CA1: Cops not entitled to qualified immunity for failed drug bust and massive waivers

DeMayo v. MA State Police, No. 07-1623 reverses a grant of summary judgment on the basis of qualified immunity (and a denial of a for judgment motion on the pleadings) in a Bivens action.   The individual cop (along with other DEA agents) were looking for drugs in UPS boxes, and the cop pretended to be a UPS man.  While the addressee’s father was in the process of signing for the package (i.e. only up to his first name), the cops moved entered the house and “conducted a brief protective sweep.”  They found a frail-looking woman.  The signing didn’t show ID to the officers.  The officers eventually issues a summons, seized the package, and said that they would obtain a search warrant for it.

Now get this. The package didn’t contain drugs. Also, the cops all didn’t even brief (before the District Court) the issue of whether the protective sweep was legal or not, and instead concentrated on the initial entry. The First isn’t buying this, and it doesn’t let them switch their theories on appeal.

Why don't you keep reading? 

 

The cops claim that because the father “became belligerent” after the he entered the house, there was exigent circumstances. The First makes short work of this by saying “Whatever insight might be gleaned from his behavior, it cannot serve as an ex post facto basis for the officers' initial intrusion into the home.”  

The cops then claim that because they heard a toilet flush, drugs must be being destroyed. (It is a well known fact that toilets have no other use.) But, the First says they waived that, and “even given the judgment on the pleadings context, and is more akin to rank speculation than a reasonable inference.”

And, the cops raised a seemingly boilerplate “concern for their own safety” argument. The First responds with its own boilerplate about how those are legitimate concerns. Yet, somehow, where drugs were not found, the matter comes out differently. The First points out that since the officers entered the home on the basis of a pre-arranged signal from the fake UPS guy, they were manufacturing the exigency. Then the First prattles on about how their decision is that law-enforcement unfriendly.

 After establishing that the cops violated the plaintiffs’ constitutional rights, the First says that the officers were on enough notice because of Kirk v. Lousiana, 536 U.S.635, 638 (2002) and Payton v. New York445 U.S. 573, 590 (1980). The First says that “exigent circumstances” is “evolving” (and therefore, I guess, they are entitled to do whatever they want). It concludes, “The fact that the doctrine of exigent circumstances is evolving, however, does not necessarily mean that every situation implicating the subject touches upon the supposed nebulous borderline of acceptable conduct. Regardless of whether the outer boundaries of the doctrine are clearly defined, the defendants' conduct fell squarely outside the realm of legitimate uncertainty.” Finally, there were no factual ambiguities or close calls.

And, making it all very clear, the First concludes that the judgment on the pleadings, because the Defendants didn’t want to present any additional facts to convert the motion for judgment on the pleadings into a motion for summary judgment.