Susan Frunz v. City of Tacoma, a municipal corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SUSAN FRUNZ,
Plaintiff-Appellee,
v.
No. 05-35302 CITY OF TACOMA, a municipal
corporation; TACOMA POLICE D.C. No.
 DEPARTMENT; ALAN MORRIS, TPD CV-03-05709-RBL
Officer, in his individual capacity; ORDER
GARY T. STRIL, TPD Sergeant;
DAVID ALRED, TPD Officer, in his
individual capacity,
Defendants-Appellants. 
Filed January 16, 2007
Before: Alex Kozinski and Ferdinand F. Fernandez,
Circuit Judges, and Cormac J. Carney,* District Judge.
ORDER
Defendants have responded to our order to show cause. See
Frunz v. City of Tacoma, 468 F.3d 1141, 1147 n.10 (9th Cir.
2006). They argue that their appeal wasn’t frivolous because
they reasonably relied on relevant case authorities, notably,
Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995). We quote at
length from the response:
Like the instant case, the situation in Murdock
began with a call from a neighbor who reported
*The Honorable Cormac J. Carney, District Judge for the Central Dis-
trict of California, sitting by designation.
433

-- 1 of 12 --

suspicious activity. But the initial neighbor’s report
in Murdock provided the officers with far less infor-
mation than the report by Mr. Staples in the instant
case. In Murdock, all the neighbor reported was “that
a passerby had told him that he saw a young person
run from” Murdock’s house. Officers responded and
found the house secure, except for a sliding door at
the rear of the house, which was open approximately
8 to 10 inches. Id. at 1339. The Murdock court stated
that the neighbor’s report and open door were not
enough to establish probable cause and exigent cir-
cumstances, but that those two facts, coupled with
indicia that someone should be home and was not
answering, were sufficient:
The police officers did not, however enter
the house based only on the open door and
the neighbor’s report. They observed sev-
eral indications that a resident was or
should have been in the residence. The
lights were on and the television was on, in
addition to the door being open. The offi-
cers prudently attempted to make contact
with the resident, no doubt to make sure the
resident was safe in light of the officers’
concern that a burglary or some other crime
might have occurred. Officer Jacobson
shouted twice, but received no answer, nor
did any resident answer the telephone.
These additional pieces of information,
indicating that a resident should have been
home, but was not responding, combined
with the earlier report of suspicious activity
and the presence of the open door tip the
scales to supply the officer with probable
cause to believe that some criminal activity
had occurred or was occurring or that a
434 FRUNZ v. CITY OF TACOMA

-- 2 of 12 --

resident in the house might have been in
danger or injured.
(emphasis added) Id. at 1442. Similarly, in this case,
the officers did not act solely on the information
reported by Mr. Staples.
As outlined above, the neighbor’s report in this
case provided the officers with far more detailed and
credible information than the neighbor’s hearsay
report of suspicious activity in Murdock. In this case,
the officers were told by Mr. Staples that Doug
Quandt, the owner of the house, had spoken to him
just a few days earlier and had asked him to watch
the house while Quandt was out of town. ER 139-
141. Quandt also specifically told Mr. Staples that
the house was going to be empty while he was gone.
Id. In its opinion, this court states that the officers
did not gain any additional information when they
responded to the house the second time. Defendants
respectfully submit that this is not an accurate state-
ment of the facts. As documented in the CAD, when
the officers were dispatched the second time, they
immediately responded to the Staples’ residence. See
ER 32 (reflecting that officers arrived at the Staples
residence at 14:56:29). After speaking with Mr. Sta-
ples for a few minutes, the officers then went to
1708 South 40th Street. Id. (reflecting that, at
14:59:01, the officers changed location from 1712
South 40th Street (the Staples’ residence) to 1708
South 40th Street). When they arrived at 1708 South
40th Street, the officers saw three people inside a
house that was supposed to be empty. ER 334. Fur-
ther, these three people were dirty and unkempt and
appeared to be “street people.” Id.
In Murdock, the court found probable cause and
exigent circumstances based on a neighbor’s hearsay
435 FRUNZ v. CITY OF TACOMA

-- 3 of 12 --

report of suspicious activity, an open door, and indi-
cia that someone should be home but was not
responding to the officers’ calls. In this case, the
officers had a detailed, eyewitness report from the
neighbor that the house was supposed to be empty,
repeated reports of people inside the house, indicia
suggesting that these people had concealed them-
selves in the house during the officers’ first
response, and during the officers’ second response,
visual confirmation of people inside the house whose
appearance was inconsistent with the surroundings.
Based on the similarity of these facts with the cir-
cumstances in Murdock, the defendants in good faith
believed that Murdock supported the constitutional-
ity of their actions.
Response at 9-12.
The nub of this argument appears to be that, as in Murdock
(and contrary to the facts we recited in our opinion), the offi-
cers here obtained independent verification of Staples’s
account before entering: They observed three individuals,
whose appearances were inconsistent with their surroundings,
inside the house. Defendants reiterate this claim a few pages
later: “The officers activated the beeper [notifying the station
of an emergency situation], because when they arrived at the
Quandt home, they observed three people inside who
appeared to be ‘street people.’ ER 334.” Response at 21-22.
The record belies this argument. ER 334, on which defen-
dants rely, is part of Sergeant Stril’s testimony, and Stril made
his observations only after the officers had entered the house:
Q. After you heard the radio traffic that three were
detained, what did you do?
A. I went into the residence to see what was going
on.
436 FRUNZ v. CITY OF TACOMA

-- 4 of 12 --

Q. What do you recall seeing?
A. The officers had three people on the kitchen
floor handcuffed. I inquired of the circum-
stances. And I made some observations of my
own. The people I saw in the house looked like,
I will use the term “street people.” They were
roughly dress [sic], unkempt, not clean. They
did not look like your typical householder.
ER 334. The only evidence as to what the officers did see
prior to entering undercuts defendants’ assertion that the offi-
cers saw “street people” inside: Officer Alred testified only
that he “saw movement in the kitchen . . . and . . . movement
at the window as I passed the kitchen.” ER 406.
Defendants’ argument that the police entered the house
because they saw “street people” inside was prominently
raised in their brief as well. See Brief of Defendants-
Appellants at 6 (“This time, when the officers arrived, they
could see people inside the house—two men and a woman.
Dkt. 105/ER 408 (Alred testimony).[1] The people in the house
looked like ‘street people’—they were dirty, unkempt, and
roughly dressed. Dkt. 104/ER 334.”). As was their argument
that this supposed fact made their case similar to Murdock.
Because defendants’ argument was unsupported by the
record, we found Murdock inapplicable. We explained our
reasoning, and provided a correct recitation of the facts. We
issued the order to show cause in part to give defendants an
1Alred’s testimony suffers the same deficiency as Stril’s: It refers to
observations that could not have influenced Alred’s decision to enter the
house because they were made after he was already inside: “What I specif-
ically remember, as I entered the open door to the kitchen, there was three
individuals. I had a man, I had a second man, and I had Ms. Frunz.” ER
408 (emphasis added). The door to the kitchen was an inside door, con-
necting the kitchen to the laundry room, ER 405-06; Alred could only pass
through that door after having entered the laundry room from the outside.
437 FRUNZ v. CITY OF TACOMA

-- 5 of 12 --

opportunity to explain or retract their earlier misstatement.
Defendants did not do so. Instead, they twice repeated it.
Nor is this the only place where defendants are in error
about the facts. In footnote 2 of the response, defendants
claim “it was undisputed that Frunz did not drive to the house
on the day of the incident. ER 104.” The page of the record
defendants cite, ER 104, does not support this proposition. It
contains the testimony of Frunz’s divorce lawyer that he
drove her to the house on the prior Monday and Wednesday,
but he says nothing about driving her on Saturday, the day in
question. In fact, he does say on the very same page that he
was not involved in any of the Saturday events. ER 104.2
Defendants hotly dispute our suggestion that the police
could profitably have questioned Staples about his contacts
with Frunz’s husband: “The court mistakenly suggests that the
officers could have further questioned Staples regarding Sta-
ples’ last contact with Quandt . . . . However, Staples testified
that his conversation with Quandt occurred just two days prior
to the incident. ER 139.” Response at 19 n.3. Defendants also
claim that “the officers were told by Mr. Staples that Doug
Quandt, the owner of the house, had spoken to him just a few
days earlier . . . . ER 139-141.” Response at 10 (emphasis
added). ER 139-141 say no such thing; Staples nowhere testi-
fied he had told the police when he last talked to the husband.
Alred testified that he did not remember the first call at all.
ER 403. Neither Alred nor Stril said anything about a conver-
2Footnotes 2 and 4 of the response also recite facts highly prejudicial
to Frunz which, while true, are irrelevant because there is no evidence the
police were aware of them at the time they entered her home. As such,
they have no possible bearing on probable cause, the need to obtain a war-
rant or qualified immunity—the issues on which this appeal turned. We
thoroughly reviewed the record at the time we ruled on the case and were
therefore aware of the facts. We omitted them from our opinion because
they played no role in our legal analysis. It is unclear why defendants
believed these facts were relevant to the issues raised by the order to show
cause.
438 FRUNZ v. CITY OF TACOMA

-- 6 of 12 --

sation with Staples during the second call. See p. 439 infra.
Alred’s partner, Officer Morris, did not testify, nor did any
other officer involved in the arrest. The LESA CAD incident
report states only that “OCCUPANT IS OUT OF STATE
AND ASKED THEM TO WATCH HOUSE.” ER 31. So far
as the record reflects—and contrary to defendants’ assertion
—the police did not know on the day of the incident whether
Staples had talked to the husband weeks or even months earlier.3
It would indeed have been useful for the officers to question
Staples on this point.
At page 22 of the response, defendants claim that “[t]he
officers suspected that the occupants had concealed them-
selves during the first visit.” Defendants cite nothing support-
ing this assertion and we know of nothing in the record to
support it. On pages 10-11, defendants suggest that the offi-
cers “spoke to Staples for a few minutes” during the second
call and obtained new information from him at that time. The
record shows that the officers went to Staples’s home, ER 32,
but there is no evidence that they spoke to Staples, much less
that they obtained additional information from him.
Defendants claim “[i]t is undisputed that the officers did
check for warrants as soon as they had obtained enough infor-
mation (e.g. name and birthdate) to do so. ER 336, 383, 411.”
Response at 22 n.7. The record contradicts the assertion that
the police needed a birthdate to check for warrants; Stril testi-
fied that “approximate age” was enough. ER 383. The officers
had plaintiff’s first name and could have asked Staples for her
3In fact, the record shows that Frunz’s husband had been out of the
house for quite a bit longer than the two days suggested by Staples’ testi-
mony. Frunz’s divorce lawyer testified that on November 7th—eleven
days before the incident in question—he received a call from the hus-
band’s divorce lawyer, a call he returned two days later. The husband’s
lawyer said that his client was willing to give up the house and would mail
the keys from California. ER 102-03. In light of this evidence, the jury
could have concluded that Staples was tailoring his story to justify his con-
duct.
439 FRUNZ v. CITY OF TACOMA

-- 7 of 12 --

(or her husband’s) last name; neighbors usually have such
information. Staples appears to have known both last names.
ER 139. And Staples had given the police her approximate
age. ER 31 (describing plaintiff as “HIS EX WIFE, SUSAN,
W/F, 40’s”). The officers never testified that they checked for
warrants at the earliest opportunity.
The defendants’ response also contains other statements
that are not entirely accurate, of which the following is an
example: “The court mistakenly suggests that the officers may
have ‘slammed’ Frunz to the floor, but Frunz testified that the
officers told her to get down onto the floor and she complied.
ER 282-283.” Response at 22 n.6. What we actually said was:
“The police ordered or slammed the occupants to the floor.”
468 F.3d at 1142 (emphasis added). And we were not mis-
taken.
While Frunz testified that she was ordered to the floor,
another occupant, Joseph Resutek, testified he was slammed:
Q: When you were cuffed, how did the officer —
how would you describe the officers’ treatment
of you?
. . . .
A. They come in, you know, slammed me to the
floor, put the flex cuffs on me and hauled me
outside.
ER 400.
We have cited some, but by no means all, of the instances
where defendants’ response to the order to show cause dis-
torts the record—much as did the brief on the merits. Legal
arguments depend on facts and so lawyers have a responsibil-
ity to recite the record fairly and accurately. Defendants lost
on the merits in no small part because we did not accept their
440 FRUNZ v. CITY OF TACOMA

-- 8 of 12 --

view of the facts. This should have alerted defendants and
their lawyers that their record citations may have been defec-
tive. A simple check of the record would have disclosed the
problem and given defendants an opportunity to correct their
earlier misstatements. Had they done so, we would have given
them the benefit of the doubt.
In light of the above, we conclude that defendants and their
counsel have not shown cause why sanctions should not be
imposed pursuant to Fed. R. App. P. 38. We therefore order
as follows:
1. Defendants shall pay plaintiff’s attorney’s fees and dou-
ble costs. The parties shall meet within 30 days (in person or
by telephone) to agree on the amount. If they fail to agree, the
matter is referred to the Appellate Commissioner for a deter-
mination of the amount.
2. No later than 10 days from the date of this order, defense
counsel shall serve a copy of this order, together with our
opinion, on each member of the Tacoma City Council and on
Eric A. Anderson, the Tacoma City Manager.
441 FRUNZ v. CITY OF TACOMA

-- 9 of 12 --

-- 10 of 12 --

-- 11 of 12 --

PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.

-- 12 of 12 --