JOSEPH C. SPERO, United States Magistrate Judge.
This civil rights action involves allegations that officers of the City of San Leandro Police Department and the City of San Leandro violated Plaintiffs' constitutional rights when they entered a residence occupied by Plaintiffs to perform a "welfare check" and shot and killed Plaintiff Silva's dog. Defendants bring a Motion for Summary Judgment or, in the Alternative, Summary Adjudication ("the Motion") seeking dismissal of all of Plaintiffs' claims. All parties have consented to the jurisdiction of a United States magistrate judge, pursuant to 28 U.S.C. § 636(c). The Court finds that the Motion is suitable for determination without oral argument, pursuant to Civil Local Rule 7-1(b). Accordingly, the motion hearing scheduled for October 8, 2010 at 1:30 p.m. is
For the reasons stated below, Defendants' Motion is GRANTED in part and DENIED in part.
This action arises out of events that occurred on May 24, 2009 at a residence ("the Residence") located at 632 Beatrice Street in San Leandro, California. Joint Statement of Undisputed Material Facts Related to Defendants' Motion for Summary Judgment or, in the Alternative, for Partial Summary Adjudication ("Joint Statement"), No. 1. Plaintiff Bruce Hemphill's grandmother had owned the Residence, but had passed away, and the Residence was in probate. Id., No. 3. Hemphill lived at the Residence pursuant to an agreement with his family that he would maintain the Residence during the probate. Id., No 4.
At the time of the relevant events, the Residence was occupied by Bruce Hemphill, Barbara Silva and Matthew Hoy. Id., Nos. 2, 7. Silva lived at the Residence pursuant to an oral lease agreement with Hemphill. Id., No. 5. Matthew Hoy was Silva's boyfriend and also lived at the Residence, in the room occupied by Silva. Id., No. 7. In addition, Silva kept a 60-pound pit-bull mix, named Boo Boo, at the Residence with her. Id., No. 8.
On May 24, 2009, at approximately 4:18 a.m., the Alameda County Sheriff's Department received an anonymous 911 call in which the caller stated that a female was overdosing on drugs and turning blue at the Residence. Id., Nos. 9-10. The Alameda County Sheriff's Department immediately notified the San Leandro Police Department ("SLPD") of the 911 call. Id., No. 11. In response, the SLPD dispatch relayed the substance of the call to SLPD officers on patrol and emergency medical
Responding Officers Jason Bryan and Brian Buss, who were both on patrol at the time, in separate patrol vehicles, were the first to arrive at the Residence. Id., Nos. 13-14. Both were wearing their police uniforms. Id., No. 15. Upon their arrival, Officers Bryan and Buss proceeded to the front door of the Residence. Id., No. 16. The front door of the Residence is protected by a locking, metal security gate. Id., No. 17. Officer Bryan knocked and identified himself several times. Id., No. 19. At that point, Hemphill was in his bedroom and Silva and Hoy were in Silva's bedroom. Id., No. 20. Upon hearing the Officers' knocking, Hemphill came to the front door. Id., No. 21. The metal security gate obscured the Officers' view into the Residence. Id., No. 22.
The account of Officer Bryan about the events that followed differs from Plaintiffs' accounts. Officer Bryan testified at his deposition that he told Hemphill that the officers were there because they had received an anonymous 911 call stating that someone was overdosing on drugs inside. Declaration of Matthew A. Lavrinets in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication ("Lavrinets SJ Decl."), Ex. D (Bryan Depo.) at 15. Officer Bryan testified that Hemphill told him that everybody was fine. Id. Officer Bryan told Hemphill that the officers needed to come inside to check nonetheless. Id. at 15-17. According to Bryan, Hemphill refused to let the officers in and appeared "agitated.". Id. at 16, 22. Officer Bryan then asked Hemphill if there was anyone in the house with him; Hemphill said there was and called out the name "Matt." Id. at 17. At that point a male appeared behind Hemphill. Id. at 16-17. Officer Bryan explained that although he could not see through the security door, even with his flashlight, he heard male voices. Id. at 18. According to Bryan, he heard the men saying that everything was fine and mentioning that the second man's girlfriend was also in the house. Id. Bryan testified that Matt's girlfriend never came out, or at least, he never saw her. Id. at 18. According to Bryan, while this exchange was occurring, there was a dog inside the house near the door barking and growling and pushing on the screen door. Id. at 18, 20. Bryan testified that:
Id. at 21-22.
Hemphill testified at his deposition that when he opened the door, he saw two men on the front porch and two men on the grass near the sidewalk, and that one of the men on the grass yelled out that there had been a 911 call placed from Hemphill's residence and they needed access to the home. Declaration of Steven R. Yourke, Esq. in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment ("Yourke Decl."), Ex. 3 (Hemphill Depo.) at 34. Hemphill stated that he was "confused" by this "because of the fact that there was no home phone in my grandmother's house because we had it turned off within a week or so after she had passed." Id. He testified that he responded as follows:
Id. at 35-36. Hemphill further that "Matt came out first, but Barbie was a few feet behind him" and that both said out loud that they were fine. Id. at 36. According to Hemphill, Boo Boo was barking and so he asked Hoy to put the dog away. Id. Hemphill stated that Hoy then took Boo Boo to Silva's bedroom and closed the door. Id.
Silva testified at her deposition that after she heard her dog barking and the doorbell ring, Hemphill knocked on the bedroom door and asked Silva and Hemphill to come to the door because the police were there. Yourke Decl., Ex. 1 (Silva Depo.) at 57. She said that Hoy went with Hemphill, that Boo Boo also left the room and that she followed, about two minutes later, after putting her pants on. Id. According to Silva, she spoke to the officers and assured them that she was fine and only went back to bed after she asked the officers if she could do so, and they replied that she could. Id. at 57-61.
It is undisputed that Hemphill did not open or unlock the front door security gate and that Officer Bryan felt that Hemphill's refusal to admit the officers to conduct a welfare check was suspicious. Joint Statement, Nos. 33-34. In Officer Bryan's experience, acquaintances of a person overdosing on drugs will often assume a person's life is not at risk and will prefer to not involve police or emergency personnel for fear that they will be held criminally liable for their own use of drugs. Id., No. 36.
Therefore, Officer Bryan determined that the officers needed to enter the Residence. Id., Nos. 37-38. Officer Bryan contacted dispatch and requested assistance from additional SLPD officers and the following officers responded: Liaquat Khan, Matthew Costa, Daniel Sellers, Robert McManus, Michael Benz, Dennis Mally, Jason Fletcher and Suzanne Huckaby. Id., Nos. 39-40. As additional officers began to arrive on the scene, Officer Bryan and other officers conferred regarding the safest method to gain entry into the home, and conducted related investigation into other routes of entry besides the front door, which was blocked by a security gate. Id., No. 41. The officers felt that time was of the essence and that they needed to gain entry into the Residence as soon as possible due to the emergency nature of the situation. Id., No. 42.
As part of the efforts to gain entry to the Residence, Officer Costa looked over a side fence of the Residence and saw a side door to the garage of the Residence that was ajar. Id., No. 43. Officer Costa proceeded over the fence with the intent of securing the side door so that the officers could use it as an entry point to gain access to the Residence to perform a welfare check. Id., No. 44. When Officer Costa arrived at the side door, he was met by Hemphill, who attempted to shut the side door. Id., No. 45. However, Officer prevented Hemphill from closing the door by placing his foot in the door. Id., No. 46. Officer Costa then ordered Hemphill
Officer Khan heard Officer Costa's request for assistance and proceeded to where Officer Costa and Hemphill were standing. Id., No. 50. Officer Kahan took hold of Hemphill's arm and led him to the front of the Residence, where multiple police cars were parked. Id., No. 51. As Officer Khan was leading Mr. Hemphill to the front of the Residence, Officer Khan felt Hemphill begin to resist his grip on Hemphill's arm. Id., No. 52. Officer Khan felt that Hemphill was about to attempt to run away from him, so Officer Khan intensified his grip on Hemphill's arm and forcefully directed him to the hood of a nearby police car. Id., No. 53. Officer Khan perceived Hemphill as being much larger than him; Hemphill is five foot eleven inches tall and weighs 185 pounds, while Office Khan is five foot four inches tall and weighs 150 pounds. Id., No. 54; Reply at 6 n. 2 (clarifying that Hemphill is not five foot four inches, as stated in the Joint Statement but rather, five foot eleven, citing Hemphill's own deposition testimony). Upon reaching the hood of the police car, Officer Khan placed the front of Hemphill's upper body on the hood of the police car. Id., No. 55. Officer Fletcher assisted Officer Khan in placing Hemphill over the hood of the car. Id., No. 56. Officer Khan then placed Hemphill in the rear seat of the police car. Id., No. 57.
The evidence is disputed as to whether Hemphill resisted Officer Khan as he led him from the side of the Residence to the hood of the patrol car and then into the back seat of the car. Officer Khan stated in a sworn declaration that Hemphill attempted to resist his grip and later "struggl[ed] [w]ith him as he moved him away from the side of the house." Declaration of Officer Liaquat Khan in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication ("Khan Decl."), ¶¶ 8-9. Hemphill, on the other hand, testified at his deposition that he complied with the Officers order and did not flex his muscles as Khan stated. Yourke Decl., Ex. 3 (Hemphill Depo.) at 71.
Subsequently, a group of officers entered the Residence through the side door. Lavrinets Decl., Ex. D (Bryan Depo.) at 28. There is conflicting evidence in the record as to how the decision was made to enter in this manner. According to Officer Bryan, Sergeant McManus—one of the officers who had responded to Officer Bryan's call for additional back-up—was the officer who made the decision for a "stack"
Although it is unclear who made the initial decision to enter through the side garage door, it is undisputed that the decision to form a stack was made at approximately 4:34 a.m. Joint Statement, No. 59. The stack included Officers Costa, Sellers, McManus, Bryan, Buss, Fletcher and Mally. Id., No. 60. There is conflicting evidence about the events that followed. Officers Bryan, Costa and McManus testified that when they entered the garage, they loudly identified themselves as San Leandro Police officers and called for everyone in the house to come out with their hands up. See Lavrinets Decl., Ex. D (Bryan Depo.) at 29-30, Ex. F (Costa Depo.) at 45-46, Ex. G (McManus Depo.) at 26. The officers further testified that they entered the kitchen after they received no response and then ordered the occupants to come out again, calling Hoy by name. Id. (Plaintiffs do not dispute that Officer Bryan called Hoy by name. See Lavrinets Decl., Ex. C (Hoy Depo.) at 46.) According to the officers, they again received no response and they proceeded to the living room. Lavrinets Decl., Ex. D (Bryan Depo.) at 29-31, Ex. F (Costa Depo.) at 49-50, Ex. G (McManus Depo.) at 50-51.
Officer Bryan testified that he could not recall whether any order was given prior to entering the Residence to secure Silva's dog. Lavrinets Decl., Ex. D (Bryan Depo.) at 30. Officers Costa and Sellers, however, testified that no instruction was given to secure the dog. Lavrinets Decl., Ex. F (Costa Depo.) at 67; Yourke Decl., Ex. 4 (Sellers Depo.) at 89. Similarly, Sergeant McManus testified that he did not recall Officer Bryan informing him that there was an aggressive pit bull inside the residence. Lavrinets Decl., Ex. G at 50.
Officer Bryan testified that after he and Officer Sellers arrived in the living room, Hoy came into the living room and Officer Sellers ordered him to put his hands up, and then to get down on the ground. Lavrinets Decl., Ex. D (Bryan Depo.) at 32. Officer Bryan further testified that Hoy complied with those orders. Id. Officer Sellers testified that at the same time, he had his gun and flashlight trained on the hallway and that he could hear a grunt or growl coming from that direction. Lavrinets Decl., Ex. I (Sellers Depo.) at 75. According to Officer Sellers, a dog came around the corner at that point, "sprinting" straight at him, with its ears back and its teeth bared. Id. Officer Sellers concluded that the dog posed an "immediate threat" to him and was attacking him. Id. At this point, Officer Sellers testified, Hoy was already on the floor. Id. at 77. Officer Sellers was reluctant to shoot, however, for fear of hitting Hoy or another officer. Id. When the dog was five feet away, Officer Sellers said, he fired one round at it. Id.
Hoy offered a different account, testifying that when the officers were outside the garage, he "heard somebody from way on the other side of the house yell, `Matt ... come out. I just need to talk to you. You're not in any trouble. Just come out. I got to ask you a couple questions.'" Yourke Decl., Ex. 2 (Hoy Depo.) at 46. According to Hoy, in response he put his pants on and came out of the bedroom to find five officers in the living room, guns drawn, yelling, "[p]ut your fucking hands in the air. Put your hands in the air." Id. at 47-48. Hoy further testified that Boo Boo followed him out of the bedroom, at which point Barbara said "Matt, Boo Boo's
The shot fired by Officer Sellers hit Boo Boo, who stopped in his tracks and retreated to Silva's bedroom. Joint Statement, No. 76. The officers then continued to perform their welfare check but did not find any female overdosing, as had been reported. Id., Nos. 78, 83. Both Hoy and Silva were placed in handcuffs and escorted to separate patrol cars. Id., Nos. 79-82. Boo Boo was placed in a "comealong" by Officer Costa and led to Officer Huckaby's car. Joint Statement, No. 84. At 4:45 a.m., Officer Huckaby drove Boo Boo to the 24-hour emergency vet for treatment but Boo Boo ultimately died. Id., Nos. 85, 87.
Silva and Hoy were released after they had signed statements that were prepared by Officers Costa (Hoy's statement) and Buss (Silva's statement). Id., No. 88. The statement for Silva was signed by Silva and states as follows:
Lavrinets Decl., Ex. L (Silva Statement). Officer Buss testified that the statement accurately reflects the account that Silva gave him of what had occurred that night. Lavrinets Decl., Ex. E (Buss Depo.) at 47. Silva testified at her deposition, however, that the statement is false and moreover, that she signed it without reading it because she was in a hurry to get out of the car and make sure her dog was okay. Yourke Decl., Ex. 1 (Silva Depo.) at 146-157.
The statement for Hoy was written by Officer Costa and signed by Hoy. Lavrinets Decl., Ex. K (Hoy Statement). It states as follows:
Id. Officer Costa testified that he read the statement accurately to Hoy before Hoy signed it. Lavrinets Decl., Ex. F (Costa Decl.) at 15. However, Hoy testified at his deposition that although he had some memory of an officer reading a statement to him, it could not have been the statement quoted above because that statement is false. Yourke Decl., Ex. 2 at 99-103. Hoy also testified that he signed the statement without reading it and that at the time, it didn't really matter to him because he had been told that he would be free to go once he signed the statement and he wanted to check on the dog. Id. at 99-100.
In the meantime, Hemphill had been taken by Officer Khan to the SLPD station for booking. Joint Statement, No. 90. Officer Khan interviewed Hemphill about the events of that night. Id., No. 91. He prepared the following statement, which carries Hemphill's signature:
Lavrinets Decl., Ex. J (Hemphill Statement).
Officer Khan states in his declaration that this statement is based on what Hemphill told him during the interview at the station and that Hemphill reviewed the statement before signing it. Khan Decl., ¶¶ 11-13. At his deposition, however, Hemphill testified that a number of the statements in the written account were false and that he had not actually read the statement. Yourke Decl., Ex. 3 (Hemphill Depo.) at 73. Rather, Hemphill stated that he had signed the statement after Officer Khan read something to him that he represented to be the written statement. Id. Hemphill noted that "he could have told me a total different story than what he wrote." Id.
In the Complaint, Plaintiffs assert claims under 42 U.S.C. § 1983 against the following Defendants: 1) City of San Leandro; 2) San Leandro Chief of Police Ian Willis, in his official capacity; 3) Sergeant Robert McManus; 4) Officer Brian Buss; 5) Officer Daniel Sellers; 6) Officer Michael Benz; 7) Officer Matthew Costa; 8) Officer Liaquat Khan; 9) Officer Dennis Mally; 10) Officer Jason Fletcher; and 11) Officer Suzanne Huckaby. Plaintiffs assert three claims.
In Claim One, Plaintiffs assert that their Fourth and Fourteenth Amendment rights to be free of unreasonable searches and seizures were violated. Within this claim, Plaintiffs assert that: 1) each of the Defendant police officers arrested or detained each of the Plaintiffs without probable cause; 2) Officer Khan used excessive force against Plaintiff Hemphill when he arrested Hemphill; and 3) each of the Defendant police officers, including Sergeant McManus, violated Plaintiffs' Fourth Amendment rights by entering the Residence without a warrant or lawful justification.
In Claim Two, Plaintiff Silva asserts that Officer Sellers violated her Fifth and Fourteenth Amendment rights to due process when he deliberately shot and killed Boo Boo without due process or lawful excuse or justification.
In Claim Three, Plaintiffs assert claims against the City of San Leandro and the Police Chief, Ian Willis, on the basis that these defendants were the proximate cause of Plaintiffs' injury because they failed to adequately train and supervise their officers.
In the Motion, Defendants seek summary judgment on the following grounds:
1) Plaintiffs' claims under the Fourteenth Amendment, based on their alleged deprivation of substantive due process, fail as to all Defendants because the applicable amendment is the Fourth Amendment, not the Fourteenth Amendment.
2) Defendants' entry into the Residence and arrest of Plaintiffs did not violate Plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures because of the existence of exigent circumstances, which allows officers to enter a residence without a search warrant in emergency situations and to briefly detain residents while a search is being performed. Defendants further assert that even if the search was unreasonable, the Defendant officers are entitled to qualified immunity because the officers had a reasonable belief that they were acting lawfully.
3) Defendants' arrest of Plaintiff Hemphill, as a matter of law, did not violate
4) Defendants' detention of Plaintiffs Hoy and Silva, as a matter of law, did not violate the Fourth Amendment because exigent circumstances permitted the Officers to enter the house and briefly detain Hoy and Silva in order to conduct the search.
5) Defendant Sellers' shooting of Plaintiff Silva's dog, as a matter of law, did not violate the Fifth Amendment because none of the defendants are federal actors; nor did it violate the Fourteenth Amendments because a deprivation of property does not violate the Fourteenth Amendment's procedural due process right.
6) Plaintiffs, as a matter of law, cannot establish the liability of the City of San Leandro and Police Chief Ian Willis because there is no evidence of a widespread custom or practice, as required to establish municipal liability under Monell v. Dep't of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
In their Opposition, Plaintiffs assert that there are four issues that must go to trial because there are of disputed questions of material fact:
1) Whether Defendants' entry into the home was reasonable; Plaintiffs point to evidence which, indicating that after Hemphill was arrested, Silva and Hoy were not warned that the police were entering the house, were not warned to secure the dog and were never asked to simply open the front door and allow the police to enter.
2) Whether the shooting of the dog was reasonable; Plaintiffs point to evidence that Boo Boo did not attack the police and posed no serious threat to them
3) Whether the arrest and use of force against Hemphill by Officers Khan and Fletcher was reasonable; Plaintiffs point to evidence that Officers Khan and Fletcher "body-slammed" Hemphill to the hood of the car even though he was not resisting arrest;
4) whether the detention of Hoy was reasonable; Plaintiffs point to evidence that Hoy did not resist arrest or obstruct the police in conducting their search in any way.
Plaintiffs concede that the claim based on the shooting of Boo Boo should have been pleaded under the Fourth Amendment rather than the Fifth and Fourteenth Amendments and request leave to amend the Complaint to assert the claim under the Fourth Amendment. Plaintiffs cite to San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir.2005) in support of their assertion that the shooting of a pet dog by police may violate the Fourth Amendment.
In their Reply brief, Defendants reiterate the arguments in the Motion. With respect to the Fourth Amendment claim that Plaintiffs seek to assert against Officer Sellers based on the shooting of Boo Boo, Defendants argue that the claim should be dismissed because the facts here are distinguishable from those in the Hells Angels decision and therefore, that Defendants are entitled to qualified immunity on this claim.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there are no genuine issues as to any material fact
In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir.2000). Once the movant has made this showing, the burden shifts to the party opposing summary judgment to "designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To establish a "genuine" issue of fact when opposing summary judgment, a plaintiff must "produce at least some significant probative evidence tending to support" the allegations in the complaint. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990).
In the Motion, Defendants argued that the claims against Chief Ian Willis and the City of San Leandro should be dismissed because Plaintiffs have pointed to no evidence of a policy or practice on the part of the City that would allow for the imposition of municipal liability. The Court agrees.
Under Monell, a municipality cannot be held liable for constitutional injuries inflicted by its employees on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. 2018. A plaintiff seeking to establish municipal liability under section 1983 may do so in one of three ways: 1) the plaintiff may demonstrate that a municipal employee committed the alleged constitutional violation "pursuant to a formal governmental policy or longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity;" 2) the plaintiff may demonstrate that the individual who committed the constitutional violation was an official with "final policy-making authority and that the challenged action itself thus constituted an act of official government policy;" or 3) the plaintiff may demonstrate that "an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996).
Here, Plaintiffs did not address in their Opposition brief Defendants' assertion that the claims against the City of San Leandro and the police chief fail as a matter of law. Further, there is no evidence in the record that the alleged violations were either committed by an individual with final policy-making authority or ratified by such an individual. Nor is there any evidence of a policy or custom to which the relevant conduct of the Defendant officers can be attributed. Therefore, Defendants' request for entry of summary judgment on the claims against the City of San Leandro and the police chief is granted.
Defendants assert that Plaintiffs' claims as to Officer Huckaby should be dismissed because the only evidence of her involvement in the relevant events is that she drove Boo Boo to the emergency veterinarian after he was shot. The Court agrees. The undisputed evidence shows that Huckaby was not involved in the entry into the Residence or the arrest or detention of any of its residents. Accordingly, all of Plaintiffs' claims fail as to Officer Huckaby.
Defendants seek summary judgment as to all of Plaintiffs' claims under the Fourteenth Amendment on the basis that the Fourteenth Amendment due process clause applies only to federal actors and none of the named defendants is a federal actor. Plaintiffs do not address this argument in their Opposition brief, implicitly conceding that these claims fail. Accordingly, the Court grants Defendants' request for summary judgment as to all of Plaintiffs' Fourteenth Amendment claims.
Defendants argue that the Court should enter summary judgment in their favor on all of Plaintiffs' Fourth Amendment claims based on the Defendant Officers' allegedly unreasonable entry into the Residence, asserting that the undisputed evidence establishes, as a matter of law, that exigent circumstances justified the Officers' conduct. Defendants further assert that even if it cannot be determined as a matter of law whether the Officers acted reasonably, they are nonetheless entitled to qualified immunity as to this claim because their conduct did not violate a clearly established right. The Court concludes that there are factual disputes that preclude summary judgment on both grounds.
The Fourth Amendment guarantees: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The purpose of this amendment is to "safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, it is well-established that "except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant.'" Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (quoting Camara v. City and County of San Francisco, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)).
An exception to the search warrant requirement arises in the case of exigent or emergency circumstances in which police officers reasonably believe "that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The Ninth Circuit has adopted a two-part test for determining whether the emergency exception applies, which asks "whether: (1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search's scope and manner were reasonable to meet the need." U.S.
There is no bright-line rule as to whether a 911 call reporting that an occupant of a residence is in danger is sufficient to give rise to exigent circumstances. See, e.g., U.S. v. Brooks, 367 F.3d 1128, 1136 (9th Cir.2004); U.S. v. Davis, 290 F.3d 1239, 1242 (10th Cir.2002). For example, in Brooks, the court of appeals affirmed the district court's holding, on a motion to suppress, that an officer who entered the defendant's hotel room without a warrant did not violate the Fourth Amendment because the officer reasonably believed that a woman inside was in serious danger. Id. The court explained its holding as follows:
Id. at 1135-1136. The Court went on to reject the defendant's argument that the officer could have simply asked the woman to come out into the hall to be interviewed, noting that "[t]he Supreme Court has `repeatedly refused to declare that only the "least intrusive" search practicable can be reasonable under the Fourth Amendment.'" Id. (citations omitted).
In contrast, in U.S. v. Davis, the Tenth Circuit affirmed the district court's order granting a motion to suppress evidence that had been seized during a warrantless search, rejecting the government's assertion that the officers had not violated the defendant's Fourth Amendment rights when they entered his home without a search warrant because of exigent circumstances. 290 F.3d at 1244. In that case, the officers had received a dispatcher's report of a possible domestic disturbance at a residence that was known to the officers to be the home of Jason Davis and Desiree Coleman. Id. at 1240. When the officers arrived at the residence, they heard no noise and saw no sign of a disturbance. Id. Subsequently, Davis appeared at the door, with bloodshot eyes and alcohol on his breath. Id. He told the officers that he had been disciplining his child and that Ms. Coleman was out of town. Id. At this point, however, Ms. Coleman appeared. Id. at 1241. She wrapped her arms around Davis's waist and said that the two had been arguing. Id. Davis, however, was obstructing the officers' view of Coleman and preventing them from talking to her, while at the same time he was attempting to close the door. Id. At that point, the officers told Davis that they were coming in to check on Ms. Coleman. Id. Davis then quickly retreated to the back of the house and returned with a child in his arms. Id. The officers entered the house and observed signs of marijuana use, which they cited in support of a subsequent
The defendant in Davis brought a motion to suppress the evidence that was uncovered in the subsequent search and the government opposed it, asserting that exigent circumstances justified the first (warrantless) entry. Id. In rejecting the government's argument, the court stated as follows:
Id. at 1243. For these reasons, the court granted the motion to suppress. Id.
In this case, the Court concludes that the evidence in the record does not provide a sufficient basis to conclude that exigent circumstances existed as a matter of law. See Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997) (holding that the district court had erred in holding, on summary judgment, that exigent circumstances justified warrantless entry because there were disputed questions of fact relating to circumstances). While it is undisputed that a 911 call had been received reporting that an individual was overdosing inside, it is also undisputed that the call was anonymous, in contrast with the facts of Brooks, in which the officer actually spoke with the individual who had placed the emergency call. Further, while Defendants cite to Hemphill's conduct when he answered the door as a separate basis for concern, the accounts of what occurred when the Officers first spoke to Hemphill are widely divergent. Hemphill testified that he offered to call all of the occupants to the front door so that the officers could see that no one was in danger and that in fact, he did call his roommates, who came to the front door while he was talking to the officers. He further testified that he closed the front door because he believed that the matter had been resolved, not because he was refusing the police entry. In contrast, the officers testified that Silva did not come to the door, that they could not see through the security grate, that Hemphill acted suspiciously and that he slammed the door on the officers, refusing to permit them to enter the house.
In short, in light of the factual disputes relating to the circumstances under which the officers entered the Residence, the Court finds that the question of whether there were exigent circumstances cannot be resolved on summary judgment.
Under the doctrine of qualified immunity, even if a constitutional violation occurred, governmental officials are immune if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
Applying the law of qualified immunity to the facts here, it is well-established that absent exigent circumstances, the Fourth Amendment requires that a search warrant be obtained to enter a private residence, as discussed above. Further, there are many disputed facts relating to the question of whether exigent circumstances existed when the Officers entered the Residence without a warrant. These disputed facts must be decided by a jury. Therefore, the final step of qualified immunity analysis must await the determination of issues of fact. Accordingly, the Court denies summary judgment on the basis of qualified immunity as to this claim.
Defendants assert that Plaintiff Hemphill's excessive force claims against Officers Fletcher and Khan fail as a matter of law because the force used was "clearly reasonable and the minimal amount of force necessary in the face of Mr. Hemphill's resistance." Motion at 16. In any event, Defendants assert, Officers Fletcher and Khan are entitled to qualified immunity on these claims because they did not violate a clearly established right. The Court rejects both contentions.
"A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment's `objective reasonableness' standard." Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 921 (9th Cir.2001). Determining whether the force used was reasonable "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Moreover,
There are disputed issues of material fact as to whether Officers Fletcher and Khan used excessive force. According to Hemphill, he was slammed onto the hood of a car during the course of his arrest even though he was fully complying with the officers' orders and was not resisting arrest. According to Defendants, Hemphill was pushed against the hood of a car after he appeared to be resisting arrest by flexing his arm muscles. Whether the force used by the officers was reasonable depends on whose account is to be believed—a question that the jury must decide. Further, if the jury accepts Hemphill's account as true, the officers also are not entitled to qualified immunity because it is clearly established that officers may not use more force than is reasonable under the circumstances. See Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir.2007) ("In assessing the state of the law at the time of [plaintiff's] arrest, we need look no further than Graham's holding that force is only justified when there is a need for force").
The Court denies Defendants' request for summary judgment on the excessive force claim.
Defendants assert that they are entitled to summary judgment as to Plaintiffs' claims that the detention of Hoy and Silva violated their Fourth Amendment rights. In the alternative, Defendants assert that the Court should grant summary judgment on the basis that the Officers were entitled to qualified immunity on these claims. The Court concludes that Defendants are not entitled to summary judgment on these claims on either ground.
As discussed above, the "Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Further, an emergency situation may justify a warrantless seizure in the home. See Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); U.S. v. Walker, 474 F.3d 1249, 1252-53 (10th Cir.2007)). However, "a warrantless search must be `strictly circumscribed by the exigencies which justify its initiation.'" Mincey, 437 U.S. at 393, 98 S.Ct. 2408 (citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
In this case, it is undisputed that after Boo Boo was shot, Hoy was placed in handcuffs and taken outside, where he was put in the back seat of a patrol car. It is also undisputed that the officers found Silva in her bedroom, where they placed her in handcuffs as well, and that she was then taken outside to a separate patrol car, where she also was put in the back seat. According to Defendants, this detention was reasonable because of the officers' "inability to gain cooperation from the Residence's occupants." Motion at 16. Yet according to the accounts of the Plaintiffs, both Hoy and Silva were fully cooperative with the commands of the police officers. Indeed, it is undisputed that Hoy immediately dropped to the ground when ordered to do so by the officers. Further, Defendants have not cited to any testimony by the officers suggesting that they believed that Hoy or Silva posed a threat to the officers or would interfere with the officers' welfare check. Nor do they cite any evidence indicating that Hoy and Silva were released as soon as the officers completed
Defendants assert that they are entitled to summary judgment on Plaintiff Silva's claim that the shooting of Boo Boo by Officer Sellers violated her Fourth Amendment rights because Officer Sellers' conduct was reasonable, as a matter
In San Jose Charter of the Hell's Angels Motorcycle Club v. City of San Jose, the Ninth Circuit set forth the legal standard that applies where a dog has been killed in the course of a search or seizure:
402 F.3d 962, 974 (9th Cir.2005).
In Hells Angels, search warrants had been obtained to search the residences of Hell's Angels members suspected of possessing evidence relevant to a murder. Id. at 966-967. For each residence, an entry team and a search team was created. Id. The entry teams were given a week's notice to plan the entries. Id. at 967. During that time, the entry teams gathered information and conducted surveillance of the residences and on that basis, knew at the time of the searches that two of the residences had or might have dogs on the premises. Id. at 968. The officers planned to either isolate or kill the dogs upon entering the properties, but they made no specific plans to isolate the dogs or to allow the residents to do so. Id. Nor did they consider using any form of non-lethal force to subdue the dogs. Id. When the searches were conducted, the officers shot and killed dogs at both residences—at one, a Rottweiler who was allegedly growling and advancing on the officers and at another, two large Bullmastiffs who were barking loudly and would not retreat. Id. at 969.
The owners of the dogs in Hells Angels asserted claims under 42 U.S.C. § 1983, including a claim under the Fourth Amendment, based on the shooting of the dogs. Id. at 965. Defendants sought summary judgment on the claim on the basis of qualified immunity, which the was denied by the district court. The Ninth Circuit affirmed, explaining its reasoning as follows:
Id. at 975. The Court went on to reject the defendants' arguments that killing the dogs advanced important governmental interests, namely, 1) allowing the officers to carry out the searches; 2) protecting the officers' ability to enter with stealth and speed; and 3) ensuring the safety of the officers. Id. at 976. The Court noted that none of the individuals whose houses were being searched were suspects in the murder that was being investigated, that the need for stealth was not persuasive because it was the officers' own gunshots that woke residents, and that concern for the officers' safety did not make the conduct reasonable, given that the officers knew well in advance that they were likely to encounter the dogs and yet made no plan to protect themselves. Id. at 977. The court noted, however, that the concern for officer safety might have been more persuasive if the officers had been unaware of the dogs at the time they entered the residences. Id.
Defendants assert that the facts of Hells Angels are distinguishable from the facts here and therefore, that Officer Sellers could not "conceivably be liable" to Silva under the Fourth Amendment for shooting her dog. Reply at 2. In particular, Defendants point out that the entry in this case was in response to an emergency 911 call, in stark contrast to the facts in Hells Angels, in which the officers had an entire week to plan the entry and knew that they were likely to encounter large dogs that might pose a threat to the officers. This distinction, however, does not persuade the court that the Officers' actions in this case were reasonable as a matter of law, or that they are entitled to qualified immunity on this claim. There are conflicting accounts as to whether Boo Boo acted in a threatening manner. If the jury credits Hoy's account that when he entered the living room Boo Boo was walking behind him in a manner that was not aggressive, and that he signaled to the officers to wait so that he could retrain Boo Boo, it may reasonably conclude that the Fourth Amendment was violated, especially in light of the undisputed facts that the officers did not ask Hoy or Silva at any time to restrain Boo Boo and that they were aware that there was a dog inside the
For the reasons stated above, Defendants' Motion is GRANTED in part and DENIED in part. In particular, the Motion is GRANTED as to all of Plaintiffs' claims against the City of San Leandro, Police Chief Ian Willis and Officer Huckaby, as well as Plaintiffs' claims based on the Fourteenth and Fifth Amendments. The Motion is DENIED as to Plaintiffs' Fourth Amendment claims based on the alleged unreasonable entry into the Residence, the alleged use of excessive force against Hemphill, the alleged unreasonable detention of Hoy and Silva and the alleged unreasonable shooting of Boo Boo, which shall proceed to trial.
IT IS SO ORDERED.
