship and was under psychiatric
care for PTSD and depression. He also had a dog.
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At 2:00 a.m., the ERT assumed tactical control of the
situation. At 2:10 a.m., the MPD began to secure the perimeter
around Corrigan’s home, including evacuating his neighbors.
Barricade Rpt. 2; see D.C. Super. Ct. Tr. 113-14. At 2:30 a.m.,
Lieutenant Glover arrived on the scene and called on the EOD
to respond. According to Lieutenant Glover’s testimony,
Corrigan’s upstairs neighbor, who was his landlady, had told
MPD officers that Corrigan occasionally had overnight guests,
including an ex-girlfriend. See Glover Dep. 16:20–22; 33:1–5.
An officer had reached the ex-girlfriend by cell phone, and she
said Corrigan was a veteran taking prescribed medication for
PTSD, had expertise in IEDs, and trained others in detecting and
mitigating IED incidents. Id. 35:11–37:6. She also recalled
seeing a green duffel bag containing “military items” in
Corrigan’s home that she had been told “not to touch” because
“they were his guns and military stuff.” Id. 36:17–21.
Around 3:00 a.m., MPD negotiators attempted to speak
with Corrigan by dialing his cell phone number, calling his
name over a public address system, and knocking or kicking his
front door. The MPD had no indication, however, that
Corrigan’s failure to answer the door was suspicious. The
officers had been told by his landlady and ex-girlfriend that
Corrigan was likely sleeping, having taken his prescribed
medication; his voicemail message stated “Hi, you’ve reached
Matt, if I’m unavailable, I’m probably asleep.” Indeed, his
landlady, upon being advised that the reason for the police
presence was Corrigan’s attempted suicide, had insisted that was
“outrageous” and repeatedly told the MPD officers that there
was “a big misunderstanding” because she had known Corrigan
for two years and had “never felt more comfortable with a
neighbor in [her] life.” D.C. Super. Ct. Tr. 106, 110. She had
explained to the officers that Corrigan had guns because he was
in the military and that his home had electric, not gas,
appliances.
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Corrigan testified that around 4:00 a.m. he became aware
of someone kicking at his front door, and then his back door,
and was “terrified,” feeling he was being “hunted.” Corrigan
Dep. 70:11–21. He moved from his bedroom to the bathroom
where he felt safest and tried to go back to sleep. Id.70:21–71:3. When he turned on his cell phone at 4:16 a.m., see
Barricade Rpt. 4, he received a flood of voicemails. He returned
the call of the detective who was one of the MPD negotiators.
Corrigan initially said he was at another address, because he was
scared, but within minutes admitted he was at home. Having
noticed the flood light and all the police officers at the front and
back of his home, he told the negotiator he was coming outside
but needed to put on clothes because of the fallen snow. He
described the clothes he would be wearing and that his cell
phone would be in his left hand when he came out so the police
would not shoot him because they thought he had a gun.
Corrigan Dep. 76:12, 21-22.
Exiting his home within 20 minutes of first speaking to
the negotiator, Corrigan closed and locked his front door so his
dog would not get out and no one could enter his home.
Corrigan Dep. 96:18–19; see also id. 77:6-17. In order to appear
as non-threatening as possible, he knelt on the ground and lay on
his back. MPD officers immediately secured his hands with a
white “zip-tie,” searched his person (on which he had only a
military identification card and his cell phone), and took him to
a police vehicle where he was told he had not committed any
crime and the officers only wanted to talk to him. See id. 97–98.
Eventually, he was taken to a Veterans Hospital where he
voluntarily admitted himself for PTSD symptoms triggered by
the night’s events. First Am. Compl. ¶ 19.
When Corrigan was questioned prior to being removed
from the scene by the MPD, he refused to give his house key to
an MPD officer or to consent to the MPD entering his home.
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The officer who had asked for his key told him: “I don’t have
time to play this constitutional bullshit. We’re going to break
down your door. You’re going to have to pay for a new door.”
Corrigan Dep. 94:15–18. Corrigan responded, “It looks like I’m
paying for a new door, then. I’m not giving you consent to go
into my place.” Id. 94:19–21.
After Corrigan was in MPD custody, Lieutenant Glover
ordered the ERT, led by Sergeant Pope, to break in Corrigan’s
home to search for “any human threats that remained or
victims.” Glover Dep. 10:15–17. Glover testified that he
thought the “sweep” of Corrigan’s home was necessary because
the officer who spoke to Corrigan’s ex-girlfriend had not
reported whether he asked her whereabouts or visually
confirmed her location; Corrigan’s ex-girlfriend or other persons
had stayed overnight in his home, so other persons could have
been present; a gas leak had been reported and Corrigan had
initially “dece[ived]” the police about his location and had told
the Hotline volunteer that he did not intend to harm “others,”
potentially implying that someone else might be inside. Id.13–14, 40. As a matter of course, Glover explained, if an ERT
unit is called to a scene it goes inside 99.9% of the time, see id.
18:12-14, because “[s]tandard protocol” assumes “if there’s one
[person inside] there’s two, if there’s two there’s three, if there’s
three there’s four, and exponentially on up,” id. 13:18-21.
Upon breaking in Corrigan’s home, the ERT encountered
only Corrigan’s dog; no one was found inside and no dangerous
or illegal items were in plain view. Nonetheless, Lieutenant
Glover thereafter ordered the EOD, led by Officer Leone, to
break in Corrigan’s home again to search for “any hazardous
materials that could remain on the scene and be dangerous to the
public or anybody else in that block or area.” Id. 10:17–22. In
Glover’s view, a thorough top-to-bottom warrantless search was
necessary because the EOD had not cleared Corrigan’s home of
8
any hazardous materials or devices. Glover said he believed
such hazards “to be possibly inside” based on Corrigan’s ex-
girlfriend’s reference to a duffel bag containing unspecified
“military items.” Id. 57:16-17. During the second MPD search,
EOD officers cut open every zipped bag, dumped onto the floor
the contents of every box and drawer, broke into locked boxes
under the bed and in the closet, emptied shelves into piles in
each room, and broke into locked boxes containing Corrigan’s
three firearms. See Pl.’s Answers to Interrogs., ¶ 8; First Am.
Compl. ¶ 22. Inside the locked boxes, the EOD found, and
seized, an assault rifle, two handguns, a military smoke grenade,
a military “whistler” device, fireworks, and ammunition.
Corrigan was charged that day, February 3, 2010, with
three counts of possession of an unregistered firearm and seven
counts of unlawful possession of ammunition. Later, when he
was released from the Veterans Hospital into police custody he
was arraigned in the D.C. Superior Court, after spending three
days in the central cell block. He was held at D.C. jail until he
was released on his own recognizance on February 19. Upon
returning home, Corrigan found his home in complete disarray:
the police had left the contents of his bureau drawers and
shelves scattered on the floor, his electric stove had been left on,
and the front door of his home was left unlocked. First Am.
Compl. ¶ 22; Pl.’s Answers to Interrogs., ¶ 8. On April 19,
2012, the D.C. Superior Court judge granted Corrigan’s motion
to suppress the seized firearms and ammunition, finding that the
government could not show facts justifying the warrantless entry
and search of his home. Dist. of Columbia v. Corrigan, No.
2010 DCD 2483, Super. Ct. Tr. 10 (Apr. 19, 2012). The District
government nolle prossed all the charges.
Meanwhile, on February 1, 2012, Corrigan sued the
District of Columbia and individual MPD officers, pursuant to
42 U.S.C. § 1983, alleging that the warrantless entries and
9
searches of his home, and the seizure of his property from his
home, violated the Fourth Amendment. First Am. Compl. ¶ 27.
The district court, following discovery and dismissal of some
officers from the case, initially denied the remaining defendants’
motion for summary judgment, but sua sponte reconsidered and
granted summary judgment. It ruled that no Fourth Amendment
violation had occurred in view of the exigent circumstances, and
that if the community caretaking doctrine applied to a home, it
would also justify the searches. The district court ruled there
had been no violation of a clearly established right, concluding
the officers were entitled to qualified immunity.
II.
Corrigan contends that neither the ERT “sweep” for
injured persons nor the EOD search for “hazardous materials”
was reasonable under the Fourth Amendment because the
officers lacked a reasonable basis for believing that exigent
circumstances necessitated their entry and search. Further, he
contends that the MPD officers should not receive qualified
immunity because it is clearly established that the police may
not enter and search a home without a warrant “when there is no
indication that anyone else is present in the home, or that there
is imminent danger to law enforcement or the public
necessitating immediate entry.” Appellant’s Br. 8. He points
out that the officers knew only that he was a military veteran
suffering from PTSD and allegedly threatening suicide, that he
had been trained to mitigate IEDs, that he possessed a duffel bag
containing “military items,” and that officers had smelled gas
upon first arriving at the row house where Corrigan lived, but
had no reason to believe that he had any intent to harm others or
materials to do so. The district court’s application of the exigent
circumstances, emergency aid, and community caretaking
exceptions to the warrant requirement were thus flawed because
the officers lacked the requisite indication of imminent danger.
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At the very least, any search must be tailored to the exigent
need, and the EOD’s “broad and vigorous search was
unreasonable because it was not [so] tailored.” Id. at 9.
Corrigan also emphasizes that at no time during the five-hour
barricade did the officers make any apparent attempt to obtain
a search warrant.
Our review of the grant of summary judgment is de
novo. See Wesby v. Dist. of Columbia, 765 F.3d 13, 18–19
(D.C. Cir. 2014). Summary judgment is appropriate only “if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). The latter is reviewed de novo,
but this court in considering the former, “like the district court,
[must] ‘examine the facts in the record and all reasonable
inferences derived therefrom in a light most favorable to the
nonmoving party.’” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir.
2016) (quoting DeGraff v. Dist. of Columbia, 120 F.3d 298,
299–300 (D.C. Cir. 1997)).
“The doctrine of qualified immunity protects police
officers ‘from suit under 42 U.S.C. § 1983 unless they have
violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.’” Fox v. Dist.
of Columbia, 794 F.3d 25, 29 (D.C. Cir. 2015) (quoting City &
Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774
(2015)). To overcome the officers’ claim to qualified immunity,
the court must determine (1) whether the facts in the record
show the officers’ conduct violated a constitutional right, and if
so, (2) whether the constitutional right was clearly established
at the time of the incident. Id. (citing Pearson v. Callahan, 555
U.S. 223, 232 (2009) (summarizing two-step analysis in Saucier
v. Katz, 533 U.S. 194 (2001)). We address both questions to
avoid “leav[ing] the standards of official conduct permanently
in limbo.” Camreta v. Greene, 563 U.S. 692, 706 (2011).
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A.
The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
At its core, the Fourth Amendment protects “the right of a man
to retreat into his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States, 365 U.S.
505, 511 (1961). “It is axiomatic that the ‘physical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is directed.’” Welsh v. Wisconsin, 466 U.S. 740,
748 (1984) (quoting United States v. U.S. Dist. Court, 407 U.S.
297, 313 (1972)). Warrantless searches and seizures inside a
home are “presumptively unreasonable,” Payton v. New York,
445 U.S. 573, 586 (1980), “subject only to a few specifically
established and well-delineated exceptions,” Katz v. United
States, 389 U.S. 347, 357 (1967). Unless there is evidence to
show “‘exigent circumstances’” or another exception sufficient
to justify a warrantless entry, the MPD searches violated
Corrigan’s Fourth Amendment right. See Coolidge v. New
Hampshire, 403 U.S. 443, 477–78 (1971). “[T]he police bear a
heavy burden when attempting to demonstrate an urgent need
that might justify [a] warrantless search[] . . . .” Welsh, 466 U.S.
at 749–50.
Here, the MPD officers rely on three exceptions to the
warrant requirement: exigent circumstances; the emergency aid
doctrine; and the community caretaking doctrine as extended to
12
a home. Because the emergency aid doctrine is essentially a
type of exigent circumstance, see Brigham City v. Stuart, 547
U.S. 398, 403 (2006), we analyze them together.
1. Exigency can justify a warrantless search “when
there is compelling need for official action and no time to secure
a warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978)
(emphases added). Without providing an exclusive list, the
Supreme Court has recognized several exigent circumstances
that could justify a warrantless entry and search, such as the hot
pursuit of a fleeing suspect, United States v. Santana, 427 U.S.
38, 42–43 (1976); the need to prevent the imminent destruction
of evidence, Kentucky v. King, 563 U.S. 452, 460–61 (2011);
and situations, as the MPD claimed here, where there is a “need
to protect or preserve life or avoid serious injury,” Brigham City,
547 U.S. at 403 (internal quotation marks omitted). Whether
exigent circumstances exist to justify a warrantless search “is
judged according to the totality of the circumstances” and on
“what a reasonable, experienced police officer would believe.”
In re Sealed Case, 153 F.3d 759, 766 (D.C. Cir. 1998) (internal
quotation marks omitted).
When relying on an exigent circumstances exception to
the warrant requirement, the officers must have “at least
probable cause to believe that one or more of the . . . factors
justifying entry were present.” Minnesota v. Olson, 495 U.S. 91,
100 (1990). As this court explained in United States v. Dawkins,
17 F.3d 399, 403 (D.C. Cir. 1994), “an exception to the warrant
preference rule . . . does not alter the underlying level of cause
necessary to support entry.” The police must, the Supreme
Court has repeatedly emphasized, have “an objectively
reasonable basis for believing” that the urgent and compelling
need that would justify a warrantless entry actually exists.
Brigham City, 547 U.S. at 406; Michigan v. Fisher, 558 U.S. 45,
47 (2009); Mincey v. Arizona, 437 U.S. 385, 392 (1978); In re
13
Sealed Case, 153 F.3d at 766; United States v. Mason, 966 F.2d
1488, 1492 (D.C. Cir. 1992); United States v. Timberlake, 896
F.2d 592, 597–98 (D.C. Cir. 1990). Additionally, a search
pursuant to the exigent circumstances exception must be “no
broader than necessary,” Mason, 966 F.2d at 1492, and “strictly
circumscribed by the exigencies which justify its initiation,”
Mincey, 437 U.S. at 393 (internal quotation marks omitted).
The Fourth Amendment requires reasonableness based
on particular circumstances in order to meet the officers’s heavy
burden to justify a warrantless search of a home. For instance,
in Fisher, 558 U.S. at 45, 48, the Supreme Court upheld a
warrantless entry into a home where officers responded to a
disturbance complaint at the home and were informed the
defendant was “going crazy” inside, which they confirmed upon
observing that windows were broken and there was fresh blood
on a wrecked car outside, supporting the reasonable belief that
the defendant required aid. Similarly, in Brigham City, 547 U.S.
at 406, the Court upheld officers’ warrantless entry to break up
a fight after they observed a fracas in which punches were
exchanged, causing one man to spit blood. In Mason, 966 F.2d
at 1492–93, this court upheld a warrantless search where officers
responded to a reported shooting, found the victim and, when
they returned to the victim’s home, found the door open and
heard voices within such that it was reasonable to believe
another victim might be in need of assistance or that the shooters
had returned to the home. And this court has noted that
evidence suggesting the presence of a bomb or explosive device
might constitute exigent circumstances. Cf. Dawkins, 17 F.3d
at 406 n.8.
The two separate MPD warrantless searches of
Corrigan’s home are distinguishable by the level of their
intrusiveness, see generally, e.g., Birchfield v. North Dakota,
136 S. Ct. 2160 (2016), and the evidence shows a much more
14
intrusive second search. Even assuming arguendo that the
totality of circumstances could support the ERT’s protective
“sweep” to look for the ex-girlfriend, there was no objectively
reasonable factual basis for the MPD to believe an imminently
dangerous hazard could be present in Corrigan’s home,
particularly after completing the “sweep.”
First, the officers had no reasonable basis for believing
that imminently dangerous “hazardous materials,” like an
explosive device, were in Corrigan’s home. The officers were
presented with a U.S. Army veteran and reservist with no known
prior interaction with the police nor pending legal order against
him. They had no information that he had explosives or other
volatile, hazardous materials in his home that if left unattended
could present a danger to others or to the police. There is no
evidence that the ex-girlfriend ever said she saw or believed that
Corrigan possessed explosives, only that he had a “green duffel
bag” with “military items” — “guns and military stuff” — that
she was told “not to touch.” Glover Dep. 36:17–21. The MPD
learned he had firearms and IED training as a result of his
military service, but had no information that he built IEDs or
kept IED-making materials in his home. And the MPD had
obtained no corroboration that he was likely to harm himself or
others — let alone that he would do so by setting up an
explosive or otherwise hazardous device ready to detonate in his
home where he had left his dog.
Further, having determined as a result of the ERT
“sweep” that no individual or dangerous property was seen
inside Corrigan’s home, the claimed basis for believing exigent
circumstances existed had abated. Most obviously, the MPD
knew no one was inside of Corrigan’s home in need of
assistance or capable of causing harm. His upstairs neighbor
and landlady had told the officers that the reported smell of gas
must have come from the upstairs apartment because Corrigan
15
did not have gas appliances. In any event, the gas to the entire
building had been turned off by the gas company hours earlier.
Officer Leone, leading the EOD search team, acknowledged
there was no smell of gas when entering Corrigan’s home and
knew that gas is not used to make explosive devices. See Leone
Dep. 108:10–11; 61:7–9. By the time of the EOD search,
Corrigan was in MPD custody and neither his statements to
MPD officers nor his actions upon being awakened and
surrendering to the MPD indicated he was an ongoing threat.
Nor had his landlady, who had known him for two years, or his
ex-girlfriend — the only two people the MPD had contacted
who knew him personally — indicated he had acted in erratic or
dangerous ways to threaten others, or threatened to take his own
life, or been physically abusive. In sum, the second warrantless
break in of Corrigan’s home by the EOD was based on nothing
more than “a bare[] possibility,” Evans v. United States, 122
A.3d 876, 882 (D.C. 2015), that he might have explosives that
would ignite, a possibility the evidence shows was based on
runaway speculation.
Second, the officers’ own delay during the hours-long
barricade belies the notion that another immediate break in was
reasonable, much less urgently needed. See Mincey, 437 U.S. at
392; Dawkins, 17 F.3d at 403. “Any warrantless entry based on
exigent circumstances must, of course, be supported by a
genuine exigency.” King, 563 U.S. at 470 (emphasis added).
Not only had the MPD fully secured the area, MPD officers had
been on the scene for five hours. Yet at no point did any officer
attempt to seek a warrant despite ample time and opportunity to
do so. The MPD had time to conduct a further investigation of
Corrigan and, if they concluded there was sufficient evidence,
to apply for a search warrant as the Fourth Amendment
demands. See generally Birchfield, 136 S. Ct. at 2173. To
believe the exigency continued even after the gas was turned off,
Corrigan’s surrender to MPD custody and the ERT’s
16
unproductive “sweep,” the officers would have to speculate,
without factual support, that Corrigan had hidden a device set to
trigger an explosion remotely. This would not have been
“objectively reasonable.” Brigham City, 547 U.S. at 406.
Third, the scope of the “exhaustive and intrusive” search
was unreasonably broad, with EOD officers rifling through
every concealed space in Corrigan’s home and breaking open
closed containers. See Mincey, 437 U.S. at 389. Such a top-to-
bottom search falls far outside the bounds of reasonableness
given what the officers knew at the time and the Supreme
Court’s clear admonition that warrantless searches pursuant to
an exigent circumstances exception be “strictly circumscribed
by the exigencies which justify its initiation.” Id. at 393(quoting Terry v. Ohio, 392 U.S. 1, 25–26 (1968)); Florida v.
Royer, 460 U.S. 491, 500 (1983); Cupp v. Murphy, 412 U.S.
291, 295 (1973). Even “[u]rgent government interests are not a
license for indiscriminate police behavior.” Maryland v. King,
133 S. Ct. 1958, 1970 (2013). To hold otherwise would
condone the officers’ implicit and patently unreasonable view
that whenever MPD officers break in a veteran’s home in
response to a possibility that an occupant may be a danger, they
may also re-enter to search the entire premises by breaking into
locked containers for potential but unidentified military items.
No precedent, even in the context of potentially explosive
devices, supports the officers tearing open containers and prying
open locked boxes when conducting a warrantless search based
on conjecture that hazardous substances might be present.
While these binding precedents resolve the Fourth
Amendment issue here, we note that the out-of-circuit cases
discussed by the parties in which exigent circumstances justified
warrantless home searches involved starkly different factual
circumstances. For instance, in Mora v. City of Gaithersburg,
519 F.3d 216 (4th Cir. 2008), a healthcare hotline operator
17
reported that Mora had called, said he was suicidal, admitted
having weapons in his home, and stated he could understand
shooting people at work, and that he “might as well die at
work.” Id. at 220. The police confirmed with Mora’s co-worker
that his threats should be taken seriously. Id. Less than fifteen
minutes after receiving the operator’s call, the officers
apprehended and handcuffed Mora while they conducted a
search of his home and vehicle. Id. By contrast, the record here
is silent on the point: Even assuming that Corrigan was in
emotional distress when he mistakenly called the National
Suicide Hotline, there is no evidence that Corrigan had made
any suicidal or aggressive statements or innuendoes to the
Hotline volunteer, and neither his landlady nor ex-girlfriend said
he posed a risk of serious bodily injury or death to himself or
others. Without a reason to believe that Corrigan was prepared
to inflict such harm, there was no exigent circumstance
justifying the EOD search. See Olson, 495 U.S. at 101.
Moreover, unlike here, the officers in Mora conducted a single
search of the home immediately and found and removed guns
that, in the hands of a suicidal Mora, they viewed as posing a
risk of a workplace massacre. Mora, therefore, provides little
support for the officers’ contention that the MPD’s second
search of Corrigan’s home was constitutional, given that the
EOD search occurred after any objective basis for an imminent
threat had dissipated as a result of the ERT “sweep.”
So too, in United States v. Infante, 701 F.3d 386 (1st Cir.
2012), the circumstances were markedly different from what the
officers faced here. There, the firefighters’ entry and search of
the defendant’s home was in response to a call about a “propane
explosion” that had severed the defendant’s finger. Id. at 393.
Upon arrival they saw “significant injuries, including multiple
shrapnel-type wounds on [defendant’s] chest,” and “a blood trail
in a hallway between two doorways,”making it reasonable for
the firefighters to believe an emergency existed due to “the
18
prospect of a secondary explosion resulting from escaping gas.”
Id. Similarly, in United States v. Boettger, 71 F.3d 1410, 1415
(8th Cir. 1995), the police responded to an actual explosion and
investigated further “to ascertain the cause of the explosion and
detect other devices which could explode.” So too in United
States v. Martin, 781 F.2d 671, 674–75 (9th Cir. 1985), the
officer responding to a report of an explosion at the defendant’s
home searched in order “to determine the cause of the explosion
and to ensure that additional explosions or fire would not
occur.” And in United States v. Urban, 710 F.2d 276, 278–79
(6th Cir. 1983), a warrantless search for “potentially explosive
chemicals” was upheld after firefighters responding to a burning
building found large quantities of the chemicals used in the
manufacture of fireworks. By contrast, in United States v.
Yengel, 711 F.3d 392, 394, 398 (4th Cir. 2013), the police were
not justified in searching an evacuated home based solely on the
report of the defendant’s wife that he had a grenade because,
much as in Corrigan’s case, there was nothing to support a
conclusion that the grenade was “live” and might detonate at any
moment.
Supreme Court precedent has revered the sanctity of the
home, condemning warrantless searches absent an actual
exigency based on objective facts. See, e.g., Coolidge, 403 U.S.
at 478. This court, like other circuits, views “the test for exigent
circumstances [a]s whether [the] police had an ‘urgent need’ or
‘an immediate major crisis in the performance of duty affording
neither time nor opportunity to apply to a magistrate [for a search
warrant].’” In re Sealed Case, 153 F.3d at 766 (citations and
internal quotations omitted). Lacking an objective basis for the
belief that vaguely defined “hazardous materials” required
immediate re-entry in Corrigan’s home, the extensive EOD
search far exceeded the bounds of reasonableness.
19
2. In Cady v. Dombrowski, 413 U.S. 433 (1973), where
the community caretaking doctrine originated, a Chicago police
officer was detained at the scene of a single-vehicle accident on
a highway in Wisconsin. The Wisconsin officers had the car
towed to a private garage and searched the car without a warrant
because they believed that Chicago police officers were required
to carry their service revolvers at all times. The Wisconsin
officers were concerned “for the safety of the general public who
might be endangered if an intruder removed a revolver from the
trunk of the vehicle.” Id. at 447. When searching the front seat,
glove compartment, and trunk, they found no weapon but
discovered evidence of a possible homicide. Id. at 437. The
Supreme Court concluded that there was no Fourth Amendment
violation because the officers undertook the search as part of
their “community caretaking function[], totally divorced from
the detection, investigation, or acquisition of evidence relating
to” a crime. Id. at 441.
Because the Supreme Court’s reasoning in Cady focused
on attributes unique to vehicles, some circuits have confined the
community caretaking exception to automobiles. See, e.g., Ray
v. Twp. of Warren, 626 F.3d 170, 177 (3d Cir. 2010); United
States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994); United States
v. Erickson, 991 F.2d 529, 532 (9th Cir. 1993); United States v.
Pichany, 687 F.2d 204, 207–09 (7th Cir. 1982). The Fifth and
Eighth Circuits have extended the exception to warrantless
searches of the home, see United States v. York, 895 F.2d 1026,
1029 (5th Cir. 1990); United States v. Quezada, 448 F.3d 1005,
1007–08 (8th Cir. 2006), but the authorized scope of the searches
has been quite limited. The Sixth Circuit appears to have
equivocated. Compare United States v. Rohrig, 98 F.3d 1506,
1521–25 (6th Cir. 1996), with Goodwin v. City of Painesville,
781 F.3d 314, 331 (6th Cir. 2015) and United States v. Williams,
354 F.3d 497, 508–09 (6th Cir. 2003). Neither this court nor the
D.C. Court of Appeals has held that the community caretaking
20
exception applies to a home. United States v. Proctor, 489 F.3d
1348, 1353 (D.C. Cir. 2007); Hawkins v. United States, 113 A.3d
216, 222 (D.C. 2015).
The instant case does not require the court to decide
whether the community caretaking doctrine applies to a home
because even assuming it may, the officers point to no authority
as would justify the EOD search. In cases where this doctrine
justified a warrantless search of a home, the police officers were
presented with circumstances requiring immediate action if they
were to fulfill their caretaking function, and the ensuing searches
were characterized by brevity and circumspection. See generally
Quezada, 448 F.3d at 1006; Rohrig, 98 F.3d at 1521–25; York,
895 F.2d at 1028–30. Here, the MPD had been on the scene for
five hours and fully secured the area prior to the EOD entry and
search, and Corrigan was in MPD custody after surrendering
peacefully. There was ample time and opportunity for the MPD
to investigate further and, as appropriate, to seek a search
warrant. Yet, instead of doing so, the officers conducted another,
more invasive search of Corrigan’s home.
Although Lieutenant Glover testified that the MPD
officers were not concerned with arresting anyone at the time,
see Glover Dep. 101:4, the purpose of the EOD search cannot be
characterized as altogether divorced from “the detection,
investigation, or acquisition of evidence relating to” a crime,
Cady, 413 U.S. at 441. Based on their own statements, the
officers acted not solely to ensure public safety as community
caretakers, but to investigate whether Corrigan had left explosive
or hazardous materials set to explode — activity that would
have been criminal. Had the officers found what they claim they
sought — hazardous materials set to explode — such would not
be any less evidence of a crime just because it might also require
a public-safety response. See In re Sealed Case, 153 F.3d at 766.
Of course, if the officers had an objectively reasonable basis to
21
think explosives were in Corrigan’s home, that could have
presented an exigent circumstance for re-entry, not an occasion
to invoke the community caretaking exception.
Consequently, upon viewing the evidence in the light
most favorable to Corrigan as the non-movant, Robinson, 818
F.3d at 8, we conclude that the officers fail to demonstrate that
the extensive EOD search of Corrigan’s home was justified by
any plausible exigency. And assuming, without deciding, that
the community caretaking doctrine applies to a home, the
officers lacked probable cause to believe that there was a risk to
the community demanding the kind of swift, warrantless
response that doctrine would authorize. We therefore hold that
the EOD search violated Corrigan’s rights under the Fourth
Amendment.
B.
The Supreme Court has distinguished between the
reasonableness inquiries for Fourth Amendment and qualified
immunity purposes. See Anderson v. Creighton, 483 U.S. 635,
643 (1987). Public officials sued in their individual capacities
are entitled to qualified immunity so long as their actions were
objectively reasonable under the law “clearly established” at the
time. Sheehan, 135 S. Ct. at 1774. The law is clearly established
if “[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson, 483 U.S. at 640. This “do[es] not
require a case directly on point, [so long as] existing precedent
. . . [has]” placed the statutory or constitutional question beyond
debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011). In
assessing a claim of qualified immunity, the facts must be taken
“in the light most favorable to the party asserting the injury.”
Saucier, 533 U.S. at 201.
22
For the brief and limited warrantless ERT “sweep” of
Corrigan’s home, the officers had a sufficiently reasonable basis
for believing there was probable cause to look for a potentially
injured and incapacitated person as to entitle them to qualified
immunity. Lieutenant Glover had been informed that Corrigan
had a girlfriend with whom he had a falling-out and that her
whereabouts were unknown at the time Corrigan exited his
home. Corrigan had initially misled the officers about his
location and delayed exiting his home after answering their
phone calls. Glover had also been informed that Corrigan had
said that he did not intend to harm “anyone else,” which might
imply he had harmed someone but intended no further harm to
others. Glover Dep. 14:10–12. This information is ambiguous
and the MPD officers failed to take obvious steps to clarify it.
No information placed the ex-girlfriend at Corrigan’s home that
night, and when speaking with her by phone the officers never
asked where she was and whether she was safe, much less
attempted to confirm her location. They also did not ask
Corrigan about the putative “anybody else” statement. Although
a close question, the information known to Glover suggested that
a reasonable officer on the scene could have believed that there
was probable cause to order a brief “sweep” to check whether the
ex-girlfriend was injured and remained incapacitated inside
Corrigan’s home. See Sheehan, 135 S. Ct. at 1777; Ashcroft, 563
U.S. at 743. Consistent with that belief, the ERT “sweep” was
limited to spaces large enough to contain an individual, Pope
Dep. 22–23:12, and thus was not more intrusive than necessary
to address the claimed exigency.
By contrast, based on the facts known to the officers at
the time, no reasonable officer could have believed that an
exigency continued to exist as would justify a second warrantless
break in of Corrigan’s home to search for explosives. The
evidence shows only that the MPD officers were presented with
a potentially suicidal military veteran who possessed “military
23
items” and had IED training, but no information about actual or
reported threats by him to others, much less that he had IED
materials at home or would commit suicide in a manner that
threatened others. Cf. Mora, 519 F.3d at 226. To reasonably
conclude a second break in of Corrigan’s home was necessary to
resolve an imminently dangerous situation, the officers would
have had to engage in conjecture that Corrigan, in his suicidal
state, had intentionally set and hidden an explosive device in his
home, or that he possessed an explosive device that he stored so
negligently as to pose an imminent threat. To overcome the
inferential chasm between the circumstances presented to the
officers and the explosive consequences that the officers might
have feared, the officers engaged in raw speculation unsupported
by either precedent or the information they had. Based on that
speculation, the EOD conducted “an exhaustive and intrusive
search,” Mincey, 437 U.S. at 389, that went far beyond a tailored
search for explosives as to which the MPD had zero information.
The unfocused nature of the EOD search underscores its
patent unreasonableness, both in terms of its scope and the lack
of a reasonable basis for it. The most specific information
relating to the posited explosives or “hazardous materials” that
the MPD officers possessed was the ex-girlfriend’s statement
that Corrigan had a green duffel bag containing “military items.”
The initial protective “sweep” by the ERT revealed no sign of
the green bag. See Barricade Rpt. 5. Yet rather than tailoring
the EOD’s search to that duffel bag, Officer Leone testified that
the EOD was searching for “[h]azardous materials, anything that
can be from an IED, which is an improvised explosive device,
hand grenades, any kind of explosive materials,” or
“[c]omponents that make a bomb, explosive material, whether it
be C4, black powder, TNT, wires, any kind of mechanical
switches that can be used to create an improvised device.”
Leone Dep. 22:8–12; 23:7–10. Clearly established law
foreclosed the broad and invasive search that was executed.
24
And even assuming, without deciding, that the
community caretaking doctrine could justify the warrantless
search of a home, it cannot shield the officers from liability. It
is clearly established that this doctrine encompasses only police
searches that are occasioned by, and strictly circumscribed by,
the need to perform caretaking functions “totally divorced from
the detection, investigation, or acquisition of evidence related to”
a crime. Cady, 413 U.S. at 441. That is, the police must be
lawfully inside a home for a reason unrelated to ferreting out
crime. For example, in Rohrig, 98 F.3d at 1509, the Sixth
Circuit held that the community caretaking doctrine justified the
police’s entry and discovery of marijuana plants in plain view
where the officers had entered the defendant’s home to respond
to a noise complaint after they received no answer to their
“knock[ing] and holler[ing].” In Quezada, 448 F.3d at 1006, the
Eighth Circuit held the doctrine applied where a police officer
entered a home after receiving no response to their knocks on the
front door although lights were on in the house and the officer
could hear the audio of a television set. In York, 895 F.2d at1029–30, the Fifth Circuit held the doctrine applied where the
police crossed the threshold of a home to wait while guests
retrieved their belongings after being threatened by the home
owner. Here, the MPD broke in Corrigan’s home a second time
looking for unspecified “hazardous materials” on the basis of
speculative hunches drawn from the ex-girlfriend’s statement
about unidentified “military items” in a duffel bag. No
reasonable officer could understand the EOD’s warrantless
search that occurred to be the sort of “minor government
interference” that Cady condoned. See Hawkins, 113 A.3d at
222 (emphasis added).
Finally, the wide berth for reasonableness that the
Supreme Court has accorded officers involved circumstances in
which they must make split second judgments. See, e.g.,
Sheehan, 135 S. Ct. 1765; Stanton v. Sims, 134 S. Ct. 3 (2013);
25
Brosseau v. Haugen, 543 U.S. 194 (2004). The Court
acknowledged that “[t]he Fourth Amendment standard is
reasonableness, and it is reasonable for police to move quickly
if delay ‘would gravely endanger their lives or the lives of
others.’” Sheehan, 135 S. Ct. at 1775 (quoting Warden, Md.
Penitentiary v. Hayden, 387 U.S. 294, 298–99 (1967)). In
Corrigan’s case, the MPD had more than five hours, between the
Fifth District’s officers’ arrival on the scene and the MPD’s first
contact with Corrigan himself, to gather information about a
possible threat and apply for a warrant upon probable cause.
Yet without any information Corrigan had or was likely to have
explosives in his basement apartment home in a row house where
he often had overnight guests, the MPD ignored the facts they
did know. The more intrusive EOD search was conducted after
the ERT “sweep” revealed no injury to others or suspicious items
in plain view. Corrigan had peacefully submitted to MPD
custody. As such, this was not a case in which officers had to
make a split-second decision that, judged with the benefit of
hindsight, is revealed to be mistaken. Heien v. North Carolina,
135 S. Ct. 530, 536 (2014). Rather, this is a case in which
officers disregarded the long-established “basic principle of
Fourth Amendment law that searches and seizures inside a home
without a warrant are presumptively unreasonable.” Payton, 445
U.S. at 586 (internal quotation marks omitted). They thereby
contravened established law clearly putting them on fair notice
that warrantless searches of a home based on an exception to the
warrant requirement must be supported by a reasonable belief
based on objective facts and narrowly circumscribed to the
specific exigency claimed.
Our dissenting colleague parts company with our analysis
only as to qualified immunity. As to that issue she acknowledges
that “there can be ‘an obvious case’ where a more generalized
test of a Fourth Amendment violation ‘clearly establish[es]’ the
answer, even without a body of relevant case law” articulated at
26
a high level of specificity. Dis. Op. 7 (quoting Brosseau, 543
U.S. at 199). This is that “obvious case.” A few clear
propositions, all well established at the time of the search, admit
of no relevant legal uncertainty in the context the EOD faced:
The Fourth Amendment prohibits warrantless searches of a
home, see Payton, 445 U.S. at 586, unless an exception to the
warrant requirement applies, see Welsh, 466 U.S. at 749; the
exigent circumstances exception requires “genuine exigency,”
King, 563 U.S. at 470; and the community caretaking exception,
which no binding precedent has applied to the search of a home,
is, in any event, limited to police functions that are “totally
divorced” from criminal investigation, Cady, 413 U.S. at 441.
As general as these propositions may be, their application here
is straightforward, implicating no “hazy border” between
acceptable and unacceptable conduct by trained law enforcement
officers. Based on what they knew at the time, including what
they learned during the initial “sweep” of Corrigan’s home, the
MPD officers lacked any reason to believe that Corrigan posed
an exigent risk of harm to anyone. The officers’ own conduct
underscored the lack of exigency, waiting hours before they
conducted the EOD search. Indeed, the dissent acknowledges
that the circumstances the MPD officers faced at Corrigan’s
home, in contrast to those in which other courts have found
exigency, “favored de-escalation.” Dis. Op. 12.
Nevertheless, the dissent would ignore what the MPD’s
on-the-scene investigation revealed and afford qualified
immunity based on facts as they existed when MPD officers first
arrived, five hours earlier. See Dis. Op. 12–13. Numerous
witnesses, including Officer Leone who led the EOD search,
confirmed that if there was ever a gas smell, it had dissipated
well before either search. The gas to the row house had been
turned off upon MPD’s arrival, see Barricade Rpt. 1, and no one
reported smelling gas in the hours leading up to the EOD search,
or during the ERT “sweep.” Glover Dep. 38:15-21; Defs.’ Resp.
27
to Pl.’s Statement of Material Facts at 14-15, 49. In other words,
contrary to our colleague’s suggestion, Dis. Op. 13, the MPD
had “quell[ed] the initial concerns about a gas leak” by the time
of the EOD search. In fact, the leader of the EOD search had not
even been told of any concern about gas when he entered
Corrigan’s home. Leone Dep. 60:2-4. Nor was the EOD search
in response to a potential suicide, for by that time Corrigan had
peacefully surrendered and been removed from the scene.
Lieutenant Glover acknowledged his belief, prior to the EOD
search, that there were “guns or bombs or ammo” in Corrigan’s
home, Glover Dep. 45:4-11, and Officer Leone testified that the
EOD search was intended to find “booby traps or explosive
devices,” Leone Dep. 19:1-4. Thus, our colleague’s insistence
that the EOD was “not investigating a crime” strains credulity.
Dis. Op. 13.
Nothing in Mullenix v. Luna, 136 S. Ct. 305, 308 (2015),
where the police were attempting to execute an arrest warrant,
calls our conclusion into doubt. See Dis. Op. 4. The Supreme
Court held there that the officers were entitled to qualified
immunity where they used force against an imminent threat to
public safety posed by a subsequent car chase where the object
of the warrant was intoxicated and had twice threatened to shoot
if the police followed him. 136 S. Ct. at 309, 310. Given the
lack of any exigency in the instant case, Mullenix, like the entire
run of recent cases granting qualified immunity, is relevant only
insofar as it reinforces the familiar, objective immunity standard
that we apply. Id. at 308-09; see, e.g., Plumhoff v. Rickard, 134
S. Ct. 2012, 2023 (2014) (quoting Ashcroft, 563 U.S. at 735).
Although qualified immunity may involve a lenient standard,
Mullenix, 136 S. Ct. at 308, nothing in that case, nor in Mora,
Dis. Op. 14, suggests that an immunity defense will succeed
when officers ignore what they learn as their own investigation
progresses.
28
To the extent Officers Pope and Leone maintain they are
nonetheless entitled to qualified immunity because they
reasonably relied on the directive of their superior, see Elkins v.
Dist. of Columbia, 690 F.3d 554, 568 (D.C. Cir. 2012); Liu v.
Phillips, 234 F.3d 55, 57 (1st Cir. 2000); Bilida v. McCleod, 211
F.3d 166, 175 (1st Cir. 2000), we remand this issue as to Officer
Leone to the district court, where it was raised in supplemental
briefing and contested by Corrigan in a supplemental opposition
to summary judgment, but not reached by the district court. In
view of our conclusion that the officers involved in the initial
ERT “sweep” are entitled to qualified immunity, Pope’s further
basis for immunity has become moot.
III.
Because the MPD’s second search, by the EOD, violated
Corrigan’s Fourth Amendment rights, we remand Corrigan’s
claim of municipal liability against the District of Columbia,
which the district court never reached. Lacking a cause of action
for vicarious liability for its officers’ actions, see Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 691 (1978), Corrigan must prove
that the District of Columbia was responsible for the violation,
see Doe v. Dist. of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015),
by showing that it had a custom, policy, or practice that caused
the constitutional violation. This is a fact-intensive inquiry that
“the district court should address . . . in the first instance.” Id. at
106.
Accordingly, we reverse the grant of summary judgment
on Corrigan’s Fourth Amendment claim and reverse in part on
the officers’ qualified immunity defenses, and remand the case
for further proceedings.
BROWN, Circuit Judge, dissenting: As Law and Order
reminds us every evening, the police are the ones “who
investigate crime.” Nowadays, though, we demand much
more from them. The series of unfortunate events presented
by Matthew Corrigan’s lawsuit is distressing, and I agree with
the conclusion that the second search of Corrigan’s apartment
violated the Fourth Amendment. Nevertheless, given the
varied role played by police officers, and its effect on the
standard Corrigan must meet to pierce the officers’ qualified
immunity, I respectfully dissent.
I.
The Varied Role of Police & the Virtue of Qualified Immunity
“People could well die in emergencies if police tried to
act with the calm deliberation associated with the judicial
process.” Wayne v. United States, 318 F.2d 205, 212 (D.C.
Cir. 1963) (per Burger, J.). “[B]y design or default, the police
are also expected to reduce the opportunities for the
commission of some crimes . . . , aid individuals who are in
danger of physical harm, assist those who cannot care for
themselves, resolve conflict, create and maintain a feeling of
security in the community, and provide other services on an
emergency basis.” 3 Wayne R. LaFave, SEARCH AND
SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 6.6
(5th ed.).
Maintaining the balance between protecting public safety
and safeguarding individual constitutional rights has always
been an exacting task. This charge is particularly challenging
in our post–9/11 world, where even local police forces are
increasingly confronted by sophisticated, well-armed threats,
and where active-shooter scenarios are now part of routine
training. Viewed in hindsight, Corrigan’s recitation of the
facts shows some poor judgment by the police, but we must
consider what they knew and when they knew it. Had law
2
enforcement’s initial response been less comprehensive, lives
and property might have been lost when an explosion ripped
the neighborhood apart, while the condemnations of law
enforcement’s lack of initiative would still be reverberating.
It is easy to criticize decisions made with less-than-
perfect information in highly tense, rapidly-evolving
situations. This is particularly true when officers are
protecting an individual from potential dangers posed to
himself or others, rather than serving in an investigatory or
crime-fighting function. Accordingly, courts do not consider
police conduct in response to “exigent circumstances” in the
same way they evaluate police conduct in the context of
criminal investigation. See, e.g., Sutterfield v. City of
Milwaukee, 751 F.3d 542, 551 (7th Cir. 2014) (“Sutterfield,
for example, frequently speaks about the lack of a warrant but
has not addressed what type of warrant, if any, would have
been appropriate and available in the circumstances
confronting the police. Her briefs seem to view the case
through the lens of criminal law enforcement when the case
plainly does not fit that model.”).
“A myriad of circumstances could fall within the terms
‘exigent circumstances,’” and many could be ill-founded. See
Wayne, 318 F.2d at 212. “Fires or dead bodies are reported to
police by cranks where no fires or bodies are to be found.
Acting in response to reports of ‘dead bodies,’ the police may
find the ‘bodies’ to be common drunks, diabetics in shock, or
distressed cardiac patients.” Id. This is why the qualified
immunity standard appreciates that “the business of
policemen . . . is to act, not to speculate or meditate on
whether the report is correct.” See id. (emphasis in original).
The qualified immunity analysis requires courts to place
themselves in the shoes of the law enforcement personnel
3
who confront these volatile situations, armed with little
information and burdened with enormous responsibility.
Properly applied, the qualified immunity analysis shows
the officers’ initial actions were not only responsible, but
commendable. When the officers’ actions transgressed the
Fourth Amendment, Corrigan’s rights were protected by the
district court granting his motion to suppress and entering a
nolle prosequi on all charges against him. Now, when
Corrigan seeks half-a-million dollars in a §1983 lawsuit, a
different issue is in play: whether controlling law was
“sufficiently clear that every reasonable official would have
understood that what [t]he[y] [did] violate[d]” Corrigan’s
Fourth Amendment rights. See, e.g., Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (emphasis added). The court concludes
it was, but I am at a loss to understand how this holding can
be squared with the simple fact that neither the Supreme
Court’s precedent, nor ours, nor a robust consensus of our
sister circuits clearly answered the legal questions faced by
the officers in this case.
There is much on which the majority and I agree. Under
the circumstances of this case, the first search was
permissible; the second search was not; and the information
the police garnered from the first search and further
investigation changed the calculus. However, on the question
of how these issues impact the scope of qualified immunity,
we part company.
First, by imposing an artificially high burden on police
conduct in exigent circumstances, the court conflates the
“probable cause” normally required to search a person’s home
and the “objectively reasonable basis” used to evaluate
intrusions based on exigent circumstances. Compare Op. 12,
21–22 with Brigham City, Utah v. Stewart, 547 U.S. 398, 402,
4
407 (2006) (reversing the Utah Supreme Court’s conclusion
that probable cause and an inquiry into objective
reasonableness were required to assess the justification of
warrantless entry on the ground of exigent circumstances,
relying solely on an analysis of objective reasonableness) and
United States v. Porter, 594 F.3d 1251, 1258 (10th Cir. 2010)
(“[T]he standard is more lenient than the probable cause
standard”) and United States v. Snipe, 515 F.3d 947, 952–53
(9th Cir. 2008). This conflation signals the majority opinion’s
fundamental flaw: grafting general Fourth Amendment
standards from the criminal investigation context on to the
exigency context.
Related to this first problem is the second—and more
significant—issue with today’s opinion: The metric for
measuring what law is “clearly established” is more protean
than my colleagues concede.
II.
“Clearly Established” Law
A. The Standard
The standard for law to be “clearly established” is quite
demanding. The Supreme Court’s most recent
pronouncement on the issue confirms “[a] clearly established
right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right. We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate. Put simply, qualified
immunity protects all but the plainly incompetent or those
who knowingly violate the law.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (per curiam) (emphasis added). Qualified
5
immunity is “a question of law, not one of legal facts.” Elder
v. Holloway, 510 U.S. 510, 516 (1994) (emphasis added).
Indeed, lower courts are not even under any obligation to
address whether a constitutional right has been violated; the
court may proceed directly to whether any such right was
“clearly established” in law at the time. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009). 1
B. The Source
The source of “clearly established” law is quite
constrained as well. Controlling precedent from the Supreme
Court, the applicable state supreme court, or from the
applicable circuit court, constitutes “clearly established”
law—but it is unclear what else, if anything, does. See, e.g.,
Lane v. Franks, 134 S. Ct. 2369, 2382 (2014) (observing that,
if two prior Eleventh Circuit cases were still “controlling,” the
Court “would agree” the law is clearly established. But, “at
best,” there was “only a discrepancy in Eleventh Circuit
precedent, which is insufficient to defeat the defense of
qualified immunity”); Stanton v. Sims, 134 S. Ct. 3, 7 (2013)
(per curiam) (emphasizing, in finding qualified immunity,
that the questioned conduct was “lawful according to the
courts in the jurisdiction where [defendants] acted”); Hope v.
Pelzer, 536 U.S. 730, 741–42 (2002) (citing “binding
Eleventh Circuit precedent,” along with a State Department
corrections regulation and a Justice Department report to hold
Alabama prison officials violated clearly established law).
1
Even so, I agree with the court’s conclusion that the officers did
violate Corrigan’s Fourth Amendment rights during their second,
intrusive search into his apartment. See Pearson, 555 U.S. at 236(explaining “it is often beneficial” to analyze both issues, even as
there is no requirement to do so).
6
If there is no controlling authority in the plaintiff’s
jurisdiction at the time of the incident, “a robust consensus of
cases of persuasive authority” “is necessary” to show “clearly
established” law. al-Kidd, 563 U.S. at 742 (emphasis added);
see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)
(requiring a robust consensus “at a minimum,” absent
controlling authority). This makes sense. It is simply not
reasonable to ask police departments around the country to
keep abreast of every circuit court’s latest “clearly
established” pronouncement and parse its application to the
myriad factual permutations officers encounter on a daily
basis. Cf. Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If
judges thus disagree on a constitutional question, it is unfair
to subject police to money damages for picking the losing side
of the controversy.”). Accordingly, the Supreme Court is
circumspect about the use of out-of-circuit cases to compose
“clearly established” law. Since al-Kidd, it is only assumed
for sake of argument that “a right can be ‘clearly established’
by circuit precedent despite disagreement in the courts of
appeals.” See Taylor v. Barkes, 135 S. Ct. 2042, 2045 (2015)
(per curiam); City & Cnty. of San Francisco v. Sheehan, 135
S. Ct. 1765, 1776 (2015); Carroll v. Carman, 135 S. Ct. 348,
350 (2014) (per curiam); Reichle v. Howards, 132 S. Ct.
2088, 2094 (2012). 2
C. The Characterization
Finally, characterizing the appropriate law as “clearly
established” is quite exacting. The Supreme Court has
“repeatedly told courts . . . not to define clearly established
2
Indeed, two circuits go even further—totally excluding persuasive
authority from other jurisdictions when determining what is
“clearly established.” See Pabon v. Wright, 459 F.3d 241, 255 (2d
Cir. 2006); Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955
(11th Cir. 2003).
7
law at a high level of generality. Qualified immunity is no
immunity at all if ‘clearly established’ law can simply be
defined as the right to be free from unreasonable searches and
seizures.” Sheehan, 135 S. Ct. at 1775–76. Rather, the law
purported as “clearly established” must “provide clear notice”
of what the Constitution requires. See, e.g., Lane, 134 S. Ct.
at 2382; see also Sheehan, 135 S. Ct. at 1777 (“No matter
how carefully a reasonable officer read” the applicable circuit
precedents “beforehand, that officer could not know that [the
conduct at issue] would violate the Ninth Circuit’s test”). To
be sure, there can be “an obvious case” where a more
generalized test of a Fourth Amendment violation “‘clearly
establish[es]’ the answer, even without a body of relevant
case law.” Brousseau v. Haugen, 543 U.S. 194, 199 (2001).
But, that circumstance is inapposite when a case is “one in
which the result depends very much on the facts.” See id. at
201. In that latter circumstance, a more “particularized”
inquiry into the applicable law is required. See id. at 200.
There, we ask whether a prior case “squarely governs the case
here,” not whether a prior case puts this one in a “hazy
border” between acceptable and unacceptable conduct, see id.
at 201. Behavior on the border is still behavior protected by
qualified immunity.
III.
The Relevant Law Was Not “Clearly Established” Here
The majority cites no Supreme Court case and no D.C.
Circuit case squarely governing Corrigan’s claim. Indeed, the
majority all but concedes there is no such case when
justifying its review of both the “constitutional violation” and
“clearly established” prongs of the qualified immunity
analysis; doing so “to avoid ‘leav[ing] the standards of
official conduct permanently in limbo.’” Op. 10 (quoting
8
Camreta v. Greene, 562 U.S. 692, 706 (2011)) (alterations in
original). 3 The majority finds “clearly established” law by
reasoning the facts of this exigent circumstances case back to
the general principles of warrantless home searches in the
criminal investigation context. This is inappropriate in
Corrigan’s case, where the officers were not searching for
criminal activity but responding to a potentially-suicidal
suspect with “military items.” See Sutterfield, 751 F.3d at
563–64 (“But a more fundamental question raised by this case
is the relevance of the warrant requirement. Certainly it is
logical to consider the availability of a warrant when the
police have reason to suspect that criminal activity may be
afoot, but what about cases in which the police are not acting
in a law enforcement capacity?”). But even if this was
appropriate, the majority’s analysis rests on “legal facts,” not
law. But see Elder, 510 U.S. at 516 (“Whether an asserted
federal right was clearly established at a particular time . . .
presents a question of law, not one of ‘legal facts.’”). The
facts aid the analysis, but only to the extent they are closely
aligned (or are obviously distinguishable from) controlling
authority or persuasive authority. The “clearly established”
inquiry is its own question, not a rehash of the facts giving
rise to a constitutional-rights violation. Cf. Pearson, 555 U.S.
3Camreta is illuminating towards the nature of qualified immunity
and the “clearly established” standard. The discussion surrounding
this quotation confirms the “clearly established” standard is akin to
the “first bite rule” in torts. In other words, unless and until
“[c]ourts . . . clarify uncertain questions, . . . address novel claims . .
. [and] give guidance to officials about how to comply with legal
requirements,” qualified immunity is appropriate. See Camreta,
563 U.S. at 706. Accordingly, while I take no issue with the
majority deciding today to define the scope of exigent
circumstances in a warrantless home search during a barricade
situation on a go-forward basis, applying it retroactively is another
matter altogether.
9
at 236. The factual regurgitation is telling, however, because
it confirms Corrigan’s claim is one where the existence of
“clearly established” law “depends very much on the facts of
[this] case.” Brousseau, 543 U.S. at 201. “Clearly
established” law in this context thus depends upon a prior
case “squarely govern[ing]” this one. See id. Since the
majority can point to no clearly analogous case prohibiting
the officers’ conduct, that should end the inquiry.
The closest case cited, Mora v. City of Gaithersburg, 519
F.3d 216 (4th Cir. 2008), is not binding authority, and it
confirms the officers’ conduct fell within the “hazy border”
between protected and unprotected conduct. It cannot,
therefore, constitute a violation of “clearly established” law.
See Brousseau, 543 U.S. at 201. In Mora, the Fourth Circuit
held that officers reasonably conducted a warrantless search
of the subject’s bags, car, home, and effects even though he
was outside the home and already handcuffed at the time. 519
F.3d at 226–27. Exigent circumstances existed in Mora
because Maryland police had received a call from a healthcare
hotline operator who said she had spoken to Mora; he told her
he was suicidal, had weapons in his apartment, could
understand shooting people at work, and he “might as well die
at work.” See id. at 220. Police promptly contacted a co-
worker who confirmed Mora’s threats should be taken
seriously. Id. Eleven minutes after the operator’s call, Mora
was handcuffed and on the ground. Id. Without seeking a
warrant, officers searched his vehicle and luggage, entered
and searched his apartment, and opened two safes and
multiple interior doors. The officers discovered multiple
handguns and rifles, ammunition, and gun accessories. Id.The Fourth Circuit rejected Mora’s § 1983 suit claiming
the searches violated the Fourth Amendment. The court
emphasized “protecting the physical security of its people is
10
the first job of any government” and the threat of mass
murder “implicates that interest in the most compelling way.”
Id. at 223. Given the issues at stake, the Fourth Circuit
attempted to articulate a “framework for analyzing the
constitutionality of preventive action” that is instructive here.
See id. at 222.
Mora recognized “[p]reventive actions raise somewhat
different constitutional questions than the typical backwards-
looking criminal investigation or immediate police response
to a crime already in motion. When the threat is [as] extreme
and the need to prevent it [is] as great as with potential mass
murder, the constitutional questions take on a special urgency
and a certain novelty.” Id. While “[t]he likelihood or
probability that a crime will come to pass plays a role in other
prevention-oriented cases,” id. at 224, “so do two other
factors,” id.—namely, “how quickly the threatened crime
might take place” and “the gravity of the potential crime.” Id.
“As the likelihood, urgency, and magnitude of a threat
increase, so does the justification for and scope of police
preventive action. In circumstances that suggest a grave
threat and true emergency, law enforcement is entitled to take
whatever preventative action is needed to defuse it.” Id. at
224–25.
Here, as the district court said, the police were faced with
“an admittedly unstable individual who had called a suicide
hotline, admitted to having firearms, lied to investigators
about his whereabouts, and was known to possess unknown
military items.” JA 634. Corrigan’s neighbor had seen him
previously host overnight guests, the police had spoken to
Corrigan’s ex-girlfriend on the phone but lacked a visual
confirmation of her location, and the police smelled gas
coming from his building upon their arrival. The police were
also informed Corrigan had IED training. Like Mora,
11
Corrigan’s intentions on the phone were “ambiguous to be
sure.” See 519 F.3d at 226. But the Fourth Circuit did not
simply say officers had some justification to “rush[]
immediately into Mora’s home and tak[e] him into
custody”—it said the officers had “overwhelming
justification.” See id. (emphasis added). Here, the officers
admittedly had less-than-overwhelming justification for their
initial search, but Corrigan’s phone call and the corroborating
information the officers learned provided ample justification
for their initial search. Moreover, Mora was a case that
implicated the criminal activity of mass murder, bringing that
case closer to the more general Fourth Amendment rules of
criminal investigation than Corrigan’s case, which falls
squarely into the exigency camp. Given the Fourth Circuit’s
analysis, if a sufficiently imminent and grave threat could
justify a comprehensive warrantless search after the suicidal
suspect’s apprehension, an officer in a full-blown barricade
situation could reasonably believe similarly expansive powers
may be exercised lawfully here. Perhaps most importantly,
the majority can cite to no case from the Supreme Court, our
circuit, or “a robust consensus of cases of persuasive
authority” requiring a contrary conclusion. See Plumhoff, 134
S. Ct. at 2023; see also Doe v. District of Columbia, 796 F.3d
96, 105 (D.C. Cir. 2015) (“Given the uncertainty regarding
when exactly an exigency exists and the lack of our own
controlling precedent, the law in question was not ‘clearly
established’ at the time.”). 4
4
As the majority admits, nothing in our existing precedent
determines the community-caretaking doctrine’s contours in a
home intrusion, see Op. 19–21, but the court then “assum[es]
without deciding” it applies here and it nevertheless has “clearly
established” contours, see id. at 20. I fail to see how: (1)
conceding there is no controlling authority; (2) assuming without
deciding there is applicable authority by reading the tea leaves from
“some circuits”; and then (3) concluding that these cases constitute
12
To be sure, the facts here provide some contrast to Mora.
In the initial sweep of Corrigan’s home, police did not find
any dangerous or illegal items in plain view, or incendiary
written materials, or locked doors. Interviews with neighbors
who seem to know him well were reassuring rather than
alarming. His upstairs neighbor explained Corrigan’s
unresponsiveness was probably the result of having taken his
medication; he was likely sleeping. She dismissed the news
that Corrigan was suicidal as “outrageous” and told officers
there must be “a big misunderstanding” because, in two years
of contact with Corrigan, she had “never felt more
comfortable” with a neighbor. Thus, just as facts learned
about Mora gave officers reason to ratchet up preventive
actions, the investigation into Corrigan’s background favored
de-escalation.
Nevertheless, the majority fails to appreciate the three
crucial imports from Mora:
First, the case gives officers a rational basis to conclude
that they may, under the right circumstances, conduct a
warrantless search of a suicidal suspect’s residence even after
the suspect has been apprehended. But see Op. 15. This is
what occurred here, where Lt. Glover sent the EOD into
Corrigan’s apartment to search for any hazardous materials
that could pose a threat to others—though the officers were
a “robust consensus” at the time the officers entered Corrigan’s
apartment places the “constitutional question” over the community-
caretaking doctrine’s contours in the home “beyond debate.” See
Mullenix, 136 S. Ct. at 308; cf. Wilson, 526 U.S. at 617–18
(characterizing a circuit split on the relevant issue as
“undeveloped,” meaning “the officers in this case cannot have been
expected to predict the future course of constitutional law”).
13
uncertain about what they may find and their intuitions were
unfounded.
Second, when deciding to execute subsequent searches in
the exigency context, the officers can “take into account the
nature of the threat that led to their presence at the scene.”
Mora, 519 F.3d at 228 (emphasis added). In other words, the
initial justification for a warrantless search can continue to
play a role in how an officer proceeds when subsequently
“uncovering the threat’s scope.” See id. at 226; see also
Sutterfield, 751 F.3d at 567–68. Just so here, where, as Lt.
Glover said, if the officers left it to Corrigan’s landlady to
return upstairs without quelling the initial concerns about a
gas leak and possible military equipment, the police would be
responsible for the consequences. For this reason, much of
the majority’s hand-wringing about the officers’ failure to
obtain a warrant for the second search is beside the point.
The officers here were responding to an exigent circumstance
involving a suicide suspect with IED training in the middle of
the night; they were not investigating a crime. Cf. United
States v. Hendrix, 595 F.2d 883, 886 (D.C. Cir. 1979)
(“Because of the early hour, it would have taken at least a few
hours to obtain a warrant, during which period appellant, who
had been arrested merely for disorderly conduct, likely would
have been able to secure his release, return home, and conceal
or use the shotgun again.”). A reasonable officer might
conclude that “the mere passage of time without apparent
incident” is insufficient to alleviate the initial concerns giving
rise to the exigency. See Sutterfield, 751 F.3d at 562.
Third, in both Mora’s case and Corrigan’s, the malleable
legal standard to determine the scope of the exigency they
faced (that, in turn, determines the scope of an acceptable
search) was crafted in hindsight—it could not be deemed
“clearly established” at the time the officers took action, yet it
14
must be in order to defeat qualified immunity. At the time—
with no Supreme Court or D.C. Circuit case squarely
governing the emergency situation faced here—a reasonable
officer could read Mora, Sutterfield, and Hendrix and
conclude that the warrantless searches conducted in
Corrigan’s apartment might be within the realm of the
officer’s authority to abate public safety concerns posed by
possession of military equipment by an individual with IED
training. This is so even as the second search was a
“substantial step beyond the standard protective sweep.” See
Sutterfield, 751 F.3d at 577.
Unlike the general principles of Fourth Amendment law
the majority recites from the criminal investigation context,
“courts have not spelled out a definition of ‘exigency’ with
any precision.” See United States v. Dawkins, 17 F.3d 399,
405 (D.C. Cir. 1994); see also Sutterfield, 731 F.3d at 553 n.5
(recognizing “the lack of clarity in judicial articulation and
application” of the exigent circumstance doctrines). But
determining whether the law was “clearly established” is not
an exercise in Monday-morning quarterbacking—law
enforcement officers should not be subject to personal
liability simply because the judiciary has not precisely defined
the rules of the road. See Pitt v. District of Columbia, 491 F.
3d 494, 512 (D.C. Cir. 2007) (“Although [the conduct can
constitute a violation of the Fourth Amendment], the district
court correctly held that the three defendant officers are
entitled to qualified immunity on these claims because this
right was not ‘clearly established’ at the time of the actions at
issue in this case.”) (emphasis added). It is therefore
insufficient to apply, retrospectively, criminal investigation
limitations on police conduct to the exigent circumstances
context simply because these limitations have long existed in
the investigatory context.
15
Ultimately, the court’s analysis rests on the “Fourth
Amendment standard” of reasonableness. See Op. 24–27.
The “inquiry” of “objective reasonableness” as to a Fourth
Amendment violation, however, “is not as forgiving as the
one employed in the distinct context of deciding whether an
officer is entitled to qualified immunity for a constitutional or
statutory violation.” See Heien v. North Carolina, 135 S. Ct.
530, 539 (2014). The fact that the officers violated the Fourth
Amendment in searching Corrigan’s apartment a second time
without a warrant is, for purposes of finding the “particular”
issue faced by the officers answered by “clearly established”
law, a non sequitur. What “every reasonable” official would
have understood to be “clearly established” in case law is not
the same question as what is “objectively reasonable” for
purposes of determining a Fourth Amendment violation. See
Heien, 135 S. Ct. at 539–40; cf. Pearson, 555 U.S. at 236(holding that lower courts are under no obligation to consider
both the issue of a constitutional-rights violation and the
separate question of whether the right was clearly
established). Moreover, the fact-based analysis of what law
was “clearly established” here—spanning roughly six pages
of the majority’s opinion, see Op. 21–27—precludes the
majority from credibly resting the “clearly established”
question on a “basic principle of Fourth Amendment law,” see
id. at 25. It does not take six pages to explain why law is
“clearly established” unless the case is “one in which the
result depends very much on the facts.” Brousseau, 543 U.S.
at 199, 201. Identifying “some tests [from cases] to guide us
in determining the law in many different kinds of
circumstances” is not the same as articulating “the kind of
clear law (clear answers) that would apply with such obvious
clarity to the circumstances of this case that only an
incompetent officer or one intending to violate the law could
possibly fail to know . . . .” Pace v. Capobianco, 283 F.3d
1275, 1283 (11th Cir. 2002) (emphasis added). But the
16
majority will not—and indeed, cannot—admit this. If the
majority did admit this, it would then have to concede no case
“squarely governed” at the time the officers entered
Corrigan’s apartment.
IV.
We do not need to make “bad law” just because “bad
facts” are often accused of doing so. There is much to regret
about the procedures police continued to pursue here—
especially in light of the many observations and revelations
which objectively decreased the imminence of any dire threat.
Good intentions, however, are no substitute for good reasons.
“Because of the importance of qualified immunity to society
as a whole, the [Supreme] Court often corrects lower courts
when they wrongly subject individual officers to liability.”
Sheehan, 135 S. Ct. at 1774 n.3. Indeed, if this decision were
affirmed by the Supreme Court on the ground that the officers
violated clearly established law, it would mark the first time
in more than a decade that the Supreme Court has ruled in
favor of a § 1983 plaintiff on the question. See Groh v.
Ramirez, 540 U.S. 551, 565 (2004); Hope, 536 U.S. at 745–
46. Yet the Supreme Court’s exacting standard to identify
“clearly established” law does not play even a supporting role
in the court’s analysis, which, at most, strings together
generalized statements and some out-of-circuit cases, affixes
the label “clearly established” onto the newfangled “rule”
drawn from them, and then employs this “rule” to deny
qualified immunity. If we want to join the game of second-
guessing first responders, we will find ourselves at the end of
a long queue. But flouting the clear trend of controlling
authority is both unwarranted and unwise, so I respectfully
dissent.