The federal appeals court based in Colorado agreed on Wednesday that police officers were entitled to immunity for entering a man’s Aurora home without a warrant and performing a “protective sweep” that included removing his sleeping infant.

A protective sweep generally does not involve looking for evidence, but, rather, it entails law enforcement moving through an area to spot hidden threats to officer safety. At the time officers decided to enter the N. Dallas St. home of Marquise Harris, however, he was already under arrest and the court record revealed no immediate need to extract the child.

Further, there was confusion on the scene between the Aurora and Denver police departments about whether anyone was actually pursuing a search warrant for the residence.

A trial judge found the officers may have committed a Fourth Amendment violation by unlawfully entering Harris’ home, but granted the officers qualified immunity because of the lack of a prior court case declaring, under similar circumstances, that such police conduct was unreasonable.

Harris died last year in Denver. The Denver Police Department has labeled it a murder.

According to the narrative agreed upon by the parties, Denver police requested assistance from Aurora in apprehending Harris, who was suspected of shooting a victim in Denver on Aug. 17, 2017. Officers surveilled the N. Dallas Street home for at least an hour that same day and watched Artesia Cabral leave the residence by car. Police knew Harris and a 19-month-old child remained inside.

When Harris left to walk to a neighbor’s home, police arrested him without incident. He acknowledged the child was inside, but told police they did not have a warrant to enter the home.

Denver officers told their Aurora counterparts a search warrant was imminent, and Aurora got into position to perform a protective sweep, partially in case others were inside the residence. But then the officers learned Denver did not “want” the home after all.

Confusion ensued about whether Denver was seeking a search warrant and if a protective sweep was necessary. Eventually, after receiving word Denver did “want” the home, Aurora officers entered, retrieved the child, looked in potential hiding spots and otherwise did not take evidence. The entry lasted two minutes.

Police then returned the baby to the mother, Cabral, who had since arrived at the home again. A search warrant never materialized and prosecutors later declined to pursue murder charges against Harris.

Harris and Cabral sued the officers and the cities of Aurora and Denver, alleging a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

U.S. Magistrate Judge Michael E. Hegarty, in evaluating the lawsuit, acknowledged there were exceptions to the Fourth Amendment’s requirement that police obtain a warrant prior to a search, but none of them seemed to fit the facts of the case.

For example, by the time police swept the home, Harris was already in custody and the officers’ entrance was not connected to arresting him. There was also no seeming need to provide emergency aid to the child because Aurora police had always intended to wait for Denver’s authorization before entering. Finally, there was no stated concern that anyone was inside the home destroying evidence.

“Defendants’ actions do not fall squarely within any of the relevant exceptions,” Hegarty wrote in December 2021. “How Defendants should have proceeded may not have been clear.”

Because of the lack of clarity, Hegarty granted the officers qualified immunity, which is a judicial doctrine that shields government employees from civil liability unless they violate someone’s clearly-established legal rights. Typically, a prior court decision under similar circumstances is necessary to put officers on notice their conduct is unconstitutional. Such a case did not exist, Hegarty concluded.

Harris and Cabral appealed Hegarty’s decision to the U.S. Court of Appeals for the 10th Circuit.

“The Defendants were all aware that Plaintiff Artesia Cabral was mere moments away from being available to enter her home to retrieve her safely sleeping child inside when they entered Plaintiffs’ home,” they wrote. “Defendants did not have legitimate grounds to perform a protective sweep of Plaintiffs’ home.”

A three-judge panel for the 10th Circuit upheld Hegarty’s reasoning, agreeing there was no clear prohibition against the officers’ protective sweep at the time.

“The Aurora officers confronted two problems: the need to secure the home until a search warrant issued and the possibility that a baby was alone inside,” wrote Judge Joel M. Carson III in the panel’s Jan. 25 order. “Although Plaintiffs insist the officers should have allowed Ms. Cabral herself to retrieve her baby, that option may have compromised the goal of securing the home. Yet allowing no one to enter may have compromised the baby’s safety.”

The case is Harris et al. v. City and County of Denver et al.