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Kendall v. Olsen

United States District Court, D. Utah, Central Division

February 17, 2017

SEAN KENDALL, Plaintiff,

          Dustin B. Pead Magistrate Judge


          Robert J. Shelby Judge

         This case arises from the 2014 shooting of Sean Kendall's dog by Salt Lake City Police Officer Brett Olsen during a search for a missing toddler. After the shooting, Kendall brought various state and federal claims against Olsen, the City, and several other officers. Both sides now move for summary judgment. For the reasons below, the court grants Defendants' Motion for Summary Judgment on Kendall's federal constitutional claims and remands the case back to state court for further proceedings on Kendall's state claims.


         On June 18, 2014, Officer Brett Olsen was patrolling the Sugar House neighborhood of Salt Lake City by motorcycle when he received word that a mother had reported her toddler missing from their home. Olsen quickly drove to the home, where several officers were already on the scene setting up a mobile command station. A supervisor, Lieutenant Purvis, instructed Olsen to begin canvassing the neighborhood in search of the missing boy. He alerted Olsen that the boy could not communicate verbally, and instructed that Olsen should therefore search everywhere visually. By the time Olsen began searching, it was believed the child had been missing for about an hour. This was significant, as time is generally thought to be crucial when searching for missing children, with the likelihood of positive outcomes decreasing significantly after about the first hour.

         Olsen teamed up with another officer and began traveling north from the missing boy's home, as depicted in the map below. The officers went house to house knocking on doors. Some homeowners invited the officers into their homes and yards to look around. If nobody was home, the officers would briefly check the backyard if it was unfenced or if a fence gate was unlocked. The officers searched several homes in this manner.

         (Image Omitted)

         Eventually, the officers arrived at Kendall's house, about ten homes away from the missing toddler's home. Olsen's partner went to the front door while Olsen walked to the side gate leading to Kendall's backyard, as depicted in the map above, and in greater detail in the overhead image of the home below. While his partner waited for a response, Olsen looked over the fence into the backyard at the location marked “Gate B” below.

         (Image Omitted)

         From his vantage point at Gate B, Olsen could not see the entire backyard. He testified that after hearing no response from his partner's knocking at the front door, he tried the gate, which was unlocked, and entered the backyard. Olsen walked through the backyard to a shed in the corner of the property (top right corner in the image above), checked the shed, and found nothing. According to Olsen, as he turned and began to leave, he heard a dog begin barking behind him. He turned back toward the shed and saw a 90-pound dog about 20-25 feet away “running toward [him] and barking loudly.” Presumably, the dog had emerged from a dog house wedged between the north side of the shed and the fence. Olsen began retreating quickly toward the gate, but the dog rapidly closed on him. Realizing he would not make it to the gate before the dog reached him, Olsen stopped, turned toward the dog, took “an aggressive stance, ” and stomped his foot, hoping the dog would back down. He did not, and, according to Olsen, instead continued to charge, barking with teeth bared. As the dog closed in to the point where Olsen felt it was “about to attack and to latch onto [him], ” Olsen withdrew his service firearm and fired twice, killing the dog a few feet from where Olsen stood. Olsen secured the area and notified his supervisor of the incident by radio.

         Ultimately, the missing boy was found unharmed sleeping in his family's basement underneath a box. Just over a year later, Kendall filed a Complaint in state court alleging federal and state constitutional violations as well as various other violations of state law. Defendants removed the case to federal court. Both parties now move for summary judgment on Kendall's federal constitutional claims.[1]


         Both sides contend the undisputed facts entitle them to summary judgment. Kendall argues Olsen's entrance into his backyard was an unconstitutional search and the shooting of his dog was an unconstitutional seizure under the Fourth Amendment.[2] Defendants contend Olsen's entrance into Kendall's backyard was not a search, and even if it was, it was justified by exigent circumstances-namely, the urgent need to find the missing toddler. As to the seizure, Defendants argue that the shooting of Kendall's dog was reasonable because the dog acted aggressively toward Olsen. Alternatively, Defendants argue that even if the search or seizure violated the Fourth Amendment, Olsen is not liable because he is protected by qualified immunity.

         I. The Qualified Immunity Doctrine

         Olsen's invocation of qualified immunity changes the constitutional analysis slightly, so before delving into the constitutional claims, the court first provides a brief discussion of qualified immunity. Kendall sued the City and the officers under 42 U.S.C. § 1983, which, in essence, allows a citizen to sue a government official, like a police officer, for any constitutional violations that official commits on the job. Allowing citizens to sue police officers, however, potentially leads to the unintended consequence of deterring officers from taking action in difficult situations for fear they may ultimately be sued. Indeed, “police officers are often forced to make split-second judgments . . . in circumstances that are tense, uncertain, and rapidly evolving.”[3] We rely on officers to make these difficult decisions quickly, even if it is not entirely clear exactly what the law requires in every circumstance, because “[p]eople could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process.”[4]

         Courts have developed the doctrine of qualified immunity to balance the competing interests of vindicating citizens' important constitutional rights with affording police officers some necessary leeway to make difficult decisions. Under this doctrine, an officer is liable for violating a constitutional right only if his mistake about what the law requires is unreasonable.[5]The court determines whether an officer's mistake was reasonable based on whether it resulted in him violating a constitutional right that has been clearly established by the courts.[6] Where a constitutional right has been clearly established, an officer is expected to be aware of it and to act accordingly. But where reasonable officers could disagree about whether an action is lawful- that is, where the right has not yet been clearly established-the officer will not be liable for his mistake.

         What this means for Kendall is that the law requires not only that he establish that Olsen violated the Fourth Amendment by searching his yard or seizing his dog, but also that any reasonable officer would know that the search or seizure was in violation of the Fourth Amendment in view of the specific circumstances presented. With these principles in mind, the court turns to the constitutional questions.

         II. The Search

         Kendall first claims that Olsen violated the Fourth Amendment by entering his backyard without a warrant. He contends that the search of a home and the surrounding area requires either a warrant or an exception to the warrant requirement, and that in this case Olsen had neither. In response, Defendants argue Olsen's limited sweep of Kendall's backyard was not a “search” within the meaning of the Fourth Amendment, and even it was, the warrant requirement was excused by the exception for exigent circumstances.

         The Fourth Amendment generally prohibits searching a home without a warrant.[7] And in certain circumstances, this prohibition extends to the area immediately surrounding the home, what is known as the “curtilage.”[8] Here, Olsen did not enter Kendall's home, but instead entered his backyard, which, according to Kendall, is protected Fourth Amendment curtilage. Defendants disagree. They contend Kendall's backyard was not sufficiently private to constitute protected curtilage, so Olsen's entrance into the backyard was not a “search” of any Fourth Amendment-protected area.

         The question of whether any particular backyard is or is not protected curtilage is not so clear cut. Indeed, it “depends upon a number of facts and factors, ” including how close the area is to the home, how the area is used, and what steps the homeowner has taken to ensure its privacy.[9] But the court need not answer that question today, for even assuming Kendall's backyard was protected Fourth Amendment curtilage-meaning Olsen's entrance into the backyard was a “search” for Fourth Amendment purposes-it was justified by the exigent circumstances of locating a missing child.

         As discussed, the Fourth Amendment typically requires a warrant to conduct a search, especially of the home, but that requirement is excused when an officer faces exigent circumstances, such as “assist[ing] persons who are seriously injured or threatened with such injury.”[10] A warrant, for example, “is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting, or to bring emergency aid to an injured person.”[11] Warrants take time, and in certain limited circumstances where time is of the essence, courts will not require one. To demonstrate the existence of one of these circumstances and invoke the exigency exception to the warrant requirement, an officer must demonstrate: (1) he had an objectively reasonable basis to believe there was an immediate need to protect the lives or safety of himself or others; and (2) the manner and scope of the resulting search was reasonable.[12]

         As to the first prong of the test, there can be no doubt that when a toddler goes missing there is an immediate need to protect life or safety. Courts have noted that “the problem of missing children is a profoundly serious one, ”[13] and Congress has recognized that “missing children are at a great risk.”[14] Kendall himself “concedes that . . . there were reasonable grounds for . . . Olsen to believe there was an urgent situation” because “to [his] knowledge, a two- or three-year-old boy was missing from his home.”[15] That there was an exigency does not appear to be in dispute.

         What is in dispute is the second prong of the test-the reasonableness of the scope and manner of the search for the child.[16] On this point, Defendants argue the scope of the search was reasonable because officers confined the search to places a toddler could have accessed in a radius surrounding his home within which he could have wandered in the time that had passed. And as to manner, Defendants argue the officers reasonably knocked first to ask homeowners for permission to look around, and absent homeowner permission they conducted only a quick sweep of open backyards, not the inside of homes or other locked areas. Kendall disagrees, arguing it was unreasonable for officers to conduct a blanket search of any area within a certain radius of the missing child's home.

         The scope of a search is reasonable when the search is limited to “the locations where a victim might likely be found, ” and the manner of searching is reasonable when the intrusion is no greater than necessary given the exigency.[17] Here, the toddler had been missing for an hour by the time Olsen began canvassing the neighborhood, and the child's mother gave officers no indication of what direction he may have wandered. Given these facts, the court finds it was reasonable for officers to confine the scope of the search to places to which a toddler could have walked in the hour or so that had passed, and within that radius to further confine the search to areas a toddler could have actually have accessed, like open and unlocked backyards. Considering the limited information officers were given, these were the locations where the toddler might likely be found. As to the manner, the court concludes that the intrusion- knocking on doors and quickly sweeping unlocked backyards-was no greater than necessary, especially considering the nature of the exigency, and, in particular, the fact that the missing boy was noncommunicative and had to be located visually.

         Kendall's main area of disagreement is with the reasonableness of the scope of the search. According to Kendall, accessibility and proximity to a missing child are not enough to justify searches of neighboring yards. He contends the mere fact that a yard is accessible to a toddler and is within walking distance of the toddler's home, on its own, is insufficient to tie a search of the yard to the exigency of the missing toddler. Instead, Kendall proposes a different rule: that an exigency-based search of a yard for a missing toddler is constitutional only if there is a reasonable basis, aside from access and proximity, to believe the toddler is in that particular yard, as opposed to any other accessible yard within walking distance.

         Kendall's interpretation is not borne out by the case law, nor does it comport with the realities of on-the-ground police work. In support of his proposed rule, Kendall cites a line from United States v. Gambino-Zavala, where the Tenth Circuit framed the exigency exception as requiring that “the government must show the officers reasonably believed a person inside the home was in immediate need of aid or protection.”[18] Kendall seizes on this reference to the home to support his interpretation that Olsen was required to make a home-by-home determination of whether the toddler was likely to be in that particular home, rather than merely relying on the fact that a home was one of many accessible to and within walking distance of the missing child.

         The court disagrees. Gambino-Zavala focused on the home because in that case, the exigency was limited to one home; a neighbor heard gunshots in a particular unit, and officers subsequently searched that unit to determine if anyone inside was injured.[19] Nothing in Gambino-Zavala, or in Tenth Circuit law in general, purports to require the narrow focus Kendall proposes. Indeed, the Tenth Circuit used to require something similar-a “reasonable basis, approaching probable cause, to associate the emergency with the place to be searched”- but in 2006 replaced it with the more general requirement that “the manner and scope of the search [must be] reasonable.”[20]

         This general reasonableness requirement reflects the reality that not all exigencies are neatly confined to one home. To be sure, in the case of a neighbor reporting gunshots from a particular home, the “locations where a victim might likely be found” may well be limited to that one home.[21] But in cases like this one, where a child has been missing for an hour, the child might likely be found anywhere within a several-block radius. The Tenth Circuit's reasonableness requirement accommodates this ...

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