Sandoval v. Las Vegas Metro. Police Dep't

• Decision Date: 01 July 2014
• Docket Number: No. 12–15654.,12–15654.
• Citation: 756 F.3d 1154
• Parties: Jesus Rodriguez SANDOVAL; Adriana Rodriguez, individually and as Guardian Ad Litem for Kenya Rodriguez, a Minor; Henry Brian Rodriguez; Martha Leal, as Guardian Ad Litem for Jordhy Leal, a Minor; Monica Moreno, as Guardian Ad Litem for David 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.
• Court: U.S. Court of Appeals — Ninth Circuit

756 F.3d 1154

Jesus Rodriguez SANDOVAL; Adriana Rodriguez, individually and as Guardian Ad Litem for Kenya Rodriguez, a Minor; Henry Brian Rodriguez; Martha Leal, as Guardian Ad Litem for Jordhy Leal, a Minor; Monica Moreno, as Guardian Ad Litem for David 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.

No. 12–15654.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 17, 2013.

Filed July 1, 2014.

E. Brent Bryson (argued), Ales & Bryson, Las Vegas, NV, for Plaintiffs–Appellants.

Craig R. Anderson (argued) and Joshua L. Benson, Marquis Aurbach Coffing, Las Vegas, NV, for Defendants–Appellees.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 2:10–cv–01196–RCJ–PAL.

Before: SIDNEY R. THOMAS and M. MARGARET McKEOWN, Circuit Judges, and VIRGINIA M. KENDALL, District Judge.^*

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 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 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 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 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 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We may address these two prongs in either order. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (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...