                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2009

Kirley v. Williams
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2728




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"Kirley v. Williams" (2009). 2009 Decisions. Paper 1405.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1405


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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                 ________

                                    No. 07-2728
                                     _________

                               KAREN SUE KIRLEY,
                                              Appellant

                                           v.

                       OFFICER MATTHEW WILLIAMS;
                              OFFICER VICTORY,
                           City of Erie Police Officers;
                       CITY OF ERIE, PENNSYLVANIA;
                     CHIEF OF POLICE CHARLES BOWERS
                                    _________

                   On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 02-cv-00355)
                   District Judge: Honorable Maurice B. Cohill, Jr.
                                     __________

                              Argued January 27, 2009

                   Before: RENDELL and SMITH, Circuit Judges,
                           and POLLAK*, District Judge.

                                 (Filed:May 5, 2009)




__________________

   * Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
Timothy P. O’Brien, Esq.    [ARGUED]
Allegheny Building
Suite 1705
429 Forbes Avenue
Pittsburgh, PA 15219

Counsel for Appellant
 Karen Sue Kirley


Audrey Copeland, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
620 Freedom Business Center, Suite 300
King of Prussia, PA 19406

Charles W. Craven, Esq.
James W. Gicking, Esq.   [ARGUED]
Marshall, Dennehey, Warner, Coleman & Goggin
8th Floor
1845 Walnut Street
Philadelphia, PA 19103

Counsel for Appellees
  Officer Matthew Williams; Officer Victory;
  City of Erie Police Officers; City of Erie, Pennsylvania;
  Chief of Police Charles Bowers


                                       __________

                               OPINION OF THE COURT
                                     __________


RENDELL, Circuit Judge.

       Appellant Karen Sue Kirley brought a 42 U.S.C. § 1983 action in the U.S. District

Court for the Western District of Pennsylvania asserting several claims against the City of



                                             2
Erie and several police officials arising from a warrantless entry by two officers into her

home, over her objection. The officers had effected the entry to help Kirley’s son collect

his belongings from the residence. After Kirley concluded her case in chief, the parties

made cross motions for judgment as a matter of law under Federal Rule of Civil

Procedure 50 (“Rule 50”). The District Court denied Kirley’s motion, and granted

Appellees’ motion in part, upon concluding that the entry did not violate Kirley’s Fourth

Amendment rights. The jury returned a verdict for Appellees on all remaining claims.

On appeal, Kirley challenges the Rule 50 order of the District Court and certain rulings

relating to jury instructions.1 Because we conclude that facts material to the

constitutionality of the entry are in dispute, we will reverse the District Court’s order

granting judgment as a matter of law to Appellees and remand for a new trial addressing,

and limited to, the Fourth Amendment entry issue. We will affirm on all other grounds.

       Because we write for the benefit of the parties, we only briefly summarize the

essential facts. Mrs. Kirley lived at her house in Erie with her daughter and her 18-year-

old son Mark. At some point during the long Presidents’ Day weekend of 2002, Mark left

the house and spent at least one night at the home of his girlfriend’s family. During his

absence, Mrs. Kirley apparently changed the locks to her house. On the evening of




  1
    In her notice of appeal, Kirley also included a June 28, 2006 order of the District
Court denying her motion for partial summary judgment. Kirley did not address this
order in her briefs or at argument. We conclude she has abandoned the issue and we will
affirm this order. See Hoxha v. Holder, 559 F.3d 157, 162-63 (3d Cir. 2009).

                                              3
Monday, February 18, Mark returned to the house with his girlfriend’s father,

Mr. Christmas, in order to collect belongings he needed for school the following day.

Mrs. Kirley was not home, and the two apparently tried Mark’s key unsuccessfully. After

Mark and Mr. Christmas returned to Christmas’s vehicle, Mrs. Kirley returned home and

entered the premises. Mr. Christmas called the police, and Defendants Williams and

Victory were dispatched.

       Officer Williams had a brief conversation with Mr. Christmas and Mark and came

to understand that Mark intended to move out of the house, and that he wanted to collect

some of his belongings. Williams learned that Mark was 18, and Mark showed him a key

that Williams apparently understood to be a key to the residence. Williams testified that

he was free to ask any questions he wished, but he did not inquire as to whether Mark had

tried to use his key. Williams further testified that he did not believe there was any

danger of violence between Mrs. Kirley and her son. Officer Williams went to the house

and spoke to Mrs. Kirley. It is undisputed that Mrs. Kirley repeatedly stated that Mark no

longer lived in the house, and that neither Mark nor the officers were welcome to enter.

Notwithstanding Mrs. Kirley’s objections, Officers Williams and Victory entered the

premises with Mark and assisted him in collecting certain items. The interactions

between Mrs. Kirley and the officers became heated, and the officers ultimately arrested

her for harassment, a charge that was later dismissed.




                                              4
       Mrs. Kirley brought suit alleging that the officers were liable under § 1983 for

entering her house in violation of her Fourth Amendment rights, and that the City of Erie

was also liable because the officers were acting pursuant to express policies of the police

department. She also asserted excessive force, false arrest, and malicious prosecution

claims arising from events that occurred after the entry. The District Court denied a

pre-trial motion by Appellees for summary judgment on the basis of qualified immunity.

Kirley v. Williams, 2007 WL 543032 (W.D. Pa.). The Court determined that qualified

immunity was unavailable as to the entry because facts were in dispute as to whether

Mark had apparent authority to consent to the search. The District Court noted that, under

clearly established law at the time and viewing the facts in Mrs. Kirley’s favor,

“[a] reasonable officer” confronted by Mrs. Kirley’s objections “would have at least

refused to enter the property until he was satisfied that consent was given. The

information arguably in Officer Williams’ possession could not reasonably have

supported the belief that his actions were constitutional.” Id. at *8 (citation omitted).

Officer Williams subsequently testified at trial that Mrs. Kirley stated that Mark no longer

lived in the house, and that she objected to the entry.

       At the conclusion of Mrs. Kirley’s case in chief, both she and Appellees moved for

judgment as a matter of law pursuant to Rule 50(a). The District Court denied Kirley’s

motion, and granted Appellees’ motion solely on the issue of the legality of the entry,

concluding that there was no constitutional violation as a matter of law because



                                              5
undisputed facts demonstrated that Mark still lived in the home and had actual and

apparent authority to consent to the police entry.2 The Court distinguished the intervening

case of Georgia v. Randolph, 547 U.S. 103 (2006), in which the Supreme Court ruled that

the consent of one tenant to a warrantless search for evidence was negated by the

objections of a present co-tenant. Id. at 120. The District Court noted that the case at bar

did not involve a search for evidence, and pointed to dicta in Randolph suggesting that its

holding would not apply to a police entry for the assistance of a domestic abuse victim.

See id. at 118-19. The trial proceeded on the surviving claims and the jury returned a

verdict for Appellees on all counts.

       With regard to the Rule 50(a) motions, Kirley’s basic arguments are: (1) the

District Court erred in denying her motion and granting Appellees’ motion in part because

the undisputed facts establish that the entry was unconstitutional under the law as

currently understood, and under clearly established law in 2002; and (2) even if qualified

immunity were deemed to shield the officers from liability, the doctrine is inapplicable to

her claim against the City of Erie. Appellees respond that: (1) the District Court’s Rule

50(a) decisions were correct because the entry was constitutional as a matter of current




  2
   Because the District Court resolved the Rule 50(a) motions by finding there was no
constitutional violation under the law as currently understood, it did not reach the
qualified immunity inquiry of whether the officers’ conduct violated clearly established
law at the time of the entry.

                                             6
case law; and (2) even if the entry was unconstitutional under current case law, it did not

violate clearly established law at the time, and qualified immunity therefore applies.3

       We conclude that the District Court erred in granting Appellees’ Rule 50(a) motion

as to the officers’ entry into Kirley’s home. The District Court could not conclude that

Mark Kirley had either actual or apparent authority as a matter of law because facts

material to these determinations were in dispute. Actual authority for a third party to

consent to an entry by police exists when the third party has common authority over a

premises. See United States v. Matlock, 415 U.S. 164, 171 (1974). It is undisputed that

Mark Kirley had spent at least one night away from Mrs. Kirley’s residence and that he

intended to continue living elsewhere. Evidence was also produced that Mrs. Kirley

changed the locks on the house after Mark left. A reasonable juror could have concluded

that Mark no longer lived in the house, and therefore lacked common authority over the

premises. Moreover, Mrs. Kirley testified that Mark was never allowed to invite other




  3
    We have jurisdiction to review the District Court’s order under 28 U.S.C. § 1291, and
our review is plenary. Lakeside Resort Enterprises, LP v. Board of Sup’rs of Palmyra Tp.
455 F.3d 154, 156 (3d Cir. 2006). “We must view the evidence in a light most favorable
to the non-moving party and must give the non-moving party the benefit of all reasonable
inferences that can be drawn in its favor.” Id. (internal quotations and ellipses omitted).
We reject Appellees’ argument, based on Unitherm Food Systems, Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394 (2006), that we lack jurisdiction because Kirley did not renew her
motion after the verdict under Rule 50(b) . A dispositive difference between this case and
Unitherm is that the District Court simultaneously denied Kirley’s Rule 50(a) motion and
granted Appellees’ motion in part at the conclusion of Kirley’s case in chief. The entry
claim was taken from the jury at that time, and Kirley had no obligation to renew her
motion after the verdict on her surviving claims.

                                             7
people into the house without her permission. A juror could also conclude from this

testimony that Mark lacked common authority even if he had not moved out.

       A third party has apparent authority to consent to an entry by police when the

circumstances presented to the officer cause the officer to reasonably believe that the

third party has common authority over the premises, even though the third party does not

in fact have such authority. Illinois v. Rodriguez, 497 U.S. 177, 179 (1990). Even if the

consenting party makes an explicit claim as to residing in a premises, circumstances

“could conceivably be such that a reasonable person would doubt its truth and not act

upon it without further inquiry.” Id. at 188. Here, it is undisputed that Officer Williams

knew that Mark had spent at least one night elsewhere, and that Mrs. Kirley repeatedly

stated that Mark no longer lived in the house. The record also demonstrates that Officer

Williams was free to ask any questions he wished of Mark, but he did not inquire further

after hearing Mrs. Kirley’s objections. A reasonable juror could conclude that, under the

circumstances facing Officer Williams, a reasonable person would have either concluded

that Mark did not have authority over the premises, or that further inquiry was warranted.

For these reasons, we conclude that the District Court erred in determining that the entry

into Mrs. Kirley’s home was constitutional as a matter of law.4


  4
   Although our analysis turns on the District Court’s application of the actual and
apparent authority doctrines, it is not clear that the record supports the District Court’s
view regarding the effect of Georgia v. Randolph, 547 U.S. 103 (2006). The District
Court determined Randolph to be inapplicable because the entry in the instant matter was
                                                                                 (continued...)

                                              8
       Appellees contend that, even if the District Court erred in concluding there was no

constitutional violation as a matter of law, the officers’ conduct is shielded by the

doctrine of qualified immunity because their conduct did not violate clearly established

law at the time of the entry. However, the relevant law regarding actual and apparent

authority predates the events of this case. Since, as discussed above, facts material to

these inquiries are in dispute, we cannot decide that qualified immunity is available to the

Appellee officers as a matter of law.5 Moreover, the doctrine of qualified immunity is

unavailable to municipalities such as Appellee City of Erie. See Owen v. City of

Independence, 445 U.S. 622, 638 (1980) (a “municipality may not assert the good faith of

its officers or agents as a defense to liability under § 1983”).




  4
    (...continued)
not a search for evidence, and because Randolph articulates an exception for domestic
violence situations. We note that this Court has never drawn a constitutional distinction
between entries for evidence and entries for other purposes, and we have at least assumed
that an entry to assist one tenant may violate the Fourth Amendment rights of a co-tenant.
See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 192-93 (3d Cir. 2005).
Furthermore, it is undisputed that Officer Williams perceived no threat of violence
between Mrs. Kirley and her son, and it is unclear from the record as it stands whether the
officers were responding to a cognizable exigency by helping Mark enter the home over
his mother’s objections.
  5
   While the ultimate question of whether an officer made a reasonable mistake of law,
and is thus shielded by qualified immunity, is reserved for the court, Curley v. Klem, 499
F.3d 199, 211 (3d Cir. 2007), disputed issues of fact necessary for the resolution of this
question must be submitted to the jury. See Monteiro v. City of Elizabeth, 436 F.3d 397,
405 (3d Cir. 2006).

                                               9
       In light of the foregoing, we will REVERSE the District Court’s order and

REMAND the matter for a new trial on Mrs. Kirley’s claim that the entry by police

into her home violated her Fourth Amendment rights.6      We will AFFIRM on all other

grounds.7




  6
    We agree with Appellees that the claims already decided by the jury were independent
of Kirley’s entry claim and need not be retried. The District Court’s error with regard to
her entry claim did not affect an element of the verdict so as to draw into question the
determination of the other issues. See Pryer v. Slavic, 251 F.3d 448, 455 (3d Cir. 2001).
Further, we reject Mrs. Kirley’s argument that the District Court abused its discretion by
refusing to adopt six of her proposed instructions to the jury on the remaining post-entry
claims. These proposed instructions asserted, on various questionable grounds, that
Kirley’s conduct after the entry was constitutionally protected. Even if these novel
instructions were not misstatements of law, Kirley offers no support for her claim that the
District Court was required to give them to the jury. We also reject Kirley’s argument
that the District Court erred by failing to correct misstatements of law by Appellees
during opening and closing arguments. It is clear from the record that the District Court
appropriately instructed the jury that the Court alone was the authority on interpretations
of law.
  7
   We will not disturb the District Court’s denial of Mrs. Kirley’s Rule 50(a) motion
because genuine issues of material fact existed after her case in chief, thus making denial
of her motion proper.

                                            10
