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Officer who kicked in door for DUI has immunity

Deborah Elkins//November 9, 2011

Officer who kicked in door for DUI has immunity

Deborah Elkins//November 9, 2011//

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A police officer is not liable for a civil rights violation for kicking in the door of a man’s home to arrest him for drunken driving, in a new case from the 4th U.S. Circuit Court of Appeals.

On Oct. 2, 2004, Vienna police officer M.A. Reeves followed Alan J. Cilman from a sports bar to his home on suspicion of drunken driving. Cilman got out of his car, asked the officer to leave his property, went into his home and locked the door. Reeves called for back-up and then kicked in the door to Cilman’s home when he wouldn’t respond.

Reeves arrested Cilman not for drunken driving, but for being drunk in public and evasion without force. All criminal charges against Cilman were dismissed.

When Cilman sued Reeves, Alexandria U.S. District Judge Gerald Bruce Lee said Reeves was liable as a matter of law under 42 U.S.C. § 1983 and Va. Code § 19.2-59 for the warrantless entry. But a jury awarded zero compensation and no punitive damages.

In an unpublished per curiam opinion in Cilman v. Reeves a 4th Circuit panel said the law on warrantless entries in this kind of case is unclear, and Reeves deserved the benefit of the doubt, and qualified immunity.

Contrary to the district court’s opinion, the U.S. Supreme Court’s 1984 decision in Welsh v. Wisconsin does not create a “categorical rule that police may never make a warrantless entry into a home” to arrest a suspect for driving under the influence, the 4th Circuit panel said in its Nov. 4 opinion. That’s because, unlike the Wisconsin law at issue in Welsh, DUI in Virginia is a class 1 misdemeanor punishable by up to a year in jail, a $2,500 fine and license suspension.

“No controlling Supreme Court or 4th Circuit precedent speaks to a person’s right to be free from a warrantless entry into his home in circumstances like those” here, the panel said. Numerous out-of-circuit cases do address the issue, but courts are divided. Some hold that commission of a misdemeanor drunk driving offense subject to a possible jail term does not justify a warrantless home arrest, according to the panel.

“In light of the divergence in these holdings, we can only conclude that Officer Reeves was entitled to qualified immunity,” the panel said.

By Deborah Elkins

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