Opinion
Civil No. AMD 03-3209.
July 8, 2004
MEMORANDUM and ORDER
This case arises out of the detention of the minor children of a murder suspect by law enforcement officers during the execution of a search warrant at the suspect's residence. At the time of the search on February 20, 2002, plaintiff Lisa Dodson was 17 years old; she is the daughter of Charles Dodson, who was suspected (incorrectly, apparently) of participation in a homicide. Lisa and her siblings, Kathryn, then 12, and Melissa, then nine, were present at the family residence in Mt. Airy, Maryland, when law enforcement officers arrived to execute a search warrant that had been issued by a state judge in a murder investigation.
According to the allegations in the amended complaint, which of course are accepted as true at this stage of the case, defendant Jason Merson, a Maryland State Police detective, and other members of the search party, refused to permit Lisa, who had access to a motor vehicle at the time of the search, to depart the grounds of the family residence with her siblings. Plaintiffs further allege that the children were detained for more than five hours. They further allege that the law enforcement agents refused to permit Melissa (and perhaps other plaintiffs, as well) to enter the residence to use the bathroom and that she was required to "go in the woods."
Lisa, having reached her majority and thus acting on her own behalf, and Charles and Michelle Dodson, acting on behalf of their minor children, Kathryn and Melissa, have jointly filed a one-count amended complaint pursuant to 42 U.S.C. § 1983 asserting a fourth amendment claim, i.e., that the five-hour detention of the children during the execution of the search warrant violated their right to be free of an unreasonable seizure. (To be sure, plaintiffs also purport to invoke the fifth amendment, but there are no facts alleged in the amended complaint that would support a fifth amendment claim. Furthermore, I understand plaintiffs' invocation of the fourteenth amendment to be limited to the implied assertion that the fourteenth amendment incorporates the fourth amendment and makes the latter applicable to the states, not as a suggestion that an independent claim under the fourteenth amendment is asserted.) Plaintiffs seek substantial damages.
In response to the original complaint, defendant Merson filed a motion to dismiss for insufficiency of service of process, for failure to state a claim, and for summary judgment. I declined to consider the motion for summary judgment as there has been no discovery in the case. Nevertheless, I granted without prejudice the motion to dismiss for failure to state a claim to afford plaintiffs an opportunity to reallege their claims in a more comprehensive fashion. (I did not address the issue of sufficiency of service of process.) Plaintiffs have filed an amended complaint and Merson has moved pursuant to Fed.R.Civ.P. 12(b)(5) and (b)(6) to dismiss, inter alia, for insufficiency of service of process and for failure to state a claim, respectively. No hearing is necessary. The motion will be denied.
First, under the circumstances in this case, Merson's objection to the sufficiency of service of process must be rejected. Apparently, plaintiffs' process server simply left the summons and complaint with one of Merson's fellow state troopers, who delivered it to Merson. Undoubtedly, this does not comport with the Federal Rules or with Maryland law. I agree with plaintiffs, however, that by filing an ostensible alternative motion, pursuant to which he joined his objection to the sufficiency of service of process with a request for summary judgment pursuant to Fed.R.Civ.P. 56, Merson has effectively waived the insufficiency of service of process by seeking a ruling on the merits of plaintiffs' claims before any alleged defect in service of process could be adjudicated or cured. Nor am I persuaded that my earlier decision not to consider the motion for summary judgment militates in favor of non-waiver.
Second, although it is true that law enforcement officers act reasonably when they detain the occupants of a residence that is identified in a search warrant, see Michigan v. Summers, 452 U.S. 692 (1981), I understand that the gist of the claim here is not that the initial detention of the minor children was unreasonable. Undeniably, the initial detention of the children was reasonable. The gravamen of the claim here, however, is that two aspects of the continuing detention of the children rendered the detention unreasonable, namely: (1) that the detention continued for more than five hours (apparently, the duration of the actual search of the premises), allegedly far longer than reasonably necessary to achieve a legitimate law enforcement objective, i.e., personal security of the members of the search party, maintenance of the integrity of the area to be searched, etc.; and (2) reading the amended complaint broadly and drawing all inferences in favor of plaintiffs, that the minors were denied the use of the bathroom during the detention. Thus, although the claims asserted here are very limited (indeed, they appear to be only arguably cognizable fourth amendment claims), I am not prepared to say, as a matter of law, that a five-hour detention of young children during which they were denied permission to use the bathroom, constitutes a constitutionally reasonable seizure, or that qualified immunity bars the claims as a matter of law.
For the reasons set forth, the motion to dismiss is DENIED.
Defendant shall file his answer to the amended complaint on or before July 27, 2004.
SO ORDERED.