CA9: Entry of police to investigate rumor to “shoot up” school was without exigency or PC

Four officers received a call from a school that a student threatened to “shoot up” the school. They got the report and went to the student’s home. All four entered the house after entrance was refused by the student’s parents. After 10-15 minutes inside where they did not search, the officers concluded the rumor at school was unfounded, and they left and went to the school and reported it. When they were sued, all were found to have qualified immunity. The Ninth Circuit reversed as to the first two and affirmed as to the second two following the first because they believed the first two had consent. As to the first two officers, there were neither exigent circumstances nor probable cause for the entry. Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011) (reversed in part per curium, Ryburn v. Huff, 11-208 (U.S. January 23, 2012) posted here):

These facts relied upon by the district court in its legal conclusions amount to mere speculation. They do not satisfy the heavy burden required for a finding of exigent circumstances. That the Huffs did not answer their door or telephone may be “unusual,” but it did not create exigent circumstances. Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009) (“[N]othing requires an individual to answer the door in response to a police officer’s knocking.”). The district court was incorrect in finding that Maria Huff’s failure to inquire about the reason for the officers’ visit, or her reluctance to speak with the officers and answer questions, were exigent circumstances. “[T]o the extent that the officers reasonably perceived [Maria] to be antagonistic, they were still not at liberty to enter [her home] under these circumstances.” LaLonde, 204 F.3d at 957 n.16. Nothing in the district court’s findings of fact states that Maria did not inquire about the reason for the officers’ visit or express concern that they were investigating her son. Nothing in the district court’s findings of fact indicates that Maria was not free to leave and return to her home, or that any of the officers had indicated that she was either required to answer their questions or restricted from returning to the inside of her house. Additionally, Maria did answer her cell phone when Ryburn called, spoke to him on the telephone, and went outside with her son Vincent upon learning they were present at her residence. She was under no obligation to invite the officers into her home. Indeed, our Constitution protects her decision to refuse the police entry into her home when they did not possess a warrant. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”).

Further, “the officers’ assertion of a potential threat to their safety must be viewed in the context of the underlying offense.” LaLonde, 204 F.3d at 957 n.16. Here, there was no underlying offense; the officers were investigating rumors of threats. …

The concurring judge would have found exigent circumstances for the first two officers based on a mere fear of a gun.

One would wonder how Saturday’s events in Tucson would have borne on this decision. But, opinions waiting release go through processing, so it would have undoubtedly been completed days earlier.