                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAR 16 1998
                                       TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 WILLIE BROWN and ANNA DUNLAP,

           Plaintiffs-Appellants,
 v.                                                          No. 97-2139
                                                    (D.C. No. CV-96-533 BB/RLP)
 CITY OF BELEN, SERGEANT MIKE                      (DISTRICT OF NEW MEXICO)
 CHAVEZ, City of Belen Police Officer,

           Defendants-Appellees.


                                    ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, MURPHY, Circuit Judge, and MCWILLIAMS, Senior
Circuit Judge.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

       Pursuant to 42 U.S.C. § 1983, Willie Brown and Anna Dunlap brought a civil

rights action in the United States District Court for the District of New Mexico against the



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
City of Belen (“City”) and Sergeant Mike Chavez, a police officer for the City. The gist

of the complaint was that Sergeant Chavez, while acting within the scope of his

employment as a policeman for the City, entered the plaintiffs’ home in Belen, New

Mexico without their consent, without a warrant, and without exigent circumstances

which might possibly justify a warrantless entry into their home. According to the

complaint, Sergeant Chavez entered their home with his gun drawn and pointed it at the

plaintiffs prior to asking them to identify themselves. After identifying themselves,

Sergeant Chavez left the premises, according to the complaint, “without any explanation

as to his reason for entry.”

       Count one of the complaint was against Sergeant Chavez only, and was based on

42 U.S.C. § 1983. Plaintiffs alleged that, as a result of Sergeant Chavez’ actions, they

had both suffered “significant psychological injuries.” Plaintiffs also asserted a claim

against the City based on the New Mexico Tort Claims Act. Under that Act, according to

the complaint, the City is “directly liable for defendant Chavez’ deprivation of plaintiffs’

federal constitutional rights when done in the scope of defendant Chavez’ employment.”

       The defendants filed an answer to the plaintiffs’ complaint, denying, inter alia, the

allegation that there were “no exigent circumstances justifying the entry” and

affirmatively alleged that, in any event, Sergeant Chavez was entitled to qualified

immunity. Discovery ensued, whereupon the defendants filed a joint motion for summary

judgment. The thrust of that motion was that “exigent circumstances” did justify the


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warrantless entry into plaintiffs’ home, but that even if there were a “technical violation”

of the plaintiffs’ Fourth Amendment rights, Sergeant Chavez was entitled to qualified

immunity, which would shield both him and the City from suit or liability under 42

U.S.C. § 1983. After hearing, the district court granted the defendants’ motion for

summary judgment, holding that Sergeant Chavez was entitled to qualified immunity

which shielded both him and the City from suit. Plaintiffs appeal. We affirm.

       The record before the district court at the hearing on the defendants’ motion for

summary judgment included affidavits and depositions of both plaintiffs, as well as those

of Sergeant Chavez and his fellow officer, Detective Gilbert Zamora. From that we learn

that on the day in question Sergeant Chavez was on duty as a policeman for the City when

the police dispatcher sent out a call of a possible “domestic disturbance” at 1609 West

Gilbert, which had been reported on the 911 line by a neighbor, and that it was unknown

whether there were weapons involved. Sergeant Chavez, who was at the time on “solo”

duty, proceeded at once to 1609 West Gilbert, arriving at about the same time as a fellow

officer, Detective Zamora. In his affidavit, Sergeant Chavez stated that, as he approached

the residence at 1609 West Gilbert, he heard “a woman yell like she was being hurt.” In

his deposition, Sergeant Chavez testified that as he approached the premises of 1609 West

Gilbert he “heard a woman yelling” and didn’t “know if she was being hurt inside.” In

his deposition, Detective Zamora stated he heard “yelling” by a female coming from the

residence at 1609 West Gilbert.


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       In her affidavit, plaintiff Anna Dunlap stated that on the afternoon in question, she

and her husband, plaintiff Willie Brown, and her son were “playing ball in the kitchen of

our home in Belen and laughing,” but at no time was she “yelling.” In a written statement

to the police, Willie Brown stated that he and his wife and her son had been “playing a

game in the house with a rubber ball, [and were] yelling and laughing.”

       In his affidavit and deposition, Sergeant Chavez also stated that after hearing a

woman yell from inside the residence at 1609 West Gilbert, he also noticed a “male

subject move quickly across the room that was in front of the house” and thought that the

“man in the house had spotted [the officers] coming up the walk”.

       Such, then, was the general setting when Sergeant Chavez and Detective Zamora

entered the premises at 1609 West Gilbert without a warrant. As entering, Sergeant

Chavez removed his gun from his holster. Sergeant Chavez inquired as to what was

going on, to which Anna Dunlap was said to have replied, “We’re playing. Can’t

anybody even play in their house anymore?” After ascertaining that no one had been

hurt, or was about to be harmed, the officers asked for identification. While inside the

residence, the officers did not touch any person or thing. After satisfying themselves that

no one was in danger, the officers left, having been inside the residence but a short time.

       As indicated, the district court granted the defendants’ motion for summary

judgment, concluding that Sergeant Chavez was entitled to qualified immunity which

shielded both him and the City from suit or liability to the plaintiffs. We agree.


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      The doctrine of qualified immunity for government officials performing

discretionary duties has its modern origin in Harlow v. Fitzgerald, 457 U.S. 800 (1982),

where the Supreme Court spoke as follows:

                      Consistently with the balance at which we aimed in
              Butz, we conclude today that bare allegations of malice should
              not suffice to subject government officials either to the costs
              of trial or to the burdens of broad-reaching discovery. We
              therefore hold that government officials performing
              discretionary functions generally are shielded 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. See Procunier v.
              Navarette, 434 U.S. 555, 565 (1978); Wood v. Strickland, 420
              U.S. at 322.

Harlow, 457 U.S. at 817-18.

      Concerning the doctrine of qualified immunity for government officials, the

Supreme Court in Anderson v. Creighton, 483 U.S. 635 (1986) went on to speak

as follows:

                      When government officials abuse their offices,
              “action[s] for damages may offer the only realistic avenue for
              vindication of constitutional guarantees.” Harlow v.
              Fitzgerald, 457 U.S., at 814, 1025, S.Ct. at 2736. On the
              other hand, permitting damages suits against government
              officials can entail substantial social costs, including the risk
              that fear of personal monetary liability and harassing litigation
              will unduly inhibit officials in the discharge of their duties.
              Ibid. Our cases have accommodated these conflicting
              concerns by generally providing government officials
              performing discretionary functions with a qualified immunity,
              shielding them from civil damages liability as long as their
              actions could reasonably have been thought consistent with
              the rights they are alleged to have violated.

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Anderson, 483 U.S. at 638.

      And in Malley v. Briggs, 475 U.S. 335, (1985), the Supreme Court said:

                    As the qualified immunity defense has evolved, it
             provides ample protection to all but the plainly incompetent or
             those who knowingly violate the law. At common law, in
             cases where probable cause to arrest was lacking, a
             complaining witness’ immunity turned on the issue of malice,
             which was a jury question. Under the Harlow standard, on
             the other hand, an allegation of malice is not sufficient to
             defeat immunity if the defendant acted in an objectively
             reasonable manner. The Harlow standard is specifically
             designed to “avoid excessive disruption of government and
             permit the resolution of many insubstantial claims on
             summary judgment,” and we believe it sufficiently serves this
             goal.

Malley, 475 U.S. at 341.

      We have held that a motion for a summary judgment in a civil rights action differs

from the normal motion for summary judgment. In this particular connection, we spoke

in Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992), cert. denied 508 U.S. 592 (1993) as

follows:

                     Qualified immunity differs from other affirmative
             defenses in that it protects the defendant from the burdens
             associated with trial as well as from personal liability.
             Therefore, our review of the district court’s summary
             judgment determination differs from the norm. A defendant
             government official need only raise the qualified immunity
             defense to shift the summary judgment burden to the plaintiff.
             This burden is quite heavy for the plaintiff must do more than
             simply allege the violation of a general legal precept. The
             plaintiff must instead demonstrate a substantial
             correspondence between the conduct in question and prior law
             allegedly establishing that the defendant’s actions were

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              clearly prohibited. The contours of the right must be
              sufficiently clear that a reasonable official would understand
              that what he is doing violates that right. Clearly this standard
              does not require a precise factual analogy to pre-existing law;
              however, the plaintiff must demonstrate that the unlawfulness
              of the conduct was apparent in the light of pre-existing law.
              Once the plaintiff meets his burden of coming forward with
              facts or allegations which demonstrate that the defendant’s
              alleged violation should have been apparent in light of pre-
              existing law, the defendant assumes the normal burden of a
              movant for summary judgment of establishing that no material
              facts remain in dispute that would defeat her or his claim of
              qualified immunity. (internal quotations and citations
              omitted).

Jantz, 976 F.2d at 627.

       Under the authorities above cited, we conclude that the district court did not err in

granting the defendants’ motion for summary judgment. Under Harlow, Sergeant

Chavez, a government official who was performing discretionary functions, was shielded

from plaintiffs’ 42 U.S.C. § 1983 civil action if his conduct did not violate “clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow, 457 U.S. at 818. Under the facts and circumstances of the case,

Sergeant Chavez, as a reasonable person, would not have known that by entering

plaintiffs’ residence, believing that there was some sort of crisis going on therein, he was

violating clearly established rights of the plaintiffs.

       Under Anderson, Sergeant Chavez, a government official performing discretionary

functions, had qualified immunity, shielding him from an action of the present type, as

long as his actions could reasonably have been thought to be consistent with the rights he

                                              -7-
was alleged to have violated.

       In Malley, the Supreme Court stated that the qualified immunity granted

government officials performing discretionary functions “provides ample protection to all

but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at

341. Certainly Sergeant Chavez was neither “plainly incompetent” nor did he “knowingly

violate the law” when he entered plaintiffs’ residence without knocking when he believed

there was an emergency requiring instant action.

       Having concluded that the district court did not err in granting defendants’ motion

for summary judgment based on the qualified immunity granted Sergeant Chavez, and

inuring to the benefit of the City, we need not here concern ourselves with the question of

whether there actually were “exigent circumstances” which created an exception to the

right of the plaintiffs to be free from a warrantless entry into their home. Although

“exigent circumstances” and “qualified immunity” may be related, they are not

necessarily one and the same. In Guffey v. Wyatt, 18 F.3d 869 (10th Cir. 1994), we stated

that “[e]ven if defendant’s conduct proves unreasonable under the Fourth Amendment, it

‘may nevertheless be objectively reasonable for purposes of qualified immunity’. ” Id. at

873 (citing Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991)). We then went on to

say, in Guffey, that the “doctrine of qualified immunity leaves ‘ample room for mistaken

judgments’. ” Id. (citing Malley v. Briggs, 475 U.S. 335, 343 (1986)).

       Judgment affirmed.


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ENTERED FOR THE COURT,



Robert H. McWilliams
Senior Circuit Judge




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