FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN FRUNZ, 

Plaintiff-Appellee,

v.

CITY OF TACOMA, a municipal No. 05-35302

corporation; TACOMA POLICE D.C. No.

DEPARTMENT; ALAN MORRIS, TPD  CV-03-05709-RBL

Officer, in his individual capacity; ORDER GARY T. STRIL, TPD Sergeant;

DAVID ALRED, TPD Officer, in his

individual capacity,

Defendants-Appellants. 

Filed January 16, 2007

Before: Alex Kozinski and Ferdinand F. Fernandez,

Circuit Judges, and Cormac J. Carney,* District Judge.

ORDER

Defendants have responded to our order to show cause. See

Frunz v. City of Tacoma, 468 F.3d 1141, 1147 n.10 (9th Cir.

2006). They argue that their appeal wasn’t frivolous because

they reasonably relied on relevant case authorities, notably,

Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995). We quote at

length from the response:

Like the instant case, the situation in Murdock

began with a call from a neighbor who reported

*The Honorable Cormac J. Carney, District Judge for the Central District of California, sitting by designation. 

433
suspicious activity. But the initial neighbor’s report

in Murdock provided the officers with far less information than the report by Mr. Staples in the instant

case. In Murdock, all the neighbor reported was “that

a passerby had told him that he saw a young person

run from” Murdock’s house. Officers responded and

found the house secure, except for a sliding door at

the rear of the house, which was open approximately

8 to 10 inches. Id. at 1339. The Murdock court stated

that the neighbor’s report and open door were not

enough to establish probable cause and exigent circumstances, but that those two facts, coupled with

indicia that someone should be home and was not

answering, were sufficient: 

The police officers did not, however enter

the house based only on the open door and

the neighbor’s report. They observed several indications that a resident was or

should have been in the residence. The

lights were on and the television was on, in

addition to the door being open. The officers prudently attempted to make contact

with the resident, no doubt to make sure the

resident was safe in light of the officers’

concern that a burglary or some other crime

might have occurred. Officer Jacobson

shouted twice, but received no answer, nor

did any resident answer the telephone.

These additional pieces of information,

indicating that a resident should have been

home, but was not responding, combined

with the earlier report of suspicious activity

and the presence of the open door tip the

scales to supply the officer with probable

cause to believe that some criminal activity

had occurred or was occurring or that a

434 FRUNZ v. CITY OF TACOMA
resident in the house might have been in

danger or injured.

(emphasis added) Id. at 1442. Similarly, in this case,

the officers did not act solely on the information

reported by Mr. Staples. 

As outlined above, the neighbor’s report in this

case provided the officers with far more detailed and

credible information than the neighbor’s hearsay

report of suspicious activity in Murdock. In this case,

the officers were told by Mr. Staples that Doug

Quandt, the owner of the house, had spoken to him

just a few days earlier and had asked him to watch

the house while Quandt was out of town. ER 139-

141. Quandt also specifically told Mr. Staples that

the house was going to be empty while he was gone.

Id. In its opinion, this court states that the officers

did not gain any additional information when they

responded to the house the second time. Defendants

respectfully submit that this is not an accurate statement of the facts. As documented in the CAD, when

the officers were dispatched the second time, they

immediately responded to the Staples’ residence. See

ER 32 (reflecting that officers arrived at the Staples

residence at 14:56:29). After speaking with Mr. Staples for a few minutes, the officers then went to

1708 South 40th Street. Id. (reflecting that, at

14:59:01, the officers changed location from 1712

South 40th Street (the Staples’ residence) to 1708

South 40th Street). When they arrived at 1708 South

40th Street, the officers saw three people inside a

house that was supposed to be empty. ER 334. Further, these three people were dirty and unkempt and

appeared to be “street people.” Id.

In Murdock, the court found probable cause and

exigent circumstances based on a neighbor’s hearsay

FRUNZ v. CITY OF TACOMA 435
report of suspicious activity, an open door, and indicia that someone should be home but was not

responding to the officers’ calls. In this case, the

officers had a detailed, eyewitness report from the

neighbor that the house was supposed to be empty,

repeated reports of people inside the house, indicia

suggesting that these people had concealed themselves in the house during the officers’ first

response, and during the officers’ second response,

visual confirmation of people inside the house whose

appearance was inconsistent with the surroundings.

Based on the similarity of these facts with the circumstances in Murdock, the defendants in good faith

believed that Murdock supported the constitutionality of their actions. 

Response at 9-12. 

The nub of this argument appears to be that, as in Murdock

(and contrary to the facts we recited in our opinion), the officers here obtained independent verification of Staples’s

account before entering: They observed three individuals,

whose appearances were inconsistent with their surroundings,

inside the house. Defendants reiterate this claim a few pages

later: “The officers activated the beeper [notifying the station

of an emergency situation], because when they arrived at the

Quandt home, they observed three people inside who

appeared to be ‘street people.’ ER 334.” Response at 21-22.

The record belies this argument. ER 334, on which defendants rely, is part of Sergeant Stril’s testimony, and Stril made

his observations only after the officers had entered the house:

Q. After you heard the radio traffic that three were

detained, what did you do? 

A. I went into the residence to see what was going

on. 

436 FRUNZ v. CITY OF TACOMA
Q. What do you recall seeing? 

A. The officers had three people on the kitchen

floor handcuffed. I inquired of the circumstances. And I made some observations of my

own. The people I saw in the house looked like,

I will use the term “street people.” They were

roughly dress [sic], unkempt, not clean. They

did not look like your typical householder. 

ER 334. The only evidence as to what the officers did see

prior to entering undercuts defendants’ assertion that the officers saw “street people” inside: Officer Alred testified only

that he “saw movement in the kitchen . . . and . . . movement

at the window as I passed the kitchen.” ER 406. 

Defendants’ argument that the police entered the house

because they saw “street people” inside was prominently

raised in their brief as well. See Brief of DefendantsAppellants at 6 (“This time, when the officers arrived, they

could see people inside the house—two men and a woman.

Dkt. 105/ER 408 (Alred testimony).[1] The people in the house

looked like ‘street people’—they were dirty, unkempt, and

roughly dressed. Dkt. 104/ER 334.”). As was their argument

that this supposed fact made their case similar to Murdock. 

Because defendants’ argument was unsupported by the

record, we found Murdock inapplicable. We explained our

reasoning, and provided a correct recitation of the facts. We

issued the order to show cause in part to give defendants an

1Alred’s testimony suffers the same deficiency as Stril’s: It refers to

observations that could not have influenced Alred’s decision to enter the

house because they were made after he was already inside: “What I specifically remember, as I entered the open door to the kitchen, there was three

individuals. I had a man, I had a second man, and I had Ms. Frunz.” ER

408 (emphasis added). The door to the kitchen was an inside door, connecting the kitchen to the laundry room, ER 405-06; Alred could only pass

through that door after having entered the laundry room from the outside.

FRUNZ v. CITY OF TACOMA 437
opportunity to explain or retract their earlier misstatement.

Defendants did not do so. Instead, they twice repeated it. 

Nor is this the only place where defendants are in error

about the facts. In footnote 2 of the response, defendants

claim “it was undisputed that Frunz did not drive to the house

on the day of the incident. ER 104.” The page of the record

defendants cite, ER 104, does not support this proposition. It

contains the testimony of Frunz’s divorce lawyer that he

drove her to the house on the prior Monday and Wednesday,

but he says nothing about driving her on Saturday, the day in

question. In fact, he does say on the very same page that he

was not involved in any of the Saturday events. ER 104.2

Defendants hotly dispute our suggestion that the police

could profitably have questioned Staples about his contacts

with Frunz’s husband: “The court mistakenly suggests that the

officers could have further questioned Staples regarding Staples’ last contact with Quandt . . . . However, Staples testified

that his conversation with Quandt occurred just two days prior

to the incident. ER 139.” Response at 19 n.3. Defendants also

claim that “the officers were told by Mr. Staples that Doug

Quandt, the owner of the house, had spoken to him just a few

days earlier . . . . ER 139-141.” Response at 10 (emphasis

added). ER 139-141 say no such thing; Staples nowhere testified he had told the police when he last talked to the husband.

Alred testified that he did not remember the first call at all.

ER 403. Neither Alred nor Stril said anything about a conver2Footnotes 2 and 4 of the response also recite facts highly prejudicial

to Frunz which, while true, are irrelevant because there is no evidence the

police were aware of them at the time they entered her home. As such,

they have no possible bearing on probable cause, the need to obtain a warrant or qualified immunity—the issues on which this appeal turned. We

thoroughly reviewed the record at the time we ruled on the case and were

therefore aware of the facts. We omitted them from our opinion because

they played no role in our legal analysis. It is unclear why defendants

believed these facts were relevant to the issues raised by the order to show

cause. 

438 FRUNZ v. CITY OF TACOMA
sation with Staples during the second call. See p. 439 infra.

Alred’s partner, Officer Morris, did not testify, nor did any

other officer involved in the arrest. The LESA CAD incident

report states only that “OCCUPANT IS OUT OF STATE

AND ASKED THEM TO WATCH HOUSE.” ER 31. So far

as the record reflects—and contrary to defendants’ assertion

—the police did not know on the day of the incident whether

Staples had talked to the husband weeks or even months earlier.3

It would indeed have been useful for the officers to question

Staples on this point. 

At page 22 of the response, defendants claim that “[t]he

officers suspected that the occupants had concealed themselves during the first visit.” Defendants cite nothing supporting this assertion and we know of nothing in the record to

support it. On pages 10-11, defendants suggest that the officers “spoke to Staples for a few minutes” during the second

call and obtained new information from him at that time. The

record shows that the officers went to Staples’s home, ER 32,

but there is no evidence that they spoke to Staples, much less

that they obtained additional information from him. 

Defendants claim “[i]t is undisputed that the officers did

check for warrants as soon as they had obtained enough information (e.g. name and birthdate) to do so. ER 336, 383, 411.”

Response at 22 n.7. The record contradicts the assertion that

the police needed a birthdate to check for warrants; Stril testified that “approximate age” was enough. ER 383. The officers

had plaintiff’s first name and could have asked Staples for her

3

In fact, the record shows that Frunz’s husband had been out of the

house for quite a bit longer than the two days suggested by Staples’ testimony. Frunz’s divorce lawyer testified that on November 7th—eleven

days before the incident in question—he received a call from the husband’s divorce lawyer, a call he returned two days later. The husband’s

lawyer said that his client was willing to give up the house and would mail

the keys from California. ER 102-03. In light of this evidence, the jury

could have concluded that Staples was tailoring his story to justify his conduct. 

FRUNZ v. CITY OF TACOMA 439
(or her husband’s) last name; neighbors usually have such

information. Staples appears to have known both last names.

ER 139. And Staples had given the police her approximate

age. ER 31 (describing plaintiff as “HIS EX WIFE, SUSAN,

W/F, 40’s”). The officers never testified that they checked for

warrants at the earliest opportunity. 

The defendants’ response also contains other statements

that are not entirely accurate, of which the following is an

example: “The court mistakenly suggests that the officers may

have ‘slammed’ Frunz to the floor, but Frunz testified that the

officers told her to get down onto the floor and she complied.

ER 282-283.” Response at 22 n.6. What we actually said was:

“The police ordered or slammed the occupants to the floor.”

468 F.3d at 1142 (emphasis added). And we were not mistaken. 

While Frunz testified that she was ordered to the floor,

another occupant, Joseph Resutek, testified he was slammed:

Q: When you were cuffed, how did the officer —

how would you describe the officers’ treatment

of you? 

. . . . 

A. They come in, you know, slammed me to the

floor, put the flex cuffs on me and hauled me

outside. 

ER 400. 

We have cited some, but by no means all, of the instances

where defendants’ response to the order to show cause distorts the record—much as did the brief on the merits. Legal

arguments depend on facts and so lawyers have a responsibility to recite the record fairly and accurately. Defendants lost

on the merits in no small part because we did not accept their

440 FRUNZ v. CITY OF TACOMA
view of the facts. This should have alerted defendants and

their lawyers that their record citations may have been defective. A simple check of the record would have disclosed the

problem and given defendants an opportunity to correct their

earlier misstatements. Had they done so, we would have given

them the benefit of the doubt. 

In light of the above, we conclude that defendants and their

counsel have not shown cause why sanctions should not be

imposed pursuant to Fed. R. App. P. 38. We therefore order

as follows: 

1. Defendants shall pay plaintiff’s attorney’s fees and double costs. The parties shall meet within 30 days (in person or

by telephone) to agree on the amount. If they fail to agree, the

matter is referred to the Appellate Commissioner for a determination of the amount. 

2. No later than 10 days from the date of this order, defense

counsel shall serve a copy of this order, together with our

opinion, on each member of the Tacoma City Council and on

Eric A. Anderson, the Tacoma City Manager.

FRUNZ v. CITY OF TACOMA 441


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