Sandoval v. Las Vegas Metropolitan Police Department

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS RODRIGUEZ SANDOVAL; No. 12-15654
ADRIANA RODRIGUEZ, individually
and as Guardian Ad Litem for Kenya D.C. No.
Rodriguez, a Minor; HENRY BRIAN 2:10-cv-01196-
RODRIGUEZ; MARTHA LEAL, as RCJ-PAL
Guardian Ad Litem for Jordhy Leal,
a Minor; MONICA MORENO, as
Guardian Ad Litem for David OPINION
Madueno, a Minor,
Plaintiffs-Appellants,
v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; CLARK COUNTY,
NEVADA; JAY R. ROBERTS, Sgt.;
MICHAEL DUNN, Officer;
CHRISTOPHER G. KOHNTOPP,
Officer; JUSTIN BYERS, Officer;
TROY GIVENS, Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
October 17, 2013—San Francisco, California
2 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
Filed July 1, 2014
Before: Sidney R. Thomas and M. Margaret McKeown,
Circuit Judges, and Virginia M. Kendall, District Judge.*
Opinion by Judge McKeown
SUMMARY**
Civil Rights
The panel reversed in part and affirmed in part the district
court’s summary judgment and remanded in an action
brought pursuant to 42 U.S.C. § 1983 and Nevada state law
alleging that Las Vegas Metropolitan Police officers violated
plaintiffs’ constitutional rights when they entered, without a
warrant, plaintiffs’ home looking for intruders, handcuffed
and detained the teenage boys inside, and shot and killed the
family dog.
Reversing the district court’s summary judgment in favor
of the police officers, the panel held that taken in the light
most favorable to plaintiffs, officers did not have probable
cause to enter and search the residence for either evidence of
burglary or the lesser offense of prowling. The panel held that
police officer Michael Dunn was not entitled to qualified
*
The Honorable Virginia M. Kendall, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 3
immunity because it was clearly established law as of 2009,
that the warrantless search of a dwelling must be supported
by either the exigency or the emergency aid exception. The
panel further held that officers were not entitled to qualified
immunity on plaintiffs’ excessive force claim and were not
entitled to Nevada statutory immunity on certain state law
claims for intentional infliction of emotional distress, assault
and battery and false imprisonment.
Affirming the district court’s summary judgment in favor
of the police officers on plaintiffs’ claim for deprivation of
familial association, the panel held that a separation between
a father and his son for forty minutes did not shock the
conscience and that the shooting of the family dog did not fall
within the ambit of deprivation of a familial relationship. The
panel further determined that there was no evidence of an
equal protection violation and that plaintiffs’ bare-bones
allegations of municipal liability were insufficient.
COUNSEL
E. Brent Bryson (argued), Ales & Bryson, Las Vegas,
Nevada, for Plaintiffs-Appellants.
Craig R. Anderson (argued) and Joshua L. Benson, Marquis
Aurbach Coffing, Las Vegas, Nevada, for Defendants-
Appellees.
4 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
OPINION
McKEOWN, Circuit Judge:
This appeal arises out of the events of October 24, 2009,
when the Las Vegas police, on the lookout for two white
males, mistook a teenaged boy and his friends, all Hispanic,
for intruders in the boy’s own home. In the course of the
afternoon, police pointed guns at the boys, entered the home
without a warrant, handcuffed and detained the boys and
others, and shot and killed the family dog. The family (“the
Sandovals”1) brought suit against the police, alleging
violations of their constitutional rights and related rights
under state law. The district court granted summary judgment
to the police department and the officers on all claims. We
reverse the judgment on the Fourth Amendment claims for
excessive force and unlawful entry and on certain of the state
law claims, and affirm the judgment on the remaining claims.
BACKGROUND
On October 24, 2009, the Las Vegas Metropolitan Police
Department (“LVMPD”) received a 911 phone call from a
witness, Albert Schouten (“Schouten”), who said that he saw
two white males between ages 18 and 20, one carrying a
skateboard, jump a fence and start looking through the
1
Although not all of the plaintiffs-appellants are related, at times we
refer to them, for clarity, collectively as “The Sandovals.” This group
includes Jesus Rodriguez Sandoval, the father; Adriana Rodriguez, the
mother, individually and as guardian ad litem for their eleven-year-old
daughter, Kenya; Henry Brian Rodriguez, their eighteen-year-old-son;
Martha Leal, as guardian ad litem for Jordhy Leal, her sixteen-year-old
son; and Monica Moreno, as guardian ad litem for David Madueno, her
fifteen-year-old son.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 5
windows of a house in the neighborhood. There had been a
recent pattern of youths burglarizing homes in the area.
Sergeant Roberts and Officer Dunn of the LVMPD, and
later several of their colleagues, responded to the call, and
arrived at the residence of Jesus Sandoval, Adriana
Rodriguez, and their children.2 The officers entered the yard
and saw open windows, doors, and gates, consistent with
residential use, but did not identify any point of entry
indicators suggesting a burglary.
Roberts looked through an open bedroom window and
saw “three young males” who were “younger than 18 to 20,”
and were “about 14, 15.”3 Roberts conceded that the boys—
Henry, then 18, who lived at the house, and his two friends,
David, then 15, and Jordhy, then 16— “did not match” two of
the three metrics that Schouten had given him: the number of
suspects or the age of the suspects. As to race, Roberts agreed
that the suspects, who were Hispanic, were “not the color of
a white person that you typically think of as being white,” and
that “[w]hen [he] saw them for the first time [he] thought they
were either dark-skinned white males or Hispanic.” Two of
the boys later testified that they had never before been
2
On arrival, Roberts spoke with Schouten. There are no records of that
conversation, but in a statement to the police after the incident, Schouten
reported that before the officers arrived, “[t]he subject with the skateboard
came back over the fence and walked to [a different street] and was picked
up by a maroon SUV.” The police report noted that one subject was “H,”
meaning, according to Roberts, “gone on arrival, meaning . . . the guy . . .
can’t see him anymore.”
3
Roberts later contradicted this testimony and said that they “looked like
they could be 18 to 20,” but also testified several times that the boys did
not match Schouten’s description of their age.
6 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
described as white or confused for a white person. The boys
were listening to music, watching TV, and playing video
games.
Roberts did not ask the boys any basic identifying
questions. Instead, Roberts pointed his gun at the head of one
of the boys through the bedroom window, and gave the boys
conflicting commands, telling them “don’t move,” “[l]et me
see your hands,”and “turn the music down.” Roberts told
Jordhy to turn down the music, which Jordhy tried to do, and
then told him, “I told you don’t move, I could shoot you” or
“I’ll f***ing shoot you.” Roberts testified that the boys did
not comply with his commands at this stage, but that they
complied at all later stages. The boys, to the contrary,
testified that they followed the officers’ commands at this
point and throughout the events that followed. Henry, for
example, reported that when Roberts appeared in the window,
the boys “all froze,” that they “didn’t move,” and that he
“didn’t want to risk moving at all.” Roberts acknowledged
that the boys may not have heard certain of his commands.
Roberts’s colleague, Dunn, entered the house through the
sliding glass door. Dunn, who could not see the boys,
observed his partner pointing a gun and giving commands to
someone through the window. He said that he entered the
house because he thought that Roberts “could not control the
suspects,” since he heard Roberts issue commands more than
once and heard the tone of Roberts’s voice change. As Dunn
entered the house, he began giving commands at the same
time as Roberts, and recognized that this could have created
confusion.
Roberts ordered the boys to exit the bedroom. Henry
asked to be allowed to put away the family dog, Hazel, a pit
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 7
bull, before letting the officers into the home, but Roberts did
not allow him to do so.
As the boys exited the bedroom, Hazel slipped in front of
Henry and Jordhy, but continued to walk behind David,
according to David’s testimony. Dunn shot Hazel in the face,
twelve inches from David, and in the direction of Henry and
Jordhy. The officers ordered David and Jordhy to the floor,
handcuffed them, and brought them outside. Henry was
ordered outside, but was not cuffed until later, as he was
carrying Hazel, who was bleeding to death. The boys testified
that the handcuffing and other treatment by the officers
caused them pain.
Only after the boys were cuffed and exiting the house did
the officers begin to make their first inquiries as to the boys’
right to be in the home.
Henry called his father, Jesus Sandoval (“Sandoval”), and
told him that the police had entered the home and shot Hazel.
Henry also asked an officer to call the animal hospital, but the
officer said, “if you don’t shut the f*** up, I’m going to let
your dog die right there.” Sandoval rushed home with his
twelve-year-old daughter, Kenya, and found two of the boys
handcuffed on the lawn, a swarm of officers and patrol cars,
and Henry, covered in Hazel’s blood. Sandoval, who was
walking with a cane because of back surgery fifteen days
earlier, thought his son had been shot, and tried to go to him.
When officers told him he could not enter the property, he
became upset. Roberts ordered officers to handcuff Sandoval.
As the officers pushed Sandoval against a squad car,
Sandoval said, “please don’t do this . . . I had a back surgery
about 15 days ago. . . . I had major back surgery.” The
8 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
officers grabbed Sandoval’s arm to handcuff him, “pull[ed
Sandoval] up by the arm,” and, “holding [Sandoval] from
[his] belt or [his] pants,” “pushed” or “threw” Sandoval inside
the patrol car. Sandoval began “screaming” that he was in
“severe pain” and that he needed his medication. Sandoval
was detained in the patrol car for 25 to 30 minutes, still
“screaming . . . in pain,” before officers responded to his
requests for medication. Kenya witnessed all of these events.
When Animal Control arrived at the house, Henry ran to
the truck and placed Hazel inside. Henry was immediately
handcuffed by the police and was detained in the back of a
patrol car for 30 to 40 minutes. Soon afterwards, Hazel died.
None of the family members or the boys were cited or
charged with any crime, and Dunn testified that the boys
committed no crime. The officers eventually “just left.” Dunn
admitted that if he or Roberts had asked basic identifying
questions, the entire incident would not have happened.
The Sandovals brought suit under 42 U.S.C. § 1983
against the LVMPD and several officers, including Roberts
and Dunn, in their individual and official capacities. They
alleged violations of their Fourth, Fifth, and Fourteenth
Amendment rights to due process, equal protection, freedom
from excessive force, freedom from pre-conviction
punishment, and familial association. They also brought state
law claims for intentional infliction of emotional distress; for
assault and battery as to the three boys and Sandoval; and for
false imprisonment as to the three boys, Sandoval, and
Kenya.
The district court granted summary judgment in favor of
the LVMPD and its officers on all claims, primarily on the
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 9
basis of qualified immunity under federal law and
discretionary function immunity under Nevada state law.
ANALYSIS
FRAMEWORK FOR QUALIFIED IMMUNITY ANALYSIS
Our de novo review of a grant of summary judgment
based on qualified immunity involves two distinct steps.
Government officials are not entitled to qualified immunity
if (1) the facts “[t]aken in the light most favorable to the party
asserting the injury . . . show [that] the [defendants’] conduct
violated a constitutional right” and (2) the right was clearly
established at the time of the alleged violation. Saucier v.
Katz, 533 U.S. 194, 201 (2001). We may address these two
prongs in either order. Pearson v. Callahan, 555 U.S. 223,
236 (2009). Whether the defendants violated a constitutional
right and whether the right was clearly established at the time
of the violation are questions of law. Serrano v. Francis,
345 F.3d 1071, 1080 (9th Cir. 2003). If “genuine issue[s] of
material fact exist[] that prevent[] a determination of
qualified immunity at summary judgment, the case must
proceed to trial.” Id. at 1077.
I. FOURTH AMENDMENT UNLAWFUL ENTRY CLAIM
We first consider whether Dunn is entitled to qualified
immunity on the Sandovals’ claim that Dunn’s entry into
their home constituted an unreasonable search in violation of
the Fourth Amendment. Although the pleadings are not a
model of clarity, we adopt the district court’s view that the
10 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
Sandovals pleaded an unlawful entry claim with respect to the
home.4
A. CLEARLY ESTABLISHED RIGHT
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. Warrantless searches of the home or the curtilage
surrounding the home are “presumptively unreasonable.”
Payton v. New York, 445 U.S. 573, 586 (1980). To make a
lawful entry into a home in the absence of a warrant, officers
must have either probable cause and exigent circumstances or
an emergency sufficient to justify the entry. Struckman,
603 F.3d at 738; see also Kirk v. Louisiana, 536 U.S. 635,
638 (2002) (per curiam). These exceptions to the warrant
requirement are “narrow and their boundaries are rigorously
guarded.” Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.
2009) (internal quotation marks omitted). The police must
“show that a warrant could not have been obtained in time,”
Struckman, 603 F.3d at 738 (internal quotation marks
omitted), and must demonstrate “specific and articulable facts
to justify the finding” of either exigent circumstance or
emergency. LaLonde v. Cnty. of Riverside, 204 F.3d 947, 957
(9th Cir. 2000).
4
The Sandovals’ enclosed back yard, which the officers entered just
before entering the home, was curtilage subject to Fourth Amendment
protection. United States v. Struckman, 603 F.3d 731, 738–39 (9th Cir.
2010) (noting that “a small, enclosed yard adjacent to a home in a
residential neighborhood” is curtilage). Nevertheless, the claim on appeal
is restricted to Dunn’s entry into the home, since the Sandovals challenge
neither the officers’ entry into the curtilage nor Roberts’s later entry into
the home.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 11
For qualified immunity purposes, in determining whether
a constitutional right was clearly established, it is not enough
that there is a generally established proposition that excessive
use of force is unlawful. See Saucier, 533 U.S. at 202. Rather,
the “contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Id. (internal quotation marks omitted). It
is, however, “not necessary that the alleged acts have been
previously held unconstitutional, as long as the unlawfulness
[of defendant’s actions] was apparent in light of pre-existing
law.” San Jose Charter of Hells Angels Motorcycle Club v.
City of San Jose, 402 F.3d 962, 977 (9th Cir. 2005)
(alterations in original) (internal quotation marks omitted).
Because it is “clearly established Federal law that the
warrantless search of a dwelling must be supported by
probable cause and the existence of exigent circumstances”
or emergency, the officers are not entitled to qualified
immunity unless their entry was justified by one of the two
exceptions. Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir.
2001); see also Hopkins, 573 F.3d at 772. We consider each
in turn.
B. VIOLATION OF CONSTITUTIONAL RIGHT
1. Warrantless Entry: Exigency Exception
The exigency exception permits warrantless entry where
officers “have both probable cause to believe that a crime has
been or is being committed and a reasonable belief that their
entry is necessary to prevent . . . the destruction of relevant
evidence, the escape of the suspect, or some other
consequence improperly frustrating legitimate law
12 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
enforcement efforts.” Hopkins, 573 F.3d at 763 (internal
quotation marks omitted).
We considered the bounds of the exigency exception in
Struckman, 603 F.3d at 739–40, 743–44. In that case, we held
that officers did not have probable cause for burglary or
attempted burglary where “upon arriving at the house, the
officers knew only that a neighbor had reported seeing a
white male wearing a black jacket throw a red backpack over
a fence and climb over the fence into the backyard when the
owners were reportedly not home,” where there were “no
indications that Struckman[, the arrestee, who matched the
informant’s description,] had entered or attempted to enter the
home,” and where “there were no signs of forced entry or the
presence of any tools consistent with a possible burglary.” Id.
at 740. Nevertheless, the presence of a person matching the
caller’s description led us to “assume[,] although the
assumption [wa]s weak,” that the officers had probable cause
for the lesser offense of criminal trespass. Id. at 743; see also
Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995)
(holding that officers did not have probable cause to enter a
house on the basis of a neighbor’s report of suspicious
activity and an open door), abrogated on other grounds by
United States v. Ramirez, 523 U.S. 65, 69-70 (1998).
Taking the facts in the light most favorable to the
Sandovals, we conclude that the officers here did not have
probable cause for either burglary or the lesser offense of
“prowling.” Saucier, 533 U.S. at 201. Simply put, this case is
not Struckman.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 13
When the officers arrived at the house, responding to a
“prowler call”5 and aware of Schouten’s tip, they observed
signs that Dunn admitted were consistent with either lawful
or unlawful activity.6 In contrast to Struckman, 603 F.3d at
740, in which officers encountered a suspect exactly
matching the informant’s description—white man, black
jacket, red backpack—the officers here encountered three
boys who did not match the informant’s description in race,
number, or age. Significantly, one of the two suspects had
already fled over the fence, so the scene the officers
encountered was a complete mismatch with the description in
the tip call. The officers gathered no information to suggest
that the boys were on the premises illegally. Indeed, neither
the physical signs at the scene nor the boys’ behavior—sitting
5
Dunn stated that the officers were responding to a “prowler call,” not
a “burglary call,” and that a prowler call is a misdemeanor call. Roberts,
reading the dispatch record, testified that the call was a “403,” which is a
misdemeanor prowler call, revising his earlier testimony.
Despite later deposition testimony that the call had been upgraded to
a possible burglary, the police continued to characterize the incident as a
“prowler call” even after it had ended. See Statement of Albert Schouten
(listing, in section of form completed by police officer, the “specific
crime” as “prowler”). The form was completed at 3:15 p.m. on the day of
the incident, approximately an hour and twenty minutes after the incident
was called in.
6
Roberts testified that the factors the officers saw upon arrival—an open
gate, an open window, an open shed, an open door, an open slider—did
not give rise to probable cause to believe that a crime was being
committed, and that he “would hope [his colleagues] would have the same
opinion as [he did].” Cf. Burrell v. McIlroy, 464 F.3d 853, 857 n.2 (9th
Cir. 2006) (amended opinion) (noting that “[b]ecause the detectives were
working in close concert, a court may consider the collective knowledge
of these detectives in considering their beliefs concerning probable cause
or reasonable suspicion”).
14 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
on a bed, watching television, listening to music, and playing
video games—was consistent with a burglary in progress. In
fact, the officers observed open doors and open windows
which they described as consistent with residential use. The
officers had no basis, either at the moment they breached the
curtilage or at the moment Dunn entered the house, to
conclude that the boys had violated any laws.
We note that the Supreme Court’s recent qualified
immunity cases do not shed light on the circumstances here.
For example, in Stanton v. Sims, 134 S. Ct. 3 (2013) (per
curiam), the Supreme Court addressed the nationwide
division “on the question whether an officer with probable
cause to arrest a suspect for a misdemeanor may enter a home
without a warrant while in hot pursuit of that suspect.” Id. at
5. In this case, unlike in Stanton, neither probable cause nor
hot pursuit was established.
Likewise, we recognize that “[n]ormally, when officers
suspect a burglary in progress, they have no idea who might
be inside and may reasonably assume that the suspects will,
if confronted, flee or offer armed resistance.” Frunz v. City
of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006). So long as
the officers have established probable cause for a burglary,
“[i]n such exigent circumstances, the police are entitled to
enter immediately, using all appropriate force.” Id. But here,
the officers arrived at the house to investigate a misdemeanor
“prowling” call, rather than a felony “burglary” or “attempted
burglary” call, and never had probable cause for prowling, let
alone for a burglary. This distinction matters, because
whereas burglary and attempted burglary are considered to
carry an inherent risk of violence, see, e.g., James v. United
States, 550 U.S. 192, 203–04 (2007), “prowling” is not
considered a violent crime, cf. Medway v. Cate, 756 F. Supp.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 15
2d 1280, 1297 (S.D. Cal. 2010). The officers were therefore
not entitled to enter the house without a warrant under Frunz.7
In sum, Dunn’s warrantless entry into the home was not
supported by probable cause, and thus violated the
Sandovals’ rights. See, e.g., Kirk v. Louisiana, 536 U.S. 635,
638 (2002) (per curiam) (noting that “police officers need
either a warrant or probable cause plus exigent circumstances
in order to make a lawful entry into a home”). Because it is
“clearly established Federal law that the warrantless search of
a dwelling must be supported by probable cause and the
existence of exigent circumstances,” Bailey, 263 F.3d at
1032; see also Hopkins, 573 F.3d at 772, the officers are not
entitled to qualified immunity unless they can demonstrate
that they entered the curtilage or the house pursuant to the
remaining emergency aid exception to the warrant
requirement.
2. Warrantless Entry: Emergency Aid Exception
The emergency aid exception typically has been
understood to permit law enforcement officers to “enter a
home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent
injury.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403
(2006). We assess officers’ actions “from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Ryburn v. Huff, 132 S. Ct. 987, 992
(2012) (per curiam) (internal quotation marks omitted).
7
The district court also conflated the standard for warrantless entry in
suspected burglary cases, see Frunz, 468 F.3d at 1145, with the standard
for the reasonable use of force, Graham, 490 U.S. at 395–96.
16 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
Before Brigham City, our caselaw considered officer
safety as part of the exigency exception, for which probable
cause is a prerequisite. See, e.g., United States v. Brooks,
367 F.3d 1128, 1133 n.5, 1135 (9th Cir. 2004). Following
Brigham City, the cases counsel that officer safety may also
fall under the emergency rubric. United States v. Snipe,
515 F.3d 947, 952 (9th Cir. 2008) (holding that threat to
officer safety falls under the emergency exception
requirement); see also Ryburn, 132 S. Ct. at 990–91 (holding
that a “reasonable police officer could read” Brigham City
and related decisions “to mean that the Fourth Amendment
permits an officer to enter a residence if the officer has a
reasonable basis for concluding that there is an imminent
threat of violence,” and noting that the officers in Ryburn
“could have come to the conclusion that there was an
imminent threat to their safety and the safety of others.”). We
need not determine whether officer safety should be
understood, post-Brigham City, as both emergency and
exigency, or as falling in only one of the two categories.
Either way, there is no objective basis for applying the
emergency aid exception to the Sandovals’ case.
The officers do not contend that Dunn entered the home
to protect anyone within the home, and the record, taken in
the light most favorable to the Sandovals, does not support an
objective view that Dunn entered the house in service of
officer safety. Roberts testified that he saw no weapons in the
boys’ hands and that he “never perceived a threat from the
kids to [his] personal safety.” The boys testified that they
obeyed the officers’ commands at all times. Even crediting
Dunn’s testimony that he felt that his partner “couldn’t
control the [boys]” from the window, or that he heard the tone
of his partner’s voice change, such a “concern,” particularly
if juxtaposed with Roberts’s lack of concern about a threat,
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 17
hardly supports a claim that entry was necessary to protect the
officers from imminent injury.
Dunn’s further testimony did not mention particularized
or imminent threats of violence, as the emergency aid
exception demands. See United States v. Ojeda, 276 F.3d 486,
488 (9th Cir. 2002) (per curiam) (noting that, where officers
seek to justify a warrantless entry on the basis of “a risk of
danger to the arresting officers or third persons,” the
“government bears the burden of showing specific and
articulable facts to justify” invoking the exception) (internal
quotation marks omitted). Dunn’s only mention of a threat
was in terms so general that they could apply to any
interaction involving suspects in a home: Dunn stated
“[b]ecause he’s inside—the subjects are inside, he [Roberts]
is outside. There’s multiple rooms that suspects could run to.
Possibly ambush us. Kill us. Unknown what weapons there
are in the house or what they have hidden inside that
residence at the time could possibly hurt us. So we had to
control the situation. And he could not control it from outside
the residence.” Construing such testimony as justifying entry
would eviscerate the warrant requirement and support
warrantless entry in every home burglary or prowler situation.
Simply invoking the unknown in these circumstances is not
sufficient. Indeed, Roberts’s clear statement about the lack of
any perceived threat best sums up the reality of the afternoon.
At best, this conflict raises a factual issue that cannot be
resolved against the Sandovals at this stage.
As we noted above, once officers have established
probable cause for a burglary, the exigent circumstances
exception may entitle them to enter a house without a
warrant. But a possible burglary confers no automatic
entitlement to enter under the emergency exception, nor does
18 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
a prowling investigation carry an inherent risk of violence.
Cf. Medway, 756 F. Supp. 2d at 1297. To the extent that the
district court’s holding that Dunn had a “reasonable belief
that an imminent threat of violence existed” relied on Frunz,
or on the finding that “[t]here were numerous indications that
a burglary may have been in progress,” the district court
erred.
This record stands in stark contrast to cases in which we
have held, under the emergency aid exception, that officers
had an “objectively reasonable basis for concluding that there
was an immediate need to protect others or themselves from
serious harm.” Snipe, 515 F.3d at 952. In Michigan v. Fisher,
the Supreme Court held that an emergency existed sufficient
to justify warrantless entry where officers arrived at a house
after a report that “a man was ‘going crazy,’” and arrived to
find “a household in considerable chaos,” including broken
house windows, shattered glass on the ground, a smashed
truck with blood on the hood, blood on the house door, and a
man, visible through a window, “inside the house, screaming
and throwing things.” 558 U.S. 45, 45–46 (2009) (per
curiam). In Ryburn, the Court held that officers could invoke
the emergency aid exception where, after arriving at the home
of a high school student who reportedly threatened to “‘shoot
up’ a school,” officers encountered facts, including the
suspected presence of weapons in the home and suspicious
behavior on the part of the student’s mother, that “led them to
be concerned for their own safety and for the safety of other
persons in the residence.” 132 S. Ct. at 988, 990, 992.
By contrast, Dunn and Roberts arrived at a home to find
a pattern consistent with either lawful or unlawful activity,
but with no evidence of weapons, violence, or threats. The
testimony that a reasonable officer would have perceived an
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 19
immediate threat to his safety is, at a minimum, contradicted
by certain portions of the record. The facts matter, and here,
there are triable issues of fact as to whether “violence was
imminent,” id. at 992, and whether Dunn’s warrantless entry
was justified under the emergency exception. We hold that
Dunn is not entitled to qualified immunity because it was
clearly established law as of 2009 that the warrantless search
of a dwelling must be supported by either the exigency or the
emergency aid exception. Cf. Payton, 445 U.S. at 586.
II. FOURTH AMENDMENT EXCESSIVE FORCE CLAIMS
We next consider whether the officers were entitled to
qualified immunity on the Sandovals’ excessive force claims.
The district court dismissed the claims, grounding its decision
in the notion that the officers “reasonably believed Henry,
Jordhy, and David were burglars.”
A. CLEARLY ESTABLISHED RIGHT
Excessive use of force in effectuating a seizure violates
the Fourth Amendment. Graham, 490 U.S. at 388. As with
the unlawful entry claim, we judge the reasonableness of the
use of force from the perspective of a reasonable officer at the
scene, rather than in hindsight. Ryburn, 132 S. Ct. at 992.
Two distinct instances of the use of force are at issue here.
The first question relates to pointing a gun at the head of at
least one of the boys. In Robinson v. Solano County, 278 F.3d
1007, 1014 (9th Cir. 2002) (en banc), we held that police
officers had used excessive force when they drew a gun and
pointed it at the head of an apparently unarmed misdemeanor
subject, a fact pattern similar to that here. The events of this
case took place in 2009, seven years after Robinson. The
20 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
constitutional right was clearly established for qualified
immunity purposes. See also Tekle v. United States, 511 F.3d
839, 845–47 (9th Cir. 2007) (reviewing cases); Frunz,
468 F.3d at 1146 (holding that “[b]ursting through the back
door unannounced with guns drawn and handcuffing the
occupants—the owner for a full hour—was neither necessary
nor reasonable” and that “[n]o reasonable officer familiar
with the law of searches and seizures could have thought
otherwise”).
The second question is whether the officers were on
notice that handcuffing, removing from their residence, and
detaining compliant persons not suspected of any crime, or
alternatively that causing excessive pain while handcuffing or
placing someone into a squad car, constituted excessive force.
Our cases are instructive on this point. In Meredith v. Erath,
we held that an agent was not entitled to qualified immunity
where he handcuffed a nonviolent resident of a house during
an IRS search of the premises, and further that he was not
entitled to qualified immunity where there was a genuine
issue of fact as to whether he handcuffed the resident in a
manner that caused her pain. 342 F.3d 1057, 1061 (9th Cir.
2003); see also Johnson v. Bay Area Rapid Transit Dist.,
724 F.3d 1159, 1175 (9th Cir. 2013) (noting that detaining a
suspected misdemeanant may violate the Fourth Amendment
where there is an insufficient basis to conclude that there is a
“likelihood for ongoing or repeated danger or escalation,” and
listing cases) (internal quotation marks omitted); Tekle,
511 F.3d at 845–47. Meredith reaffirmed that “handcuffing
substantially aggravates the intrusiveness of a detention,”
342 F.3d at 1062 (internal quotation marks omitted), and that
the use of handcuffs must be “justified by the totality of the
circumstances,” id. at 1063 (reviewing cases). After Franklin
v. Foxworth, a “detention conducted in connection with a
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 21
search may be unreasonable if it is unnecessarily painful.”
31 F.3d 873, 876 (9th Cir. 1994). Because the events of this
case took place years after both Meredith and Franklin, the
right to be free from excessive force under the circumstances
relevant here was clearly established for qualified immunity
purposes.
B. VIOLATION OF CONSTITUTIONAL RIGHT
We analyze claims that an officer used excessive force
under an “objective reasonableness” standard, which requires
balancing the “nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham, 490
U.S. at 395–96 (internal quotation marks omitted).
The district court found that the boys and Sandoval stated
claims for excessive use of force, but that governmental
interests in officer safety, investigating a possible crime
scene, and controlling an interaction with possible burglars
outweighed the intrusions upon the Sandovals’ rights.
In reaching this conclusion, the court improperly
“weigh[ed] conflicting evidence with respect to . . . disputed
material fact[s].” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987); see
also Saucier, 533 U.S. at 201. For instance, the court justified
the use of force against the boys on the grounds that they
were “potentially noncompliant,” and against Sandoval and
Henry on the grounds that they were “acting irrationally” and
“not complying with the officers’ commands,” and that the
police were continuing to investigate a “potential” or
“possible crime scene.”
22 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
Each of these conclusions was based on conflicting
testimony, and drew upon the officers’ version of events
rather than the Sandovals’ testimony, as Saucier requires.
533 U.S. at 201. Taken in the light most favorable to the
Sandovals, the evidence reflects that the boys complied with
the officers’ commands at all times; that the officers detained
Henry despite what they concede was his full compliance
outside the house and despite their knowledge that he had
committed no crime; and that, by the time Sandoval returned
home, the officers knew or had come to assume that Henry
lived in the home and that none of the boys had been in the
house illegally.8 The evidence does not justify the district
court’s conclusion that the officers had a “reasonabl[e]
belie[f] that the three young men were committing a
burglary”9 or that the officers were investigating a “potential
crime scene” during the contested exercises of force.
To be sure, the reasonableness inquiry in the context of
excessive force balances “intrusion[s] on the individual’s
Fourth Amendment interests” against the government’s
8
Roberts stated that he started to realize “maybe these kids aren’t
burglars” after Henry said “you shot my dog,” because “from a
commonsense standpoint, why would a burglary suspect have a dog in a
residence? . . . So I started to think, maybe these aren’t burglary suspects.
Maybe they live there and we need to be— . . . we need to slow
everything down and calm everything.”
Roberts heard Henry outside the residence speaking on the phone to
his father and asking him to return home, and learned from this, if not
from earlier events, that Henry lived at the house. Roberts further stated
that, up to that point, he had “not observe[d] a crime.”
9
As we noted above, see text citing note 8, supra, and as is critical to a
balancing of equities under Graham, 490 U.S. at 395–96, the officers
never had probable cause for a crime bearing an inherent risk of violence.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 23
interests. Graham, 490 U.S. at 396 (internal quotation marks
omitted). But in weighing the evidence in favor of the
officers, rather than the Sandovals, the district court unfairly
tipped the reasonableness inquiry in the officers’ favor. We
reverse the grant of qualified immunity to the officers on the
Sandovals’ excessive force claims.
III. REMAINING FEDERAL CLAIMS
A. FAMILIAL ASSOCIATION CLAIM
The Sandovals claim that the officers deprived them of
the right to familial relations when they kept Sandoval and his
son Henry separated for forty minutes, when they used
excessive force, and when they shot the dog, Hazel. Although
parents have a “fundamental liberty interest” in
companionship with their children, Kelson v. City of
Springfield, 767 F.2d 651, 654–55 (9th Cir. 1985), where, as
with the Sandovals’ case, a separation is brief, or does not
“ris[e] to the level of conduct that ‘shocks the conscience,’”
there is no due process violation, Rosenbaum v. Washoe
Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (per curiam).
Likewise, the shooting of the family dog, albeit sad and
unfortunate, does not fall within the ambit of deprivation of
a familial relationship.10
10
The Sandovals’ excessive force claim as to the dog fares no better.
The Sandovals failed to plead unlawful seizure of property under the
Fourth Amendment, and the Fourth Amendment’s protection of “persons”
does not extend to dogs. See San Jose Charter of Hells Angels Motorcycle
Club, 402 F.3d at 975.
24 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
B. EQUAL PROTECTION
We also affirm the grant of summary judgment to the
officers on the family’s equal protection claim. The family
alleged that its rights were violated when officers, responding
to a tip about potential criminal activity by two “white
males,” pursued Henry and his friends, who were of Hispanic
origin and had a dark skin tone. To avoid summary judgment,
the family must “produce evidence sufficient to permit a
reasonable trier of fact to find by a preponderance of the
evidence that [the] decision . . . was racially motivated.”
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
754 (9th Cir. 2001) (amended opinion) (alteration in original)
(internal quotation marks omitted). No evidence supports a
finding of discriminatory intent by the officers.
C. MUNICIPAL LIABILITY
To impose liability on a local government under § 1983,
the Sandovals must prove that an “‘action pursuant to official
municipal policy’ caused their injury.” Connick v. Thompson,
131 S. Ct. 1350, 1359 (2011) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978)). In the alternative, they
must prove that inadequate training or supervision was the
moving force behind the deprivation. City of Canton v.
Harris, 489 U.S. 378, 387–90 (1989). The Sandovals’ bare-
bones allegations of municipal liability on the grounds that
“multiple officers with varying degrees of experience” were
involved in the events are insufficient to establish municipal
liability.
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 25
IV. STATE LAW CLAIMS
The district court granted summary judgment to the
officers on the Sandovals’ state law claims for intentional
infliction of emotional distress, assault, battery, and false
imprisonment on two grounds: first, that the officers were
entitled to discretionary-function immunity under Nevada
Revised Statute § 41.032, and second, because there was no
genuine issue of material fact as to these claims.11
Nevada’s discretionary-function immunity statute
provides that “no action may be brought” against a public
officer “[b]ased upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
. . . whether or not the discretion involved is abused.” Nev.
Rev. Stat. § 41.032(2). Under Nevada law, state actors are
entitled to discretionary-function immunity if their decision
“(1) involve[s] an element of individual judgment or choice
and (2) [is] based on considerations of social, economic, or
political policy.” Martinez v. Maruszczak, 123 Nev. 433,
436–37 (2007).
11
We adopt the district court’s view that the Sandovals did not waive
this second ground. Moreover, the Sandovals submitted extensive factual
material and the district court reviewed the factual record in ruling on the
summary judgment motion. The Sandovals filed numerous materials with
their opposition to the motion for summary judgment, including
depositions from Roberts and Dunn, Officer Kohntopp, Jesus Sandoval,
Henry, David, and Jordhy; the LVMPD Incident Recall for the event; and
the statement of Albert Schouten, and at least cursorily incorporated these
“papers” by reference in their opposition to the motion for summary
judgment, though this is not dispositive. The court “kn[ew] of record
materials that show grounds for genuine dispute,” and as such, the court
was permitted “not to consider [a] fact as undisputed.” FED. R. CIV. P. 56
(e) advisory committee’s note, 2010.
26 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
Police officers “exercise[] discretion and [are] thus
generally immune from suit where the act at issue required
‘personal deliberation, decision, and judgment,’ rather than
‘obedience to orders, or the performance of a duty in which
the officer is left no choice of his own.’” Davis v. City of Las
Vegas, 478 F.3d 1048, 1059 (9th Cir. 2007) (quoting Maturi
v. Las Vegas Metro. Police Dep’t., 110 Nev. 307, 309
(1994)). Officers’ decisions “as to how to accomplish a
particular seizure or search [are] generally considered . . .
discretionary determination[s] under Nevada law, and officers
are therefore immune from suit as to state law claims arising
therefrom in most cases.” Id. But “where an officer’s actions
are ‘attributable to bad faith, immunity does not apply
whether an act is discretionary or not.’” Id. (quoting Falline
v. GNLV Corp., 107 Nev. 1004, 1009 n.3 (1991)). As we held
in Davis, “where an officer arrests a citizen in an abusive
manner not as the result of the exercise of poor judgment as
to the force required to make an arrest, but instead . . .
because of a willful or deliberate disregard for the rights of a
particular citizen or citizens, the officer’s actions are the
result of bad faith and he is not immune from suit.” Id. at
1060 (citing Falline, 107 Nev. at 1009 (noting that an officer
acts in bad faith where his acts bear “no relationship to a
rightful prerogative even if the result is ostensibly within the
actor’s ambit of authority”)); see also id. (noting that “[n]o
officer has the ‘rightful prerogative’ to engage in a malicious
battery of a handcuffed citizen who is neither actively
resisting arrest nor seeking to flee,” and holding that
Nevada’s discretionary immunity statute did not apply to
arrestee’s claim of battery where officer slammed handcuffed
arrestee into wall multiple times and punched him in the
face).
SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 27
Taking the facts in the light most favorable to the
Sandovals, none of their claims survive, including Kenya’s,
except as to Jesus Sandoval’s claims and the boys’ claims
related to their handcuffing and detention once the officers
knew no crime had been committed. A reasonable juror could
find that the officers’ decisions to, among others, handcuff
and force the ailing Jesus Sandoval into a cruiser and ignore
his requests for medication, as well as to continue to detain
and handcuff the boys after it was clear no detention was
justified, “w[ere] not merely an exercise or abuse of
discretion but instead constituted a deliberate and willful
disregard for the law . . . .” Id.; cf. Pike v. Hester, No. 3:12-
cv-00283, 2013 WL 3491222, at *5 (D. Nev. July 9, 2013)
(denying summary judgment on Nevada immunity grounds
because the plaintiff had attested to his belief that an officer’s
personal animus towards him was the cause of the illegal
search of his office). The district court erred in granting
summary judgment to the officers on the grounds of statutory
immunity.
The district court also erred in finding that the Sandovals
failed to establish any genuine issues of material fact as to
these claims. Viewing the state law claims through the lens
presented by the Sandovals, as Saucier requires, material
issues of fact exist for each of the state law claims not
precluded by discretionary-function immunity. 533 U.S. at
201. We accordingly reverse the district court’s grant of
summary judgment to the officers on the state law intentional
infliction of emotional distress, assault and battery, and false
imprisonment claims as they relate to (1) Jesus Sandoval and
(2) the handcuffing and detention of the boys once the
officers knew no crime had been committed. We affirm the
dismissal of the remaining state law claims.
28 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T
We therefore REVERSE the district court on the Fourth
Amendment claims for excessive force and unlawful entry,
and on the state law claims detailed immediately above,
AFFIRM the judgment on the remaining claims, and
REMAND for proceedings consistent with this opinion.
Each party shall pay its own costs on appeal.
REVERSED IN PART; AFFIRMED IN PART AND
REMANDED.