On February 14, 2019, the Sixth Circuit Court of Appeals decided Naselroad v. Mabry[i], in which the court examined whether plainclothes officers were entitled to qualified immunity for a warrantless search and officer involved shooting that began as a knock and talk. The relevant facts of Naselroad, taken directly from the case, are as follows:
On October 7, 2013, Eric Miller was hunting deer on the property of Betsey and Larry Spengler in Winchester, Kentucky. Using a bow and arrow, he shot a deer that then escaped onto the neighboring Naselroad property. He searched for the deer but to no avail. During his search for the deer on the Naselroad property, however, Miller came upon what he believed to be marijuana plants. He returned home and told the Spenglers what he had seen. Betsey Spengler then called the police to report the marijuana grow. Craycraft called her back for more detail about the marijuana grow and told her he would look into it.
Craycraft coordinated with three other officers, including Mabry, in a Walmart parking lot near the Naselroad residence. The plan was to engage in a “knock and talk” at the Naselroad residence in hopes of getting permission to search for the marijuana plants. The four officers departed for the Naselroad residence in three vehicles, one marked as a Clark County Sheriff’s Department vehicle, the other two unmarked. The officers had no warrant to search the Naselroad residence.
According to the officers, when they arrived at the Naselroad residence, Craycraft and another officer approached the front door while Mabry stood back by a vehicle putting on boots in preparation for a marijuana pull. Craycraft knocked on the door and Jeannie Naselroad, Joel Naselroad’s mother, answered the door. After introducing himself and the officer with him as police, Craycraft explained that they were there based on a report of a marijuana grow on her property. She responded that she did not believe marijuana could be growing on her property. Craycraft claims that as she spoke he saw a person inside the house going toward a door that exits out of the back of the house. Craycraft claims that he called into the house “Hey buddy, I need to talk to you. State police.” When the person, later identified as Naselroad, did not respond, Craycraft claims he left the porch, running through a breezeway adjacent to the house that opened into the backyard. As he ran he yelled to the other officers: “He’s going out the back.” Craycraft testified that as he approached the backyard he saw that Naselroad had a gun in his right hand. Craycraft claims he yelled “Gun. Gun. Gun.” while drawing his firearm. Naselroad retreated up an incline in the backyard as Craycraft repeatedly told him to drop his gun. Craycraft had not yet entered the backyard when Mabry, whom Craycraft could not see from his position, shot Naselroad in the chest.
Mabry heard Craycraft yell “He’s running out the back door” and then saw Craycraft go around the side and back of the Naselroad home. He did not know what Craycraft had seen, but claims that he thought whoever was running out the back door might be attempting to destroy evidence of the marijuana grow. Mabry made his way to the backyard around the other side of the Naselroad home and heard Craycraft yell “Gun, gun, he’s got a gun,” at which point Mabry drew his weapon. As he came around the corner of the home into the backyard, Mabry saw Naselroad with a gun, retreating from the house. Mabry trained his gun on Naselroad. Naselroad looked over in Mabry’s direction after hearing Mabry repeatedly yell “drop the gun.” But Naselroad did not drop his gun, and Mabry then shot him. All told, only about 15 seconds passed between the time that Naselroad exited the rear door and Mabry fired his weapon.
Both Mabry and Craycraft were in plainclothes that day—Mabry wore jeans and a t-shirt with a badge on his waistband; Craycraft wore jeans and a long-sleeve shirt with no visible badge. Both officers observed Naselroad retreating from them. Prior to the shooting, Naselroad did not advance toward the officers and did not say anything to them. Naselroad claims he did not hear the officers identify themselves as police, but instead heard only “hey you, buddy” followed by demands that he drop his gun. Naselroad claims that the gun he was holding was in a “low ready” position throughout his encounter with Mabry and Craycraft, and that he never pointed the gun at either officer.
Naselroad’s account of why he was departing from the backdoor that morning differs dramatically from the officers’ suspicions. He claims that he did not leave the house to destroy evidence; in fact, he claims he did not even know the police were present at the house. Earlier that morning, Naselroad reviewed images from a trail camera showing an unknown masked man walking on the Naselroad property (in fact what he saw were images of the deer-hunting, marijuana-discovering Eric Miller). Alarmed by the images, Naselroad claims he told his mother about the man on the property, changed into camouflage clothing, and exited the rear door, carrying his gun. Naselroad claims that when he was confronted by Craycraft, and then moments later by Mabry, he was confused about what was going on and did not realize the men in his backyard were police officers.[ii]
After the shooting, the Kentucky State Police began an investigation. A search warrant was obtained for the residence and marijuana was located. He was charged criminally with the drug charge, possession of drug paraphernalia, and reckless endangerment. He was convicted on the drug related charges and acquitted on the reckless endangerment charges.
Naselroad filed suit in federal court and alleged the officers violated his rights under the Fourth Amendment by conducting an illegal search of his property and excessive force for shooting him. He also alleged a state law claim for the shooting that will not be discussed in this article.
Issue One: Was the suit barred by Naselroad’s conviction for the drug offenses?
The Supreme Court, in Heck v. Humphrey[iii], held that a plaintiff was barred from suing for a constitutional violation if that suit would be inconsistent with a verdict in a criminal case.
Mabry and Craycraft argue that Heck bars the suit in this case because Naselroad’s theory of liability is that the officers entered his property illegally, which would be inconsistent with the convictions for the drug offenses. As such, they argue that Naselroad first must show that the state convictions are not valid.
The court of appeals disagreed because, even if Naselroad were able to show the entry into his curtilage was in violation of the Fourth Amendment, suppression of the evidence would not be required because of the good faith exception. In other words, the state police investigator relied, in good faith, on the facts that he gathered in the investigation, and he obtained a search warrant. As such, the court of appeals stated that the evidence would still be admissible, and Naselroad’s conviction would not be inconsistent with what he alleged in his civil suit.
Issue Two: Are the officer’s entitled to qualified immunity for entering Naselroad’s backyard, which he asserts is constitutionally protected curtilage?
The court stated that the officers were entitled to qualified immunity, therefore, they did not need to decide if the area in which they confronted Naselroad was constitutionally protected curtilage.
Qualified immunity protects an officer from liability, in certain circumstances, when the officer violates a person’s constitutional rights, as long as the officer was acting “reasonably.” The court stated
An officer remains entitled to qualified immunity for determinations of probable cause and the existence of an exigency that were ultimately incorrect, but still reasonable. See Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002); Jeffers v. Heavrin, 10 F.3d 380, 381 (6th Cir. 1993) (holding that “probable cause determinations, even if wrong, are not actionable as long as such determinations pass the reasonableness test“). The reasonableness of the officers’ probable cause and exigency determinations, in turn, are “a question of law to be decided by the trial judge,” id., and are to be determined in light of “information the arresting officers possessed” at the time, see Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (alteration omitted).[iv] [emphasis added]
The court also looked at the law that is applicable to this issue. The court stated
While warrantless searches of a person’s home (including the curtilage) are presumptively unreasonable, we recognize four exigent circumstances in which such searches are reasonable: (1) pursuit of a fleeing felon; (2) imminent destruction of evidence; (3) preventing a suspect’s escape; and (4) a risk of danger to police or others. See e.g., Taylor v. Mich. Dep’t of Nat. Res., 502 F.3d 452, 461 (6th Cir. 2007). To justify a warrantless search under any of these exceptions to the warrant requirement, there must be probable cause to search the home in addition to the exigency. United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 n.6 (6th Cir. 1988).[v] [emphasis added]
The court then examined some facts of the case that were relevant to the determining whether the officer’s acted reasonably and as such, are entitled to qualified immunity. First, the court observed that the officers received a detailed tip from one of Naselroad’s neighbors stating that he had seen marijuana on Naselroad’s property. Second, the court observed that one of the four officers initially on scene was wearing a uniform and driving a marked patrol car. In light of these facts, the court stated that it would not be unreasonable for the officers to believe that Naselroad was going to destroy evidence, when they went to his home to conduct a knock and talk, and they saw him, wearing camouflage, run out the back of his house. The court stated
Evasive activity after contact with law enforcement conducting a “knock and talk” to investigate drugs can support a reasonable inference that evidence is about to be destroyed. See United States v. Hogan, 539 F.3d 916, 922-23 (8th Cir. 2008).[vi] [emphasis added]
Since the court stated that the officers acted reasonably in their belief that probable cause was present, and that Naselroad was going to attempt to destroy the evidence, the officers are entitled to qualified immunity. The court stated that they did not need to determine if the officers actually had probable cause, because the reasonable belief alone entitles them to qualified immunity.
Issue Three: Is the officer who shot Naselroad as he held a gun pointed down entitled to qualified immunity from an excessive force claim under the Fourth Amendment?
The court began by examining the law that applies to this issue. The court stated
We decide whether Mabry’s use of deadly force was reasonable, under the totality of the circumstances, by “balancing the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Bletz v. Gribble, 641 F.3d 743, 750-51 (6th Cir. 2011) (citations and internal quotation marks omitted). This is an objective analysis done “without regard to [Mabry’s] underlying intent or motive.” Graham v. Connor, 490 U.S. 386, 397 (1989). Three factors guide our analysis of the objective reasonableness of Mabry’s decision to shoot Naselroad: (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers’ or others’ safety; and (3) whether the suspect actively resisted arrest or attempted to flee. Id. at 396.[vii] [emphasis added]
Regarding this issue, the court of appeals held that qualified immunity was not appropriate for the officer who shot Naselroad. The court then discussed its reasons for denying qualified immunity on this issue.
First, the court stated that Naselroad had a “clearly established” right “not to be shot if he did not present a threat sufficient to justify the use of deadly force.”[viii]
Second, when the court viewed the facts in a light most favorable to Naselroad (as they are legally required to do at this stage of litigation), the court noted that a reasonable jury could conclude that it was excessive force to shoot Naselroad in consideration of the level of threat he presented. The court explained
This conclusion squares with our prior decisions. See King, 694 F.3d at 662-63 (holding that the presence of a genuine dispute as to whether King was pointing a gun at the officers who shot him created “a question for the jury” because a jury could find that “King did not point a gun towards the officers just before he was shot“); see also Bletz, 641 F.3d at 750-53 (denying qualified immunity to officers who used deadly force on a plaintiff because jurors could conclude that even though the plaintiff held a gun, he appeared to be complying with police commands); Brandenburg, 882 F.2d at 215 (“Though [the officer] claims that Mr. Brandenburg had pointed his weapon ‘directly at us,’ presumably proving that he or any officer would have a subjective belief in a threat of serious physical harm, there are facts which might indicate otherwise.”). A jury crediting Naselroad’s account could conclude that his gun was always pointed at the ground, never directly at an officer, and that Naselroad did not indicate, verbally or physically, an intention to harm the officers. Such a jury could conclude that Mabry lacked probable cause to believe Naselroad presented an immediate threat to officer safety. It may matter to the jury, as well, that the officers were at the property to investigate a non-violent, low-level crime and had no additional information to suggest that Naselroad was threatening.[ix]
As the court explained above, because there are differing versions of events, and because the court is, at this stage of litigation, required to view the facts most favorable to the plaintiff, the court held that qualified immunity is not appropriate on the claim regarding excessive force for shooting Naselroad.
As such the court reversed the grant of qualified immunity to the officer on this issue and affirmed the district courts holdings on the first and second issue.
[i] No. 18-5047, 18-5110 (6th Cir. Decided February 14, 2019 Unpublished)
[ii] Id. at 4-7
[iii] 512 U.S. 477 (1994)
[iv] Id. at 11
[v] Naselroad at 10-11
[vi] Id. at 12
[vii] Id. at 13
[ix] Id. at 14