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Bloom v. City of Scottsdale

filed: October 2, 1992.

ANDREW B. BLOOM, ADELLE S. BLOOM, STEVEN BLOOM AND STACY BLOOM, PLAINTIFFS-APPELLEES,
v.
CITY OF SCOTTSDALE, AND ITS ELECTED OFFICIALS, ET AL., DEFENDANTS, AND FRANK HYLTON; BERNARD HILL; PATRICK SASONE, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the District of Arizona. D.C. No. CV-88-0910-PHX-PG. Paul G. Rosenblatt, District Judge, Presiding

Before: Fletcher, Poole and Brunetti, Circuit Judges.

MEMORANDUM

Bernie Hill, Patrick Sasone and Frank Hylton, officers in the Scottsdale, Arizona police department, appeal a judgment of $75,000 against them in a suit filed under 42 U.S.C. § 1983 by members of the Bloom family. They argue the district court erred in directing a verdict against them on the issue of liability, and in refusing to instruct the jury on their qualified immunity defense. Additionally, they contend that the jury's award of damages was not supported by the evidence. We affirm in part and reverse in part.

FACTS

On June 6, 1986, the Scottsdale Police Department received a phone call from James Wray, who had been driving down Shea Boulevard. Wray reported seeing a stocky man wearing jeans and no shirt waving a gun and staggering down the south side of Shea Boulevard near 68th Place. The dispatcher sent out a call based on this information, and several officers went to the location.

Officer Bernie Hill was the first to arrive in the area. He saw a man standing in the driveway of the Bloom residence, a house at the corner of 68th Place and Shea Boulevard. Andrew Bloom testified that at the time he was outside his house watering plants. At trial, there was substantial dispute as to whether Bloom matched the description Wray had given.

Hill saw the man go into the house through the garage entrance. Using his police radio, Hill informed other officers about what he had seen. Shortly afterward, officer Patrick Sasone and Sergeant Frank Hylton arrived on the scene.

Hill saw the man subsequently identified as Bloom emerge from the house. Hill drew his weapon and ordered Bloom to put his hands up and walk toward the officers. Apparently, the officers initially had some difficulty securing Bloom's cooperation. The police ordered Bloom to lie down in the driveway of the house; they frisked him and found a small pocket knife. The officers then walked Bloom away from the house to their police vehicles.

The police informed Bloom they were going to enter the house and determine whether the residents were all right. Hylton testified he did not ask permission to enter, but rather merely stated that police would do this. Bloom became quite agitated, and stated that he did not want the officers to go in. Bloom told police his two young children and their elderly grandmother were in the house.

At Hylton's direction, while Bloom was detained outside, Officers Hill and Sasone went to the house and knocked on the door. Stacy Bloom, Andrew Bloom's daughter, aged 12 at the time of the incident, came to the door. She called her brother, Steven Bloom, aged 16, who spoke with the officers. There is conflicting testimony as to what was said to the children. Stacy and Steven both testified that they did not recall giving the police permission to enter the house. They also do not recall the police inquiring after their welfare. Officer Sasone testified he did not recall asking permission, but told the children that the police wanted to come in and take a look around to make sure that everything was "all right inside the house." In any case, Officers Sasone and Hill entered the house and walked through the rooms, although they did not do a detailed search. During their inspection, they observed several guns in the house.

While Officers Hill and Sasone were in the house, Lieutenant James arrived on the scene. Finding nothing out of order, the police left the house. All the officers then departed from the scene. No charges were ever brought against Bloom.

At the time of the incident, Andrew Bloom was on parole from a federal narcotics conviction. One of the conditions of parole was that he was not allowed to have weapons in his residence. Bloom informed his parole officer about the June 6, 1986 incident. The parole officer contacted Scottsdale police, who informed him they had seen weapons in Bloom's house. The parole officer also called Officer John Hendrickson, of the federal Bureau of Alcohol, Tobacco and Firearms. Hendrickson obtained a warrant to search the Bloom residence. During a search executed on June 19, 1986, numerous weapons were found. Bloom's parole was revoked.

Andrew, Steven and Stacy Bloom, as well as Bloom's wife Adele who had been in Texas at the time of the incident, filed suit in federal district court under 42 U.S.C. § 1983 against the City of Scottsdale Police Department, Scottsdale Police Chief Fred Collins, Lieutenant James, Sergeant Hylton and Officers Hill and Sasone. The Blooms alleged that Officers Hill and Sasone's search of the house violated their Fourth Amendment rights, and sought compensatory and punitive damages. The case was tried to a jury.

The district court granted directed verdicts in favor of the Police Department, Collins and James, and against Adele and Steven Bloom. It also ruled that the Blooms could not seek punitive damages, nor could Bloom seek damages for the revocation of his parole. After both sides had rested, the district court entered a directed verdict in favor of Andrew and Stacy Bloom on the issue of liability, and refused to instruct the jury on the remaining defendants' qualified immunity defense. On the only issue remaining for it to decide, the jury awarded $25,000 in damages to Andrew Bloom and $50,000 to Stacy Bloom. The court denied defendants' motion for a new trial, and, pursuant to 42 U.S.C. § 1988, awarded attorneys' fees of $20,295 to the plaintiffs.

Sergeant Hylton and Officers Hill and Sasone (the "appellants"), appeal the judgment against them and the award of attorneys' fees.

Discussion

I. Did the district court err in entering a directed verdict in favor of Andrew and Stacy Bloom ...


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