CA4: Rehearing denied in Hunsberger with better explanation

The Fourth Circuit elaborates on facts in Hunsberger v. Wood in denying rehearing. See opinion of concurring judges on denial of rehearing en banc, Hunsberger v. Wood, 2009 U.S. App. LEXIS 20453 (4th Cir. September 14, 2009), on the qualified immunity question:

The facts which I have recounted above in this case would certainly have suggested to an objectively reasonable officer that this teenage girl was not only missing but possibly hurt and incapacitated. Not to belabor the point, but any parent whose daughter was out after midnight, not answering her cell phone, in a house where she was not supposed to be, in a neighborhood where another residence had only recently burned down, with her car blocking the road, etc. would be alarmed, as plaintiffs admit Blessard was. And any reasonable officer would have tried to help. Even adopting plaintiffs’ view that Wood expressly consented to Blessard’s presence, as the panel’s opinion explicitly did, Wood acted reasonably. It was reasonable for Wood to think that Blessard’s presence in the home would be useful. The more quickly Wood could identify NW, the more quickly he could determine whether she needed assistance. And if she was frightened and hiding in the home, the one thing she might respond to was a parent’s reassuring voice. If the missing NW was being held against her will, she might well answer a parent, but not a stranger.

Even to this day, plaintiffs have not suggested any remotely practical course of action Wood should have pursued. Wood could have entered alone and asked any girl he encountered to identify herself. But he had no guarantee of getting an answer, much less a truthful one. He wasn’t even sure the missing girl was conscious or hadn’t passed out. He could have required any girl who was possibly the missing NW to come outside in the dark after midnight to be identified by Blessard, but such a procedure would be more traumatic to young girls than the one actually used. Further, these alternatives would have been time-consuming, and time was one thing this officer did not have a whole lot of. It’s always tempting to go the could-have/should-have route in hindsight, but that is not how the Supreme Court has structured the objective reasonableness inquiry. If a unanimous panel of this court believed upon reflection that Wood’s actions were reasonable, how was he to figure otherwise in the fleeting minutes he had? We thankfully know now that NW is safe and that the Hunsberger home was not vandalized or burned to the ground. But no one knew at the time.

The post of July 1st:

“Because the objective circumstances confronted by defendant on the night in question suggested that plaintiffs’ home was being vandalized and that a missing teenage girl was in the house and in need of assistance, the search was reasonable under the Fourth Amendment exigent circumstances doctrine. We thus reverse the judgment of the district court and grant the defendant qualified immunity in this case.” Hunsberger v. Wood, 2009 U.S. App. LEXIS 13925 (4th Cir. June 29, 2009).