In West v. City of Caldwell, published July 25, 2019, a divided panel of the 9th Circuit reversed denial of summary judgment to a police officer based on qualified immunity. The police received a 911 call from the plaintiff's grandmother, reporting that the plaintiff's former boyfriend was in the plaintiff's house, that the former boyfriend might be threatening the plaintiff with a BB gun; that he might be high; and that the plaintiff's children were also in the house. The police knew the former boyfriend was a gang member with felony warrants for violent crimes. Four officers, including the defendant, went to the house, and received no reply when they knocked. The defendant noticed the plaintiff walking down the sidewalk. The defendant asked the plaintiff if the former boyfriend was in the house. She said he might be. The officer told the plaintiff that if the former boyfriend was in the house and she did not tell the police, she could get into trouble. She told the defendant the boyfriend was in the house, although she was not sure if he was. The defendant officer walked away to speak with other officers. About 45 seconds later, the officer asked the plaintiff permission to enter the house and apprehend the boyfriend. She nodded affirmatively, and gave the officer her key to the house. She then called a friend who gave her a ride away from the house. After repeatedly making announcements for the boyfriend to exit, the officers shot tear gas into the house. They entered and searched the house, but did not find the boyfriend. The plaintiff and her children were unable to live in the house for two months due to the tear gas damage and broken window from the search. The plaintiff sued for unreasonable search and seizure and conversion.
The majority ruled that the defendant officer was entitled to qualified immunity as to the search and seizure counts. The court assumed that the plaintiff's consent to enter was coerced; that the use of tear gas exceeded the scope of the permission; and that the search was unreasonable. Nevertheless, no precedent clearly established that under the circumstances--including the passage of time between the alleged threat to the plaintiff and the consent, the fact that the plaintiff felt free to leave, and the potential danger posed by the felon inside the house--the officers' actions were unlawful. The dissenting judge opined that the law had clearly established that the scope of consent did not include shooting tear gas into the house.
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