Tekle v. U.S.
| Citation | 511 F.3d 839 |
| Decision Date | 11 August 2006 |
| Docket Number | No. 04-55026.,04-55026. |
| Parties | Ephraim TEKLE, a minor, by and through his Guardian Ad Litem, Lily Tekle, Plaintiff-Appellant, v. UNITED STATES of America; Garo Torossian; Keith Boden; Charles McCalmont; Thomas Jankowski; David M. Hawkes, all agents and employees of the Internal Revenue Service, an agency of the United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
A. Clifton Hodges, Hodges and Associates, Pasadena, CA, for the plaintiff-appellant.
Frank M. Travieso, Assistant United States Attorney, Los Angeles, CA, for the defendants-appellees.
Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV 01-3894 RSWL.
Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA, and RAYMOND C. FISHER, Circuit Judges.
Opinion by Judge TASHIMA:
ORDER AND AMENDED OPINION ORDER
Defendants-appellees' petition for panel rehearing is granted. The opinion and Judge Kleinfeld's opinion concurring the result filed on August 11, 2006, and reported at 457 F.3d 1088, are withdrawn and replaced by the amended opinion, Judge Fisher's opinion concurring in part and concurring in the judgment, and Judge Kleinfeld's opinion concurring in the result filed concurrently with this order.
The petition for rehearing en banc is denied as moot. No further petitions for panel rehearing will be entertained. Petitions for rehearing en banc may be filed with respect to the amended opinion.
Ephraim Tekle ("Tekle"), a minor, by and through his mother and guardian ad litem, Lily Tekle, filed a complaint against the United States and various individuals, seeking declaratory relief and damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, and for alleged civil rights violations, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint stemmed from an incident at Tekle's home when federal agents arrested Tekle's parents. The district court granted summary judgment in favor of the individual defendants on the basis that they did not violate Tekle's constitutional rights and that, even if they had, they were entitled to qualified immunity. Because the liability of the United States was derivative of the liability of the individual defendants, the court also granted summary judgment in favor of the United States. Tekle appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
In 1998, Tekle's parents, Solomon and Lily Tekle, were suspected of narcotics trafficking and tax-related offenses. Internal Revenue Service ("IRS") Special Agent Thomas Jankowski prepared a plan to execute search and arrest warrants at their home. Jankowski learned that the couple's three children, including then eleven-year-old Ephraim, lived at the home and that Lily took the children to school each morning. Jankowski thus planned to serve the warrants after Lily had taken the children to school.
On the morning of March 23, 1998, a team of approximately twenty-three agents gathered at an area away from the Tekle home for briefing.2 Another team of agents arrested Lily without incident after she dropped off two of her children at school. The agents asked Lily for the garage door opener to her house, and she told them to be careful because her eleven-year-old son was at home and her husband recently had suffered a heart attack and undergone major heart surgery. The agents communicated by radio with the team of agents at the Tekle home and informed them of what Lily had told them.
At the Tekle residence, the agents announced the presence of law enforcement officers over a public address system. Jankowski also called Solomon Tekle on a cellular telephone, asking him to surrender himself at the front door.
Immediately prior to the agents' announcement, Tekle opened the garage door and exited the garage in order to take out the trash, unaware of the agents' presence. He was barefoot and was wearing a t-shirt and shorts. He saw numerous police cars and heard a "loud intercom" over which the officers were saying, "Young man, turn around and put your hands in the air." Because he did not realize they were speaking to him, he turned around and started running back to the house through the garage. The agents again told him to turn around with his hands up, and Tekle turned around and started walking out of the garage with his hands up.
One of the officers told Tekle to get on the ground, so he lay face down on the driveway. The officer held a gun to Tekle's head, searched him, and handcuffed him. The officer pulled Tekle up from behind by the chain of the handcuffs and took him out to the sidewalk, where Tekle sat, still handcuffed, with his feet "in the gutter" until his father, Solomon, was brought out of the house in handcuffs, approximately fifteen minutes later.
After Solomon came out of the house, the officers removed the handcuffs from Tekle and sat him on a stool in the driveway, where about fifteen to twenty officers kept their guns pointed at him. Tekle asked if he could use the restroom, but one of the officers followed him to the restroom, keeping his hand on his gun, and would not let Tekle close the door, so Tekle returned to the driveway. One of the officers asked Tekle where his parents were from, and Tekle replied that he was born here but that his parents were from Ethiopia. The officer said, "Ethiopia is an f'n ugly country, and there's nothing to see there." When Tekle asked for his shoes, another officer threw the shoes on the ground and spat on them. Several hours later, one of Tekle's relatives came to the house to pick him up.
In his complaint, Tekle sought declaratory relief and damages.3 He alleged claims for false arrest, assault and battery, and mental distress pursuant to the FTCA. He further alleged violations of his federal and state civil rights. The district court granted summary judgment in favor of the defendants, concluding that the force used was reasonable and, in the alternative, that Fourth Amendment law governing the agents' conduct was not clearly established at the time of the incident. Accordingly, it held that the agents were entitled to qualified immunity. The court also concluded that Tekle had not raised an issue of triable fact regarding the reasonableness of his detention. The court entered judgment in favor of the individual defendants and the United States, and Tekle timely appealed.
The district court's grant of a motion for summary judgment is reviewed de novo. Blanford v. Sacramento County, 406 F.3d 1110, 1114 (9th Cir.2005). "Viewing the evidence in the light most favorable to the nonmoving party, . . . and drawing all reasonable inferences in favor of that party, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact." Galvin v. Hay, 374 F.3d 739, 745 (9th Cir.2004). In evaluating a claim of qualified immunity, we first must determine whether, when viewed in the light most favorable to Tekle, the alleged facts show a violation of a constitutional right. Blanford, 406 F.3d at 1114-15. If the answer is yes, we then must determine whether the constitutional right at issue was clearly established at the time of the alleged violation. Id. at 1115. "`The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
"Bivens is a judicially created cause of action against federal officers arising under the United States Constitution." Ting v. United States, 927 F.2d 1504, 1513 (9th Cir.1991). FTCA actions, by contrast, are created by statute. "The FTCA provides a waiver of the United States government's sovereign immunity for tort claims arising out of the conduct of government employees acting within the scope of their employment." Adams v. United States, 420 F.3d 1049, 1051 (9th Cir.2005). "The FTCA specifies that the liability of the United States is to be determined `in accordance with the law of the place where the [allegedly tortious] act or omission occurred.'" Rhoden v. United States, 55 F.3d 428, 430 (9th Cir.1995) (per curiam) (quoting 28 U.S.C. § 1346(b)) (alteration in the original). California law therefore governs the United States' liability in Tekle's FTCA claim. See Galvin, 374 F.3d at 758 (); Cervantes v. United States, 330 F.3d 1186, 1188 (9th Cir.2003) (same); see also Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir.1994) ().
Tekle alleges that the individual defendants used excessive force when they pointed a gun at his head and pointed guns at him for the duration of the incident, and that they subjected him to an unreasonable detention. We hold that Tekle has raised genuine issues of material fact regarding whether the officers' conduct violated his constitutional rights and therefore reverse the district court's grant of summary judgment in favor of defendants on Tekle's Bivens claims.
"[U]se of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness." Saucier, 533 U.S. at 202, 121 S.Ct. 2151. In determining whether the force used was reasonable, we must balance "...
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