Kyle Cardenas v. Josiah Saladen ( 2023 )

FILED
NOT FOR PUBLICATION
MAR 2 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYLE CARDENAS, No. 22-15632
Plaintiff-Appellant, D.C. No. 2:17-cv-04749-SMM
v.
MEMORANDUM*
JOSIAH SALADEN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted February 8, 2023
Phoenix, Arizona
Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.
Plaintiff Kyle Cardenas appeals the district court’s order granting summary
judgment for Gilbert Police Department (GPD) Officers Josiah Saladen and Larry
Sinks in Cardenas’ 42 U.S.C. § 1983 action alleging unlawful entry, unlawful
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
arrest, and excessive force. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
We review de novo a district court’s order granting summary judgment on
the basis of qualified immunity. Evans v. Skolnik, 997 F.3d 1060, 1064 (9th Cir.
2021). “Qualified immunity attaches when an official’s conduct ‘does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)
(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)).
1. The Officers are entitled to qualified immunity on Cardenas’ unlawful-
entry claim. The Officers’ initial warrantless entry into the home was justified
pursuant to the emergency doctrine because, considering the information the
Officers had received from GPD dispatch, they “had an objectively reasonable
basis for concluding there was an immediate need to protect others . . . from
serious harm.” United States v. Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008).
Dispatch had told the Officers that Cardenas was “feeding the dog poison,” that
Cardenas and his mother were in the same residence, that Cardenas was “extremely
irate” and had “t[aken] the phone away from [his] mother and wasn’t allowing her
to speak,” that he was suffering from PTSD, and that he was complaining of
childhood abuse and demanding to speak to Child Protective Services (CPS). This
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information provided an objectively reasonable basis for the Officers to believe
Cardenas posed a threat to others who were in the family residence with him.
Though Cardenas’ parents arguably were no longer in immediate danger
once Cardenas entered his bedroom, the Officers’ warrantless entry into the
bedroom was also justified by an emergency because the Officers had an
objectively reasonable basis to believe Cardenas may have been a danger to
himself. The Officers had heard from dispatch that Cardenas “was not himself,”
believed his parents were trying to kill him, had PTSD, was claiming that he had
been abused since childhood, and was demanding to speak to CPS despite being an
adult man in his thirties. The Officers’ personal observations of Cardenas’ erratic
and volatile behavior and his mother’s reaction to his conduct also supported their
reasonable belief that he was having a mental health crisis and posed a danger to
himself.
Cardenas has not attempted to identify any controlling or persuasive case
law clearly establishing that the Officers’ entry into his home and bedroom was
unlawful, and we are not aware of any such case.
2. The Officers also are entitled to qualified immunity on Cardenas’
unlawful-arrest claim. “An officer who makes an arrest without probable cause . . .
may still be entitled to qualified immunity if he reasonably believed there to have
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been probable cause.” Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th
Cir. 2011). An officer is therefore entitled to qualified immunity if “it is
reasonably arguable that there was probable cause for arrest—that is, whether
reasonable officers could disagree as to the legality of the arrest.” Id. Accepting
Cardenas’ factual account as true for purposes of summary judgment, we assume
he was not violent toward his parents, did not poison the family dog, and did not
order the dog to attack the Officers. But based on the information the Officers had
at the time, we conclude they could have reasonably believed that there was
probable cause to arrest Cardenas for animal cruelty. See Ariz. Rev. Stat. § 13-
2910(A)(3). Similarly, given the information the Officers had received from
dispatch and their personal observations, it was reasonable for them to suspect that
Cardenas had engaged in some form of disorderly conduct. See Ariz. Rev. Stat.
§ 13-2904. Cardenas has not identified any case holding that police officers
violated the Fourth Amendment by making an arrest under similar circumstances,
and we are not aware of any such case.
3. Last, the Officers are entitled to qualified immunity on Cardenas’
excessive-force claim. The Ninth Circuit cases Cardenas identifies do not
“‘squarely govern[]’ the specific facts at issue” in his appeal because they are
distinct in legally significant ways. See Kisela v. Hughes, 138 S. Ct. 1148, 1153
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(2018) (per curiam) (quoting Mullenix, 577 U.S. at 15). In Mattos v. Agarano, the
plaintiff had been pulled over for a minor traffic infraction, was pregnant, did not
pose “even a potential threat to the officers’ or others’ safety,” and was tased in
drive-stun mode three times in rapid succession. 661 F.3d 433, 436–37, 445–46
(9th Cir. 2011) (en banc). And in Bryan v. MacPherson, the plaintiff was also
pulled over for a minor traffic infraction, was standing twenty to twenty-five feet
away from the officer, did not resist arrest “at all,” and was tased from behind
without warning. 630 F.3d 805, 822, 826–31 (9th Cir. 2010). By contrast, the
Officers suspected Cardenas had committed more serious and violent crimes, he
was belligerent, the Officers warned Cardenas that they would tase him if he
continued resisting their attempts to handcuff him, and Officer Sinks deployed his
taser only once. See Graham v. Connor, 490 U.S. 386, 396 (1989) (providing that
relevant considerations for the excessive-force analysis include the severity of the
crime at issue, whether the suspect poses an immediate threat to the officers or
others, and whether the suspect is actively resisting arrest).
The remaining cases Cardenas cites are not controlling authority and are
similarly distinguishable because they involved the gratuitous use of a taser, tasing
a suspect who was already subdued, or tasing a suspect who was not resisting
arrest or was at most simply noncompliant with an order. See, e.g., Fils v. City of
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Aventura, 647 F.3d 1272, 1288–89 (11th Cir. 2011); Lewis v. Downy, 581 F.3d
467, 477–78 (7th Cir. 2009); Orem v. Rephann, 523 F.3d 442, 444, 446–47, 449
(4th Cir. 2008), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37
(2010). Because there is neither controlling authority nor a “robust ‘consensus of
cases of persuasive authority’” establishing that the Officers violated Cardenas’
Fourth Amendment rights by tasing him, we conclude that the Officers are entitled
to qualified immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (quoting
Wilson v. Layne, 526 U.S. 603, 617 (1999)).
AFFIRMED.
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