[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:11-CV-01773-RPM).
David A. Lane (Sarah M. Morris with him on the briefs) of Killmer Lane & Newman, LLP, Denver, Colorado, for Plaintiff-Appellant.
Skippere S. Spear, Senior Assistant Attorney General, Colorado Department of Law, Denver, Colorado, for Defendant-Appellee.
Before MATHESON, SEYMOUR, and McHUGH, Circuit Judges.
SEYMOUR, Circuit Judge.
Joan McInerney filed suit pursuant to 42 U.S.C. § 1983 against Dennis King, a part-time officer with the Colorado School of Mines Police Department, and Deputy Sheriff Brian McLaughlin, alleging that their warrantless entry into her home violated the Fourth Amendment. Ms. McInerney appeals from the district court's grant of Officer King's motion for summary judgment based on qualified immunity. We reverse and remand.
" We review a grant of summary judgment based on qualified immunity de novo, applying the same legal standard used by the district court." Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir. 2007). In conducting our review, " [w]e view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Id. (alteration in original) (internal quotation marks omitted). The facts, taken in the light most favorable to Ms. McInerney, are as follows.
In July 2009, Officer King was assigned to investigate a complaint that Ms. McInerney had shoved her ex-husband's girlfriend several feet in an incident on the School of Mines campus. During his investigation, Officer King contacted the ex-husband, Dr. John McInerney, who gave him an address for Ms. McInerney in Golden, Colorado. Officer King went to her home about 7:40 a.m. on Sunday, July 26, 2009, to serve her with a summons for harassment, a violation of the Golden municipal code. He noticed two open front windows, one of which had no screen. A third window had a piece of window trim hanging from it. The front screen door was open and had a broken shock arm, and the front door was open about six inches. The garage door was also open and belongings were strewn about inside. No broken glass was visible anywhere.
Officer King did not knock on the door or announce his presence, and he did not attempt to contact Ms. McInerney by phone. As he stated in an affidavit, the condition of Ms. McInerney's home " caused me concern, including over officer safety." Aplt. App. at 89. He concluded that the matter no longer involved solely the service of a summons, which was the extent of his authority off campus, so he contacted the Jefferson County Sheriff's Office. While waiting for a deputy to arrive, he went to a nearby corner where he continued to watch the house, which remained quiet.
Deputy McLaughlin, an officer with twenty-five years of experience, arrived on the scene at 7:53 a.m. Officer King briefed him on what he had observed. Deputy McLaughlin asked Officer King if he had attempted to contact Ms. McInerney by phone, but he admitted he had not. Officer King said in his deposition that he never told Deputy McLaughlin he thought there was an ongoing emergency. He also admitted that he never noticed any broken glass or blood anywhere at the house. Id. at 212. He subsequently testified in Golden Municipal Court that it is not unusual for people to leave their windows open on hot summer nights. Aplt. Supp. App. at 135. At 8:06 a.m., thirteen minutes after Deputy McLaughlin arrived and twenty-six minutes after Officer King arrived, the two officers went to the front porch of the residence and knocked and announced their presence several times.
Neighbors responded, but no one came to the door. Ms. McInerney later testified that she was sound asleep in her bedroom so early on a Sunday morning with a noisy air conditioner three feet from the head of her bed, and that her car was parked out front. Deputy McLaughlin pushed the partially open front door all the way open, revealing a laptop computer on a table within five feet of the door. At this point Deputy McLaughlin said to Officer King, " well, I guess we better do a welfare check and . . . see why the house is open." Aplt. App. at 219.
Deputy McLaughlin radioed his dispatcher to say he was entering the home to perform a welfare check. Officer King left his clipboard with the summons on the front porch, and both officers entered with their guns drawn. As subsequently described by the district court:
With his firearm drawn, McLaughlin entered the house, followed by King who also had his weapon drawn. McLaughlin checked the living room and one bedroom, then found a closed door and again loudly announced his presence. When McLaughlin opened the door, he found Joan McInerney in her bed, awakened from sleep by the intrusion. She was partially dressed in a tank top and shorts. McLaughlin said that he was performing a welfare check. McInerney said she was not a crime victim, did not need medical assistance and was outraged by the intrusion. She refused to sign for the summons. King left it on a table and he and McLaughlin left after being inside the house for about 3 minutes.
Id. at 71. The officers left the house at 8:18 a.m., forty minutes after Officer King's initial arrival.
The day after the incident, Ms. McInerney stated in a telephone interview with an internal affairs investigator that she was furious, felt " totally violated," and that she was " still shaking" twenty-four hours after the incident. Aplt. Supp. App. at 218. She explained that she was asleep when Deputy
McLaughlin stormed into her bedroom screaming and yelling at her while shining a flashlight in her eyes with his gun out of his holster. She also asserts she " informed the officers that she was not fully dressed," that the pajamas she was wearing " revealed her breasts and nipples visible through the transparent fabric," but that " [o]ne of the officers replied that she was 'dressed enough.'"  Aplt. App. at 12.
Ms. McInerney subsequently filed a motion to dismiss the criminal harassment complaint, asserting outrageous police conduct. The court heard testimony from both sides and then pointed out the lack of any indication " that this defendant, before today, presented a danger to anyone." Id. at 191-92. Concerned about the legality of the entry into Ms. McInerney's home, the court asked for further briefing.
The municipal court subsequently dismissed the harassment action with prejudice, concluding there was no need for Officer King to take any action after " returning to his patrol vehicle and observing nothing suspicious while waiting thirty minutes before taking action with Deputy McLaughlin." Id. at 36. It added: " This court finds, such a total lack of 'an observable reasonable basis' to enter the residence of Joan McInerney, that such entry is a violation of her rights and liberty," and that " [t]his illegal entry is so far removed from being justified as to warrant action that will discourage similar activity by law enforcement personnel." Id. 
In July 2011, Ms. McInerney filed this § 1983 action against both officers, alleging her Fourth Amendment rights were violated when the officers entered her residence without a warrant, without her consent, and without any " legally recognizable exigent circumstances" justifying their warrantless entry. Id. at 13. Officer King moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). In denying that motion, the district court noted " the stated justification of an emergency requiring police assistance is inconsistent with the admitted fact that Dennis King waited for 30 minutes until the arrival of the Sheriff Deputy McLaughlin."  Id. at 69.
Ms. McInerney stipulated to the dismissal with prejudice of all claims against Deputy McLaughlin in January 2012. Upon ...