Officer Failed to Show Sufficient Grounds to Justify Warrantless Entry; Summary Judgment Reversed

McInerney v. King, 2015 WL3953686 (6/30/2015) (CO): A 1983 civil action in which the panel reversed the district court’s summary judgment for the officer. This case is interesting because the panel ruled that the officer had not shown there were objectively reasonable grounds of an emergency to justify his entry into a woman’s home. When the officer went to serve a summons on McInerney, numerous windows were open. The front screen door was open and the door behind it was open six inches. The garage door also was open and belongings were strewn about inside. The officer did not see any broken glass. He didn’t go in the house but called a sheriff’s deputy to look at the house with him. Twenty six minutes after the officer had gotten there, he and the deputy went into the home. Neither official had tried calling the house or McInerney’s cell phone. The officer argued that a reasonable officer could have believed there was a need to assure the safety of an individual in the residence including McInerney’s 11 year old daughter. The panel wasn’t persuaded because the officer “fail[ed] to explain how a reasonable person would reach that conclusion.” It said the following did not demonstrate an immediate need to protect the officers’ lives or others from serious injury or threatened injury: McInerney’s ex told the officer that she had a long history of drug and alcohol abuse; three years earlier she had overdosed and was hospitalized; she could be erratic, aggressive and violent; she had had a restraining order against her because she was violent towards her children; she had several guns in the house and their 11 year old daughter lived with her part time. The court dismissed these allegations because the officer was not responding to an emergency call; he did not hear or witness any disturbance in the house; there had been no report of gun fire or any threat involving a gun; the officer had no information that McInerney was incapacitated when he visited the home; and there was no evidence of forced entry or theft. The court also noted that the officer first mentioned these allegations in his motion for summary judgment even though he could have revealed them in earlier pleadings.