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• 10TH CIRCUIT COURT

                                        FILED
                           United States Court of Appeals
                                    Tenth Circuit
  
                                   March 14, 2007
  
                                Elisabeth A. Shumaker
                                   Clerk of Court                                      PUBLISH
         
                           UNITED STATES COURT OF APPEALS
         
                               FOR THE TENTH CIRCUIT
         
         
         
         DEANNA WEST,                     
                                          

              Plaintiff - Appellant,           
                                          

              v.                                    No. 05-6353
                                          

         KELLY KEEF; DENNIS ROSS;  GARY KUHN; THEODORE  BEAVER; JEFF TANKSLEY, 
                                          
                                          

              Defendants - Appellees.          
                                          
                         
                   APPEAL FROM THE UNITED STATES DISTRICT COURT 
                        FOR THE WESTERN DISTRICT OF OKLAHOMA
                               (D.C. No. 03-CV-245-R)
         
         
         Cynthia Rowe D'Antonio (Aletia Haynes Timmons, Timmons & Associates, 
         L.L.C., Oklahoma City, Oklahoma with her on briefs), Perimeter Law Offices and 
         Research Center, L.L.C., Oklahoma City, Oklahoma, for Plaintiff-Appellant.
         
         Stacey Haws Felkner (Robert E. Manchester, Susan Ann Knight with her on 
         brief), Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for 
         Defendants-Appellees.              
         
         
         Before KELLY, McKAY, and BRISCOE, Circuit Judges.
         
         
         
         McKAY, Circuit Judge.
         
         
         
              On March 26, 2002, K.W., the then-twelve-year-old son of paraplegic 

         Plaintiff DeAnna West, telephoned 911 to request emergency assistance.
         

         According to the transcript of that call, K.W. stated that his mother was "going 

         crazy" and was "[t]rying to kill herself."  (Defs.' Supp. App. at 28.)  K.W. 

         informed the 911 operator that his mother was "trying to cut her[self] with a 

         knife" that he believed she had taken with her to the bathroom.  (Id. at 28-29.) 

         Police arrived, spoke briefly with K.W., and found Plaintiff slumped over the 

         bathroom sink with her hands in the sink.  Plaintiff was unresponsive to initial 

         requests to show her hands, eventually raising them only to place them back in 

         the sink.  According to police testimony, Plaintiff stated:  "Leave me alone, I 

         want to die."  (Id. at 234.)  When the police removed Plaintiff from the bathroom, 

         she became combative, swinging at the officers and spitting on at least one.  After 

         Plaintiff was placed under arrest, police found several bottles of medication lying 

         about the bedroom and a steak knife in the bathroom sink.  Plaintiff was then 

         transported to a local hospital.

              A crisis-intervention-trained officer, although the last on the scene, spoke 

         with his fellow officers, with Plaintiff, and with K.W., who agreed to fill out a 

         voluntary third-party statement regarding his mother's actions.  In addition, that 

         officer prepared an Affidavit for Emergency Detention that included K.W.'s 

         statements as well as his own and the other officers' on-scene observations.

              Plaintiff filed a  1983 action against the police alleging violations of her 

         Fourth Amendment rights in addition to various state law claims.  Plaintiff 

         moved in limine to exclude the Affidavit for Emergency Detention.  Defendants'
         

         counsel "confessed" that motion, and the affidavit was not admitted into evidence. 

         One day before trial, Plaintiff filed a motion under Fed. R. Civ. P. 50(a) for 

         judgment as a matter of law.  The district court denied the motion after submitting 

         the case to the jury, but before the jury had reached a verdict.  The jury returned a 

         verdict against Plaintiff, and this appeal followed.

              We review a district court's ruling on a motion for judgment as a matter of 

         law de novo, applying the same standard as that applied by the district court.  See 

         McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1136 (10th Cir. 2006).  

              The gravamen of Plaintiff's argument is that the police lacked probable 

         cause to detain her because they violated provisions of the Oklahoma emergency 

         detention statute.  Plaintiff asserts that upon Defendants' "confessing" the motion 

         in limine, the police seizure no longer complied with Okla. Stat. tit. 43A,  5-

         207(C), which requires a third party affidavit indicating the basis upon which 

         treatment is considered necessary if police do not personally observe that 

         behavior.(1)  

         Plaintiff argues that by "confessing" the motion in limine Defendants have 

         conceded that the seizure did not comply.  Because we need not resolve that 

         dispute for purposes of this appeal, we assume that it did not.(2)

              Although this is not a criminal case, "[t]he Fourth Amendment is not 

         limited to criminal cases, but applies whenever the government takes a person 

         into custody against her will."  Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir. 

         1996).  Plaintiff's appeal turns on her assertion that the state statute governing the 

         seizure of mentally ill persons is an essential part of federal due process and that 

         failure to comply with all its terms deprived the officers of the probable cause to 

         enter her home and seize her without a warrant.  However, it is clear that 

         "violations of state law and police procedure generally do not give rise to a 1983
         









         (1)      The relevant portion of the statute, entitled "Emergency detention of 
         persons appearing to be mentally ill, alcoholdependent or 
         drugdependentStatements indicating basis for custodyInitial assessments" 
         reads:
         
         C. The officer shall prepare a written statement indicating the basis 
         for the officer's belief that the person is a person requiring 
         treatment and the circumstances under which the officer took the 
         person into protective custody. The officer shall give a copy of the 
         statement to the person or the person's attorney upon the request ofeither. If the officer does not make the determination to take an 
         individual into protective custody on the basis of the officer's 
         personal observation, the officer shall not be required to prepare a 
         written statement. However, the person stating to be mentally ill, 
         alcoholdependent, or drugdependent or the person upon whose 
         statement the officer relies shall sign a written statement indicating 
         the basis for such person's belief that the person is a person 
         requiring treatment. Any false statement given to the officer by the 
         person upon whose statement the officer relies shall be a 
         misdemeanor and subject to the sanctions of Title 21 of the 
         Oklahoma Statutes.
         
         Okla. Stat. tit. 43A,  5-207(C).
         (2)      If Plaintiff is implying that the grant of the motion to prevent admission 
         of the affidavit in evidence has the legal effect of suppressing the underlying facts 
         contained therein, which were admitted by direct testimony, she is clearly 
         mistaken.
         

         claim" for excessive force, as is alleged in Plaintiff's complaint. Romero v. Bd. of 

         County Comm'rs, 60 F.3d 702, 705 (10th Cir. 1995); accord United States v. 

         Villagrana-Flores, 467 F.3d 1269, 1278 (10th Cir. 2006) ("Even assuming, 

         without deciding, that the officer did violate state law, that violation would be 

         irrelevant to the question of whether the warrants check violated [an individual's] 

         Fourth Amendment rights."); United States v. Mikulski, 317 F.3d 1228, 1232 

         (10th Cir. 2003) ("The officers' violation of state law is not, without more, 

         necessarily a federal constitutional violation."); Ahern v. O'Donnell, 109 F.3d 

         809, 815 (1st Cir. 1997) (stating that failure to comply with the Massachusetts 

         involuntary admission statute could not form the basis for a  1983 claim).

              Thus the sole question in this case is, viewing the record testimony without 

         the affidavit, whether the officers had both probable cause and exigent 

         circumstances justifying not only their warrantless entry but also their seizure. 

         The Supreme Court has made clear, however, that police may enter a home 

         without a warrant where they have an objectively reasonable basis for believing 

         that an occupant is seriously injured or imminently threatened with such injury. 

         Brigham City, Utah v. Stuart, --- U.S. ----, 126 S. Ct. 1943, 1947 (May 22, 2006); 

         see also Georgia v. Randolph, 547 U.S. ----, 126 S. Ct. 1515, 1525 (2006) ("[I]t 

         would be silly to suggest that the police would commit a tort by entering . . . to 

         determine whether violence (or threat of violence) has just occurred or is about to 

         (or soon will) occur."); United States v. Najar, 451 F.3d 710 (10th Cir. 2006)
         

         (applying Brigham City in affirming denial of motion to suppress evidence 

         following police entry where 911 call was placed from residence, caller hung up, 

         return calls by 911 dispatcher went unanswered, and occupant denied having 

         called 911).

              In light of these authorities, the evidence admitted by means other than the 

         affidavit more than satisfies the minimum requirements of due process justifying 

         the officers' actions.  The 911 call from Plaintiff's twelve-year-old son, which 

         included his belief that his mother was "going crazy," that she was "[t]rying to 

         kill herself," that she was "trying to cut her[self] with a knife" and other 

         statements to the same effect, are, standing alone and in context, sufficient to 

         justify the warrantless entry.  Once inside, the officers' own observations 

         confirmed the son's fears and fully justified the warrantless seizure.  

              To the extent Plaintiff's appeal questions the district court's denial of the 

         Rule 50(a) motion regarding the various state law claims, we see nothing in the 

         record on appeal or Plaintiff's briefs that warrants reversal of the district court's 

         decision.

              In view of the foregoing, the trial court's denial of the Rule 50(a) motion is 

         correct and the judgment is AFFIRMED.