Hamen v. Hamlin County, No. 28671 (S.D. Feb 10, 2021)
Hamen v. Hamlin County, No. 28671 (S.D. Feb 10, 2021)
2021 S.D. 7
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v.
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DAVID R. STRAIT of
Austin, Hinderaker, Hopper, Strait
& Benson LLP
Watertown, South Dakota Attorneys for plaintiffs and
appellees.
JAMES E. MOORE
JOEL E. ENGEL III of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota Attorneys for defendants and
appellants.
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ARGUED
SEPTEMBER 30, 2019
OPINION FILED 02/10/21
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[¶1.] Gareth and Sharla Hamen (the Hamens) filed a complaint against
Hamlin County (the County), the Hamlin County Sheriff Chad Schlotterbeck (the
Sheriff), and other John Doe deputies after the Hamens’ mobile home was damaged
during the arrest of their son, Gary Hamen. The Hamens sought compensation for
rights under 42 U.S.C. § 1983. The parties filed cross-motions for summary
judgment. The circuit court granted summary judgment to the County, dismissing
the claims without prejudice, but denied the other motions. We granted the petition
for discretionary appeal filed by the County and the Sheriff. We reverse the circuit
in part and reverse in part the circuit court’s denial of summary judgment on the
§ 1983 claim.
Background
[¶2.] On June 9, 2016, at about 11:30 a.m., the Sheriff and Watertown Police
Detective Chad Stahl stopped at Gareth Hamen’s residence near Castlewood, South
Dakota. They were looking for Gareth’s son, Gary, who had outstanding arrest
Police reports indicated that earlier that morning Gary had threatened to shoot
himself and anyone he came into contact with. The Sheriff asked Gareth if Gary
owned any guns. Gareth told him that he knew Gary owned a few, but he had
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[¶3.] Gary called Gareth while law enforcement was still at Gareth’s house.
The officers could overhear the conversation. Gary asked Gareth to pick him up
because law enforcement was looking for him, and he stated that he needed a car to
go to Canada or Mexico. Gareth did not tell Gary that the officers were present.
Gareth asked Gary where he was, and Gary replied he was at Gareth’s mobile
home. The Hamens purchased the mobile home in 1997 for their daughter to live
in, but later decided to fix it up and rent it out. It was located about 600 feet
northwest of Gareth’s house. Gareth allowed Gary to live in the mobile home when
[¶4.] After learning of Gary’s location, the Sheriff and Detective Stahl left
Gareth’s residence and went to the Sioux Rural Water Plant, approximately 1/2
mile south and 1/2 mile west of the mobile home. From their location, the officers
observed Gary leave the mobile home but then walk back inside. At this time, the
Sheriff requested assistance from the Watertown Police Department SWAT Team.
[¶5.] Sergeant Kirk Ellis arrived with the Watertown SWAT team and set
up a loose perimeter around the mobile home. However, law enforcement was
unable to monitor all four sides of the mobile home. A drone was procured early in
the search to survey the mobile home and the surrounding area, but the drone
footage revealed no sign of Gary. Officers then tightened the perimeter around the
mobile home and blocked the surrounding access roads. Sergeant Ellis parked an
armored vehicle about forty yards from the residence and attempted to contact Gary
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[¶6.] While the SWAT team attempted to contact Gary, officers received a
report that a local resident had observed Gary running towards Castlewood. The
resident reported that Gary came out of a tree line near a river and sewage pond,
but he had run back into the trees. Sergeant Ellis and the SWAT team tried to
locate Gary in this area and encountered another witness who also believed he had
seen Gary. An officer inside the armored vehicle called Gary’s cellphone. Gary
answered the phone call and claimed he was almost to Minnesota. He sounded out
[¶7.] Meanwhile, the Sheriff spoke with Gary’s brother-in-law, Tim Hofwalt.
Tim was married to Gary’s sister, Julie Hofwalt. They lived on a farm within view
of the mobile home. Tim reported that Gary, who appeared to be high, was at their
home the previous night, and Tim gave Gary some food. Julie was sleeping while
Gary was at the home. Tim told the Sheriff that Gary had a gun in a holster under
his arm, but Tim did not see any other guns. After seeing the gun, Tim asked Gary
to leave; and Gary obliged. During Tim’s conversation with law enforcement, Tim
claimed that he overheard voices on radio traffic stating that the mobile home had
been cleared and that Gary was seen running near the river.
[¶8.] The Sheriff shared the information from Tim with the other law
enforcement officers. The Sheriff also requested assistance from the Codington
County Special Response Team (SRT) and Highway Patrol to further secure the
area and ensure Gary did not make it to Castlewood. Then the Sheriff spoke with
Gary’s sister, Julie. Julie told law enforcement that she did not know that Gary had
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been to her home the previous night because she was asleep and had left early for
[¶9.] The SRT arrived, led by Codington County Sheriff Toby Wishard. The
SRT brought in a second armored vehicle to clear the shelterbelt in search of Gary.
During the search, the SRT located a suitcase containing male clothes, a bag with
needles, a cell phone, and an empty gun case. Wishard and the Sheriff believed
that the suitcase confirmed that Gary was armed and possibly using illegal
substances. They agreed that the mobile home needed to be cleared to ensure Gary
[¶10.] Before clearing the mobile home, Wishard and the SRT met Julie at
her residence. The officers conducted a search of Julie’s house and outbuildings for
Gary. The officers were unable to access one padlocked outbuilding. Julie stated
the officers “were calm and respectful and did not damage anything during the
search.” Julie told an officer that Gary was likely hiding in the willows west of
Gareth’s house, where he liked to hide and play as a child. Following the search of
the farm, an officer told Gareth that they were going to enter the mobile home, but
they did not state their intention to remove doors and windows with the armored
vehicles. Law enforcement did not ask Gareth for consent to enter the mobile home.
[¶11.] Meanwhile, Troy Jurrens, who ran a business from his home nearby,
they attempted to locate Gary. He stated: “someone announced on the radio that
they were ‘going back to the trailer,’” to which another voice responded, “he’s not in
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the trailer.” Troy claimed, “The first voice answered back saying they were going
back anyway.”
[¶12.] Not long after, the Sheriff authorized SWAT and the SRT to breach
doors and windows on the Hamens’ mobile home. According to Wishard’s affidavit,
the “tactical procedure [to secure the mobile home] is to create communication
portholes in attempts to call out any subject or subjects that may be hiding inside.”
If unsuccessful, gas munitions are used to flush out anyone inside. To create the
communication portholes for the Hamens’ trailer, an armored vehicle pulled away
the front stairs and deck, which were not attached to the mobile home or secured in
the ground, and pushed in the front door with a ram. The second armored vehicle
opened three portholes on the opposite side of the mobile home by breaking through
windows and a sliding patio door, causing significant damage to the walls and the
septic system. Shortly after this procedure and before officers entered the mobile
home, Gary was seen walking in the river near the Hamens’ residence. Law
[¶13.] The Hamens filed a complaint against the County, the Sheriff, and
other John Doe deputies for inverse condemnation under article VI, § 13 of the
South Dakota Constitution and a claim under 42 U.S.C. § 1983 for violations of
rights under the Fourth and Fourteenth Amendments of the United States
Constitution. The Hamens claimed that the damage caused by the armored
[¶14.] The County and the Sheriff moved for summary judgment on both
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hearing, the circuit court granted summary judgment to the County. The court
concluded there was nothing to establish that there was an official policy or custom
on the part of the County approving or condoning the damage to the mobile home,
and thus the County could not be liable. However, the court determined that
genuine issues of material fact existed concerning the § 1983 claims against the
Sheriff. In its memorandum decision, the court wrote that article VI, § 13 of the
South Dakota Constitution may also support a claim for a constitutional violation
as a basis for the § 1983 claim, but the court did not directly address the Hamens’
separate claim for inverse condemnation. The court also denied the Hamens’ cross-
motion for summary judgment. The County and the Sheriff petitioned for
discretionary appeal, which we granted. They raise two issues, restated as follows:
Standard of Review
Thornton v. City of Rapid City, 2005 S.D. 15, ¶ 4, 692 N.W.2d 525, 528-29.
“[W]e must determine whether the moving party demonstrated the absence of
on the merits as a matter of law.” Id. (quoting Citibank (S.D.), N.A. v. Hauff,
2003 S.D. 99, ¶ 10, 668 N.W.2d 528, 532). We view the evidence “most
against the moving party.” Id. On appeal, our task “is to determine only
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whether a genuine issue of material fact exists and whether the law was
Benson v. State, 2006 S.D. 8, ¶ 39, 710 N.W.2d 131, 145 (citing State v.
Dillon, 2001 S.D. 97, ¶ 12, 632 N.W.2d 37, 43). “Under the de novo standard
(citing Sherburn v. Patterson Farms, Inc., 1999 S.D. 47, ¶ 4, 593 N.W.2d 414,
law. Swedlund v. Foster, 2003 S.D. 8, ¶ 12, 657 N.W.2d 39, 45.
[¶17.] The Hamens assert a claim for inverse condemnation, arguing they are
entitled to compensation under the damages clause of article VI, § 13 of the South
Dakota Constitution, which provides that “[p]rivate property shall not be taken for
damages clause provides greater protection to property owners than the United
owner not only when a taking has occurred, but also when private property has
been ‘damaged.’” State ex rel. Dep’t of Transp. v. Miller, 2016 S.D. 88, ¶ 39, 889
N.W.2d 141, 153 (quoting Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 9, 827
N.W.2d 55, 60). The intent of the “clause is to ensure that individuals are not
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benefit the public generally.” Rupert, 2013 S.D. 13, ¶ 9, 827 N.W.2d at 61 (quoting
Hall v. State ex rel. S.D. Dep’t of Transp., 2011 S.D. 70, ¶ 37, 806 N.W.2d 217, 230).
or damage[e] is a question of law for the court.” Id. ¶ 29, 827 N.W.2d at 67.
[¶18.] A party may seek compensation under the damages clause of article
condemnation. Id. ¶ 43, 827 N.W.2d at 70-71. “An inverse condemnation action is
an eminent domain proceeding initiated by the property owner rather than the
condemner.” Schliem v. State ex rel. Dep’t of Transp., 2016 S.D. 90, ¶ 13 n.9, 888
N.W.2d 217, 224 n.9 (quoting Breidert v. S. Pac. Co., 394 P.2d 719, 721 n.1 (Cal.
compensation when eminent domain proceedings have not been instituted. Rupert,
[¶19.] Our cases have only permitted recovery for damage or devaluation to
private property when the government’s action with respect to the property has
been undertaken for public use. See, e.g., Schliem, 2016 S.D. 90, 888 N.W.2d 217;
Rupert, 2013 S.D. 13, 827 N.W.2d 55; Krier v. Dell Rapids Twp., 2006 S.D. 10, 709
N.W.2d 841. The Court has denied “compensation when the state action
90, ¶ 14 n.11, 888 N.W.2d at 225 n.11. “No return of the property nor compensation
is allowed where the state establishes that its actions were done under its police
power such as to abate a public nuisance.” Cody v. Leapley, 476 N.W.2d 257, 261
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(S.D. 1991). See also Schafer v. Deuel Cnty. Bd. of Comm’rs, 2006 S.D. 106, ¶ 11,
725 N.W.2d 241, 245 (“Although it is axiomatic that private property cannot be
taken without due process of law, this limitation does not shield private property
from regulations, such as zoning, which are implemented under the police power.”);
Darnall v. State, 79 S.D. 59, 68, 108 N.W.2d 201, 206 (1961) (holding that certain
highway restrictions and regulations “have been supheld as proper exercises of the
police power of the state and not of the power of eminent domain. As such they are
not compensable.”).
Gary involved a police power function, but argue that law enforcement exceeded the
legitimate exercise of its police power by unreasonably damaging their mobile home.
In the Hamens’ view, they are entitled to compensation under article VI, § 13 if the
Sheriff unreasonably entered the mobile home without consent and unnecessarily
[¶21.] The Sheriff responds that “the issue is not the reasonableness of the
officer’s conduct, but whether the conduct constitutes a taking of private property
for public use (by the authority of the state’s power of eminent domain), or action to
preserve the safety, health and general welfare of the public (by the authority of the
state’s police power).” He argues that article VI, § 13 applies exclusively to the
State’s authority to take or damage property for a public use, not its police power.
The Sheriff contends that it is undisputed that his actions on June 9, 2016, involved
the exercise of police power, and the Hamens are therefore precluded from asserting
a claim for compensation under the damages clause of article VI, § 13. The Sheriff
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argues that any other result would transform the eminent domain provision into a
tort cause of action for which the State has not expressly waived sovereign
immunity. See Rupert, 2013 S.D. 13, ¶ 33, 827 N.W.2d at 67-68 (holding that the
police power functions under article VI, § 13 is consistent with this Court’s decision
in Cody v. Leapley, 476 N.W.2d 257 (S.D. 1991). In that case, Cody sued a warden
for damages under article VI, § 13, claiming the warden improperly confiscated
property he owned. Id. at 260. The sole question in Cody was whether a prison
warden was exercising the State’s police power in confiscating the property of an
inmate. Id. at 261. In remanding the case to the circuit court, Cody concluded that
“the trial court was not provided with a factual basis to determine” whether the
warden was acting under the authority of SDCL 24-2-26 at the time the property
was taken. 1 Id. The Court made no suggestion that the reasonableness of the
warden’s actions was determinative of the right to compensation under article VI, §
13. Instead, the Court reaffirmed that no “compensation is allowed [under article
VI, § 13] where the state establishes that its actions were done under its police
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under any circumstance, create a right of compensation under the damages clause
of article VI, § 13. When reviewing an issue of first impression, we may also
consider decisions from other jurisdictions for guidance. See, e.g., Briggs v. Briggs,
2019 S.D. 37, 931 N.W.2d 510, 513; Milstead v. Smith, 2016 S.D. 55, 883 N.W.2d
711. Thus, we briefly review other decisions that have addressed this precise
question.
[¶24.] The California Supreme Court denied a claim under the damages
apprehending a felony suspect. 2 Customer Co. v. City of Sacramento, 895 P.2d 900,
901 (Cal. 1995). In Customer Co., law enforcement deployed tear gas in the store to
flush a suspect out, causing extensive damage to the building and store inventory.
Id. The court concluded under article 1, § 19 of the California Constitution that
neither the language “taken” nor “damaged” had been applied outside the context of
eminent domain or public works, and the actions of law enforcement had no relation
Supreme Court denied a claim for damages under the Oklahoma Constitution after
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940 P.2d 220, 222 (Okla. 1997). The Sullivant court reasoned that “the provision,
taken in its full context, clearly relates to condemnation proceedings, where real
property is actually taken and used for a public project.” Id. at 224. “[T]he addition
of the ‘or damaged’ language to the taking provision merely expanded the
circumstances when a private owner may recover” for damage to adjacent property
when a governmental action involves a public use or public work. Id. at 226.
claim for damages under the Washington Constitution after a home was
618, 620 (Wash. 2003). Eggleston summarized its review of cases from other
jurisdictions as follows:
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Id. at 626 (citations omitted). Accord Brutsche v. City of Kent, 193 P.3d 110, 113
(Wash. 2008) (reaffirming Eggleston and rejecting a claim for damages when law
enforcement used a battering ram to gain entry to the property). See also Lech v.
Jackson, 791 F. App’x 711, 714 n.6, 719 (10th Cir. 2019) (noting that the Colorado
Clause and holding that “the damage caused in the course of arresting a fugitive on
plaintiffs’ property was not a taking for public use, but rather it was an exercise of
[¶27.] In contrast, the Iowa Supreme Court held in Kelley v. Story County
a taking under the Iowa Constitution when law enforcement officers damage
private property. 5 611 N.W.2d 475 (Iowa 2000). The court determined the “point at
reasonableness[.]” Id. at 480. See also Brewer v. State, 341 P.3d 1107, 1114 (Alaska
2014) (declining to hold under the Alaska Takings Clause “that every valid exercise
A.2d 288, 290 (N.H. 1985) (discussing under the New Hampshire Takings Clause
that whether an exercise of police power goes “too far . . . must be determined under
5. “Private property shall not be taken for public use without just compensation
first being made[.]” Iowa Const. art. 1, § 18.
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[¶28.] At least two states have allowed recovery by eminent domain for
Wegner v. Milwaukee Mut. Ins. Co., the Minnesota Supreme Court upheld the right
police damaged her property while apprehending a suspect. 6 479 N.W.2d 38, 41
(Minn. 1991). The court did not address the “public use” language in the Minnesota
Constitution, but stated that “simply labeling the actions of the police as an exercise
of the police power ‘cannot justify the disregard of the constitutional inhibitions.’”
determined that a right to compensation existed under the Texas Constitution for a
apprehending three escaped convicts. 7 603 S.W.2d 786, 791 (Tex. 1980). Rejecting
the City’s claim that it was exercising its police power, the Steele court broadly
apprehend armed and dangerous men who had taken refuge in the house.” Id. at
792.
6. “Private property shall not be taken, destroyed or damaged for public use
without just compensation therefor, first paid or secured.” M.N. Const. art. 1,
§ 13.
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[¶30.] After reviewing the language of article VI, § 13 of the South Dakota
Constitution and decisions from other jurisdictions, we join the courts that have
which have denied compensation under similar eminent domain provisions of their
constitution” that a taking or damage claim arises from a public use function,
[¶31.] A reading of the damages clause within the entirety of article VI, § 13
shows that the “public use” language is equally applicable to a claim for a taking or
for damage. 8 Moreover, our prior decisions have consistently applied the public use
language in article VI, § 13 to both the takings and damages clauses, while rejecting
The inclusion of a comma before the language “or damaged” does not render
the damage clause independent from the language “taken for public use.”
“Punctuation shall not control or affect the construction of any provision
when any construction based on such punctuation would not conform to the
spirit and purpose of such provision.” SDCL 2-14-8. See also LaBore v. Muth,
473 N.W.2d 485, 489 (S.D. 1991) (holding that a phrase in a statute
separated by a semicolon was dependent when the statute was read as a
whole).
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a right to compensation under article VI, § 13 when the action involved the state’s
police power.
sovereign immunity for cases involving the State’s public use function, public
entities are “free from liability for tort claims unless waived by legislative
enactment.” Long v. State, 2017 S.D. 79, ¶ 17, 904 N.W.2d 502, 508 (quoting
Truman v. Griese, 2009 S.D. 8, ¶ 9, 762 N.W.2d 75, 78). This Court may not waive
so. Therefore, the Hamens’ claim for inverse condemnation against the County or
the Sheriff, under article VI, § 13, should have been dismissed by the circuit court
on summary judgment.
[¶33.] The Civil Rights Act of 1871, codified at 42 U.S.C. §1983, creates a civil
action under § 1983, a plaintiff must prove that a person has deprived him or her of
a federal right, and that the person was acting under the “color of state or territorial
officers, under certain situations, may raise the defense of qualified immunity”
when an officer has made a good faith mistake. Id. ¶ 16, 657 N.W.2d at 46.
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particularly amenable to summary judgment.” Id. ¶ 12, 657 N.W.2d at 45. When
“courts are required to view the facts and draw reasonable inferences ‘in the light
most favorable to the party opposing the summary judgment motion.’” Scott v.
Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 1774, 167 L. Ed. 2d 686 (2007) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176
(1962)). “[T]his usually means adopting . . . the plaintiff’s version of the facts.” Id.
[¶35.] “[Q]ualified immunity is ‘an immunity from suit rather than a mere
defense to liability[.]’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815,
172 L. Ed. 2d 565 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.
interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id. Therefore, the United
questions at the earliest possible stage in litigation” because the immunity defense
inquiry to determine (1) whether the facts viewed most favorably to the injured
party “show the officer’s conduct violated a constitutional right” and (2) whether the
constitutional right was clearly established. Thornton, 2005 S.D. 15, ¶ 11, 692
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action, in turn, must be ‘assessed in light of the legal rules that were clearly
established at the time the action was taken.’” Ziglar v. Abbasi, __ U.S. __, __, 137
S. Ct. 1843, 1866, 198 L. Ed. 2d 290 (2017) (internal citations omitted).
[¶37.] Since our decisions in Swedlund and Thornton, the United States
Supreme Court has reinforced a high bar to meet the requirements of the second
claims.
D.C. v. Wesby, __ U.S. __, __,138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018) (internal
citations and quotation marks omitted). See also Ziglar, __ U.S. at __, 137 S. Ct. at
1867 (“[I]f a reasonable officer might not have known for certain that the conduct
in deciding which of the two prongs of the qualified immunity analysis should be
Pearson, 555 U.S. at 236, 129 S. Ct. at 818. This flexible approach allows for the
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[¶39.] The Sheriff argues that the circuit court erred in concluding that
questions of fact existed on qualified immunity. He asserts that the court should
even if a constitutional right was violated, the right was not clearly established.
The Hamens respond that fact questions exist as to whether the Sheriff violated the
Fourth Amendment by entering the mobile home to arrest Gary without a search
the Sheriff used excessive force by unnecessarily damaging the mobile home in
violation of the Fourth Amendment. The Hamens argue that both the unlawful
entry and excessive force claims are violations of clearly established rights.
[¶40.] “[I]t is well established that ‘searches and seizures inside a home
without a warrant are presumptively unreasonable.’” State v. Hess, 2004 S.D. 60, ¶
22, 680 N.W.2d 314, 324 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct.
1371, 1380, 63 L. Ed. 2d 639 (1980)). “Generally, this means that, with some
specifically delineated exceptions, every law enforcement entry into a home for the
purpose of search and seizure must be made with a warrant.” Id. (citing Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)).
2016 S.D. 12, ¶ 13, 875 N.W.2d 40, 45. “Exigent circumstances will justify a
warrantless entry into a home for the purpose of either arrest or search . . . when
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obtain a warrant.” Hess, 2004 S.D. 60, ¶ 24, 680 N.W.2d at 325 (citations omitted).
[¶41.] In 1980, Payton v. New York created another exception to the warrant
requirement for the search of a residence under the Fourth Amendment. Payton
warrantless entry of a home to make a routine felony arrest based upon probable
cause. 445 U.S. at 573, 100 S. Ct. at 1373. Payton held the New York law to be
unconstitutional under the Fourth Amendment and reiterated that, absent exigent
an arrest. Id. However, Payton recognized that “for Fourth Amendment purposes,
an arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to
[¶42.] Shortly after Payton, the United States Supreme Court held that in
the absence of a search warrant or exigent circumstances, law enforcement may not
enter the home of a third party to execute an arrest warrant on a suspect. Steagald
v. United States, 451 U.S. 204, 216, 101 S. Ct. 1642, 1649-50, 68 L. Ed. 2d 38 (1981).
In Steagald, law enforcement had an arrest warrant for a suspect and entered the
home of a third party to look for the suspect. 451 U.S. at 204, 101 S. Ct. at 1643.
Law enforcement did not find the suspect, but they observed contraband in the
home and arrested the third party on drug charges. Id. Steagald determined the
evidence located in the third party’s home should be suppressed under the Fourth
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Amendment stating:
while the [arrest] warrant in this case may have protected [the
suspect] from an unreasonable seizure, it did absolutely nothing
to protect [the third party’s] privacy interest in being free from
an unreasonable invasion and search of his home. Instead, [the
third party’s] only protection from an illegal entry and search
was the agent’s personal determination of probable cause. In
the absence of exigent circumstances, we have consistently held
that such judicially untested determinations are not reliable
enough to justify an entry into a person’s home to arrest him
without a warrant[.] 9
[¶43.] One court, addressing the rules created by Payton and Steagald, has
described application of the cases as follows: “both Payton and Steagald treated the
residence.” Commonwealth v. Romero, 183 A.3d 364, 390 (Pa. 2018). Another court
has reconciled the cases around Payton’s “reasonable belief” standard, holding that
determinative.
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United States v. Vasquez-Algarin, 821 F.3d 467, 473 (3d Cir. 2016). Thus, the
reasonable belief threshold set out in Payton becomes “critical” because it “affects
not only the homes of arrestees but also any [third party] home that could be
[¶44.] Both Payton and Steagald must inform the reasonable belief standard.
Id. Some courts have read the language from Payton and Steagald to require that
“law enforcement armed with only an arrest warrant may not force entry into a
home based on anything less than probable cause to believe an arrestee resides at
and is then present within the residence.” Id. at 480. See also United States v.
Hardin, 539 F.3d 404, 415-16 (6th Cir. 2008); United States v. Barrera, 464 F.3d
496, 501 (5th Cir. 2006); United States v. Gorman, 314 F.3d 1105, 1114–15 (9th Cir.
2002). Other courts have read Payton to require something less than probable
warrant must demonstrate a reasonable belief that the arrestee lived in the
residence, and a reasonable belief that the arrestee could be found within the
residence at the time of the entry.” Valdez v. McPheters, 172 F.3d 1220, 1224 (10th
Cir. 1999). See also United States v. Werra, 638 F.3d 326, 337 (1st Cir. 2011);
United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005); United States v. Risse,
the mobile home required an objectively reasonable belief that Gary was living in
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and present in the home at the time of entry. See State v. Meyer, 1998 S.D. 122, ¶
39, 587 N.W.2d 719, 727 (discussing Payton and the reasonable belief standard).
See also Hess, 2004 S.D. 60, ¶ 21, 680 N.W.2d at 324. A “court must look at all of
the circumstances present in the case to determine whether the officers entering the
residence had a reasonable belief that the suspect resided there and would be found
within” the home. Valdez, 172 F.3d at 1226. The question whether the warrantless
entry was supported by an objectively reasonable belief that Gary was living in and
present in the mobile home at the time of entry is a question of law for the circuit
court. See Scott, 550 U.S. at 381 n.8, 127 S. Ct. at 1776 n.8 (holding that once the
relevant set of facts are determined, the reasonableness of the officer’s actions “is a
pure question of law”). 10 However, the ultimate resolution of this legal question is
[¶46.] Undisputed facts in the existing record show that the Sheriff knew
that the Hamens allowed Gary to stay in the mobile home when he was not
working, and that Gary was present in the home at the time law enforcement first
arrived. These facts support a reasonable belief that Gary was present in the
mobile home. However, disputed facts exist concerning Gary’s whereabouts after
10. Scott was decided after our decision in Thornton, where we stated that “the
objective reasonableness of the officer’s actions under the first prong of the
qualified immunity analysis, which determines whether a constitutional
violation has occurred, is a jury question.” 2005 S.D. 15, ¶ 13, 692 N.W.2d at
531. Consistent with the United States Supreme Court’s holding in Scott, we
now overrule this statement in Thornton. A more recent case from the
Eighth Circuit Court of Appeals also applied Scott in this way. See Goffin v.
Ashcraft, 977 F.3d 687, 691 n.2 (8th Cir. 2020) (relying on Scott v. Harris for
the proposition that whether an officer’s actions were objectively reasonable
is a legal question for the court).
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this initial contact with law enforcement. The Sheriff initially saw Gary exit and
reenter the home shortly after he arrived. Later, after law enforcement had
established a perimeter around the mobile home, there were at least two reported
sightings of Gary outside the mobile home. Additionally, an officer, who had the
last known communication with Gary during the search, reported that Gary
sounded out of breath, as if he had been running, during their phone conversation.
The Hamens also point to radio traffic from law enforcement that suggested law
enforcement did not believe Gary was inside the mobile home and that the mobile
[¶47.] The Sheriff’s knowledge of these facts and how they fit into the
timeframe of the events leading up to the entry are pertinent as to whether he had
an objectively reasonable belief that Gary was inside the mobile home when law
enforcement forcibly entered it. The facts concerning the entire sequence of events
are not amenable to quick and concise narration. They unfolded over the course of
five hours and involved officers from multiple agencies receiving, at various times,
information about Gary from different sources. When these events occurred, and
operation, must first be resolved either through discovery 11 or, if disputed, by a fact
11. Retired Chief Justice Gilbertson’s writing suggests that pretrial discovery is
inconsistent with the doctrine of qualified immunity. He quotes the United
States Supreme Court’s opinion in Pearson, stating “that the ‘driving force’
behind the creation of the qualified immunity doctrine was a desire to ensure
that ‘insubstantial claims against government officials will be resolved prior
to discovery.’” (Gilbertson, Retired C.J., dissenting in part at ¶ 79). The
quote originates from the Supreme Court’s decision in Mitchell which, in
turn, cites Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d
(continued . . .)
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finder. After the circuit court has “determined the relevant set of facts and drawn
all inferences in favor of the nonmoving party to the extent supportable by the
record,” the circuit court can make the legal determination of whether the Sheriff
had an objectively reasonable belief that Gary was present in the mobile home at
the time of entry. Scott, 550 U.S. at 381 n.8, 127 S. Ct. at 1776 n.8. See also State
v. Rademaker, 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (Under our Fourth
Amendment review, “[o]nce the facts have been determined . . . the application of a
[¶48.] If the court concludes the Sheriff did not have an objectively
reasonable belief that Gary was present in the mobile home at the time of entry,
then the arrest warrant did not give law enforcement the authority to enter the
home to search for him. In that event, law enforcement could not enter the home
without a search warrant absent exigent circumstances. Because the Sheriff did
not obtain a search warrant, we review whether he has identified undisputed facts
in the record showing that exigent circumstances justified the warrantless entry.
________________________
(. . . continued)
396 (1982), for the proposition that granting summary judgment for
government officials in qualified immunity cases prior to discovery serves a
number of goals where the plaintiff failed to identify a clearly established
right. Mitchell, 472 U.S. at 526, 105 S. Ct. at 2815 (citing Harlow, 457 U.S.
at 817–818, 102 S. Ct., at 2737–2738). However, in cases like this one where
“the plaintiff’s complaint adequately alleges the commission of acts that
violated clearly established law, the defendant is entitled to summary
judgment if discovery fails to uncover evidence sufficient to create a genuine
issue as to whether the defendant in fact committed those acts.” Id.
(Emphasis added.).
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suspect’s escape.” Hess, 2004 S.D. 60, ¶ 25, 680 N.W.2d at 325. In the context of a
search for a person to make an arrest, we have noted that “[e]xigent circumstances
exist when there is an emergency, [and] the situation demands immediate attention
and there is no time to get a warrant.” Meyer, 1998 S.D. 122, ¶ 23, 587 N.W.2d at
relevant” include: “1. [t]hat a grave offense is involved; 2. that the suspect is
committed the crime involved; 4. that there is a strong reason to believe the suspect
is on the premises; 5. that a likelihood exists that the suspect will escape; 6. that
the entry, though not consented to, is made peaceably; and 7. time of entry.” Id.
[¶50.] The Sheriff claims that exigent circumstances existed because Gary
was a danger to the public. He argues that Gary may have had a semi-automatic
weapon and that Gary threatened to harm himself or others if law enforcement
attempted to arrest him. The Hamens dispute at least some of these facts.
Moreover, the record shows that law enforcement had established a perimeter
around the home, presumably so Gary could not enter or leave the mobile home
while law enforcement searched for him in the surrounding area. The search
continued for several hours during which law enforcement made no attempt to
obtain a search warrant. The Sheriff has not identified evidence in the existing
record showing that an exigency was present so that law enforcement needed
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immediate access to the mobile home to protect Gary or others he might harm.
Given that law enforcement’s last contact with Gary suggested he was no longer in
the home, coupled with the fact that law enforcement had surrounded the mobile
home for several hours without incident or any materialized threat from Gary, we
cannot determine as a matter of law that exigent circumstances existed at the time
[¶51.] We also conclude the Sheriff has failed to establish that he is entitled
to summary judgment on the warrantless entry claim under the second prong for
qualified immunity. This prong requires that existing law was so “clearly
constitutionality of the officer’s conduct beyond debate.” Wesby, __ U.S. at __, 138 S.
Ct. at 589 (internal citations omitted). “To be clearly established, a legal principle
must have a sufficiently clear foundation in then-existing precedent. The rule must
be ‘settled law’ . . . [so that] every reasonable official would understand that what he
[¶52.] “It is a basic principle of Fourth Amendment law that searches and
Payton, 445 U.S. at 586, 100 S. Ct. at 1380. “[T]he physical entry of the home is the
chief evil against which the wording of the Fourth Amendment is directed.” Id. at
585, 100 S. Ct. at 1379. In the absence of a search warrant, the Sheriff must show
he had an objectively reasonable belief that Gary was living there and that he was
inside the home at the time of entry; or that exigent circumstances had developed,
after five hours, to enter the Hamens’ mobile home. Payton, 445 U.S. at 603, 100 S.
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Ct. at 1388; Steagald, 451 U.S. at 216, 101 S. Ct. at 1650. These Fourth
Amendment principles were clearly established at the time the Sheriff ordered
entry into the Hamens’ mobile home and placed the unconstitutionality of the
applicable. See Ziglar, __ U.S. at __, 137 S. Ct. at 1867 (“[A]n officer might lose
qualified immunity even if there is no reported case directly on point. But in the
apparent.”) (internal citations and quotation marks omitted); Thornton, 2005 S.D.
15, ¶ 19, 692 N.W.2d at 534 (“Lack of a body of case law on the specific
[¶53.] In the event the entry into the Hamens’ mobile home is ultimately
force was used, must be addressed. The Sheriff challenges the circuit court’s denial
of his motion for summary judgment on the excessive force claim, while the Hamens
argue that fact questions exist on whether the Sheriff used excessive force to enter
the mobile home. Regardless of whether the Sheriff used excessive force, the
Hamens cannot prevail because they cannot show that the Sheriff’s use of force,
12. Because the Hamens cannot establish that the Sheriff violated a “clearly
established” right, we decline to address whether the Sheriff used excessive
force.
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[¶54.] The Hamens cite SDCL 23A-3-5 13 as general authority to support their
excessive force claim. But they cite no authority that clearly establishes the Sheriff
constitutional limit on the force law enforcement may use to enter a home to make
unnecessary destruction of property in the course of a search may violate the Fourth
Amendment, even though the entry itself is lawful and the fruits of the search are
not subject to suppression.” 523 U.S. 65, 71, 118 S. Ct. 992, 996, 140 L. Ed. 2d 191
(1998). However, Ramirez does not provide guidance for determining whether the
established prong for qualified immunity, the United States Supreme Court
expounded that “[u]se of excessive force is an area of the law in which the result
depends very much on the facts of each case, and thus police officers are entitled to
qualified immunity unless existing precedent squarely governs the specific facts at
issue.” City of Escondido, Cal. v. Emmons, ___ U.S. ___, ___, 139 S. Ct. 500, 503,
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202 L. Ed. 2d 455 (quoting Kisela v. Hughes, __ U.S. __, __, 138 S. Ct. 1148, 1153,
[¶55.] The Hamens have not presented authority clearly establishing that the
force used to enter the mobile home, under the circumstances presented to the
Sheriff, was unreasonable under the Fourth Amendment. In Emmons, the Court
__ U.S. at __, 139 S. Ct. at 504. Emmons further explained, in the excessive force
circumstances, the Sheriff is entitled dismissal of the excessive force claim under
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Conclusion
inverse condemnation claim and direct the entry of summary judgment dismissing
this claim with prejudice as to the Sheriff and the County. On the Hamens’ § 1983
claims, we affirm the circuit court’s denial of summary judgment on the Sheriff’s
qualified immunity for the unlawful entry claim, but we reverse the circuit court’s
force claim. We remand the § 1983 claim against the Sheriff for further proceedings
[¶63.] MYREN, Justice, not having been a member of the Court at the time
condemnation claim for the property damaged in this case and join the majority
opinion in reversing the circuit court’s decision interpreting the damages clause
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under article VI, § 13 to support the claim. See S.D. Const. art. VI, § 13; accord U.S.
Const. amend. V. With regard to the Hamens’ § 1983 claims, I also agree with the
majority that the circuit court properly denied the Sheriff’s motion for summary
judgment on the Hamens’ claim for unlawful entry. The matter must be remanded
to the circuit court for a determination of factual questions regarding whether the
Sheriff had a reasonable belief that Gary was in the home or whether exigent
the Hamens’ alternative claim for excessive use of force. In my view, we should
instead affirm the circuit court’s order denying the Sheriff’s motion for summary
judgment on this issue. This claim should also proceed to trial, where the jury can
determine through special interrogatories any disputed issues of fact. The court can
summary judgment de novo, viewing the record in the light most favorable to [the
plaintiff] and drawing all reasonable inferences in [his] favor.” Shannon v. Koehler,
616 F.3d 855, 861-62 (8th Cir. 2010) (second and third alterations in original)
discretionary functions.” Rush v. Perryman, 579 F.3d 908, 913 (8th Cir. 2009)
Sherbrooke v. City of Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008). “If so, then
we ‘ask whether the right was clearly established’ at the time of the violation.” Id.
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(quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272
understand that what he is doing violates that right.” Smook v. Minnehaha Cnty.,
457 F.3d 806, 813 (8th Cir. 2006). Once the underlying facts are determined, the
question whether the use of force was objectively reasonable is a question of law.
Scott v. Harris, 550 U.S. 372, 381 n.8, 127 S. Ct. 1769, 1776 n.8, 167 L. Ed. 2d 686
(2007). As the majority opinion points out, courts are “permitted to exercise their
sound discretion in deciding which of the two prongs of the qualified immunity
case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 172 L.
the court determines on remand that the Sheriff’s entry into the mobile home was
unlawful, then the nature and extent of force used is immaterial. In such case, the
Sheriff is liable to the Hamens’ for the damage caused by the entry. On the other
hand, if the court, on remand, determines that the Sheriff lawfully entered the
mobile home, the first prong of the Hamens’ excessive force claim requires an
assessment of whether the Sherriff’s use of force while executing the arrest warrant
on this claim because under prong two, the use of force was not excessive under
“clearly established” law. Upon review of the underlying facts in a light most
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favorable to the Hamens’, existing precedent may have provided sufficiently clear
guidance to law enforcement faced with the circumstances present here, such that
Amendment. See Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 1694, 60
L. Ed. 2d 177 (1979) (reasoning that “officers executing search warrants on occasion
must damage property in order to perform their duty.”). Only excessive destruction
beyond that necessary to effectuate the search rises to the level of a constitutional
violation. United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 996, 140 L. Ed.
2d 191 (1998). “Claims of excessive force are evaluated under the reasonableness
standard of the Fourth Amendment.” Johnson v. Carroll, 658 F.3d 819, 825 (8th
Cir. 2011).
[¶69.] “We determine whether a use of force was reasonable by balancing the
nature and quality of the intrusion on the individual’s Fourth Amendment interests
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443
(1989). “[T]he test is whether the amount of force used was objectively reasonable
[¶70.] Although law enforcement had a warrant for Gary’s arrest, they did
not have a warrant to search the Hamens’ property. Regardless, even if law
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“possession of a . . . warrant does not give the executing officers a license to proceed
in whatever manner suits their fancy.’” Hummel-Jones v. Strope, 25 F.3d 647, 650
(8th Cir. 1994) (citing Dalia, 441 U.S. at 257-58, 99 S. Ct. at 1693-94). “Whether a
determined by the particular facts of [each] case[.]” Tarpley v. Greene, 684 F.2d 1, 9
belief that Gary had snuck back into the trailer such that the entry itself was
lawful, there are nevertheless material issues of fact in dispute whether the force
used to enter the trailer was necessary to execute the arrest warrant. See Ginter v.
Stallcup, 869 F.2d 384, 388 (8th Cir. 1989) (citing and analyzing cases that consider
For example, although there are allegations that Gary may have been armed and
that, at the time of entry, Gary was not threatening the officers or communicating
with them at all. Instead, the information known to law enforcement at the time
suggested he was attempting to flee the area. They further presented evidence
that, despite the lack of any immediate threat, law enforcement destroyed the
Hamens’ deck, windows, wall, and front door to drill a sizable hole into the trailer
for use as a “communication portal.” In the process, law enforcement also destroyed
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[¶72.] The nature and extent of the force used here is undisputed and well
documented. A police drone circled above the scene, capturing some of the incident
on video, and the officers involved prepared detailed reports of the episode. The
first armored vehicle approached from the west side pulling the front stairs and
deck away from the trailer. It then tore off the front door of the trailer with a ram,
damaging not only the door but the floor and frame. The second armored vehicle
drilled three portholes on the other side through windows and a sliding glass door,
destroying the septic system in the process. Minutes later, the drone captured
[¶73.] Viewing the underlying facts in a light most favorable to the Hamens,
it is questionable whether the use of “communication portals” of the sort made here
were required given the small size of the trailer, particularly when considering that,
up to the point of their decision to enter the trailer, law enforcement had been using
resulting damage to the trailer was intolerable in its intensity and unnecessary to
execute the burglary warrant at issue. See Tarpley, 684 F.2d at 9. Therefore, on
constitutional right under the Fourth Amendment to survive a motion for summary
judgment.
[¶74.] Moving to the second prong, the United States Supreme Court has
counseled against defining a clearly established right “at a high level of generality.”
White v. Pauly, __ U.S. __, __, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017). Rather,
“the clearly established law must be particularized to the facts of the case.” Id. It
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constitutional question beyond debate.” Kisela v. Hughes, __ U.S. __, ___, 138 S. Ct.
1148, 1152, 200 L. Ed. 2d 449 (2018). The majority opinion concludes that because
the Hamens have failed to point this Court to “excessive force precedents under
apply to these facts, it is well established that there does not always need to be a
case “directly on point for a right to be clearly established[.]” Kisela, __ U.S. at ___,
138 S. Ct. at 1152. As the Supreme Court has reiterated on multiple occasions,
analogous case law is not necessary in “obvious cases.” See D.C. v. Wesby, __ U.S.
___, ___, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018) (“[T]here can be the rare
‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear
even though existing precedent does not address similar circumstances.”). 14 Then
Tenth Circuit judge, Neil Gorsuch, put it best when explaining that “some things
are so obviously unlawful that they don’t require detailed explanation and
sometimes the most obviously unlawful things happen so rarely that a case on point
unconstitutional conduct should be the most immune from liability only because it
14. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 199, 125 S. Ct. 596, 599, 160 L.
Ed. 2d 583 (2004) (“Of course, in an obvious case, these standards can ‘clearly
establish’ the answer, even without a body of relevant case law.”); Hope v.
Pelzer, 536 U.S. 730, 731, 122 S. Ct. 2508, 2510, 153 L. Ed. 2d 666 (2002)
(holding that the facts alleged in this case met the obviousness standard
because the “safety concerns had long since abated[.]”).
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[¶76.] From an objective review of the record, this may be such a case. If we
accept the Hamens’ version of the facts as true, the Sherriff’s use of force rose to
such a level of egregiousness that “every reasonable official would have understood
that” the actions violated the Hamens’ constitutional rights. See Mullenix v. Luna,
577 U.S. 7, 11, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015). When the armored
vehicles rolled away, they left behind structural damage to the Hamens’ trailer
totaling $18,778.61. To repair it, the Hamens were required to replace multiple
doors and windows, the septic system, the skirting, the deck, studs, and insulation.
[¶77.] There is often a great and justifiable need for law enforcement to make
appropriate equipment to protect themselves and the public while doing so. See
Graham, 490 U.S. at 396, 109 S. Ct. at 1871-72. But unlike other cases where an
extreme use of force was found to be reasonable, here, Gary was not barricaded
do so. See Ginter, 869 F.2d at 388. Moreover, law enforcement could have taken
incremental steps to clear the trailer with the hope of communicating with Gary to
urge him to come out peaceably, or they could have simply waited him out, rather
than tearing apart the trailer absent an immediate threat. Insulating those who
“knowingly violate the law[,]” has never been the purpose of the qualified immunity
doctrine. Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d
271 (1986).
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[¶78.] As the circuit court noted in its memorandum decision, “whether the
agree with the circuit court’s assessment and would affirm the court’s denial of
summary judgment on both the unlawful entry and excessive force claims. If it
becomes necessary to address the excessive force claim, it will be up to the circuit
court to determine whether the Sheriff has met his burden of showing that the force
used was objectively reasonable. If the court finds it was not objectively reasonable
but the Hamens fail to identify existing precedent with sufficiently similar
circumstances, the court should then consider whether the facts nevertheless rise to
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[¶79.] I agree with Chief Justice Jensen’s writing on the first issue regarding
inverse condemnation. However, I disagree with Chief Justice Jensen’s and Justice
law for a court, not a jury, to decide. See Swedlund, 2003 S.D. 8, ¶ 12, 657 N.W.2d
States Supreme Court has repeatedly stated “qualified immunity is ‘an immunity
from suit rather than a mere defense to liability . . . it is effectively lost if a case is
erroneously permitted to go to trial.’” Pearson, 555 U.S. at 231, 129 S. Ct. at 815
(quoting Mitchell, 472 U.S. at 526, 105 S. Ct. at 2808). “[W]e have made clear that
the ‘driving force’ behind creation of the qualified immunity doctrine was a desire to
prior to discovery.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2, 107
S. Ct. 3034, 3039 n.2, 97 L. Ed. 2d 523 (1987)) (second alteration in original).
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“courts are required to view the facts and draw reasonable inferences ‘in the light
most favorable to the party opposing the summary judgment motion.’” Scott, 550
U.S. at 378, 127 S. Ct. at 1774 (quoting Diebold, Inc., 369 U.S. at 655, 82 S. Ct. at
994). Both the writings of Chief Justice Jensen and Justice Kern overlook this basic
concept. Chief Justice Jensen acknowledges the existence of disputed facts, but
then states, they should be “resolved either through discovery or, if disputed, by a
fact finder.” Jensen, C.J., Majority Opinion at ¶ 47. Neither parties’ brief requests
additional time for discovery. If the circuit court found the existence of disputed
facts, it was to view the facts in a light favorable to the Hamens, and then rule on
qualified immunity existed, punted the question to the jury. The conflicting
to run the gauntlet of trial, fleshing out factual disputes, prior to the circuit court
rendering a qualified immunity decision. This holds the potential to waste the
court’s and the parties’ resources and runs counter to the spirit of qualified
[¶82.] The circuit court should have resolved all factual disputes in favor of
the Hamens, decided whether qualified immunity existed as a matter of law, and
then either granted summary judgment or permitted the case to proceed to trial if it
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found immunity did not exist. As such, I would remand the issue of qualified
immunity exists. Then, if the circuit court denies the Sheriff’s motion for summary
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