Gloria Franklin and Johnny Curry v. Derrick Foxworth

Opinion by Judge REINHARDT; Concurrence by Judge REINHARDT; Concurrence by Judge BRUNETTI.

Johnny Curry and Gloria Franklin filed an action under 42 U.S.C. § 1983 against three police officers and the City of Portland, alleging that the manner in which the officers executed a search warrant violated their constitutional rights. They did not contest the validity of the warrant itself. Prior to trial, Franklin reached a monetary settlement with the City regarding her claim, and she was subsequently appointed Curry’s guardian ad litem for the purpose of pursuing his. Following a bench trial on Curry’s claim, the district court found that the officers’ conduct in executing the warrant was reasonable under the Fourth Amendment, and entered judgment in favor of the defendants. Curry appeals. We reverse, holding that the officers’ conduct was unreasonable, and remand for further proceedings consistent with this opinion.

I.

Gloria Franklin and Johnny Curry reside in a house in Portland, Oregon. Curry has advanced multiple sclerosis (“M.S.”), a degenerative, terminal illness that results in progressive loss of motor function. He has suffered from that illness for a considerable period…

concurring:

Rather than simply remanding for further proceedings, I would prefer to decide two additional matters. I believe that we should make it clear that 1) the officers are not entitled to qualified immunity, and 2) the City of Portland (as well as the officers) is liable for the unlawful conduct. My colleagues prefer not to address those questions. I believe, however, that our failure to do so does a disservice to the parties — and particularly to Mr. Curry, the individual whose constitutional rights were so flagrantly violated.

The district court has already erred once in holding that the detention of Curry did not violate his Fourth Amendment rights, necessitating an appeal and a remand for further proceedings. By leaving certain legal questions unresolved, we make possible at least two additional appeals, one of which is wholly unnecessary. I refer, of course, to the appeal that would ensue should the district court find the officers entitled to qualified immunity and the City not liable for the officers’ unconstitutional conduct. Unlikely as it is that the district court would reach those clearly erroneous results, I would prefer not to take the risk. The consequences…

concurring:

I agree with the result reached by the majority; however, I write separately to limit my holding to the unreasonableness of the officers’ conduct in detaining Curry in a semi-nude condition while they executed a search warrant.

In this case, 23 members of the Portland Police Bureau, under the direction of defendant Foxworth, executed a valid search warrant based on probable cause at the home where Curry lived. The basis for this warrant was a tip that the home was a distribution center for cocaine and that members of the household were part of the “Bloods” gang. Information also revealed that Franklin had purchased two guns. Executing the warrant, the police officers broke various windows in the residence as a diversionary tactic and knocked and announced their presence at the same time that they used a battering ram to break open the door. Curry does not contest the validity of the warrant or the officers’ manner of entry into the home.

Once inside, the officers split up over the three floors in the house to locate all the occupants and bring them to a central location. It is the custom and practice of the Portland Police Bureau to bring the occupants to a central…

31 F.3d 873 Gloria FRANKLIN and Johnny Curry, Plaintiffs-Appellants, v. Derrick FOXWORTH, et al., Defendants-Appellees. No. 92-35214. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1993. Decided Aug. 2, 1994. Spencer M. Neal, Ginsburg & Neal, Portland, OR, for plaintiffs-appellants. Harry Auerbach, Deputy City Atty., Portland, OR, for defendants-appellees. Appeal from the United States District Court for the District of Oregon. Before: REINHARDT, BRUNETTI and FERNANDEZ, Circuit Judges. Opinion by Judge REINHARDT; Concurrence by Judge REINHARDT; Concurrence by Judge BRUNETTI. REINHARDT, Circuit Judge: 1 Johnny Curry and Gloria Franklin filed an action under 42 U.S.C. Sec. 1983 against three police officers and the City of Portland, alleging that the manner in which the officers executed a search warrant violated their constitutional rights. They did not contest the validity of the warrant itself. Prior to trial, Franklin reached a monetary settlement with the City regarding her claim, and she was subsequently appointed Curry's guardian ad litem for the purpose of pursuing his. Following a bench trial on Curry's claim, the district court found that…