Douglas County sheriff’s deputies cannot be held liable for entering a man’s home without a warrant, over his objection, and forcibly arresting him on suspicion of domestic violence, the federal appeals court based in Denver ruled last month.

Bryce Watkins sued three deputies for violating his Fourth Amendment right against unreasonable searches and seizures by coming into his house in order to arrest him. They did not obtain a warrant, but rather relied on Watkins’ then-wife, who met with one of the deputies away from the home and gave them permission to go inside.

Even though Watkins objected to the deputies’ entrance, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit ruled there was no clear violation of Watkins’ constitutional rights. Judge Scott M. Matheson Jr. acknowledged in the panel’s June 23 order that neither the U.S. Supreme Court nor the 10th Circuit has addressed a case exactly like Watkins’ – where an alleged victim of domestic violence provides her consent and the alleged perpetrator protests.

“We thus have no precedent,” he wrote. “Other courts of appeals are divided.”

David Lane, an attorney representing Watkins, called the decision “terrible” and indicated he plans to ask the entire 10th Circuit bench to review the panel’s ruling.

“The clearly established law is that the police may not enter a private home when a party present in the home objects and a party with equal ownership outside of the home consents,” he said.

The panel’s decision was not “published,” meaning it is not intended to set a precedent. Alan Chen, a constitutional law professor at the University of Denver, lamented that the 10th Circuit had also declined to say whether the deputies’ warrantless entrance into Watkins’ home amounted to a constitutional violation in the first place.

“This is unfortunate, because it leaves the police and those who interact with them (as well as lower court judges) without further guidance,” said Chen.

Case: Watkins v. Wunderlich

Decided: June 23, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Scott M. Matheson Jr. (author)

Harris L Hartz

Carolyn B. McHugh

Background: Georgia v. Randolph (2006)

On April 29, 2018, Deputy Kevin Nichols arrived at a park around the corner from Watkins’ Parker home. He spoke with Watkins’ wife, who had called law enforcement the previous evening to report an incident of domestic violence. Watkins was not home at the time, but he returned on the 29th, which prompted his wife to leave.

During their conversation, Watkins called his wife. Nichols took her cell phone and, according to the body-worn camera footage, asked Watkins to come talk to law enforcement. In response, Watkins said, “You cannot come inside my house. I do not want to talk to you.”

After hanging up, Nichols told Watkins’ wife that “he’s not coming down, so we’re gonna have to go in and chat with him.”

Instructing the wife to stay in the park, Nichols drove the short distance to Watkins’ home, where Deputy Tammy Bozarth and Sgt. Brian Wunderlich were waiting. They used a code Watkins’ wife had provided to open the garage door. Wunderlich asked Nichols if the wife had given them permission to go into the house itself.

“Not explicit, no,” Nichols conceded. He then returned to the park to confirm with the wife that the deputies had her permission to enter. Once she consented, the deputies walked into Watkins’ house and yelled at him to come downstairs with his hands up. Watkins, who had just taken a shower, appeared wearing only a towel. He was incredulous at the deputies’ presence.

Although he descended the staircase and held up his hands, Nichols grabbed at him, causing Watkins to pull back. The deputies then tackled Watkins, who was now naked on the staircase, and handcuffed him.

Douglas County prosecutors charged Watkins with a felony domestic violence offense, but a state judge later ruled the deputies had unlawfully entered Watkins’ home, for the sole purpose of arresting him without a warrant.

“You can’t enter a home absent a warrant to make an arrest,” said District Court Judge Theresa Slade. There was no “current threat or a current worry or any threat to police that was conveyed.”

Watkins then sued the deputies in federal court, alleging they committed unlawful entry and excessive force.

The U.S. Supreme Court, in its 2006 decision of Georgia v. Randolph, held that an occupant of a home can provide valid consent for police to enter, unless another occupant is physically present to object. Consequently, the issue was whether the consent Watkins’ wife provided – away from the home and despite her husband’s objection – allowed the deputies to enter.

U.S. District Court Senior Judge Raymond P. Moore agreed her consent was valid and sided with the deputies. Watkins then appealed to the 10th Circuit, where the panel of judges questioned whether the deputies were justified in entering without a warrant and with no immediate need to offer protection.

“The domestic assault happened 24 hours earlier. The alleged victim was not in the home and the officers did not see any evidence of her being assaulted when they saw her in the park,” said Judge Carolyn B. McHugh during oral arguments. “There wasn’t any need to run into the house to save her from being attacked by her husband at that moment.”

“The original Supreme Court law is: consent of one party is sufficient,” responded Kelly Dunnaway with the Douglas County Attorney’s Office.

“So anytime you want to arrest someone, even without a warrant, you can get consent from another owner?” McHugh continued. “And even if the person you wanna arrest is in the house yelling at you saying, ‘Don’t come in my house, you don’t have permission,’ you can come in?”

“Absolutely,” said Dunnaway.

Ultimately, the panel granted the deputies qualified immunity without addressing if they committed a constitutional violation. Qualified immunity generally shields government employees from civil liability as long as they do not violate a person’s clearly established legal rights. Because other circuit courts across the country have reached different conclusions about whether an alleged victim’s consent can override an alleged perpetrator’s objection in domestic violence cases, the panel concluded the law was not “clearly established.”

As for the excessive force claim, Matheson wrote that the deputies acted reasonably and Watkins “suffered no significant injury.”

The case is Watkins v. Wunderlich et al.