Officer Immune for Alleged Unlawful Entry During Hot Pursuit

Gutierrez ran a stop sign. An officer tried to pull her over and she sped up and drove to her mother’s apartment several blocks away. The officer pursued. When Gutierrez stopped her truck, she bailed out and ran to the door of the apartment. The officer followed, deploying his TASER® and firing at Gutierrez’ back. A scuffle ensued. Gutierrez’ mother, Flores, opened the door and the fight moved into the apartment. The officer used his TASER on Flores’ leg during the struggle.

Gutierrez and Flores sued the officer, alleging excessive force, unlawful seizure and unlawful entry into Flores’ apartment. The trial court granted qualified immunity to the officer and dismissed the lawsuit. Gutierrez and Flores appealed.

Qualified immunity is a doctrine that shields officers from civil lawsuits unless their conduct is unreasonable in light of clearly established law. To defeat an officer’s claim of qualified immunity, a plaintiff must show the court first, that the officer violated a federal constitutional or statutory right, and, second, that the right was clearly established at the time of the alleged unlawful conduct: “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law’” (Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308 (2015)).

The court observed that it was “troubled” by the plaintiff’s factual claims related to the alleged excessive force. When reviewing a grant of summary judgment, the court is obliged to resolve all factual conflicts in favor of the plaintiffs. Nonetheless, the court cited a comparable case of “an unfortunate tale of poor lawyering,” and held that Gutierrez’ and Flores’ lawyers failed to make any legal argument to defeat the assertion of qualified immunity on the excessive force claim.

The claim of unlawful entry into Flores’ apartment required the court to consider whether clearly established law barred the officer’s warrantless entry. The plaintiffs asserted that the officer was pursuing Gutierrez only for misdemeanor offenses and that the hot pursuit exception to the Fourth Amendment warrant requirement did not apply. The court disagreed, opining that even now it is unsettled whether a misdemeanor can trigger the hot pursuit doctrine. In Stanton v. Sims (––– U.S. ––––, 134 S.Ct. 3 (2013) (per curiam)), the U.S. Supreme Court observed that “federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect.”

Some courts have ruled that a misdemeanor cannot justify warrantless entry into a home under the hot pursuit doctrine. For example, the court discussed its prior ruling in Mascorro v. Billings (656 F.3d 1198 (10th Cir. 2011)), in which the court disallowed the hot pursuit justification for an officer pursuing a juvenile traffic offender into his home. However, the court distinguished the Mascorro decision because the officer knew the juvenile; the flight risk was “somewhere between low and nonexistent”; there were no concerns about evidence destruction, officer safety or public safety; and there was no real downside to obtaining a warrant once the juvenile was inside the home.

Gutierrez compared her violation to the teenage offender in Mascorro and argued that the officer should have known that hot pursuit entry was unconstitutional. However, the court summarized the Mascorro decision as requiring a “serious offense” plus other exigent circumstances, and the court noted that Mascorro did not define “serious offense” or establish that warrantless entries made in hot pursuit of all misdemeanor suspects necessarily violate the Fourth Amendment. Thus, the officer did not violate “clearly established” law.

Despite the several references to the poor performance of the lawyers hired by Gutierrez and Flores, the court’s opinion reinforces the caution for officers to weigh the benefit of a warrantless entry for a traffic violation. Consider whether waiting it out, persuading a surrender or getting a warrant might be the better course. At the end of the day, Gutierrez suffered two broken ribs and a TASER probe that allegedly required surgical removal. Her criminal charges were dismissed. Her lawyers, presumably, worked many hours for nothing. The officer and agency suffered the costs and discomfort of over seven years of litigation. Who won? Perhaps no one.

Gutierrez v. Cobos, 2016 WL 6694533 (10th Cir. 2016)

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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