CA7: Entry to arrest for at best disorderly conduct was unreasonable

Officers called to a clearly non-violent domestic shouting match had no exigency or other reason to enter plaintiff’s home and arrest him. All the facts and circumstances showed that he was unarmed and he wasn’t a threat. Hawkins v. Bowersock, 2014 U.S. App. LEXIS 11906 (7th Cir. June 23, 2014):

Mitchell and Bowersock arrived at a disorderly scene, to be sure, having been told that Hawkins had some history of abusing Bumgarner and that he “gets violent sometimes.” One could see that a couple was in a drunken spat, and clothing was strewn around the front yard. But the officers were also advised that no physical attack had occurred that night. Bumgarner told them she wasn’t hurt, which Mitchell visually confirmed was true. Bumgarner even went as far as to say “she was sorry for calling” 9-1-1. Rather than express a need for protection from an immediate threat to her safety, Bumgarner said: “Mr. Hawkins has my keys and I just want them back so I can leave.” She was outside; Hawkins was inside; and there was no basis to believe that anyone but the police had a weapon.

This is not to say that Mitchell was unreasonable to knock on the door to investigate Hawkins from a publicly accessible area. On the contrary, attempting to initiate a consensual conversation was commendable. And police are allowed to act upon exigencies of their own making, so long as their conduct in creating the exigency was “reasonable” under the Fourth Amendment. Kentucky v. King, 131 S. Ct. at 1858.

Mitchell’s nonconsensual and warrantless home entry, however, was unreasonable. Assume that Hawkins roared into the night that he didn’t have Bumgarner’s keys. Assume that he threw her clothes into the yard, deliberately locked her out of his house, “screamed” in terror upon discovering a police officer at his door, and then attempted to close the door on the officer. There’s still no evidence that he threatened to harm anyone physically. “[S]ociety would recognize a person’s right to choose to close his door on and exclude people he does not want within his home.” United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991). It is “one of the most … important components of a person’s privacy expectation in his home.” Id. So there was no exigency before Mitchell’s nonconsensual entry.

Nor did one arise from that moment until the arrest. Throughout the in-home encounter, Hawkins objected to the officers’ presence repeatedly and vociferously, it’s true, but he never threatened them. Drunk as the officers allege him to have been, he summoned the wherewithal to call an attorney for advice and then follow that advice assertively but without physical aggression.

Although Mitchell’s position inside the house initially gave Bowersock a reasonable basis to act as though he had consent or exigency, we find that by the time of the arrest, Bowersock, too, should have known there was neither. The lack of weapons, threats, or physical aggression from Hawkins left time for Bowersock to ask Mitchell why they were inside and to recognize the absence of any possible justification for staying. Knowing that warrantless home entry is presumptively unreasonable, see Payton, 445 U.S. at 586, Bowersock should have taken advantage of that opportunity. Instead, he responded to Hawkins’s nonthreatening disobedience by telling him that if he didn’t get off the phone and speak to the officers, he would be arrested.

Hawkins did not submit to Bowersock’s command, insofar as he stayed on the phone, but he also remained nonthreatening. Each officer nevertheless proceeded to grab one of Hawkins’s wrists, which restricted his movement significantly, effecting an arrest. See Hodari D., 499 U.S. at 626. Because the officers lacked a warrant or consent to enter, and have not posited a valid justifying exigency, the in-home arrest was unconstitutional as a matter of law. See Payton, 445 U.S. at 585-90 (prohibiting warrantless in-home arrests under non-exigent circumstances).