Ali Dualeh v. United States

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 18 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALI M. DUALEH; JAWAHER SHREH, No. 11-35067
individually and on behalf of their minor
children S.M. (age 11), A.M. (age 8), A.M. D.C. No. 2:09-cv-00875-TSZ
(age 7), A.M. (age 5), A.M. (age 4), and
S.M. (8 months); MOHAMMED
MIRREH, MEMORANDUM*
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant,
and
THOMAS PHILLIPS; KEVIN KEYES;
LANCE GRAY; KEITH KING; DAVE
LIEBMAN; JEFF MCCLANE,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted January 9, 2012
Seattle, Washington
Before: GRABER, FISHER and RAWLINSON, Circuit Judges.
Plaintiffs Ali Dualeh and Jawaher Shreh appeal (1) the district court’s denial
of their motions for judgment as a matter of law, (2) the court’s jury instruction
that placed the burden of proof on plaintiffs and (3) the court’s order granting
summary judgment to Agent Thomas Phillips.
1. The district court did not err by denying the plaintiffs’ motions for
judgment as a matter of law. The knock-and-announce requirement may be
excused by the presence of exigent circumstances. See United States v. Bynum,
362 F.3d 574, 579 (9th Cir. 2004). The municipal officer defendants presented
evidence that they saw a person look down at them from the second floor of the
Dualeh residence when they were crossing an open parking lot to serve drug-
related search and arrest warrants. A reasonable juror could find that exigent
circumstances existed based on the officers’ fear for their personal safety or a
concern for the destruction of evidence.
2. The district court did not err by instructing the jury that the plaintiffs
had the ultimate burden of proof and the defendants had the burden of producing
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evidence of exigent circumstances. The instruction was consistent with Larez v.
Holcomb, 16 F.3d 1513, 1517 (9th Cir. 1994).
3. Because we hold that plaintiffs were not entitled to judgment as a
matter of law and uphold the jury verdict in favor of the municipal officer
defendants, we need not reach whether the district court erred by dismissing the
plaintiffs’ claims against Agent Phillips.
AFFIRMED.
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