Alexander ex rel. Estate of Quade v. City & County of San Francisco

concurring.

I join Judge Fletcher’s thorough and thoughtful opinion but add a few words to emphasize what I see as the key issue in this case. Assuming, as we must, that the police conducted their raid on Quade’s house in order to arrest him on suspicion of a crime, it was clearly established that they needed a warrant. Michigan v. Clifford, 464 U.S. 287, 297-98 , 104 S.Ct. 641, 648-49 , 78 L.Ed.2d 477 (1984); Payton v. New York, 445 U.S. 573, 590 , 100 S.Ct. 1371, 1382 , 63 L.Ed.2d 639 (1980).

No exigency stood in the way of seeking a warrant. Cf. Michigan v. Clifford, 464 U.S. at 292-93 , 104 S.Ct. at 646-47 ; Michigan v. Summers, 452 U.S. 692, 702 , 101 S.Ct. 2587, 2594 , 69 L.Ed.2d 340 (1981). The suspect was encircled and was no threat to anybody. Keeping the house blockaded long enough to apply for a warrant would have been a nuisance but, as best the record discloses, posed no danger to the community. See Maj.Op. at 1365 n. 11.

And seeking a warrant could have made a difference here. I seriously doubt a reasonable judicial officer would have authorized the immediate storming of Quade’s residence by a heavily armed tactical team. Instead, he might have required exhaustion…

concurring in part and dissenting in part:

I respectfully disagree with the majority’s analysis of the constitutional propriety of the police’s conduct in this case. Mr. Quade’s death was tragic, but that tragedy is only compounded by forcing police officers to stand trial when their actions were clearly reasonable. At the very least, they are surely entitled to qualified immunity. My main concern, however, is that the majority’s opinion not only misapplies, but literally wreaks havoc on the Fourth Amendment and the law covering forcible inspection warrants.

I

A. The majority fails to appreciate the significance of the magistrate’s issuance of a forcible entry inspection warrant. Actually, the City applied for and obtained not one, but two administrative inspection warrants for Mr. Quade’s premises before they set foot in his house.

The first warrant (No. 90-5), properly supported by a declaration from a public health inspector and prepared by a deputy city attorney, was secured from the San Francisco Municipal Court on September 13, 1990. The inspection warrant states:

(emphasis added). Three aspects of this court order are noteworthy. First, the City secured the warrant…

Opinion by Judge FLETCHER; Concurrence by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge TROTT.

This civil rights action is brought by the executor of the estate of Henry Quade, who was shot dead in his home by San Francisco police officers. Plaintiff alleges that Quade’s Fourth Amendment rights were violated (1) because the officers entered Quade’s home for the purpose of arresting him, but had only an administrative inspection warrant in their possession; and (2) because the officers used excessive force in their entry, thus precipitating the escalation of force which ended in the fatal shooting. Plaintiff also seeks to hold the City and County of San Francisco liable for failure to adequately train the officer in command of the operation.

The district court granted summary judgment for all defendants, holding (1) that Quade was never arrested, and that any detention of Quade by the officers was lawful; and (2) that the officers were entitled to qualified immunity on the excessive force claim. The court also held that because all of the individual defendants were entitled to summary judgment, no liability could attach to the municipality.

We reverse the…