August 26, 2019

Tenth Circuit: Hot Pursuit Applies Only to Immediate, Ongoing Crimes

The Tenth Circuit Court of Appeals issued its opinion in Attocknie v. Smith on Monday, August 24, 2015.

Aaron Palmer was shot dead in his house in Oklahoma on August 25, 2012 by Deputy Sheriff Kenneth Cherry, who was attempting to enforce a warrant against Aaron’s father, Randall Palmer, for failure to appear in drug court. Aaron’s widow, Nicole Attocknie, brought § 1983 claims against Cherry and his supervisor, Sheriff Shannon Smith, on behalf of herself, Aaron’s estate, and their minor child. The suit claimed that Cherry violated Aaron’s Fourth Amendment rights by unlawfully entering the house and using excessive force and that Smith was liable for failure to train and supervise Cherry. Both Cherry and Smith raised qualified immunity defenses, but the district court denied their summary judgment motions. Both appealed.

Cherry argued on appeal that he is entitled to qualified immunity because his entry into Aaron’s house was justified by hot pursuit of Randall, who he thought he had seen at the residence. The Tenth Circuit disagreed, finding that hot pursuit was inapplicable to the facts of the case because Randall’s outstanding warrant was over a year old, Cherry was the only person who thought he saw Randall, Randall was not at the residence, and Cherry shot Aaron about two seconds after entering the residence. The Tenth Circuit noted that Cherry’s belief that he saw Randall was not reasonable, and that “hot pursuit” does not apply to crimes that are not immediately ongoing. The Tenth Circuit held that Cherry’s entry into Aaron’s residence was clearly contrary to well-established law, and he therefore is not entitled to qualified immunity.

Smith also appealed the district court’s denial of qualified immunity, arguing that Cherry’s entry into Aaron’s home did not violate the Constitution and even if it did Smith had no duty to supervise or train Cherry because he was not an employee. The district court found that Cherry was Smith’s employee, and, because Smith raised no argument that he would be entitled to qualified immunity even if Cherry were his employee, the Tenth Circuit affirmed the district court’s denial of qualified immunity.

The district court’s denials of qualified immunity to Smith and Cherry were affirmed.

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