UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BONNIE VELASCO; JAMIE VELASCO;
DRU VELASCO, by and through her
Mother, Bonnie Velasco; DARREN
VELASCO, by and through his
Mother, Bonnie Velasco,
                                                                       No. 96-2448
Plaintiffs-Appellants,

v.

WILLIAM F. FAIRALL,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CA-94-282-DKC)

Submitted: December 9, 1997

Decided: February 6, 1998

Before WIDENER, HALL, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Matt P. Lavine, College Park, Maryland, for Appellants. Daniel Karp,
Kevin Karpinski, ALLEN, JOHNSON, ALEXANDER & KARP,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bonnie Velasco filed suit pursuant to 42 U.S.C.§ 1983 (1994), on
behalf of herself and her minor children against City of Laurel Police
Officer William F. Fairall. She alleged that he violated their Fourth
Amendment rights by mistakenly ordering an Emergency Response
Team ("ERT") into their house which conducted an unreasonable
search. Velasco further alleged loss of consortium as a result of the
constitutional violations. This appeal arises from the district court's
order of summary judgment in favor of Fairall on all claims. We
affirm.

Summary judgment is appropriate against a party who fails to make
a showing sufficient to establish the existence of an element essential
to her case, and on which she will bear the burden of proof at trial.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We view the
facts in the light most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The record discloses that Fairall was responsible for the execution
of a search and seizure warrant at 14827 Belle Ami Drive. After brief-
ing with the ERT, Fairall drove by the target residence, with the
understanding that it was the sixth door in from the end of a town-
house row and near a hexagonal window. After identifying a resi-
dence fitting that description, Fairall positioned himself near the
perceived target residence and attempted to verify with the ERT
leader that 14823 was the correct number of the target residence. Due
to a misunderstanding, however, Fairall took the ERT leader's
response to his verification request as confirmation that 14823 was
the correct residence.

The ERT entered the Velasco residence, located at 14823 Belle
Ami Drive, at approximately 10:30 p.m. At the time, Velasco and her

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minor children were sleeping. Velasco awoke hearing loud noises and
observed three men wearing masks and carrying firearms enter
through the front door. While running to her daughter's room to pro-
tect her, she noticed one of the intruders enter her son's room. The
men left after realizing they entered the wrong residence.

Fairall entered the Velasco residence and identified himself and the
other men as police officers executing a search warrant for a different
residence. He apologized for the intrusion and for mistakenly entering
her home. Fairall secured the front door and assured Velasco that she
would be reimbursed for any damages.

Velasco first maintains that Fairall's action in mistakenly sending
the ERT into her home violated her Fourth Amendment rights. The
district court awarded summary judgment to Fairall on the ground that
he was entitled to qualified immunity without addressing whether the
Velascos' Fourth Amendment rights were violated. We review de
novo the district court's grant of summary judgment based on a find-
ing of qualified immunity. See Pritchett v. Alford, 973 F.2d 307, 313
(4th Cir. 1992).

Police officers sued under 42 U.S.C. § 1983 are not entitled to
qualified immunity if, in performing discretionary functions, they
engage in conduct that violates "`clearly established constitutional
rights of which a reasonable person would have known.'" Pritchett,
973 F.2d at 312 (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818
(1982)). The factors to be considered in ruling on a qualified immu-
nity defense are (1) identification of the specific right allegedly vio-
lated; (2) whether the right was clearly established at the time of the
alleged violation; and (3) if so, whether a reasonable person in the
officer's position would have known that his actions would violate
that right. Id. "The tolerance . . . accorded by the qualified immunity
defense to `good faith' mistakes of judgment traceable to unsettled
law, or faulty information, or contextual exigencies, is deliberately
designed to give protection to `all but the plainly incompetent or those
who knowingly violate the law,' . . . in order to avoid undue inhibi-
tions in the performance of official duties." Id. at 313 (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)). A police officer is entitled to
qualified immunity if a reasonable officer possessing the same infor-
mation would have believed his conduct was lawful. See Shaw v.

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Stroud, 13 F.3d 791, 801 (4th Cir. 1994). The Fourth Amendment
clearly provides the Velascos a right to privacy in their own home and
to be secure in it. See Maryland v. Garrison, 480 U.S. 79, 86 (1987).
The reasonableness of the officer's mistake in executing the warrant
depends upon whether it was "objectively understandable and reason-
able" and whether "the officer['s] conduct was consistent with a rea-
sonable effort to ascertain and identify the place intended to be
searched within the meaning of the Fourth Amendment." Id. at 88-89.

Here, Fairall drove by the target residence and later identified the
residence based on the description he received. He attempted to verify
the address but due to miscommunication erroneously assumed the
response as confirmation. Because Fairall took reasonable steps to
ensure that the ERT entered the correct residence and a reasonable
officer under similar circumstances would believe he was acting law-
fully, Fairall is entitled to qualified immunity. We affirm summary
judgment on this claim.

Velasco also maintains that Fairall is liable under 42 U.S.C. § 1983
for ERT's unreasonable conduct. Because there is no evidence that
Fairall was personally involved in the actual search of the home, only
supervisor liability can lie. See Lopez v. Robinson, 914 F.2d 486, 494
(4th Cir. 1990). Supervisor liability under 42 U.S.C. § 1983 may be
imposed when (1) the supervisor had actual or constructive knowl-
edge that his subordinate was engaged in conduct that posed a perva-
sive and unreasonable risk of constitutional injury to citizens like the
plaintiff; (2) the supervisor's response to the knowledge was so inad-
equate as to show deliberate indifference to or tacit authorization of
the alleged offensive practices, and (3) there was an affirmative
causal link between the supervisor's inaction and the particular con-
stitutional injury suffered by the plaintiff. See Shaw, 13 F.3d at 799.

In the instant case, there is neither allegation nor evidence that the
ERT engaged in similar conduct in the past much less that it was
widespread. As such, there is no evidence that Fairall was aware of
ERT's conduct or that he demonstrated inaction in the face of wide-
spread abuses by the ERT. See id. Hence, the district court properly
granted summary judgment on the claim of supervisor liability, con-
cluding that even if the ERT's conduct violated the Velascos' Fourth
Amendment rights, Fairall could not be held responsible under a

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supervisor liability theory. Because Fairall is not liable to the Velas-
cos for ERT's mistaken entry into their home and their subsequent
search, the district court properly granted summary judgment on the
loss of consortium claim.

Accordingly, we affirm the district court's judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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