                                                                          F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                         August 23, 2006
                                 T E N T H C IR C U IT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 R OBER T WH ITEWA T ER ; JU DY
 JOHNSO N, as next friend and parent
 of B ryan Johnson, a minor; B OADY
 JOHNSO N; CARRIE BAKER, as
 parent and next friend of Boady Baker,
 a minor child,

               Plaintiffs - Appellants,                    No. 05-7081

          v.                                             E. D. Oklahoma

 DELENA GOSS, in her official                         (D.C. No. 04-CV -2-P)
 capacity,

               Defendant - Appellee.



                            O R D E R A N D JU D G M E N T *


Before L U C E R O , PO R FILIO , and H A R T Z, Circuit Judges.


      Plaintiffs Robert W hitewater, Judy Johnson, Bryan Johnson, Boady

Johnson, Carrie Baker, and Boady Baker filed suit in the United States District

Court for the Eastern District of Oklahoma under 42 U.S.C. § 1983, alleging

violations of their constitutional rights arising out of the search of their home by


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
the Special W eapons and Tactics (SW AT) Team of the Cherokee County Sheriff’s

Department. The defendants w ere Sheriff Delena Goss, the Cherokee County

Board of C ommissioners, and several officers and employees of the Sheriff’s

Department. Plaintiffs voluntarily dismissed all their claims except claims

against Sheriff Goss in her official capacity. The district court granted summary

judgment on those claims. Plaintiffs appealed. W e have jurisdiction under

28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      On April 24, 2002, the SW AT team executed a search warrant for

Plaintiffs’ house. Sheriff Goss made the decision to use the SW AT team but did

not participate in the initial entry. The six Plaintiffs were in the house when the

SW AT team entered. They entered with guns drawn, secured the premises, and

escorted Plaintiffs outside w hile they searched the house. According to Plaintiffs,

12-year-old Bryan Johnson was held at gunpoint for at least 15 minutes during the

intrusion. After the search Robert W hitewater, Judy Johnson, and Boady Johnson

were arrested.

      Plaintiffs contend that two of their claims should have survived summary

judgment: (1) the Fourth Amendment was violated by Sheriff Goss’s decision to

employ the SW AT team w ithout first undertaking a reasonableness analysis, and




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(2) the Fourth Amendment was violated when Bryan Johnson was held at

gunpoint for 15 minutes.

II.      D ISC U SSIO N

         “W e review the district court’s grant of summary judgment de novo,

applying the same legal standard that should have been used by the district court.”

Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (internal

quotation marks omitted). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c).

         Plaintiffs’ suit against Sheriff Goss in her official capacity is equivalent to

a suit against Cherokee County (the County) itself. See Kentucky v. Graham, 473

U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than

name, to be treated as a suit against the entity.”). Therefore, we will henceforth

refer to the claim against the Sheriff as a claim against the County. Liability can

be imposed on the County only if (1) a constitutional violation occurred, see City

of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam), and (2) the

violation was caused by a government policy or custom, see Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978). A government policy or custom may be



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manifested either in the acts of “its law makers or by those whose edicts or acts

may fairly be said to represent official policy.” Id. at 694. It is not disputed that

the decisions of Sheriff Goss represent official policy. Cf. Bd. of County

Comm’rs v. Brown, 520 U.S. 397, 405 (1997) (sheriff’s hiring decisions were

official policy).

      Plaintiffs contend that liability here can be based on a County policy

regarding the use of firearms in executing a search and on the failure to train and

supervise the SW AT team. The Supreme Court in City of Canton v. Harris, 489

U.S. 378, 388-89 (1989), imposed strict limitations on when a municipality can be

liable under § 1983 for lapses in training:

      W e hold today that the inadequacy of police training may serve as the
      basis for § 1983 liability only where the failure to train amounts to
      deliberate indifference to the rights of persons with whom the police
      come into contact. This rule is most consistent with our admonition .
      . . that a municipality can be liable under § 1983 only where its
      policies are the moving force behind the constitutional violation.
      Only where a municipality’s failure to train its employees in a
      relevant respect evidences a deliberate indifference to the rights of
      its inhabitants can such a shortcoming be properly thought of as a
      city policy or custom that is actionable under § 1983. . . . Only
      where a failure to train reflects a deliberate or conscious choice by a
      municipality— a policy as defined by our prior cases— can a city be
      liable for such a failure under § 1983.

(internal citations, quotation marks, and brackets omitted). W e treat allegations

of failure to supervise (which often may be indistinguishable from failure to train)

the same way. See Medina v. City & County of Denver, 960 F.2d 1493, 1500



                                          -4-
(10th Cir. 1992); Schepp v. Fremont County, 900 F.2d 1448, 1454 (10th Cir.

1990); M eade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir. 1988).

       W e hold that Plaintiffs’ SWAT-team claim fails because use of the SW AT

team did not in itself violate Plaintiffs’ constitutional rights. As for the claim that

Bryan Johnson was improperly held at gunpoint, we need not decide whether this

was a constitutional violation, because any violation was not caused by a County

policy or custom.

       1.     U se of SW A T T eam

        The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. The Fourth Amendment requires examination

of not only whether a particular search or seizure was justified, but also whether

it w as conducted in a reasonable manner. See Tennessee v. Garner, 471 U.S. 1,

7-8 (1985). In Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001), we said

that “Fourth A mendment scrutiny extends . . . to the decision to employ a SWA T

team to make an arrest . . . and to conduct a search of a residence,” id. at 1189,

but that such a decision was not unreasonable unless the decisionmakers knew

“that the SW AT team w ould use excessive force, intending to cause harm to any

person, or . . . instructed the SW AT team to use excessive force while conducting

the . . . raid,” id. at 1191.



                                          -5-
      Plaintiffs contend that Sheriff Goss unreasonably decided to use the SW A T

team under a blanket policy to employ the team for all searches in narcotics cases.

But they have not presented any evidence that Sheriff Goss knew the team would

use excessive force, intended to cause harm, or instructed the team to use

excessive force. Without such evidence the mere decision to deploy a SW AT

team, even under a blanket rule, does not offend the Fourth Amendment. Cf.

Richards v. Wisconsin, 520 U.S. 385, 395 (1997) (rejecting a blanket exception to

the knock-and-announce rule in felony drug investigations, but concluding that

the particular no-knock entry at issue w as justified under the Fourth Amendment);

Heller, 475 U.S. at 799 (“If a person has suffered no constitutional injury at the

hands of the individual police officer, the fact that the departmental regulations

might have authorized the use of constitutionally excessive force is quite beside

the point.”).

      2.        H olding M inor at G unpoint

      Plaintiffs claim that the execution of the search was unreasonable under the

Fourth Amendment because a member of the SW AT team held Bryan Johnson, a

minor, at gunpoint for at least 15 minutes. But even if this action occurred and

was unreasonable, Plaintiffs have not shown that the County bears liability.

      First, Plaintiffs claim that the County is liable because of a departmental

policy requiring SW AT-team members to secure at gunpoint all occupants,



                                         -6-
including juveniles, until the residence has been secured. They conceded at oral

argument that this policy by itself is not unconstitutional, but asserted that the

policy caused the violation because Bryan Johnson was held at gunpoint for an

unreasonable length of time. W e disagree. A commonsense interpretation of this

policy would not authorize an officer to hold a 12-year-old at gunpoint for 15

minutes without reasonable grounds to do so. Plaintiffs have not shown a “direct

causal link” between the policy and the alleged constitutional deprivation.

Brown, 520 U.S. at 404.

      Next, Plaintiffs claim that the County can be held liable for failure to train

and supervise the SW AT-team members. Plaintiffs assert that Sheriff Goss did

not adequately train the SW AT-team members in SW AT tactics and procedures;

was not personally involved in drug investigations; did not require the deputies to

inform her of the progress of their investigations; did not establish a system for

her deputies to exchange information; allowed her main drug investigator to keep

“track of his investigations from memory” alone, Aplt. Br. at 38; did not review

the W hitewater search warrant; did not keep track of the SW AT team’s activities;

and did not require the deputies to document their activities during the execution

of a warrant.




                                          -7-
      These claims fail because Plaintiffs have not shown that Sheriff Goss acted

with the requisite deliberate indifference— a necessary element to a failure-to-

train or failure-to-supervise claim. As we recently stated:

      The deliberate indifference standard may be satisfied when the
      municipality has actual or constructive notice that its action or failure
      to act is substantially certain to result in a constitutional violation,
      and it consciously or deliberately chooses to disregard the risk of
      harm. In most instances, notice can be established by proving the
      existence of a pattern of tortious conduct. In a narrow range of
      circumstances, however, deliberate indifference may be found absent
      a pattern of unconstitutional behavior if a violation of federal rights
      is a highly predictable or plainly obvious consequence of a
      municipality’s action or inaction, such as w hen a municipality fails to
      train an employee in specific skills needed to handle recurring
      situations, thus presenting an obvious potential for constitutional
      violations.

Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir. 2003). It was undisputed that “the

people who were involved in the search were fully trained by the Council on Law

Enforcement Education and Training (‘CLEET’) and that they had all undergone

further continual training on various issues including SW AT training.” Aplee.

App. at 458 (Order of June 15, 2005 at 11). The district court found no evidence

of deliberate indifference on the part of the County in failing to train the team

members. Plaintiffs have pointed to no evidence that Sheriff Goss was put on

notice by information that the SW AT team had employed excessive force against

children on prior occasions or that such abuse is to be expected absent some

training not given to SW AT-team members. Plaintiffs’ bald allegations of



                                         -8-
training failures contrast with the evidence presented in Allen v. M uskogee, 119

F.3d 837 (10th Cir. 1997), in which we reversed a grant of summary judgment on

such a claim. In Allen the plaintiffs had presented expert testimony that “the

training was out of synch with the entire U nited States in terms of w hat police are

being trained to do.” Id. at 843 (internal quotation marks omitted). The evidence

here establishes only that the SW AT-team members were trained, and no evidence

was presented that the training was deficient under prevailing norms. Nor are the

supervisory failures referenced by Plaintiffs such that their “highly predictable or

plainly obvious consequence” would be holding a 12-year-old at gunpoint

without justification. Carr, 337 F.3d at 1229.

III.   C O N C L U SIO N

       W e AFFIRM the judgment of the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                          -9-
05-7081, W hitewater v. Goss
L U C E R O , J., dissenting.

      M y respected colleagues use a seemingly straightforward order and

judgment in resolving this case, yet, because the M ajority’s judgment fails to

adhere to the established precedent of this circuit, I must respectfully dissent.

      As daylight broke on April 24, 2002, thirteen members of the Cherokee

County Sheriff’s D epartment SW AT team – guns drawn and dressed in full

camouflage – stormed the residence of sixty-one-year old Robert W hitewater.

During the raid, all occupants of the home, including a twelve-year old child,

were secured at gunpoint and led outside. Although most of the M ajority’s

reasoning is sound, I cannot agree with its conclusion that Sheriff Goss’s decision

to deploy a SW AT team to conduct a search of the W hitewater residence was

reasonable, and therefore dissent as to that part of the opinion.

      M y colleagues recognize that in Holland v. Harrington, 268 F.3d 1179

(10th Cir. 2001), we held that the Fourth Amendment applies to the decision to

deploy a SW AT team. However, if precedential, the M ajority would reduce

Holland’s holding to the proposition that “unless the decisionmakers knew ‘that

the SW AT team w ould use excessive force, intending to cause harm to any

person, or . . . instructed the SW AT team to use excessive force while conducting

the . . . raid” such a decision is reasonable under the Fourth Amendment. M aj.

Op. at 5 (citing Holland v. Harrington, 268 F.3d at 1189).
      Such a reading of Holland impermissibly clashes with the clear text of the

decision. In Holland, we stated that use of a SW AT team to execute a search or

seizure “necessarily involves . . . an overwhelming show of force – force far

greater than that normally applied in police encounters with citizens.” Id. at

1190. Accordingly, the Holland panel had no difficulty in concluding that the

initial decision to deploy a SW AT team must be reasonable under the Fourth

Amendment. Id. It adopted the balancing test established by the Supreme Court

in Tennessee v. Garner, 471 U.S. 1 (1985), to judge the reasonableness of the

decision, “balancing the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the governmental interests

alleged to justify the intrusion.” Id. (citing Garner, 471 U.S. at 8). Under that

test, the Holland court concluded that the decision to deploy the SW AT team w as

reasonable because: (1) the officers knew that the individual that owned the

property had a violent criminal history; (2) firearms were suspected to be located

at the property; (3) the officers knew that other residents of the property had a

history of violence; (4) although unaw are of exactly how many residents were

located at the property, the officers suspected at least 7-8 adults resided there; and

(5) the use of a SW AT team w as based on the officers’ goal to effectuate a quick

and safe execution of the search warrant and prevent the destruction of evidence.

Id. at 1191.



                                          -2-
      Having analyzed whether the initial decision to deploy a SW AT team w as

reasonable, the Holland panel turned to the plaintiffs’ alternative theory that the

decision to deploy the SW AT team w as unreasonable because SW AT team

members actually used excessive force while executing the search. Id. Our

previous decision in Holland specifically noted that this second theory presented

“another matter.” Id. Our circuit then held that defendants as supervisors can not

be held liable for the actions of their deputies based on their decision to deploy

the SW AT team because they did not know “that the SW AT team would use

excessive force, intending to cause harm to any person, or . . . instructed the

SW AT team to use excessive force while conducting the . . . raid.” Id. at 1191.

      Under Holland’s balancing test, Sheriff Goss’s decision to deploy the

SW AT team to execute the search of W hitew ater’s residence was plainly

unreasonable. There is no evidence that W hitewater – whose only prior brushes

with the law consisted of public drunkeness convictions – presented any risk of

violence. Nor did Sheriff Goss have any reason to believe that the property itself

or its other occupants posed any threat to officer safety. The only identified basis

for the use of the SW AT team w as the potential presence of marijuana at the

W hitewater residence.

      Sheriff Goss, who made the final decision, testified in her deposition that

she could not think of any situation involving drugs of any kind where she would



                                          -3-
not use the SW AT team to execute the warrant. 1 Yet, the likelihood that narcotics

are present at a location does not by itself create a significant risk of violence to

justify the decision to deploy a SW AT team under Holland. See also Richards v.

W isconsin, 520 U.S. 385 (1997) (rejecting a categorical exception to the knock-

and-announce requirement for searches involving narcotics because “not every

drug investigation” will “pose special risks to officer safety and the preservation

of evidence”); United States v. Basham, 268 F.3d 1199, 1205-1206 (10th Cir.

2001) (rejecting the argument that “because a person is involved in the drug trade,

that person is likely to be dangerous or possess firearms”); United States v.

M yers, 106 F.3d 936, 940 (10th Cir. 1997) (rejecting the routine use of flash-bang

devices when executing search warrants, but finding a particular use of a flash-

bang device was justified because the suspect had a lengthy history of criminal

activity, including a conviction for fire-bombing).

      Through the present order and judgment, the M ajority’s purported

lim itation of H olland’s proscription, that disallows the blanket use of SW AT

teams to execute search and arrest warrants would scuttle Holland. Allowance of



      1
         Because this case was brought against the Sheriff in her official capacity,
the plaintiffs must also prove that the constitutional violation was caused by
governm ent policy or custom. Unquestionably, the decision to deploy the SWA T
team to execute the search of the W hitewater residence was the result of a policy
of the Cherokee County Sheriff’s Department. Bryan Swim, the SW AT team
leader, testified during his deposition that “it was determined that the SW AT team
would be used just pretty much on every search warrant that was executed.”

                                          -4-
the use of SW AT teams in virtually every case involving any quantity of drugs

whatsoever is unacceptable under the clearly established precedent of our court

and of the Supreme Court. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)

(“W e are bound by the precedent of prior panels absent en banc reconsideration or

a superseding contrary decision by the Supreme Court.”). I would reverse the

district court’s decision to grant summary judgment in favor of the County.




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