Boyd v. Benton County

• Decision Date: 28 June 2004
• Docket Number: No. 02-35777.,No. 02-35776.,02-35776.,02-35777.
• Citation: 374 F.3d 773
• Parties: Kristianne M. BOYD, Plaintiff-Appellant, v. BENTON COUNTY; City of Corvallis; William Ellison; Scott Bressler; Dave Reed; Tom Cook; Ryan Moody; John Chilcote; Allen Schermerhorn; David Scott; Shawn Houck; Ken Rueben; Dennis Carson, as supervisor in his official capacity; Chris Skinner, as supervisor in his official capacity, Defendants-Appellees. Kristianne M. Boyd, Plaintiff-Appellant, v. Benton County; William Ellison; Scott Bressler; Dave Reed; Tom Cook; Ryan Moody; John Chilcote; Allen Schermerhorn; David Scott; Chris Skinner, as supervisor in his official capacity, Defendants, and City of Corvallis; Shawn Houck; Ken Rueben; Dennis Carson, as supervisor in his official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 773

374 F.3d 773

Kristianne M. BOYD, Plaintiff-Appellant, v. BENTON COUNTY; City of Corvallis; William Ellison; Scott Bressler; Dave Reed; Tom Cook; Ryan Moody; John Chilcote; Allen Schermerhorn; David Scott; Shawn Houck; Ken Rueben; Dennis Carson, as supervisor in his official capacity; Chris Skinner, as supervisor in his official capacity, Defendants-Appellees.

Kristianne M. Boyd, Plaintiff-Appellant, v. Benton County; William Ellison; Scott Bressler; Dave Reed; Tom Cook; Ryan Moody; John Chilcote; Allen Schermerhorn; David Scott; Chris Skinner, as supervisor in his official capacity, Defendants, and City of Corvallis; Shawn Houck; Ken Rueben; Dennis Carson, as supervisor in his official capacity, Defendants-Appellants.

No. 02-35776.

No. 02-35777.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2004.

Filed June 28, 2004.

COPYRIGHT MATERIAL OMITTED

Ridgway K. Foley, Jr., Greene & Markley, PC, Portland, OR; James D. Vick, Alex C. Dunn, Vick & Conroyd, LLP, Salem, OR, for the plaintiff-appellant-cross-appellee.

Robert E. Franz, Jr., Springfield, OR, for the defendants-appellees-cross-appellants.

Janet M. Schroer, Marjorie A. Speirs, Hoffman, Hart & Wagner, LLP, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. CV-99-06243-HO.

Before: McKEOWN, FISHER, Circuit Judges, and GONZALEZ, District Judge.^*

GONZALEZ, District Judge:

Kristianne Boyd brought suit under 42 U.S.C. § 1983 against members of the Corvallis Police Department ("CPD") and the City of Corvallis (the "City") (together the "City defendants") and members of the Benton County SWAT Team and Benton County (together the "County defendants") (collectively, "Defendants") for violation of her Fourth Amendment rights during the execution of a search warrant. Specifically, Boyd argues that the use of a "flash-bang" device constituted excessive force under the circumstances. The flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and loud noise upon detonation. Its purpose is to stun, disorient, and temporarily blind its targets, creating a window of time in which police officers can safely enter and secure a potentially dangerous area. On summary judgment, the district court found that all individual defendants were entitled to qualified immunity and that Boyd's Monell¹ claim against the City of Corvallis failed for lack of evidence. On appeal, Boyd challenges the district court's findings as to both qualified immunity and her Monell claim. Defendants cross-appeal, arguing that the district court should have granted qualified immunity on alternative grounds. We conclude that the district court properly found a material issue of fact as to whether Boyd's Fourth Amendment rights were violated, and properly determined that these rights were not clearly established at the time of the injury. We also conclude that Boyd's Monell claim was properly denied on summary judgment. We therefore affirm the district court.

I. BACKGROUND

Viewed in the light most favorable to Boyd, the non-moving party on summary judgment, the record yields the following facts:

On October 10, 1997, two suspects stole jewelry, cash, and a .357 magnum revolver during an armed robbery of a jewelry store in Corvallis, Oregon. Witnesses described one suspect as a Caucasian male who walked with a limp and the other as a Hispanic male of average height. Witnesses also recalled that the Hispanic suspect used a firearm in the course of the robbery. As the suspects fled the scene in a blue Geo Metro, the store owner fired shots at the vehicle, one of which struck and shattered a window.

A few days after the robbery, CPD officers were contacted by a confidential informant. The informant claimed to have overheard a Mr. Dalebout bragging about his involvement in a jewelry store robbery and mentioning the Geo. The informant also identified two residences where he believed Dalebout could be found. One of these locations was a one-bedroom apartment on Pickford Street in Corvallis. Finally, the informant told officers that a man known as "Mexican Charlie" resided at the Pickford Street apartment and that Dalebout frequented that location to "hang out" and do drugs. Police records confirmed that a Charlie Switzler, who appeared to be Hispanic or Latino, resided at the apartment. Officers also learned that Switzler had a prior encounter with law enforcement involving a domestic assault at the apartment.²

Based on the informant's tip, CPD officers began surveillance of the Pickford Street apartment. During their surveillance, officers observed a blue Geo Metro with a shattered window in the parking lot of the apartment complex. Officers also observed several people frequently entering and exiting the apartment. Eventually, Dalebout and a Mr. Knudsen exited the apartment, entered the Geo Metro, and began to drive away. Both Dalebout and Knudsen appeared to be Caucasian and Knudsen walked with a noticeable limp.

Believing that Dalebout and Knudsen could be connected with the robbery, officers pursued the Metro out of the apartment complex. After a high-speed chase, the officers successfully stopped the vehicle and took Dalebout and Knudsen into custody. Dalebout had a firearm in his possession and another firearm was discovered inside the vehicle.³ Additionally, Dalebout swallowed a quantity of methamphetamine and a ring before the officers could apprehend him. Knudsen was later identified by the store owner as the Caucasian male who participated in the robbery.

Following their encounter with Dalebout and Knudsen, CPD officers requested and received a search warrant authorizing them to search the Pickford Street apartment for the remainder of the stolen jewelry and the .357 magnum. After discussing the matter, the CPD officers decided to enlist the aid of the Benton County SWAT Team to secure the apartment before conducting the search. The morning of the search, officers of the CPD and the Benton County SWAT Team gathered for a briefing. The officers discussed various circumstances surrounding the operation, including the following: an armed robbery suspect (the Hispanic suspect) was still at large and could have been inside the apartment; the .357 magnum had yet to be recovered and might have been in the possession of someone inside the apartment; they had obtained information that another individual connected with the apartment had attempted to purchase an "SKS" assault rifle; two armed individuals, who attempted to evade police, had been seen exiting the apartment a short time beforehand; the apartment had a loft from which a shooter could have placed the officers in a vulnerable position as they entered the apartment; and there was a possibility that five to eight people would be sleeping inside the apartment.

In light of these circumstances, Sergeant Skinner, the SWAT Team supervisor, determined that a flash-bang device should be used to gain entry and secure the premises. The manner of deploying the flash-bang was also discussed, taking into account the fact that several people might be sleeping in the apartment at the time of entry. Eventually, Sergeant Skinner determined that the flash-bang should be deployed against the apartment's front wall and near the door because he felt that the risk of someone sleeping there was minimal. Volunteer Deputy Ellison was chosen to deploy the flash-bang. Every CPD officer involved in the operation knew of the plan to use the flash-bang, did not object to that plan, and actively participated in its operation.

The officers executed the search in the early morning hours of October 14, 1997. After the officers announced their presence, Ellison reached inside the door of the dark apartment and, without looking, tossed the flash-bang near the front wall and a few feet from the door.⁴ As it turned out, Boyd was sleeping on the floor, near the front wall where the flash-bang came to rest. Consequently, Boyd suffered burns on her forearm when the device ignited. Moments later, the SWAT Team entered and secured the apartment, followed by the CPD officers who conducted the search. After the officers secured the apartment, Boyd was treated for her injury and later transported to a local hospital.

Boyd's complaint alleges that the use of the flash-bang device constituted excessive force in violation of the Fourth Amendment. The district court granted Defendants' motions for summary judgment on the basis of qualified immunity. The district court found that a Fourth Amendment violation could be present on these facts, but that the law governing the officers' conduct was not clearly established at the time of the incident. The district court granted summary judgment on behalf of the City as to the Monell claim because Boyd had failed to produce evidence supporting the claim and had not responded to the City's arguments in opposition.

II. STANDARD OF REVIEW

A district court's decision to grant summary judgment on the ground of qualified immunity is reviewed de novo, as grants of summary judgment ordinarily are. See Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir.2003); United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). Whether a plaintiff's federal rights were clearly established at the time of the alleged violation is also a question of law reviewed de novo. Martinez, 323 F.3d at 1183.

III. DISCUSSION

A. Qualified Immunity

The Supreme Court has established a two-part analysis for determining whether qualified immunity is appropriate in a suit against an officer for an alleged violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under Saucier, courts "must examine first whether the [officers] violated [the plaintiff's] constitutional rights on the facts alleged and, second, if there was a...