Guillermo Bonilla-Chirinos v. Thomas Maggiano ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO BONILLA-CHIRINOS; No. 18-15260
SANDRA HERNANDEZ, individually and
as guardians ad litem for J.B., a minor; J. B., D.C. No.
a minor, 2:15-cv-02564-WBS-EFB
Plaintiffs-Appellees,
MEMORANDUM*
v.
THOMAS MAGGIANO, West Sacramento
Police Officer; MICHELLE TATE, West
Sacramento Police Officer,
Defendants-Appellants,
and
CITY OF WEST SACRAMENTO;
KENNETH FELLOWS, West Sacramento
Police Officer; JENNIFER GRILLAT, West
Sacramento Police Officer; ERIC ANGLE,
West Sacramento Police Officer;
MATTHEW LUIZ, West Sacramento Police
Officer; DAVID STALLIONS, West
Sacramento Police Officer; ANTHONY
HERRERA, West Sacramento Police
Officer,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted August 8, 2019
San Francisco, California
Before: O'SCANNLAIN, McKEOWN, and BENNETT, Circuit Judges.
Police officers Thomas Maggiano and Michelle Tate appeal the district
court’s denial of summary judgment and qualified immunity with respect to a
claim against them of deprivation of familial association under 42 U.S.C. § 1983.
Specifically, Guillermo Bonilla-Chirinos, Sandra Hernandez, and their minor son,
J.B. (collectively, “the family”), claim that the officers’ refusal to allow Hernandez
to make a phone call from the scene of the parents’ arrests to coordinate for the
care of J.B. violated their right to familial association. On appeal, the officers
argue that the denial of the phone call from the place of arrest was not a
constitutional violation and that, regardless, they are entitled to qualified immunity
because no such right was clearly established. Because the facts are known to the
parties, we repeat them only as necessary to explain our decision.
I
To defeat a defense of qualified immunity, the family must demonstrate,
“first, [that they] suffered a deprivation of a constitutional or statutory right; and
second [that such] right was clearly established at the time of the alleged
misconduct.” Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (quoting
2
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)). However, we have
discretion to decide “which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at
hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). “Thus, we may grant
qualified immunity if ‘the facts that a plaintiff has alleged or shown [do not] make
out a violation of a constitutional right’ or if ‘the right at issue was [not] “clearly
established” at the time of defendant’s alleged misconduct.’” James v. Rowlands,
606 F.3d 646, 651 (9th Cir. 2010) (alterations in original) (quoting Pearson, 555
U.S. at 232).
II
“A Government official’s conduct violates clearly established law when, at
the time of the challenged conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation marks
and alterations omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). To demonstrate that a constitutional violation is clearly established, there
need not be “a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Id.
The family has not cited a single case from the Ninth Circuit or any other
court that holds that declining a parent’s request to make a phone call from the
3
place of his arrest violates the constitutional right to familial association. Although
the family attempts to rely on California Penal Code § 851.5 and police department
policy, such reliance is unavailing. Neither cited provision of the state statute is
directly relevant to the situation at hand: section (a) governs the right to make
phone calls “upon being booked,” rather than upon arrest, and section (c) requires
officers to inquire if the arrested person is a custodial parent and, if so, to notify the
parent that “he or she is entitled to, and may request to, make two additional phone
calls” to arrange for the care of the child. Cal. Penal Code § 851.5 (emphasis
added).
Because the statute does not require that officers provide arrestees an
opportunity to make a phone call from the place of their arrest to coordinate for the
care of minor children at the scene, our decision in Carlo v. City of Chino, 105
F.3d 493 (9th Cir. 1997), does not require a decision otherwise.
Furthermore, we have explained previously that “[w]hether the [officers] violated a
state law or an internal departmental policy is not the focus of our inquiry.” Case
v. Kitsap Cty. Sheriff’s Dep’t, 249 F.3d 921, 929 (9th Cir. 2001).
Because the right was not clearly established at the time of the officers’
conduct, they are entitled to qualified immunity on the familial association claim to
the extent it is based on the denial of the phone call from the place of arrest.
REVERSED and REMANDED.
4