F I LED

United States Court of Appeals

Tenth Circuit

November 22, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SCOTT FISHBEIN, by and through

his mother and next friend, Shelley

Fishbein; AARON HUGHES, by and

through his father and next friend,

Cliff Hughes; SHELLEY FISHBEIN;

MARK FISHBEIN,

Plaintiffs - Appellees,

v.

CITY OF GLENWOOD SPRINGS,

COLORADO; TERRY WILSON,

individually and in his official

capacity as Glenwood Springs Police

Chief; BILL KIMMINAU,

individually and in his official

capacity as Glenwood Springs Police

Lieutenant; CHRISTOPHER M.

DANIELSON; NEIL WAGSTROM,

individually and in his official

capacity as Glenwood Springs Police

Officer; AARON MUNCH,

Defendants,

 and

BRYAN KEITER, individually and in

his official capacity as Glenwood

Springs Police Officer; MATTHEW

HAGBERRY, individually and in his

official capacity as Glenwood Springs

Police Officer,

No. 05-1013
The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of *

Appeals for the Sixth Circuit, sitting by designation.

-2-

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 03-CV-1083-JLK-GJR)

J. Andrew Nathan and Bernard Woessner of Nathan, Bremer, Dumm & Myers,

P.C., Denver, Colorado, for Defendants-Appellants City of Glenwood Springs,

Colorado.

Theodore G. Hess of The Law Firm of Ted Hess, P.C., Glenwood Springs,

Colorado, for Plaintiffs-Appellees, Scott and Shelley Fishbein. 

Before BRISCOE, McCONNELL, and SILER, Circuit Judges. 

*

McCONNELL, Circuit Judge.

Glenwood Springs, Colorado, police officers claim their warrantless

intrusion into the home of Mark and Shelley Fishbein was necessary to protect

officers’ safety. Mr. and Mrs. Fishbein claim the search violated the Fourth

Amendment. While officers may not perform so-called protective sweeps simply

as a matter of course, we conclude here that the defendant police officers

reasonably believed they faced an imminent threat to their safety sufficient to

justify their incursion. We REVERSE the judgment of the district court. 
-3-

I. Background

Shortly after noon on August 15, 2002, Dr. Mark and Shelley Fishbein

returned their son Scott, 15, and his friend Aaron Hughes, 16, to the Fishbeins’

home in Glenwood Springs, Colorado. The four of them had been out that

morning for a visit to a nearby skate park. Having deposited the teenagers, Mark

and Shelley retrieved two pistols from the house and set off again for Shelley

Fishbein’s tattoo shop in downtown Glenwood Springs. 

Sometime later that afternoon, a 911 caller told the Glenwood Springs

Police Department he had been threatened with a weapon by a couple police

believed matched the description of Dr. and Mrs. Fishbein. Five officers

responded to the subsequent dispatch, including Defendants Bryan Keiter and

Matthew Hagberry. Officers Keiter and Hagberry and a third policeman located

the Fishbeins outside their residence at just after 6:00 p.m., loitering next to their

car parked across the street from the home. None of the three officers could

discern whether either Dr. or Mrs. Fishbein was armed, though Officer Hagberry

saw Dr. Fishbein repeatedly adjusting the waist area of his trousers, as if toying

with a weapon. No officer attempted to make contact with the Fishbeins, opting

instead to wait for backup. 

Two additional officers arrived ten or fifteen minutes later, at just the time

Dr. and Mrs. Fishbein left their car, crossed the street, and began to walk towards

the house. To prevent the Fishbeins from entering their home, the five officers
-4-

approached the couple on foot, weapons brandished. Four of the officers carried

pistols, the other an AR-15 assault rifle. As Dr. and Mrs. Fishbein reached the

lawn, the officers ordered them to get down on the ground. Dr. Fishbein

immediately complied, but Mrs. Fishbein hesitated and then continued towards

the front door. After repeated orders from the officers, Mrs. Fishbein eventually

positioned herself face down on the lawn as directed, and she and her husband

were handcuffed and placed under arrest. 

One of the officers asked Mrs. Fishbein if there was anyone presently in the

house. She replied, “My children are in the house, don’t go inside.” Appellants’

App. at 395. Officer Keiter knew independently that the Fishbeins had at least

one teenaged son. And Officer Hagberry, who had been to the Fishbein residence

sixteen months before and observed there a sizable cache of weapons—multiple

rifles, an AK-47, and two handguns—knew the Fishbeins kept firearms in the

house as well, or had at one time. Officers Keiter and Hagberry entered the home

together to conduct a protective sweep. As Mrs. Fishbein predicted, they found

Scott Fishbein and Aaron Hughes inside, and escorted them to the front lawn. 

The officers then returned to the house and searched room to room, yelling

“clear” as they went. Estimates regarding how long the officers were in the home

range from thirty seconds to slightly less than five minutes. The officers did not

remove any items from the residence.
-5-

Mark, Shelley, and Scott Fishbein, and Aaron Hughes and his father, Cliff,

brought this action under 42 U.S.C. § 1983, claiming multiple violations of their

Fourth Amendment rights. The Fishbeins’ initial complaint named as defendants

seven officers—the five who were present at the arrest and two supervising

officers—and the City of Glenwood Springs. Following discovery and on the

defendants’ motion for summary judgment, the district court accepted the

recommendation of the magistrate judge and dismissed all claims but the alleged

unconstitutional entry into the Fishbeins’ home. As to that claim, the district

court rejected the defendant officers’ assertion of qualified immunity and ordered

the case to proceed to trial. Officers Keiter and Hagberry filed an interlocutory

appeal from the district court’s denial of their motion for qualified immunity. 

II. Jurisdiction

“Orders denying qualified immunity before trial are appealable only to the

extent they resolve abstract issues of law.” Shrum v. City of Coweta, 449 F.3d

1132, 1137 (10th Cir. 2006) (citing Behrens v. Pelletier, 516 U.S. 299, 313,

(1996)). An interlocutory appeal is improper when the question is the sufficiency

of the evidence or the correctness of the district court's findings with respect to a

genuine issue of material fact. Id. (citing Johnson v. Jones, 515 U.S. 304, 313

(1995)). Neither party to this case challenges our jurisdiction to review the

interlocutory order of the district court denying qualified immunity, and both

parties agree there are no disputed issues of material fact. The Fishbeins admitted
-6-

all material facts Officers Keiter and Hagberry relied upon in their motion for

summary judgment. Appellants’ App. at 257-61, 392. The district court

concluded that based on these undisputed facts, viewed in the light most favorable

to the Fishbeins, the defendants lacked “reasonable grounds to believe there was

an immediate need to search the house.” Id. at 419. Given this judgment, our

jurisdiction is proper under 28 U.S.C. § 1291.

The Report and Recommendation filed by the magistrate judge contains

language that might suggest disputed questions of material fact. See Appellant’s

App. at 396 (“[Q]uestions of fact concerning the reasonableness of the search of

the Fishbeins’ home are the exclusive province of the jury . . . .”); id. at 403 (“If,

however, the jury were to decide that the officers had no reasonable concern for

their safety . . . defendants Keiter and Hagberry would not be entitled to qualified

immunity for their actions.”). Elsewhere, however, the magistrate judge declared

flatly that “there are no disputed material facts.” Id. at 392. To the extent that

the magistrate judge believed that the reasonableness of a search, based on

undisputed facts, is a question for the jury, or that the case hinges on whether the

officers, as a subjective matter, entertained reasonable concerns for their own

safety, the magistrate judge was mistaken. The sole question for this Court on

appeal is whether, based on undisputed facts and drawing all reasonable

inferences in favor of the plaintiffs, the officers had an objectively reasonable

basis for conducting a protective sweep. If they did not, they are not entitled to
-7-

qualified immunity. This is purely a question of law, over which this Court has

appellate jurisdiction.

III. Discussion

Officers Keiter and Hagberry contend they are entitled to qualified

immunity for their so-called protective sweep, a claim which, if true, effectively

forces summary judgment in their favor. Qualified immunity is “an entitlement

not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). Once executive-branch officers assert a qualified immunity

defense, the burden shifts to the plaintiffs to demonstrate that the officers (1)

violated a federal right (2) that was clearly established at the time of the incident.

Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999). Because we conclude

the defendants’ protective sweep did not violate the Fourth Amendment, we hold

the plaintiffs fail their burden. 

We begin our analysis by determining whether the officers’ protective

sweep violated the Fishbeins’ Fourth Amendment right to be free from

“unreasonable searches and seizures.” U.S. Const. amend. IV. A protective

sweep is a cursory, limited search of a residence or other premises for the sole

purpose of securing officers’ safety during an arrest or investigation. United

States v. Hauk, 412 F.3d 1179, 1185–86 (10th Cir. 2005). The protective-sweep

doctrine represents an exception to the Fourth Amendment’s warrant requirement,

theoretically akin to the exception for exigent circumstances. United States v.
Scott Fishbein estimated that the officers’ sweep took no longer than thirty 1

seconds. Appellants’ App. at 200. The two estimates are reconcilable if Aaron

(continued...)

-8-

Wicks, 995 F.2d 964, 970 (10th Cir. 1993). Police are permitted to search a

premises without judicial pre-authorization when they reasonably believe, on the

basis of articulable facts, that they face an imminent threat to their personal safety

or that the safety of third parties is imminently threatened. Maryland v. Buie, 494

U.S. 325, 327 (1990). Further, the search must not be motivated by an intent to

arrest or seize evidence. Id. at 326 (“Such a protective sweep is not a full search

of the premises, but may extend only to a cursory inspection of spaces where a

person may be found.”); see Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir.

2003) (holding that a search motivated by exigent circumstances is lawful only

when not motivated by intent to arrest or seize evidence). 

In our case, the second of these factors is more easily addressed and we

dispose of it first. While the Fishbeins maintain that there is “considerable

doubt” as to whether the sweep of their home was narrowly tailored to the

preservation of officer safety, there is in fact little evidence to suggest the

officers’ sweep was meant for anything other than police protection. Neither

Officer Keiter nor Officer Hagberry removed any items from the house. No

person within the house was arrested. The Fishbeins’ argument is based entirely

on Plaintiff Aaron Hughes’s estimate that it took the officers “a little less than

five minutes maybe” to complete their sweep. Appellants’ App. at 205. The 1
(...continued) 1

was referring to the entire time the officers were involved in sweeping the house,

including their initial encounter with the teenagers and escorting them outside,

while Scott was referring to the subsequent sweep after he and Aaron had been

taken outside. Interpreting the facts in the light most favorable to the party

opposing summary judgment, we assume that Aaron’s estimate is correct.

-9-

Fishbeins urge this Court to surmise that the officers were gathering evidence

during this time, behavior outside the bounds of a protective search. Buie, 494

U.S. at 326. Such a conclusion, however, would be unsupported speculation. We

do not think five minutes is a self-evidently excessive time for police to conduct a

limited protective sweep to ensure that there are no armed and dangerous persons

lurking on the premises. Buie counsels that the sweep should be “no longer than

is necessary to dispel the reasonable suspicion of danger.” 494 U.S. at 335-36.

But given the cluttered interior of the Fishbein home, the time spent removing the

two teenagers, the officers’ concerns regarding the cache of weapons, and the fact

that Officers Keiter and Hagberry neither removed evidence from the house nor

made arrests while inside, we have little trouble in concluding that their sweep

was legitimately aimed at securing officers’ safety. 

The major focus of our inquiry is the reasonableness of the officers’ belief

they were in imminent danger. Protective sweeps are not justified as a matter of

course. United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004); accord

Hauk, 412 F.3d at 1186. Officers must articulate specific facts, “which, taken

together with the rational inferences from those facts, would warrant a reasonably
-10-

prudent officer in believing that the area to be swept harbors an individual posing

a danger to those on the arrest scene.” Buie, 494 U.S. at 334. 

In the instant case, Officers Keiter and Hagberry articulate two specific

facts which they contend justify their belief that the Fishbein home harbored an

individual dangerous to police safety: Officers knew that the Fishbeins had at

least one teenaged son and that firearms had recently been present inside the

home. We agree that a prudent officer might reasonably infer from this knowledge

that a teenager could be located inside the home, could be armed, and having just

observed his parents’ arrest, could be hostile to the arresting officers. 

This result accords with our precedents, which recognize that unaccountedfor third parties with access to firearms may present a grave danger to arresting

officers. In United States v. Soria, 959 F.2d 855, 857 (10th Cir. 1992), we held

that a protective sweep of the defendant’s auto shop was proper following the

defendant’s arrest during a drug transaction close to the shop where officers

believed accomplices may have been hiding. In United States v. Mabry, 809 F.2d

671, 679 (10th Cir. 1987), we found no constitutional problem with a protective

sweep of a suspected drug dealer’s home, partly on the basis that hostile parties

might have been inside. More recently, we upheld FBI agents’ protective search

in Hauk, when agents pointed to evidence suggesting the presence of a third party

in the residence who might have had reason to assist the defendant in resisting

arrest. 412 F.3d at 1191. 
-11-

In the foregoing cases, police relied on various bits of circumstantial

evidence to inform their judgment that a hostile third party might be present. The

law enforcement agents in Hauk, for instance, inferred from the presence of a

parked car in the defendant’s driveway that a hostile third-party might be inside

the residence. Id. at 1192. In the case at bar, the evidence suggesting danger is

much stronger. Mrs. Fishbein flatly told Officers Keiter and Hagberry that there

were “children” present in the home, and at least one of the officers knew Mrs.

Fishbein’s “children” included a teenaged male. Admittedly, as the plaintiffs

point out, we have held that the mere presence of children in the home is not

sufficient, without more, to justify a protective sweep. United States v. Hogan,

38 F.3d 1148, 1150 (10th Cir. 1994). But the child at issue in Hogan was not a

teenager and police in that case never alleged the child posed a threat to officer

safety. Rather, police apparently claimed they needed to search the house in

order to protect the child. Id. 

The situation here is altogether different, more analogous to cases where an

accomplice is lurking on the premises. Scott Fishbein was certainly old enough to

know how to fire a weapon and officers knew from previous personal observation

that weapons had been available in the Fishbein household. Mrs. Fishbein

affirmatively told officers her “children” were inside. It is eminently reasonable

to infer from these specific and articulable facts that Scott Fishbein was likely

present in the home at the time of the incident, that he had access to firearms, and
-12-

that he had reason to be upset or alarmed or otherwise hostile to officers

following his parents’ dramatic arrest on the front lawn. See United States v.

Wilson, 306 F.3d 231, 238-39 (5th Cir. 2002) (holding a protective sweep

justified based on the presence of a child in the home with access to firearms and

potentially hostile to police after the arrest of his parents), overruled on other

grounds by United States v. Gould, 364 F.3d 578, 586 (5th Cir. 2004). 

The plaintiffs rely heavily on our decision in United States v. Carter to

argue that because the Glenwood Springs officers had no certain knowledge that

Scott Fishbein was present in the house, their sweep violated the Fourth

Amendment. Carter, however, does not compel that conclusion. In Carter, we

refused to countenance a protective sweep where officers had no reason to believe

there was any hostile person—or any person at all—inside the house. 360 F.3d at

1242. Officers Keiter and Hagberry, by contrast, had very good reasons to

suspect the presence of a hostile third party, not the least of which was Mrs.

Fishbein’s affirmative statement that her children were indeed inside. In keeping

with Buie, Carter requires officers to have some articulable basis for their

suspicion of danger—not certain knowledge. Id. 

We conclude that the defendant police officers had reasonable grounds to

believe there was an immediate threat to their safety. And we conclude they were

not motivated by an intent to arrest or seize evidence. Hogan, 38 F.3d at 1150. 

The circumstances considered in their totality were sufficient to justify a
-13-

protective sweep of the Fishbeins’ home and accordingly, we find no violation of

the Fishbeins’ or the Hugheses’ Fourth Amendment rights. Hauk, 412 F.3d at

1187. If there has been no violation of a federal right, the plaintiffs cannot defeat

the defendant officers’ assertion of qualified immunity. The plaintiffs fail at the

first step. Greene, 174 F.3d at 1142. We find no need to proceed further. 

Officers Keiter and Hagberry are entitled to qualified immunity and to summary

judgment in their favor. 

IV. Conclusion

We REVERSE the district court’s denial of qualified immunity and

REMAND with instructions to enter summary judgment in favor of the

defendants.