Parra v. City of Chino, 96-55218

Citation141 F.3d 1178
Decision Date02 March 1998
Docket Number96-55271,No. 96-55218,No. CV-94-00003-RT,96-55218,CV-94-00003-RT
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Manuel PARRA; Vivian Parra; Manuel Parra, Jr.; Roseann Parra; Margaret Parra; Francisco Parra, Plaintiffs-Appellants, v. City of Chino; James Anthony; Roger Planas, # 719; Ron Vallejo, # 688; Jeff Allison, # 716; Charles Sample, # 467; Danny Ross Lamaster; Kevin Devey, in both their personal and official capacities, Defendants-Appellees. Manuel PARRA; Vivian Parra; Manuel Parra, Jr.; Roseann Parra; Margaret Parra; Francisco Parra, Plaintiffs-Appellees, v. City of Chino; James Anthony; Roger Planas, # 719; Ron Vallejo, # 688; Jeff Allison, # 716; Charles Sample, # 467; Kevin Devey, in both their personal and official capacities, Defendants-Appellants. D.C.(JRx).
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Appeal from the United States District Court for the Central District of California Robert J. Timlin, District Judge, Presiding.

Before LAY, ** GOODWIN and SCHROEDER, Circuit Judges.

MEMORANDUM *

Manuel Parra Sr. brought a § 1983 action against the city of Chino and several of its police officers for using excessive force to arrest him. On February 14, 1991, officers went to Parra's home to execute a felony arrest warrant. Mrs. Parra told the officers that her husband would come to the door in a moment and closed the screen door. The officers then broke the screen in the door, entered the house and searched for Parra. Not finding him, officer Planas searched the house again with a police dog. Planas took the police dog into the family's bathroom where Parra's nine-year old daughter was taking a shower. During this time, officer Allison took Parra's six-year old son outside the house and patted him down for weapons. AER at pp. 147-48.

Planas and Devey then searched the backyard area and saw Parra attempting to flee. After instructing Parra to stop, the officers released the police dog and gave the dog a "search" command. The dog found Parra, bit him in the foot and pulled Parra off a truck. While Parra struggled with the dog, the dog bit him five times in the arm, leg and foot. At the same time, Planas hit Parra several times on the back and buttocks with his baton. The incident lasted twenty to twenty-five seconds. Once Parra was subdued, Planas commanded the dog to release its bite, and it released Parra.

Parra brought a § 1983 action against the City of Chino, Chief of Police James Anthony and officers Roger Planas and Kevin Devey, claiming the police officers used unnecessary and unreasonable force in arresting him. Parra also sued Dan LaMaster, who trained the police officers to handle police dogs, claiming inadequate training caused, in part, Parra's injuries. Parra's children brought a § 1983 claim against the City of Chino, Police Chief Anthony and the police officers claiming a violation of their Fourth Amendment rights.

The trial court granted LaMaster's motion for summary judgment, finding that LaMaster was entitled to a "good faith" defense. AER at p. 325. The court also granted the city's motion for summary judgment to dismiss the Fourth Amendment claims brought by Parra's children, finding that the searches of the Parra house and the youngest child, Francisco, were reasonable. Id. at pp. 328-29. The jury trial was bifurcated into two liability stages. In the first stage, the jury considered only the liability of officers Devey and Planas. It found the officers did not violate Parra's constitutional rights and returned a verdict in their favor. Thereafter, based upon the jury's answer to the special verdict form that Parra was not subjected to unreasonable force during the course of his arrest on February 14, 1991, the court dismissed the case as to all defendants.

I.

Parra initially appeals the summary judgment dismissal of his claim against LaMaster. To state a claim for relief under § 1983, a plaintiff must establish: (1) the defendant acted under color of state law; and (2) the defendant caused him to be deprived of a right secured by the Constitution and laws of the United States. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997) (citing Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir.1983)). Parra claims that LaMaster trained Chino police officers to use dogs to attack and bite unreasonably. Parra asserts that LaMaster trains the police to allow the dogs to continue to pursue an individual as long as the individual-arrestee is "fighting, trying to get away ...." Thus, Parra claims LaMaster violated his right to defend himself against a dog's attack.

This court has implicitly recognized that there is no such constitutional or federal right to defend oneself against a dog attack. Quintanilla v. City of Downey, 84 F.3d 353, 354, n. 1 (9th Cir.1996) ("Plaintiff also argues that the district court erroneously refused to instruct the jury with regards to self-defense. We summarily dispose of this contention because it has no basis in the law, and is therefore without merit."). We conclude Parra failed to establish a § 1983 case against LaMaster because he has not identified a constitutional or federal right LaMaster has allegedly violated. 1 Under the circumstances, we need not pass upon whether LaMaster enjoyed a good faith defense.

II.

Parra's children brought a § 1983 claim against the City of Chino, Chief Anthony and the first line officers for violating their Fourth Amendment rights against unreasonable searches and seizures. The children allege their rights were violated by: (1) unlawful entry into their home; (2) unreasonable searches inside their home; (3) the presence of the police dog in the bathroom while Parra's nine-year old daughter was taking a shower; and (4) an unreasonable search Parra's six-year old son. The district court dismissed the children's claims, finding that the manner of entry into the Parras' home and the searches conducted therein were reasonable. AER at pp. 328-29. The district court also concluded that the searches were justified and necessary to make sure there were no weapons on the premises, and the defendant officers were therefore entitled to qualified immunity. Id. at p. 329.

1. Entry Into the House

While an arrest warrant founded upon probable cause implicitly conveys limited authority to enter a dwelling where the police have reason to believe the suspect lives (Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)), police must knock and announce their presence and purpose before entering a dwelling by force. 18 U.S.C. § 3109 (1994); Cal.Penal Code § 1531 (1982). A failure to knock and announce constitutes a violation of the Fourth Amendment. United States v. Becker, 23 F.3d 1537, 1541 (9th Cir.1994).

In the instant case, police officers knocked on the Parras' front door, announced their presence and told Mrs. Parra they were looking for Mr. Parra. Mrs. Parra told the officers Mr. Parra would be right out, and then closed and apparently locked the screen door. At that point, one of the officers pushed his hand through the screen and opened the door. The officers knew Parra had previously fled from police, and had reason to believe that Parra would resist arrest again. Based on these facts, the officers satisfied the knock and announce requirement. Furthermore, the forceful entry made by the police officers after the knock and announcement substantially complied with the requirements of Cal.Penal Code § 844. 2

2. Searches Conducted Inside the House

Parras' children contend the officers' search of kitchen cupboards and drawers, and their search of the house with the police dog, exceeded the scope of the arrest warrant. They also argue the search of the bathroom with the dog while Parra's daughter was taking a shower was unreasonable.

An arresting officer may, upon reasonable suspicion, conduct a "protective sweep" of premises, incident to arrest, for the purpose of protecting the safety of the officers. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The defendants admit that the officers searched the kitchen drawers, but state that "the officers only looked in areas where a gun could be easily concealed and used by Mr. Parra in a surprise attack." (City of Chino's Brief at p. 57). We find this search was reasonable in light of the circumstances.

Furthermore, officer Planas' search of the home with the police dog appears justified. The police were executing a valid felony arrest warrant, could not find Parra in the house with a visual inspection, and thus used the dog to search for Parra. The search of the bathroom in which Parra's daughter showered, while unfortunate, also appears reasonable. The officers testified they did not believe Mrs. Parra when she said her daughter was taking a shower because they knew Mr. Parra would hide or flee from them. They therefore could have reasonably suspected that Parra was in the bathroom. In conclusion, we find the searches conducted within the Parra home were reasonable.

3. Pat Down Search of Francisco Parra

The Parras' contend, and the defendants concede, that officer Allison told six-year old Francisco to step outside the house with him and gently patted his waist and hips to make sure he was not carrying a weapon. The defendants describe this frisk as part of their protective sweep of the area, conducted for the purpose of ensuring the officers' safety.

"When the police ... have a reasonable suspicion that a suspect is armed, a Terry pat down for weapons is permissible." United States v. Flippin, 924 F.2d 163, 166 (9th Cir.1991). Police may also conduct Terry frisks of third parties found in or around a residence. See United States v. Patterson, 885 F.2d 483,...

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