Marty Emmons v. City of Escondido , 921 F.3d 1172 ( 2019 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARTY EMMONS; MAGGIE EMMONS,                     No. 16-55771
    Plaintiffs-Appellants,
    D.C. No.
    v.                         3:14-CV-01662-
    JM-DHB
    CITY OF ESCONDIDO; CRAIG CARTER,
    EPD Chief of Police; JIM MAHER,
    Former EPD Chief of Police; KEVIN                  OPINION
    TOTH, EPD Sgt.; ROBERT CRAIG,
    EPD Officer; JAKE HOUCHIN, EPD
    Officer; JOSEPH LEFFINWELL, EPD
    Officer; DOES, 2–50, inclusive;
    COREY MOLES, DOE 1, Former
    Acting EPD Chief of Police,
    Defendants-Appellees.
    On Remand from the United States Supreme Court
    Filed April 25, 2019
    Before: Susan P. Graber and Andrew D. Hurwitz, Circuit
    Judges, and Algenon L. Marbley, * District Judge.
    Per Curiam Opinion
    *
    The Honorable Algenon L. Marbley, United States District Judge
    for the Southern District of Ohio, sitting by designation.
    2               EMMONS V. CITY OF ESCONDIDO
    SUMMARY **
    Civil Rights
    Following a remand by the United States Supreme Court,
    the panel affirmed the district court’s summary judgment in
    favor of a police officer in an action brought pursuant to 42
    U.S.C. § 1983 alleging that the officer used excessive force
    when he grabbed plaintiff and took him to the ground during
    an investigation of a reported domestic violence incident.
    The panel held that it was unable to find a specific case
    precisely on point that would establish that the officer’s
    conduct violated a clearly established constitutional right of
    which a reasonable official would have known, and therefore
    the officer was entitled to qualified immunity. The panel
    stated that although plaintiff posed no apparent danger to the
    police officer, it was mindful of the Supreme Court’s
    conclusion that a case involving police force employed in
    response to mere “passive resistance” to police was not
    sufficiently on point with this case as to satisfy the Court’s
    demand for specificity.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    EMMONS V. CITY OF ESCONDIDO                  3
    OPINION
    PER CURIAM:
    The district court granted summary judgment in favor of
    the City of Escondido and several Escondido police officers
    in this 42 U.S.C. § 1983 action. Emmons v. City of
    Escondido, 
    168 F. Supp. 3d 1265
    , 1276 (S.D. Cal. 2016).
    We affirmed in part and reversed in part, holding that
    Officers Toth and Craig were not entitled to qualified
    immunity. 716 F. App’x 724, 726 (9th Cir. 2018)
    (unpublished). The Supreme Court granted certiorari,
    reversed our decision as to Officer Toth, and vacated and
    remanded as to Officer Craig. 
    139 S. Ct. 500
    , 502 (2019)
    (per curiam). We ordered supplemental briefing on the
    following question: Did “clearly established law prohibit[]
    the officers from stopping and taking down a man in these
    circumstances?” After considering that briefing, we affirm
    the district court’s grant of summary judgment in favor of
    Officer Craig.
    I.
    At the time this action was filed, Maggie Emmons lived
    in Escondido, California, with her husband, their two
    children, and a roommate, Ametria Douglas. In April 2013,
    Maggie called 911, accusing her husband of domestic
    violence. 
    Emmons, 139 S. Ct. at 501
    . Escondido police
    arrested the husband, but he was never prosecuted. 
    Id. In May
    2013, Douglas was on the phone with her mother.
    After the call dropped, Douglas’s mother called 911 to report
    what she believed was an on-going fight at the apartment.
    The Escondido police were asked to conduct a welfare
    check. Officer Craig was one of the responding officers.
    4             EMMONS V. CITY OF ESCONDIDO
    When the Escondido officers arrived on the scene, they
    found Douglas with the Emmons children at the swimming
    pool complex of the apartment. Douglas told the officers
    that everything was fine and that they were not needed. The
    officers proceeded to the apartment nonetheless. Maggie
    and her father, Marty Emmons, were watching television.
    Although Marty urged her to cooperate, Maggie refused to
    allow the officers to enter the apartment despite their
    repeated requests.
    Marty then emerged from the apartment, and the
    physical encounter with Craig that is the subject of this case
    ensued. The parties dispute what happened and, on this
    appeal from an adverse summary judgment, we must take
    the facts in the light most favorable to Marty. Tolan v.
    Cotton, 
    572 U.S. 650
    , 655–57 (2014) (per curiam). Marty
    testified that he stepped out of the apartment with his back
    to the exterior hallway and began to close the door. He could
    not see any officers by the door and did not hear anyone
    telling him to keep the door open. He first knew that Craig
    was there when Craig grabbed him and threw him to the
    ground. Douglas, who was watching from the pool,
    described the interaction as one in which “Mr. Emmons was
    pulled out of the door,” and “tackled to the ground.”
    The police body cameras recorded Craig saying the
    following: “Hi. How you doing sir? Don’t close the door.
    Get your hands behind your back. Get on the ground, get on
    the ground, get on the ground.” The physical interaction
    with Marty occurs as Craig is speaking.
    II.
    Qualified immunity shields government officials from
    liability for civil damages when “their conduct does not
    violate clearly established statutory or constitutional rights
    EMMONS V. CITY OF ESCONDIDO                    5
    of which a reasonable person would have known.” Pearson
    v. Callahan, 
    555 U.S. 223
    , 231 (2009) (quoting Harlow v.
    Fitzgerald, 
    457 U.S. 800
    , 818 (1982)). In this context,
    “clearly established” means that, “at the time of the officer’s
    conduct, the law was ‘sufficiently clear that every reasonable
    official would understand that what he is doing’ is
    unlawful.” District of Columbia v. Wesby, 
    138 S. Ct. 577
    ,
    589 (2018) (quoting Ashcroft v. al-Kidd, 
    563 U.S. 731
    , 741
    (2011)). Courts must “define the ‘clearly established’ right
    at issue on the basis of the ‘specific context of the case.’”
    
    Tolan, 572 U.S. at 657
    (quoting Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001)). Thus, liability will not attach unless there
    exists “a case where an officer acting under similar
    circumstances . . . was held to have violated the Fourth
    Amendment.” White v. Pauly, 
    137 S. Ct. 548
    , 552 (2017)
    (per curiam); see also Kisela v. Hughes, 
    138 S. Ct. 1148
    ,
    1153 (2018) (per curiam) (“[P]olice officers are entitled to
    qualified immunity unless existing precedent ‘squarely
    governs’ the specific facts at issue.” (quoting Mullenix v.
    Luna, 
    136 S. Ct. 305
    , 309 (2015))). A plaintiff “bears the
    burden of showing that the right at issue was clearly
    established.” Alston v. Read, 
    663 F.3d 1094
    , 1098 (9th Cir.
    2011) (citing Sorrels v. McKee, 
    290 F.3d 965
    , 969 (9th Cir.
    2002)).
    Marty cited several cases that he believes clearly
    establish that Craig used excessive force. Those cases,
    however, do not present sufficiently similar factual
    circumstances to have “placed the . . . constitutional question
    beyond debate.” 
    al-Kidd, 563 U.S. at 741
    . In several of the
    cases, the force used was significantly greater than the force
    used in this case or involved differently situated plaintiffs.
    See, e.g., Gravelet-Blondin v. Shelton, 
    728 F.3d 1086
    , 1091–
    92 (9th Cir. 2013) (tasing a bystander); Nelson v. City of
    Davis, 
    685 F.3d 867
    , 878 (9th Cir. 2012) (shooting an
    6             EMMONS V. CITY OF ESCONDIDO
    individual in the eye with “a pepperball projectile”);
    Blankenhorn v. City of Orange, 
    485 F.3d 463
    , 478–79 (9th
    Cir. 2007) (gang-tackling a suspected trespasser at a
    shopping mall); Santos v. Gates, 
    287 F.3d 846
    , 853–54 (9th
    Cir. 2002) (taking down an individual, resulting in a broken
    back); Headwaters Forest Def. v. County of Humboldt,
    
    276 F.3d 1125
    , 1130–31 (9th Cir. 2002) (using pepper spray
    against protesters).
    Marty also cited Meredith v. Erath, 
    342 F.3d 1057
    (9th
    Cir. 2003). But, in that case, IRS agents had entered the
    plaintiff’s office, and although she “made no attempt to
    leave,” one “grabbed her by her arms, forcibly threw her to
    the ground, and, twisting her arms, handcuffed her.” 
    Id. at 1061.
    Here, as the Supreme Court emphasized, Marty was
    attempting to step out of his daughter’s apartment and close
    the door. 
    Emmons, 139 S. Ct. at 504
    .
    The case closest to this one that we have discovered is
    Hansen v. Black, 
    885 F.2d 642
    (9th Cir. 1989). Investigating
    a gas station robbery, police officers went to the plaintiff’s
    residence, suspecting that her son may have been involved.
    
    Id. at 643.
    They found the plaintiff outside, taking out her
    trash, and we held that that the officers used excessive force
    in handcuffing her “in an abusive manner” after she refused
    to comply with an officer’s order to put the trash down. 
    Id. at 645.
    But here, the officers were investigating an incident
    that occurred inside the Emmons home, and Marty had not
    been ruled out as a possible suspect.
    Although Marty posed no apparent danger to Craig, we
    are mindful of the Supreme Court’s conclusion that a case
    involving police force employed in response to mere
    “passive resistance” to police is not sufficiently on point to
    constitute clearly established law. 
    Emmons, 139 S. Ct. at 503
    . The Court therefore must have concluded implicitly
    EMMONS V. CITY OF ESCONDIDO                          7
    that Marty’s actions involved more than passive resistance.
    Otherwise, the Court would not have vacated our decision in
    the face of our citation to 
    Gravelet-Blondin, 728 F.3d at 1093
    , in which we held that “[t]he right to be free from the
    application of non-trivial force for engaging in mere passive
    resistance was clearly established prior to 2008.” Given the
    Court’s admonition, we are unable to find a case so precisely
    on point with this one as to satisfy the Court’s demand for
    specificity. Officer Craig is therefore entitled to qualified
    immunity. 1
    AFFIRMED.
    1
    Because we hold that Craig is entitled to qualified immunity, we
    do not address whether he violated Mr. Emmons’s constitutional rights.
    See 
    Pearson, 555 U.S. at 236
    –37. The Supreme Court has advised that
    “lower courts ‘should think hard, and then think hard again,’ before
    addressing both qualified immunity and the merits of an underlying
    constitutional claim.” 
    Wesby, 138 S. Ct. at 589
    n.7 (quoting Camreta v.
    Greene, 
    563 U.S. 692
    , 707 (2011)).