Nothing Good Happens After Midnight: Bonivert v City of Clarkston

As an officer of the law, it is your duty and your right to protect and serve your community. But what happens if you find yourself in a potential situation of domestic violence that is happening behind a closed and locked door? In Bonivert v City of Clarkston, the 9th Circuit takes a closer look at the law surrounding an officer’s ability to enter a house during a domestic violence incident. Here is a closer look at the case and an analysis of the Court’s Findings.

FACTS

In the early morning hours of January 8th, 2012, Clarkston PD officers responded to a domestic dispute at the home of Ryan Bonivert. Officers arrived to find a number of people outside of the home and only Bonivert remained inside. The officers spoke with Bonivert’s girlfriend – Jessie Ausman – and the other witnesses. Ausman was holding her 9-month old daughter and no one was injured during the events that took place inside the home, although several witnesses claimed Bonivert had grabbed Ausman and had thrown her to the ground. Several other witnesses claimed they restrained Bonivert and he had not assaulted anyone including Ausman. All of the witnesses admitted they had been drinking all night.
Ausman advised the officers that there were no weapons in the house, she did not believe Bonivert was a danger to himself or others and that Bonivert “had a problem with authority” and would probably be angry if the police forced entry. Ausman then gave police consent to enter.

Police Actions:

  • Officers called for backup from the Sheriff’s office and advised the dispatcher that the scene was secured and there were no injuries.
  • The officers then attempted to speak with Bonivert. However, Bonivert had locked all of the doors to the house and indicated he did not wish to speak with the officers.
  • Officers broke a window in the rear door of the house and partially opened the door. They deployed their Tasers but Bonivert brushed away the darts and attempted to close the door. The officers forced open the door, wrestled with Bonivert, applied the Taser in drive-stun mode several times and finally handcuffed Bonivert. The TASER download showed the officer had drive-stunned Bonivert four times in less than a minute.

Bonivert was arrested for assaulting an officer, resisting arrest and domestic assault. Bonivert brought a Section 1983 claim against the City and County officers claiming officers conducted an improper warrantless entry and excessive force. The trial court granted the defendant officers’ motion for summary judgment based on qualified immunity and Bonivert appealed.

COURT FINDINGS

The defendant officers claimed their entry into the home was proper based on several exclusions to the warrant requirement:

  • The “Consent” exception;
  • The “Emergency” exception; and
  • The “Exigent Circumstances” exception

Since each of these factors often come into play during a domestic investigation the law related to each exception is worth reviewing here:

  • The “Consent” Exception:
    • Georgia v Randolph: SCOTUS held that a warrantless search of a home is unreasonable when a spouse or co-tenant is present and expressly refuses the consent for entry granted by the other spouse. While the Randolph case makes an exception if there is a viable threat to the spouse, in this case, the wife and baby were safely isolated outside of the home. Denying the officer’s qualified immunity based on a proper consent search the court held that “any reasonable officer would have known that “no” means no”.
  • The “Emergency Exception”:
    • Supports the warrantless entry. The court determined the number of factors refuted any need to enter based on this exception:
      • Bonivert’s wife claimed he was unarmed and not a danger to himself or others;
      • Officers observed Bonivert moving from room to room with no weapons or apparent injury; and
      • The senior officer had advised the dispatcher the scene was “Code 4” which he later testified “meant there was no immediate danger of death or physical harm”.
  • The “Exigent Circumstances” Exception:
    • There was no claim that there was evidence of a crime within the home and the officers testified their only reason for entering the house was to “assess Bonivert’s mental state”.

The court also determined the claims of excessive force raised factual issues that needed to be determined by the jury.

The final legal issue is a claim made by the defendant sheriff deputies. They claimed they were entitled to qualified immunity since the decision to enter the home was made by the city officers. The 9th Circuit denied the claim finding that the deputies developed a plan of entry with the city officers, provided armed backup and entered the house with the city officers. Based on their actions the court determined the deputies were “integral participants” in the illegal entry and, therefore, qualified immunity protection was not available.

TAKEAWAYS

This case will now go back to the trial court. Whether it goes to trial or settles remains to be seen, but the case raises a number of procedural issues we often face in domestic investigations.

Here, it appears the scene is secured, everyone is safe and there is no possibility of harm to the wife, the baby or any witnesses. What does your agency policy say with regard to entry into the house in this situation?

The prudent move may be to assure safe accommodations for the wife and baby for the night, take statements from the various witnesses and follow up with an arrest warrant affidavit or follow-up interview with Bonivert the next day.

Another takeaway can be seen with the sheriff deputies in this case: remember that whether you are providing backup to your own agency personnel or officers from another agency, each officer has a duty to raise questions concerning improper police actions BEFORE they occur in order to protect yourself and your agency from subsequent liability.

While we want to keep everyone safe, especially in situations of potential domestic violence, it is important to remember procedure and protocols that your agency has in place so that you can also protect yourself.