Attocknie v. Smith

On August 25, 2012, Aaron Palmer was shot dead by Deputy Sheriff Kenneth

Cherry immediately after Cherry barged into Aaron’s home in Seminole, Oklahoma.

Having been commissioned by Seminole County Sheriff Shannon Smith, Cherry was

serving as a compliance officer for the county’s drug-court program. He was at Aaron’s

house to execute a year-old bench warrant for the arrest of Aaron’s father, Randall

Palmer, for failure to appear in court and failure to comply with his performance contract

with the drug court. Cherry thought he saw Randall in Aaron’s garage earlier in the day,

and he arranged for support from other law-enforcement officers to apprehend Randall.

When he returned to the area with other officers, he allegedly saw somebody who

appeared to be Randall running through the garage into the house. He then sped to the

front door of the house with gun drawn, pushed the door open, and fired his gun at Aaron,

who was standing a few feet from the door, allegedly with a knife in his hand. Randall

was not found on the premises.

Aaron’s widow, Nicole Attocknie (Plaintiff), brought suit under 42 U.S.C. § 1983

on behalf of herself, Aaron’s child, and Aaron’s estate in the United States District Court

for the Eastern District of Oklahoma. The suit claimed that (1) Cherry violated Aaron’s

Fourth Amendment rights by unlawfully entering the house and using excessive force,

and (2) Smith (who was not present when Aaron was shot) violated Aaron’s Fourth Amendment rights by failing to train or supervise Cherry.1 Cherry and Smith both raised

1 Other claims were brought but are not at issue on appeal.



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the defense of qualified immunity, but the district court denied their motions for summary

judgment. On appeal Cherry argues that he is entitled to qualified immunity on the

grounds that his entry into Aaron’s house was justified by a hot pursuit of Randall (or at

least the law was not clearly established to the contrary in August 2012) and that his use

of force was appropriate in the face of a deadly weapon (the knife allegedly in Aaron’s

hand). Smith argues for qualified immunity on the ground that his failure to train or

supervise Cherry did not show deliberate indifference to Aaron’s constitutional rights.

We affirm the denials of qualified immunity to Cherry and Smith. Hot pursuit is

the sole justification offered by the defendants for Cherry’s entry of Aaron’s home. But

Plaintiff presented sufficient evidence that Cherry was not in hot pursuit of Randall when

he entered the home and that the entry was therefore unlawful. And because the use of

force would only have been necessary as a result of the entry, a jury could properly find

that the unlawful entry caused Aaron’s death. We therefore need not address whether the

force used by Cherry upon his entry was in itself unreasonable and excessive. As for

Smith, he cannot obtain relief on the only grounds he preserved in district court because

they are based on a view of the evidence rejected by the district court.

We first discuss the doctrine of qualified immunity and our jurisdiction. We next

address the facts and law relevant to Cherry’s defense of qualified immunity and then we

address Smith’s defense.



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I. QUALIFIED IMMUNITY AND JURISDICTION

“The doctrine of qualified immunity protects government officials from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). The doctrine

“balances two important interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Id. If a defendant

asserts qualified immunity, the plaintiff has the burden to show that “(1) the defendant

violated a constitutional right and (2) the constitutional right was clearly established” at

the time of the challenged conduct. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012)

(internal quotation marks omitted); see Pearson, 555 U.S. at 232. In general, “[t]he law

is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if

the clearly established weight of authority from other courts shows that the right must be

as plaintiff maintains.” Dodds v. Richardson, 614 F.3d 1185, 1206 (10th Cir. 2010)

(internal quotation marks omitted). “This is not to say that an official action is protected

by qualified immunity unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be

apparent.” Id. (internal quotation marks omitted). We review de novo the denial of a

summary-judgment motion based on qualified immunity. See Morris, 672 F.3d at 1189.



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Some of the usual rules governing appellate jurisdiction do not apply in the

qualified-immunity context. Under 28 U.S.C. § 1291, appellate jurisdiction is limited to

the review of final decisions, which ordinarily are decisions that end the litigation on the

merits so that nothing remains for the court to do but to execute the judgment. See, e.g.,

Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013). Orders denying

summary judgment do not satisfy this general rule. But because qualified immunity

protects public employees from the burdens of litigation as well as from liability, an order

denying a summary-judgment motion asserting qualified immunity may be treated as a

final decision under the collateral-order doctrine insofar as the appeal from such an order

raises abstract legal questions. See id. at 1266‒67. This limited interlocutory jurisdiction

permits us to review “whether the set of facts identified by the district court is sufficient

to establish a violation of a clearly established constitutional right” but not “whether the

district court correctly identified the set of facts that the summary judgment record is

sufficient to prove.” Morris, 672 F.3d at 1189 (internal quotation marks omitted).

Plaintiff contends that we lack jurisdiction because the district court based its

denial of the summary-judgment motions on the existence of fact questions that must be

resolved by a jury before the legal issues may be addressed. We have jurisdiction,

however, because we may determine whether Cherry and Smith are entitled to qualified

immunity by applying clearly established law to the facts for which the district court said

there was sufficient supporting evidence. See id.; Medina v. Cram, 252 F.3d 1124, 1130



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(10th Cir. 2001). For context, we will also refer to some uncontroverted facts; and we

will address some of Cherry’s flawed arguments based on his version of events.

II. CHERRY’S APPEAL

A. Factual Background

In May 2011, Randall Palmer pleaded guilty in Seminole County District Court in

two cases on felony charges of selling methamphetamine. He requested admission into

the county’s drug-court program and agreed to abide by the terms of a performance

contract, one of which was the requirement that he attend all court sessions. He

apparently failed to do so, and on September 9, 2011, a bench warrant issued, citing as

the crime “Failure to Appear/Non-Compliance with Performance Contract.” Aplt. App.

(Smith), Vol. 3 at 1227 (full capitalization omitted). The warrant stated no address.

Randall had lived at 1931 Killingsworth Avenue in Seminole through 2008, but thereafter

the only residents were his son Aaron, Plaintiff, their three-year-old daughter, and their

foster son. Although he no longer lived there, Randall would come to the house when

Plaintiff was not there.

Cherry testified that on August 25, 2012 (almost a year after issuance of the

warrant) he saw a person he presumed to be Randall in Aaron’s garage. He did not

attempt to take Randall into custody at that time. Instead, he contacted the Seminole

Police Department to enlist their assistance and then met with several police officers at a

convenience store in Seminole to plan Randall’s arrest. They arranged that Cherry would

lead the other officers to Aaron’s house, where some officers would follow Cherry as he



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went to the front of the house and others would cover the back to prevent Randall’s

escape.

Cherry testified that when he returned to the neighborhood of Aaron’s house, he

saw somebody who appeared to be Randall running through the garage into the house.

He immediately ran to the front door with gun drawn yelling “police,” pushed the door

open, and “[w]ithin two seconds” shot Aaron, who was standing a few feet from the door, allegedly holding a knife. Aplt. App. (Cherry), Vol. II at 510, 513.2 Randall was not

found on the premises.

B. Unlawful Entry

In arguing for qualified immunity on Plaintiff’s claim of unlawful entry into

Aaron’s home, Cherry’s brief on appeal relies on only one legal theory—hot pursuit of a

fleeing felon. Although it mentions the bench warrant in one sentence, it cites no law concerning the authority the warrant gave him.3 Cherry’s hot-pursuit argument cannot

withstand scrutiny. It is founded on two legal errors.

2 A knife was found in the foyer of the home after the shooting. Cherry’s statements about whether he saw a knife before shooting are somewhat inconsistent. It is not disputed that Aaron had just been preparing a hamburger when Cherry barged in. 3 This is probably wise. Even if the warrant authorized a search of Aaron’s home for Randall—a doubtful proposition itself under our case law, see Valdez v. McPheters, 172 F.3d 1220, 1225–26 (10th Cir. 1999) (entry of residence is permissible under arrest warrant only if officer reasonably believes suspect resides there)—it would not overcome the requirement that the officer must knock and wait a reasonable time before entering, see, e.g., Hudson v. Michigan, 547 U.S. 586, 589 (2006).



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First, Cherry claims that he thought he saw Randall running into Aaron’s house

from the garage just before he barged into the house himself, and that his belief is all that

matters. But the law is clear that Cherry’s belief must be reasonable. See Heien v. North

Carolina, 135 S. Ct. 530, 539 (2014) (“The Fourth Amendment tolerates only reasonable

mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.

We do not examine the subjective understanding of the particular officer involved.”);

Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1071 (10th Cir. 2010) (Fourth

Amendment analysis focuses on the objective reasonableness of the challenged conduct

in the totality of the circumstances). And Cherry does not confront the possibility that a

jury might reasonably refuse to credit his belief as reasonable. It could well find that

Cherry is not telling the truth about seeing someone running, or at least that he was not

reasonable in inferring that the person he saw was Randall, especially given other

evidence that Randall was not seen by anyone else at the time and was not found there

after the shooting.

Second, even if we assumed that Cherry had a reasonable belief that Randall had

just entered the home, Cherry’s hot-pursuit-of-a-fleeing-felon argument is still fatally

flawed as a matter of law. He identifies no felony other than Randall’s drug offenses.

Cherry appears to believe that once a person has committed a felony, he is fair game for

“hot pursuit” whenever he is spotted. This is a gross misunderstanding of the law. At the

time of the shooting, clearly established law on hot pursuit required an “immediate or

continuous” pursuit of a suspect from the crime scene. Welsh v. Wisconsin, 466 U.S.



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740, 753 (1984); see United States v. Santana, 427 U.S. 38, 42–43 (1976); Warden v.

Hayden, 387 U.S. 294, 298–99 (1967). Yet Randall’s drug felonies were more than a

year in the past.

Cherry relies on Santana, 427 U.S. 38, and Stanton v. Sims, 134 S. Ct. 3 (2013), as

support for his conduct. But both cases featured a pursuit that began in a public place and

immediately continued into private property. In Santana, officers arrested a woman who

had just obtained drugs at a house and sold them to an undercover officer. See Santana,

427 U.S. at 40. When the woman said she had paid a “Mom Santana” for the drugs, the

officers promptly returned to the house, where Santana was standing in the doorway. Id.

The Supreme Court said that the officers could pursue Santana when she retreated into

the house. See id. at 42‒43. Similarly, in Stanton an officer was pursuing a man who had

committed the offense of disobeying the officer’s order to stop. See Stanton, 234 S. Ct. at

4. The officer pursued the man into a fenced-in yard. See id. Not only are the facts

unlike those here, but Stanton confirmed that there had been no hot pursuit in Welsh,

466 U.S. 740, because “there was no immediate or continuous pursuit of Welsh from the

scene of a crime.” Id. at 6 (brackets and internal quotation marks omitted).

Cherry’s entry of Aaron’s home was clearly contrary to well-established law. He

is not entitled to qualified immunity on the claim of unlawful entry. And because a

reasonable jury could determine that the unlawful entry was the proximate cause of the

fatal shooting of Aaron, cf. Martinez v. Carson, 697 F.3d 1252, 1255‒56 (10th Cir. 2012)

(reasonable jury could find unlawful seizure was the proximate cause of later prolonged



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detention), we need not decide whether Cherry used excessive force when he confronted

Aaron.

III. SMITH’S APPEAL

A. Background

Cherry started working as a drug-court compliance officer on July 25, 2012. His

prior experience included seven months as a volunteer reserve police officer for the City

of Wewoka, Oklahoma, and two years as a corrections officer in Oklahoma. The

Oklahoma Council on Law Enforcement Education and Training (“CLEET”) had no

record that Cherry had received any formal law-enforcement training.

Tammy Wall, Cherry’s supervisor as Seminole County Special Programs

Administrator, testified that she has no formal law-enforcement training and has never

worked in law enforcement. She is not qualified to train officers on law-enforcement

duties, and neither she nor her agency provide such training to drug-court compliance

officers. Wall left it to Smith to ensure that the deputy sheriffs who worked as drug-court

compliance officers were trained. Smith, however, did not check to see what training

Cherry had before he commissioned him, and left it to Wall to train and supervise Cherry,

despite knowing that Wall was not CLEET-certified and had no law-enforcement training

or expertise.

Smith commissioned Cherry two days before Cherry began work as a compliance

officer. In district court it was disputed whether Smith or Wall was Cherry’s employer,

but the court determined that Smith was the employer and Smith acknowledges that this

status is settled for purposes of this appeal. (To deny summary judgment the court

needed to determine only that there was substantial evidence that Smith was the

employer.)

B. Plaintiff’s Legal Claim

Plaintiff’s theory of individual liability against Smith is that Smith knew Cherry

would be required to serve warrants and make arrests; Smith had a duty to train and

supervise Cherry because of the foreseeable risk that Cherry would violate the

constitutional rights of citizens absent adequate training and supervision; despite this,

Smith failed to provide any training or supervision to Cherry; Smith was deliberately

indifferent to the risk to the public from his failure to train or supervise Cherry; Cherry

violated Aaron’s clearly established Fourth Amendment rights; Smith’s failure to train or

supervise Cherry foreseeably caused Cherry to violate Aaron’s constitutional rights; and

at the time of the shooting the law was clearly established that Smith had a duty to train

and supervise Cherry and would be liable to a victim of Cherry’s unconstitutional acts in

these circumstances. See generally Wilson v. Montano, 715 F.3d 847, 856–58 (10th Cir.

2013) (stating requirements for supervisory liability under § 1983), cert. denied,

134 S. Ct. 426 (2013); Poolaw v. Marcantel, 565 F.3d 721, 732–33 (10th Cir. 2009)

(same). Smith moved for summary judgment in the district court, raising the defense that

he was entitled to qualified immunity. The court denied the motion.

Smith challenges the denial of his motion on several grounds. First, he argues that

we should reverse because the district court failed to rule on his qualified-immunity



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defense and because Plaintiff failed to respond to his qualified-immunity argument

below. We disagree. The district court denied the motion. That is the only prerequisite

for us to review a legal challenge to the denial. If the district court failed to address an

issue, we can still reverse on that ground if the issue was preserved and is meritorious.

See Sac & Fox Nation v. Norton, 240 F.3d 1250, 1264‒67 (10th Cir. 2001) (appellate

court reverses on a question of law not reached by the district court); Lowe v. Town of

Fairland, 143 F.3d 1378, 1380 (10th Cir. 1998) (reviewing appeal from denial of motion

for qualified immunity despite district court’s failure to address the issue). Likewise, any

failure by Plaintiff to respond to Smith’s summary-judgment motion is irrelevant in light

of the district court’s denial of the motion. To be sure, if the court had granted the

motion, Plaintiff would be significantly restricted on any appeal because all arguments

not made in the district court would have been forfeited. See Richison v. Ernest Grp.,

Inc., 634 F.3d 1123, 1128, 1130‒31 (10th Cir. 2011). But as appellee, Plaintiff can raise

arguments for affirmance supported by the record. See id. at 1130.

The important procedural failure in this case is not Plaintiff’s or the district court’s

but Smith’s. His motion for summary judgment did not raise any ground on which we

can reverse. The argument section of the motion devotes four pages to Plaintiff’s § 1983

claim against him in his individual capacity. It notes, correctly, that because he was not

personally involved in the August 25, 2012 incident until after the shooting, his liability

could only be as a supervisor. Next it summarizes his view of the law of supervisory

liability and argues that he is not liable under that law because (1) Cherry did not violate

the Constitution and (2) even if he did, “Cherry was not an employee or officer of Sheriff

Smith.” Aplt. App. (Smith), Vol. 1 at 255. It then summarizes his view of the law of

qualified immunity but concludes that “[t]he second stage of qualified immunity analysis,

whether a right was ‘clearly established’ need not even be performed, as Defendant Smith

did not personally violate Plaintiff’s constitutional rights in any way whatsoever.” Id. at

256‒57 (footnote omitted).

Smith raised no argument below that he would be entitled to qualified immunity

even if Cherry was his employee. Yet given his concession that he cannot challenge on

appeal the district court’s determination that Cherry was his employee, this foregone

argument would be his only path to reversal. Because he does not argue on appeal that

the district court committed plain error, we do not address that possibility. See Richison,

634 F.3d at 1130‒31. We affirm the denial of qualified immunity

We DENY Plaintiff’s motion to dismiss this appeal for lack of jurisdiction and

AFFIRM the district court’s denial of the defendants’ motions for summary judgment based on qualified immunity.