Hot Pursuit and Tunnel Vision

Watkins, Simpson, and Billings brought an appeal to the Tenth Circuit Court of Appeals after being denied qualified immunity at the trial court level. The issue stemmed from the arrest of Christina Mascorro’s son, Joshua Burchett.

July 23, 2007, at 11:30 pm, Deputy Craig Billings with the Murray County Sheriff Office, Oklahoma, saw 17 year old Joshua Burchett driving without his lights on. Billings turned around on Joshua Burchett to make a traffic stop but, Joshua Burchett went home and ran in hiding in the bathroom. He came through the front and only door leading inside/outside. The Mascarros were awakened to Billings kicking the door and cursing. Billings demanded that the door be opened and the occupants come outside.

Jose Mascorro went to the door and upon opening it. Billings pointed his firearm at Jose head and ordered him to his knees. Christine Mascorro tried to calm Billings down so she could understand what he wanted. Billings replied “I want the f--- that was driving the car outside”. Jose asked Billings if he had a warrant. Christine said it was her son and what he had done as she turned back inside. Billings sprayed her with pepper spray and stepped in the home. Billings sprayed her again then sprayed Jose and their fourteen year son.

Christine called 911 for help then Officer Steve Watkins, Sulphur Springs Police Department, Oklahoma, escorted her from her home leading her outside.   Once there were other officers present. Before Joshua   was taken from the home Billings pushed her into a wall and demanded Joshua’s location. Another officer mentioned summoning an ambulance and Billings said it was not needed. Christine asked for treatment and an ambulance was summoned.  

In the meantime Jose had gone to the kitchen to wash the pepper spray off of him. Officer Tony Simpson, from the Sulphur City Police Department, entered the kitchen and escorted Jose Mascorro outside. Billings told Simpson and Watkins that Joshua Burchett was in the bathroom. All three officers ordered him out and he refused. Simpson drew his firearm and kicked the door in and Joshua Burchett was taken into custody. The Mascorro’s contended that Billings was upset, angry, and screaming the entire time he was at the home.

The ambulance finally arrived. At that time Billings arrested cm and Jose Mascorro handcuffing them to the ambulance. The family was treated at the scene. Cm and Jose Mascorro were taken to jail and charged with obstruction. Billings charge cm with aggravated assault and battery on an officer.

Upon returning home the Mascorro’s found their home trashed and a hole kicked into a wall. The charges were eventually dismissed and the court found that Billings had illegally entered the home.   The Mascorro’s then filed suit with claims of unlawful entry, excessive use of force, false imprisonment, and malicious prosecution and filed for summary judgment which was denied. The matter before the court was if the officers were entitled to qualified immunity.

The court would not address the denial of qualified immunity in reference to the use of force, false imprisonment, nor in the case of Billings’ malicious prosecution as those questions had been addressed. Therefore, they had no venue. The court would address the unlawful entry claim. For the officers to overcome the issues they had to show that they did not violate the Mascorro's rights and that the rights were clear at the time of the incident.

The officers say their initial entry to the home was under the cause of Joshua Burchett’s traffic offense and the need to apprehend immediately. The court dismissed the claim stating that the entry was unlawful on its face and was not disputed. That left the court dealing with a request for qualified immunity.

Simpson and Watkins contended that their concern was for the Mascorro's and the contamination of the pepper spray. Additionally Simpson and Watkins claimed that they relied on the “fellow officer rule” (Karr v. Smith 774 F.2d.1029) when Billings told them of the encounter. This was dismissed by the court in that their entry was based on Billings’ statements.   However, evidence proved that Simpson and Watkins were in the home at the time of the use of force.

The officers claimed they were within the law by Joshua fleeing into the home therefore, exigent circumstances existed. The Marcorrow's contended that in this situation the exigent circumstances did not exist for a warrantless entry. The court examined United States v. Santana, 427 U.S. 38. The officers were able to articulate that there had been a controlled drug buy, Santana still had drugs on here and the officers had identified themselves, and the officers believed that evidence would be destroyed. Additionally in Welch v. Wisconsin Welch was arrested in his home after being involved in an accident where he was believed to be intoxicated. Although pursuit was not an issue however, his intoxication was evidence of which would be lost with any delay (Welch v. Wisconsin 466 U.S. 742).

The cases cited were felony offences not a misdemeanor traffic charge. The offender was a minor who the officers knew well and where he could be located. There was only one entry way into the home. There was no evidence that could be destroyed. The offender posed no risk to the public.   Hot pursuit was not justified in this case. the court was rather blunt in its closing “No reasonable officer would have thought pursuit of a minor for a mere misdemeanor traffic offense constituted the sort of exigency permitting entry into a home without a warrant.” (Christina Mascorro & Jose Mascorro v. Steve Watkins, Tony Simpson, and Craig Billings, U.S. Court of Appeals 10^th circuit #10-7005)

I have been teaching pursuit policy training and this case automatically got my attention. One thing we speak on is tunnel vision. Taking all into consideration of the complaint this is a perfect example of tunnel vision. Officer Billings was intent on capturing the offender. That is all he wanted. We cannot police this way. We have to be flexible to survive in the line of duty.

Web Links:

• National Internal Affairs Investigators Association
• Public Agency Training Council

About The Author:

Randy Rider began his career with the Douglas County Sheriff office, Georgia in 1974. He received several promotions eventually to investigations. His areas of expertise are extensive having worked crimes from petty theft to murder. In 1983 he became employed with the Georgia Department of Juvenile Justice as an investigator, promoted to Principal Investigator. He eventually moved into the Internal Affairs Unit as an investigator and as a supervisor.

Rider was elected President of the National Internal Affairs Investigators Association in 2005 and stepped down in 2010 having served five years. He is currently the Chaplain of the organization.

He is employed with the Public Agency Training Council one of the largest police training organizations in the country. Rider travels the country teaching officers on internal investigations of corrections facilities and first line supervisors on investigations of citizen’s complaints. He has experience is police audits.

Over the course of his career he has conducted hundreds of investigations concerning abuse, neglect, and use of force by law enforcement officers. Additionally, he has years of experience in custodial investigations, including numerous investigations involving the highly prevalent but seldom reported cases of inmate on inmate abuse. He has conducted investigations of police personnel for acts of misconduct.

A member of the IACP he worked with the organization on the document “Building Trust between the Police and the Citizens They Serve.” Currently he is an advisor on the Leading by Legacy program. He is an advisor to the International Chiefs of Police and the Department of Justice Community Oriented Policing Services.

Randy is a columnist for Officer.com as the internal affairs author. He published the weekly NIAIA newsletter for five years. He currently publishes the riderreport a police newsletter.