573 F.3d 752 (9th Cir. 2009), 07-15102, Hopkins v. Bonvicino

Docket Nº:07-15102.
Citation:573 F.3d 752
Opinion Judge:REINHARDT, Circuit Judge.
Party Name:Bruce HOPKINS, Plaintiff-Appellee, v. A. BONVICINO, Badge No. 1140, individually & in his official capacity as a San Carlos Police Officer; David Buelow individually & in his official capacity as a San Carlos Police Officer; Nick Nguyen, Badge No. 1141, individually in his official capacity as a San Carlos Police Officer; City of San Carlos, Defend
Attorney:Anthony Boskovich, Boskovich Law Office, San Jose, CA, for the plaintiff-appellee. Todd H. Master, Howard Rome Martin & Ridley, Redwood City, CA, for the defendants-appellants.
Judge Panel:Before: MARY M. SCHROEDER, D.W. NELSON, and STEPHEN REINHARDT, Circuit Judges.
Case Date:July 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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573 F.3d 752 (9th Cir. 2009)

Bruce HOPKINS, Plaintiff-Appellee,

v.

A. BONVICINO, Badge No. 1140, individually & in his official capacity as a San Carlos Police Officer; David Buelow individually & in his official capacity as a San Carlos Police Officer; Nick Nguyen, Badge No. 1141, individually in his official capacity as a San Carlos Police Officer; City of San Carlos, Defendants-Appellants.

No. 07-15102.

United States Court of Appeals, Ninth Circuit.

July 16, 2009

Argued and Submitted Oct. 20, 2008.

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Anthony Boskovich, Boskovich Law Office, San Jose, CA, for the plaintiff-appellee.

Todd H. Master, Howard Rome Martin & Ridley, Redwood City, CA, for the defendants-appellants.

Appeal from the United States District Court for the Northern District of California, Jeffrey S. White, District Judge, Presiding. D.C. No. CV-05-02932-JSW.

Before: MARY M. SCHROEDER, D.W. NELSON, and STEPHEN REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge.

On August 22, 2003, two San Carlos Police Officers broke into Bruce Hopkins' home. They did not have a warrant, nor did they have probable cause. All that they had was a statement from a third-party that Hopkins had been involved in an extremely minor traffic incident, an incident so minor that it did not cause as much as a scratch on either of the vehicles involved, and that he appeared to have been drinking. Based on this information, the officers broke into Hopkins' home with their flashlights shining and their guns drawn. When they found Hopkins, they handcuffed him, removed him from his house, and placed him under arrest.

The officers' explanation for their warrantless entry is both simple and audacious: They claim that, after hearing that Hopkins had the smell of alcohol on his breath, they feared he was on the brink of a diabetic coma and broke into his house in order to offer medical assistance. According to one officer's deposition testimony, they entered with their guns drawn because individuals suffering from diabetic emergencies " may sometimes be confused" and can be " combative." Apparently, in the officer's view, someone suffering from such a medical emergency may need to be deterred by deadly force. Hopkins, however, was neither confused nor combative because he was not suffering from a diabetic emergency-he was lying in his bedroom watching television, which is where the officers found him. Yet, after the officers

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discovered that he was perfectly healthy and non-comatose, they did not say " we're glad to see that you are safe, sir; we'll be on our way now." They did not say, " Sorry for the disturbance and for damaging your property." No, instead they handcuffed Hopkins at gunpoint, removed him from his home, placed him under arrest, and brought him to the San Mateo County jail for the final chapter in the case of the nonexistent diabetes.

Hopkins sued the two officers who broke into his house, their colleague who waited outside, and the City of San Carlos under 42 U.S.C. § 1983. He asserts three causes of action: unlawful warrantless entry of a home, unlawful arrest without probable cause, and excessive use of force. The defendants jointly moved for summary judgment on all counts-the officers asserting a qualified immunity defense and the City arguing that it should not be held liable under Monell v. N.Y. City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court denied the motion, and the defendant-officers now appeal.1 Because " physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)), and because the officers' conduct here unequivocally violated Hopkins' clearly established constitutional rights, we affirm the denial of summary judgment with respect to Officers Bonvicino and Buelow, although we hold that their colleague, Officer Nguyen, is entitled to qualified immunity.

I. Factual and Procedural Background

On a Friday evening in late August of 2003, Bruce Hopkins finished his shift at work and went to the local American Legion Hall in San Carlos, California, for a drink.2 After having a few beers he left to drive home. While en route, he was involved in a minor traffic incident with a car driven by Ms. Waheeda Talib. Both Talib and Hopkins agree that they each got out of their cars to inspect the vehicles for damage.3 According to Hopkins, the two agreed that there was no damage and he continued on his way home. According to later police reports of the incident, Talib claimed that after exiting his car Hopkins denied responsibility for the incident and simply drove away.

Despite minor discrepancies in the details of the traffic incident's immediate aftermath, the parties agree that Talib followed Hopkins to his home without Hopkins being aware that she was behind him. When Hopkins arrived home and left his car, Talib confronted him about the incident and accused him of being intoxicated. Talib later told the defendant-officers that she suspected Hopkins was under the influence of alcohol because when she spoke with him in front of his residence she smelled alcohol on his breath and observed that he seemed impaired and had difficulty walking. During her confrontation with Hopkins, Talib spoke on her cell phone. Fearing that

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she was either calling " her husband to come down there and beat [him] up or [that] she was calling the cops," Hopkins entered his house " as quick as he could." His exchange with Talib on his front lawn lasted no longer than a minute to a minute and a half. Once inside his home, Hopkins went to his bedroom in the basement to watch television.

Talib remained outside on Hopkins' lawn and called the police. She told the dispatcher that she had been involved in a hit-and-run accident, that she followed the driver to his house, and that she suspected he had been drinking. Shortly thereafter, San Carlos police officers Armand Bonvicino and Nick Nguyen arrived at Hopkins' residence. Officer Bonvicino, the " primary officer" for the call, asked Talib if she needed medical assistance; she said she did not. Talib then proceeded to tell Bonvicino and Nguyen about the traffic incident and reported that Hopkins appeared intoxicated when he got out of his vehicle. Officer Bonvicino walked to the front door of Hopkins' house, knocked loudly, and announced himself as a police officer multiple times through an open window. He did not receive a response.

Officer Bonvicino then returned to the front lawn and conferred with Officer Nguyen and with Officer David Buelow, who had since arrived at the scene. 4 While Officer Nguyen continued to interview Talib, Officers Bonvicino and Buelow decided to walk to the side of the house in order to attempt to contact Hopkins through a side door. The side entrance to Hopkins' home had a screen door, which was closed and locked, and a solid door behind the screen, which was open. After knocking on the screen door and receiving no response, Officers Bonvicino and Buelow discussed with each other possible explanations for Hopkins' not answering. Among the explanations they came up with was the possibility that Hopkins was on the brink of a diabetic coma. As both officers later explained in their declarations and depositions, they had been trained that what a layperson might describe as the odor of alcohol on someone's breath could actually be the " fruity" smell associated with a diabetic emergency. With this potential medical emergency in mind, Officer Bonvicino loudly announced through the screen that he and Officer Buelow would be making an entry into the house to check on Hopkins' welfare.

Officer Bonvicino cut a hole in the screen, reached in, and unlocked the door. He and Officer Buelow then entered the residence with their flashlights on and their guns drawn. Inside, the officers searched for Hopkins in the areas of his home in which a person might be found. They discovered him lying on the floor in his bedroom, which was a converted garage space. According to Hopkins, he had never heard the officers' knocking and was terrified when they entered with their guns drawn and flashlights shining; he fell off the bed as they were coming down the stairs into his room. The officers asked Hopkins to get up, show his hands, and move toward them, which he did. At this point, Officer Bonvicino holstered his sidearm because, in his words, Hopkins " was not a threat to officer safety." Officer Buelow, however, continued to point his gun at Hopkins. Hopkins was then handcuffed and taken outside.

While Officers Bonvicino and Buelow were inside Hopkins' home, Officer Nguyen had been interviewing Talib and taking pictures of her and Hopkins' cars. Once Hopkins was brought outside, Talib

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positively identified him as the driver of the vehicle that had bumped into hers. After Officer Nguyen explained the mechanics of a citizen's arrest to her and provided her with a citizen's arrest form printed by the San Carlos police department, Talib executed a citizen's arrest of Hopkins for hit-and-run and asked the officers to take him into custody. The officers took Hopkins to the San Carlos Police Department. He was later charged with hit-and-run and driving under the influence and transferred to San Mateo County Jail. Hopkins' criminal charges were quickly dropped once the...

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