Police, The Fourth Amendment, Qualified Immunity

ATF Agent Sean Skender may have been too persistent trying to get into a house

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Case: SHROYER v. U.S., No. 1:10-CV-211-TLS (N.D. Indiana, October 23, 2012)

What happened:

On March 23, 2009, ATF agents arrested Mr. Shroyer on charges related to firearms and narcotics. In addition, members of law enforcement believed that he was a participant in the white supremacist movement. On Thursday, April 30, one such officer, FWPD Officer Frederick Ray, spoke to Mr. Shroyer while he was detained at the jail. According to Officer Ray, Mr. Shroyer told him that “his people” had six cases of C-4 military explosives,1 and that there were a large number of skin heads in Fort Wayne who were armed and would not hesitate to shoot law enforcement officers. When Officer Ray referenced the recent influx of skin heads, Mr. Shroyer stated that things were going to get crazy. He told Officer Ray to talk to his wife, Crystal, for more specific details.

After finishing his conversation with Mr. Shroyer, Officer Ray went to the Shroyer house, which is located in a residential area of Fort Wayne, to speak to the Plaintiff about the white supremacist movement in the Fort Wayne area and the report of C-4 explosives. Officer Ray contends that the Plaintiff and three young men with shaved heads came to the door. Officer Ray told the Plaintiff that he had talked to her husband. She did not provide him any information in response to questions about the local white supremacist movement but, according to Officer Ray, nodded her head in an affirmative motion when he mentioned C-4 explosives.

The Plaintiff remembers that Officer Ray talked to her about a gang coming to town, but maintains that he did not say anything about explosives. (C. Shroyer Dep. 106, ECF No. 65-1 at 12.) Mr. Shroyer also denies that he said anything about having C-4 explosives to Officer Ray. (S. Shroyer Dep. 4, ECF No. 65-5 at 1.)

Officer Ray relayed his conversations with the Shroyers to Detective Harris who, in turn, told SA Skender. SA Skender was already familiar with Mr. Shroyer from the ATF investigation that preceded his arrest. On July 3, 2008, during the course of the ATF investigation, SA Skender was listening to a conversation between Mr. Shroyer, an undercover ATF agent, and a confidential informant when he heard Mr. Shroyer say that he was trying to obtain some C-4 explosives. SA Skender had also personally observed tattoos on Mr. Shroyer, a swastika and SS bolts, which he believed suggested affiliation with a white power movement. Detective Harris told SA Skender that when Officer Ray attempted to talk to the Plaintiff, the three men remained at the door and she was hesitant to speak. SA Skender contacted Sergeant Stier, the Hazardous Devices Unit Supervisor for the Fort Wayne Police Department, and briefed him on the situation. They determined that it was important to contact the Plaintiff about the C-4 and perhaps search the residence to eliminate the potential safety threat to her and the other residents in the area. SA Skender requested that Fort Wayne police officers serve as back-up for a “knock and talk” with the Plaintiff at her home.2 On Friday, May 1, SA Skender, TFO Rivera, and TFO Tapp went to the Shroyers’ residence on behalf of the ATF. Officer Thompson, Detective Harris, and Sergeant Squadrito provided back-up by assisting in securing a perimeter around the Plaintiff’s house. Sergeant Stier was also present.

Between 9:30PM and 10:00PM, the officers approached the house and situated themselves on three sides. TFO Tapp and Officer Thompson were carrying long guns in the low ready position. Another agent was in the front of the house on the far side of the sidewalk behind a tree with his firearm pointed toward the ground. SA Skender and Sergeant Squadrito approached the front door with their guns holstered. Inside the house were the Plaintiff and her two children, William Martin, Jessica Brown (Martin’s girlfriend), Andrew Snyder (the Plaintiff’s brother), Felicia Sthrol (the Plaintiff’s cousin) and Danielle Campbell, a friend who also had her elementary age daughter with her. Another friend’s young daughter was also visiting at the time. The Plaintiff’s brother was the first to notice the officers outside, and exclaimed that there was a guy outside pointing a gun at the window of the room where the kids were playing. Martin went to the front door and spoke briefly with the officers, who requested to speak with the Plaintiff. Martin called for the Plaintiff to come outside because there were cops at the door for her, and the Plaintiff went out on the front porch to talk to SA Skender.

SA Skender identified himself to the Plaintiff and advised that he was there because the ATF and FWPD had information that the house possibly contained some explosives, C-4, and he wanted to come in, find it, and remove it for safety concerns. The Plaintiff denied there was any C-4 in the house and said that the officers could not come in without a warrant. Over the course of the next hour,3 the officers stayed outside the residence attempting to gain the Plaintiff’s consent to search the home. At least five different law enforcement officers spoke to the Plaintiff. The parties tell differing versions of what transpired during the time, specifically as it relates to what the officers said. All the parties agree that the Plaintiff walked around outside smoking a cigarette while officers continued to talk to her about getting permission to look for C-4. The other adults who had been inside the house came outside and were sitting on the front porch. Martin claims that an officer instructed all the adults to come outside. While on the porch, Campbell expressed to the Plaintiff what she knew about warrants and legal rights, and one of the officers threatened to take her to jail for obstructing the investigation. (Campbell Dep. 22, ECF No. 65-2 at 5.) The Plaintiff testified that some of the officers threatened that they would be “back with flash bombs to throw in the house” and run them out so the officers could gain access, that it was going to be “headline news with Washington D.C. and the FBI and everybody was going to be involved.” (C. Shroyer Dep. 127, ECF No. 65-1 at 17.) One of the officers at the back of the house warned that if the Plaintiff’s dog (a large bulldog) was not controlled, he would shoot the dog. SA Skender, while trying to convince the Plaintiff to let him find the C-4, spoke in derogatory terms about the Plaintiff’s husband within hearing of her children. Martin, who was still a teenager, left the porch to talk to his mother, who had pulled up in a car. The officers asked him to empty his pockets and patted him down. Martin’s mother told an officer that she wanted to take Martin home, but the officer said that Martin could not leave at that time because of the ongoing investigation.

SA Skender maintains that he told the Plaintiff that he could get a federal search warrant. When the Plaintiff said that she didn’t care, he advised her that if a search warrant was executed and explosives were found in the residence, then Child Protective Services (CPS) would get involved. According to the Plaintiff, SA Skender simply told her that he was going to call CPS to take her children away, and she was afraid the officers would get CPS to come to her house that night to take her kids, even though she had done nothing wrong. Acting on this concern, the Plaintiff told her cousin, Felicia, to take the kids from the house and walk them down the sidewalk to stay at another relative’s house. Jessica Brown also left with them.

The Plaintiff told SA Skender that he could come look inside the house after her cousin left with her kids. (C. Shroyer Dep. 54.) However, when SA Skender asked the Plaintiff to sign a consent to search form, she suspected that the Defendants did not have a legal right to search her home if she continued to refuse. The Plaintiff then went inside the house and called a friend who advised her not to let the police in her house without a warrant and not to sign anything. When the Plaintiff again told SA Skender that he needed a warrant, the situation escalated with both parties raising their voices. According to the Plaintiff, SA Skender was close enough to the Plaintiff that she felt his saliva spray on her face as he yelled at her. SA Skender told the Plaintiff that she was “pissing him off” and walked away. Other officers then tried to talk to the Plaintiff about letting them in the house to search for the explosives. The Plaintiff went back inside the house for about thirty minutes to clear and wash the dinner dishes while the other adults stayed on the porch. During this time, the officers asked the Plaintiff’s brother to go in the house to convince the Plaintiff to get her to come back outside, but she refused. When she was finished with the dishes, the Plaintiff went back outside and SA Skender gave her his card and all the officers left. SA Skender states in his Affidavit that Sergeant Squadrito, Sergeant Stier, TFO Rivera, and Detective Harrison all attempted to speak to the Plaintiff “but did not get anywhere with her,” and that “[a]s the night went on [the Plaintiff] was becoming more upset and agitated, therefore [he] requested everyone leave the residence.” (Skender Aff. 7, ECF No. 62-1.)

Decision: No qi* for the ATF. If it happened the way plaintiffs said it did then the police were too persistent.

Comment: It can be difficult to keep police out of the house, but this plaintiff did.


* QI for federal agents, like Skender here, is actually called Bivens doctrine.

Written by Burgers Allday

October 27, 2012 at 6:23 am

Posted in Uncategorized

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