Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1990)

Nos. 87-4432, 88-3646 and 88-3832.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, WALLACE and FLETCHER, Circuit Judges

MEMORANDUM^** 

Robert Hill sued the City of Eugene and several of its police officers under 42 U.S.C. § 1983, claiming the officers violated his fourth and fifth amendment rights during an overnight siege of his home. The officers moved for summary judgment, asserting qualified immunity. Citing issues of fact, the court denied the motion, with respect to Hill's fourth amendment claim, and the officers appeal.¹  We affirm.

The qualified immunity defense rests on the objective reasonableness of the officers' actions, evaluated in light of the legal rules that were "clearly established" at the time the actions were taken. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "The relevant question ... is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed." Anderson v. Creighton, 483 U.S. 635, 641 (1987). Qualified immunity is an affirmative defense; the officers bear the burden of proof. Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1989).

The district court held Hill was arrested when the officers established an armed perimeter around his trailer, see United States v. Mendenhall, 446 U.S. 544, 554 (1979) (seizure occurs, within meaning of fourth amendment, when reasonable person would believe he or she was not free to leave); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (defendant arrested inside his trailer when police completely surrounded trailer with their guns drawn); and that factual questions remained as to whether the officers reasonably could have believed exigent circumstances existed at that time justifying the warrantless arrest.

Exigent circumstances are present when the delay necessary to obtain a warrant would lead to a substantial risk of harm to the persons involved or to the law enforcement process. E.g., Al-Azzawy, 784 F.2d at 894. It is the officers' burden to show exigency. Vale v. Louisiana, 399 U.S. 30, 34 (1970).

The evidence presented, viewed in the light most favorable to Hill, does not support a conclusion that exigent circumstances precluded the officers from obtaining a warrant for Hill's arrest.

At the time of the arrest, the police had received reports of gunshots, and of Hill's eccentric, aggressive behavior in a prior incident. They reasonably believed Hill was armed. Hill refused to respond to inquiries from the officers; he barricaded himself in his trailer and insisted they go away. There is no dispute the officers had probable cause for Hill's arrest. However, the officers have not shown what delay they would have encountered had they sought a warrant,²  nor how the circumstances known to them at the time would have led a reasonable officer to believe the delay involved would have created a substantial risk of harm to the officers or anyone else, or to the law enforcement process. The record reveals no adequate reason why the officers made no attempt to obtain a warrant between 11:00 p.m., when Agent Spence and Officer Rodenhuis were dispatched to the scene, and approximately 1:30 a.m., when the Eugene Police Department tactical team formed a perimeter around Hill's trailer and effected his arrest. The additional delay until the officers moved to end the stalemate and drive Hill from his home at 6:00 a.m. further indicates the absence of exigent circumstances at the time of the arrest. It follows that the subsequent searches of Hill's trailer can be justified neither by exigency nor as incident to a lawful arrest.

The cases the officers rely on are no help to them. In White by White v. Pierce County, 797 F.2d 812 (9th Cir. 1986), the police came to White's home to investigate reported child abuse. The exigent circumstance justifying the warrantless arrest and entry into White's home was the officers' concern that White would injure the child or flee with him if they delayed their intervention to obtain a court order. 797 F.2d at 815-16. In Al-Azzawy, the officers reasonably believed Al-Azzawy was in an agitated and violent state and possessed illegal explosives. 784 F.2d at 894.

The officers further argue they are entitled to qualified immunity for the warrantless search and seizure even absent exigent circumstances. The officers maintain they did not intend to arrest Hill, but rather to effect a mental hold on Hill under Or.Rev.Stat. Sec. 426.215(1).³  They argue they are entitled to qualified immunity because it is not "clearly established" that the fourth amendment requires police officers to obtain a warrant when an individual is taken into custody under a "mental hold."A right is "clearly established" where " [t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. It has been "clearly established" at least since 1967 that the fourth amendment protects not only those suspected of criminal behavior, but all individuals, especially while in the privacy of their own homes. See Camara v. Municipal Court, 387 U.S. 523, 530-31 (1967) ("It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. For instance, even the most law abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority...."); Payton v. United States, 445 U.S. 573, 589 (1980) (in no other setting "is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home").

Accordingly, whether the seizure was for the purpose of criminal investigation or to effectuate a "mental hold" is irrelevant. Either way, the officers' actions violated Hill's "clearly established" fourth amendment right to be secure in his home from a warrantless search and seizure, absent exigent circumstances.

Because Hill has not obtained a ruling on the merits of his claim, he is not a prevailing party within the meaning of 42 U.S.C. § 1988. See Jensen v. City of San Jose, 806 F.2d 899, 900 (9th Cir. 1986) (en banc). Accordingly, we deny as premature his application for attorney's fees.

We affirm the order below and remand for further proceedings consistent with this decision.

AFFIRMED.