Denby v. Casa Grande, City of

• Court: District Court, D. Arizona
• Decided: April 5, 2023
• Docket: 2:17-cv-00119
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

James W . Denby, et al., ) No. CV-17-00119-PHX-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) City of Casa Grande, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 Before the Court is a Motion for Summary Judgment (Doc. 201) filed by Defendants 16 David and Jane Doe Engstrom, Jacob H. Robinson, Christopher and Jane Doe Lapre, Sgt. 17 Gragg and Jane Doe Gragg, and Rory Skedel (collectively, “Defendants”).1 The Motion is 18 fully briefed and ready for review. (Docs. 201, 203, 210, 211 & 215). For the following 19 reasons, the Court denies Defendants’ Motion.2 20 /// 21 1 Plaintiff’s Second Amended Complaint also names “Jane Doe Robinson” and 22 “Jane Doe Skedel” as Defendants. (Doc. 82 at 1). However, Defendants indicate that 23 Defendants Robinson and Skedel were not married at the time of the events in this matter and that Plaintiff is incorrect to name their spouses as Defendants. (Doc. 201 at 1, n.1). 24 Additionally, Plaintiff’s Second Amended Complaint spells Defendant Gragg’s last name 25 as “Gregg.” (See, e.g., Doc. 82 at 5). The Court adopts the spelling used in Defendant Gragg’s Motion for Summary Judgment (See Doc. 201 at 1, n.1). 26

27 2 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 I. BACKGROUND 2 This action arises from a December 2014 incident at a residence owned by Plaintiff 3 James W. Denby (“Plaintiff”) in Casa Grande, Arizona. (Doc. 82 at 6). At approximately 4 3:05 P.M. on the afternoon of December 17, 2014, the Casa Grande Police Department 5 (“CGPD”) responded to a “domestic disturbance” complaint at a house nearby Plaintiff’s. 6 (Id.). Upon arrival, the officers learned the dispute involved Abram Ochoa (“Mr. Ochoa”), 7 who had at least one outstanding arrest warrant for an unrelated incident.3 (Id. at 7). The 8 officers were made aware that Mr. Ochoa had potentially fled to Plaintiff’s residence down 9 the street (the “Residence”). (Id.). CGPD declined offers from Mr. Ochoa’s girlfriend and 10 Plaintiff Denby’s son to help persuade Mr. Ochoa to leave the Residence voluntarily. (Id. 11 at 8). The officers used a loudspeaker PA system to attempt communication with Mr. 12 Ochoa, but they did not receive any response from the Residence. (Id.). 13 Shortly after arriving, CGPD requested assistance from the Pinal County Regional 14 SWAT (“SWAT”). (Id.). SWAT arrived approximately one hour later and decided to use 15 a “Bearcat” as a battering ram to gain access to the Residence. (Id. at 10). SWAT drove the 16 Bearcat over a chain-linked fence and into the front of the Residence, breaking the windows 17 and front door. (Id. at 11). SWAT then unsuccessfully attempted to communicate with Mr. 18 Ochoa through the Bearcat’s PA system and through a tactical phone deployed through the 19 broken windows and wall. (Id.). At approximately 5:00 P.M., a judged signed a search 20 warrant for the Residence, permitting officers to enter the Residence for the sole purpose 21 of arresting Mr. Ochoa. (Id.). Over the course of several hours, SWAT deployed robots, 22 fired a total of twenty-two (22) canisters of pepper spray and tear gas, and deployed 23 multiple Noise Flash Diversionary Devices (“NFDDs” or “flash grenades”) into the 24 Residence. (Id. at 11–12). Through it all, the officers did not see Mr. Ochoa nor any signs 25 of movement or response from inside the Residence. (Id. at 13). Next, SWAT developed a 26

27 3 Mr. Ochoa is also a named Defendant in this action. However, he appeared in this case separately, (see Doc. 68), and does not join Defendants’ Motion for Summary 28 Judgment. (See Doc. 201 at 1). 1 tactical plan to enter the Residence and act on the search warrant. (Id. at 13). They entered 2 at 9:47 P.M., nearly seven hours after they first arrived at the Residence. (Id.). During the 3 search, SWAT team members and CGPD officers destroyed several items in the Residence, 4 including furniture, cushions, pillows, windows, window coverings, bathroom mirrors, 5 shower doors, toilets, televisions, artwork, and antiques. (Id. at 13–14). At approximately 6 10:03 P.M.—seven hours after CGPD was originally dispatched to the area—Mr. Ochoa 7 was found outside the Residence and hiding under a tarp on the property. (Id. at 14). Mr. 8 Ochoa had apparently been hiding under the tarp during the entire incident. (Id.). 9 Although Plaintiffs initially filed this case in state court, Defendants removed it to 10 this Court on January 13, 2017.4 (Doc. 1). Plaintiffs amended their complaint twice. 11 (See Docs. 31 & 82). Three of Plaintiffs’ five original claims have been dismissed, along 12 with several of the originally named Defendants. (See Docs. 21, 118 & 136). Only 13 Defendants Engstrom, Robinson, Lapre, Gragg, Skedel, and Ochoa remain. As it relates to 14 these Defendants—excluding Defendant Ochoa—only two claims remain: (i) violation of 15 Plaintiff’s Fourth and Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983 16 (Count I) and (ii) failure to intervene with respect to a constitutional violation (Count II). 17 (Doc. 82 at 16–21). Defendants Engstrom, Robinson, Lapre, Gragg, and Skedel now seek 18 summary judgment in their favor as to both claims and dismissal from this action. (Id.). 19 II. LEGAL STANDARD 20 A court must grant summary judgment if the evidence shows “that there is no 21 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 22 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 23 (1986). To defeat the motion, the non-moving party must show that there are genuine 24 factual issues “that properly can be resolved only by a finder of fact because they may 25 reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 26

27 4 Plaintiff Denby was originally joined by Plaintiffs Elizabeth J. Torres and Wilma J. Logston. (Doc. 82 at 1). However, Plaintiffs Torres and Logston were later dismissed 28 from the action and Mr. Denby is the sole remaining Plaintiff. (See Doc. 106 & 188). 1 242, 250 (1986). The nonmovant need not establish a material issue of fact conclusively in 2 its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); 3 however, it must “come forward with specific facts showing that there is a genuine issue 4 for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 5 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1). 6 At summary judgment, the judge’s function is not to weigh the evidence and 7 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 8 477 U.S. at 249. “The Court must assume the nonmoving party’s version of the facts to be 9 correct, even in qualified immunity cases,” Soto v. Paredes, No. CIV–05–4105–PHX– 10 MHM, 2008 WL 906461, at *1 (D. Ariz. Mar. 31, 2008) (citing Liston v. Cnty. of Riverside, 11 120 F.3d 965, 977 (9th Cir. 1997)), and all inferences must be drawn in the nonmoving 12 party’s favor. Anderson, 477 U.S. at 255. The court need consider only the cited materials, 13 but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 14 III. DISCUSSION 15 Defendants Engstrom, Gragg, Lapre, Robinson, and Skedel argue they are entitled 16 to qualified immunity and that summary judgment in their favor is therefore appropriate 17 with respect to Plaintiff’s two remaining claims. The Court will first address Plaintiff’s 18 Fourth Amendment claim and conduct the requisite qualified immunity analysis before 19 turning to Plaintiff’s failure to intervene claim. 20 A. Fourth Amendment Claim & Qualified Immunity Analysis 21 “The doctrine of qualified immunity protects government officials ‘from liability 22 for civil damages insofar as their conduct does not violate clearly established statutory or 23 constitutional rights of which a reasonable person would have known.’” Est. of Lopez v. 24 Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (quoting Pearson v. Callahan, 555 U.S. 223, 25 231 (2009)). “Qualified immunity gives government officials breathing room to make 26 reasonable but mistaken judgments about open legal questions. When properly applied, it 27 protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft 28 v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 1 “Because qualified immunity is ‘an immunity from suit rather than a mere defense to 2 liability . . . it is effectively lost if a case is erroneously permitted to go to trial.’” Pearson, 3 555 U.S. at 231 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). 4 In determining whether an officer is entitled to qualified immunity, the Court must 5 consider (1) whether there has been a violation of a constitutional right, and (2) whether 6 that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. 7 California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 231). The 8 Court may exercise its discretion “in deciding which of the two prongs of the qualified 9 immunity analysis should be addressed first in light of the circumstances in the particular 10 case at hand.” Pearson, 555 U.S. at 236. Once a qualified-immunity defense is raised, the 11 plaintiff bears the burden of proving the violation of a constitutional right and that the right 12 was clearly established. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). 13 1. Constitutional Violation Prong 14 The first prong of the qualified immunity analysis asks whether the facts shown by 15 Plaintiff—when viewed in Plaintiff’s favor—make out a constitutional violation. Capp v. 16 Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (citing Pearson, 555 U.S. at 232). 17 The constitutional right at issue is the Fourth Amendment’s protection from unreasonable 18 searches and seizures. Plaintiff contends that his Fourth Amendment rights were violated 19 when Defendants excessively and unnecessarily destroyed Plaintiff’s property during their 20 search of his Residence. (Doc. 82 at 16–19). 21 The Fourth Amendment provides that “[t]he right of the people to be secure in their 22 persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 23 be violated.” U.S. CONST. amend. IV. “It is plain that while the destruction of property in 24 carrying out a search is not favored, it does not necessarily violate the fourth amendment.” 25 United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) (citation omitted). “[O]fficers 26 executing a search warrant occasionally ‘must damage property in order to perform their 27 duty.’” Liston, 120 F.3d at 979 (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). 28 However, Ninth Circuit and Supreme Court authority has made clear that “unnecessarily 1 destructive behavior, beyond that necessary to execute a warrant effectively,” may 2 sometimes amount to a Fourth Amendment violation. Id. (citation omitted). As with any 3 Fourth Amendment inquiry, “[t]he test of what is necessary to ‘execute a warrant 4 effectively’ is reasonableness.” San Jose Charter of Hells Angels Motorcycle Club v. City 5 of San Jose (“Hells Angels”), 402 F.3d 962, 971 (9th Cir. 2005). When determining 6 whether officers executed a search warrant unreasonably, a court must determine whether 7 the degree of intrusion matched the underlying purpose of the intrusion. Id. 8 Here, the underlying purpose of Defendants’ intrusion was clear and unambiguous: 9 to find and arrest Mr. Ochoa. Defendants were originally responding to a domestic 10 disturbance complaint involving Mr. Ochoa at a house nearby Plaintiff’s. (Docs. 203 at 2 11 & 211 at 2). Defendants were aware that Mr. Ochoa had an active arrest warrant; in fact, 12 one officer had attempted to serve the arrest warrant the day prior. (Docs. 203 at 2 & 211 13 at 3). Defendants learned that Mr. Ochoa had fled the house and they pursued him to 14 Plaintiff’s Residence where they set up a perimeter. (Docs. 203 at 2–3 & 211 at 3–4). The 15 SWAT Team was requested and soon arrived, while the process to obtain a search warrant 16 for the Residence had begun. (Docs. 203 at 6–7 & 211 at 9–12). Shortly thereafter, the 17 search warrant was signed. (Docs. 203 at 8 & 211 at 16). It directed Defendants to search 18 the Residence to find and arrest Mr. Ochoa. (See “Affidavit for Search Warrant,” Doc. 203- 19 12 at 5 (requesting “authorization to enter the premises . . . for the purpose of arresting [Mr. 20 Ochoa]”) & “Search Warrant,” Doc. 203-12 at 6 (authorizing search of Residence for 21 purpose identified in Affidavit)). 22 Having identified the underlying purpose of Defendants’ intrusion—to find and 23 arrest Mr. Ochoa—the question is whether the degree of the intrusion was reasonable in 24 light of this purpose. See Hells Angels, 402 F.3d at 971. In analyzing reasonableness, the 25 Court must consider the totality of the circumstances, “judged from the perspective of a 26 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. 27 Connor, 490 U.S. 386, 396 (1989). The analysis is purely objective. See id. at 397 (“An 28 officer’s evil intentions will not make a Fourth Amendment violation out of an objectively 1 reasonable use of force; nor will an officer’s good intentions make an objectively 2 unreasonable use of force constitutional.”). The Court must consider the facts and 3 circumstances confronting the officers, including “the severity of the crime at issue, 4 whether the suspect poses an immediate threat to the safety of the officers or others, and 5 whether he is actively resisting arrest or attempting to evade arrest by flight” (the “Graham 6 factors”). Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). The most 7 important of these factors is whether the suspect poses an immediate threat.5 Chew v. Gates, 8 27 F.3d 1432, 1441 (9th Cir. 1994). “Although the reasonableness of force used ordinarily 9 is a question of fact for the jury, defendants may be entitled to summary judgment if the 10 ‘use of force was objectively reasonable under the circumstances.’” Soto, 2008 WL 11 906461, at *1 (citing Liston, 120 F.3d at 976, n.10)). 12 The degree of intrusion in this case was significant. Defendants’ actions resulted in 13 near complete destruction of Plaintiff’s home and numerous pieces of Plaintiff’s personal 14 property. All exterior windows of the Residence were destroyed, either via Defendants’ 15 use of the Bearcat or via launched chemical munitions. A chain-link fence around the 16 Residence and the Residence’s front door were demolished by the Bearcat. The engine of 17 Plaintiff’s PT Cruiser was destroyed when chemical munitions were deployed, and a 18 canister was fired directly into the vehicle’s engine compartment. All furniture in the home 19 was destroyed. Home appliances were destroyed. Televisions were destroyed. Cushions 20 and pillows were torn open. Window coverings were torn apart. Shower doors, bathroom 21 mirrors, and a toilet were smashed. Personal items including artwork, heirlooms, clothes, 22 family pictures, and antiques were destroyed, smashed, or damaged. Even the Residence’s 23 foundation sustained significant damage because of the damaged toilet, which caused water 24 to run unchecked in the Residence for days. The Residence sustained significant chemical 25 5 The Graham factors are not exhaustive. The Court may also consider factors such 26 as whether the suspect resisted or was armed, the number of officers involved, whether the 27 suspect was sober, the availability of alternative methods of capturing or subduing the suspect, or any other dangerous or exigent circumstances that existed. Chew, 27 F.3d at 28 1440, n.5 (citing Hunter v. Dist. of Columbia, 943 F.2d 69, 77 (D.C.Cir.1991)). 1 damage from Defendants firing at least twenty-two canisters of chemical munitions into 2 the home and failing to decontaminate or properly ventilate the home following the 3 incident. Defendants do not dispute that any of these damages occurred. 4 Altogether, the damages sustained by Plaintiff’s Residence and personal property 5 far exceed the damages that occurred in other cases where courts did not find a 6 constitutional violation. See, e.g., Johnson v. Manitowoc Cnty., 635 F.3d 331, 333–34, 336 7 (7th Cir. 2011) (finding search reasonable where officers jackhammered concrete in 8 garage, damaged main door to trailer, removed wall panels and carpet, and cut up a couch). 9 In fact, the damages in this case even exceed the damages that occurred in many cases 10 where courts did find sufficient evidence for a constitutional violation. See, e.g., Hells 11 Angels, 402 F.3d at 974 (finding Fourth Amendment violation where officers jack- 12 hammered sidewalk, cut mailbox off its post, and broke a refrigerator); Neal v. Cal. City, 13 No. 1:14–cv–00269–AWI–JLT, 2015 WL 4227466, at *11 (E.D. Cal. July 10, 2015) 14 (denying defendants’ request for summary judgment—and finding that a jury could 15 reasonably find Fourth Amendment violation—where officers disassembled appliances 16 and video game systems, cut holes in sofas and pillows, removed clothes from dryers, broke 17 picture frames, and forcibly opened safe). Although this does not mean that Defendants 18 necessarily violated Plaintiff’s constitutional rights, the Court finds that the degree of 19 intrusion in this case—that is, the extent of the property damage—was more than sufficient 20 to sustain a Fourth Amendment violation. 21 Consideration of the Graham factors further supports this finding. As to the third 22 Graham factor—whether the suspect was actively resisting arrest or attempting to evade 23 arrest by flight—it is undisputed that Mr. Ochoa was actively resisting arrest by evading 24 the officers from the initial scene and then by hiding under the tarp outside Plaintiff’s 25 Residence for over six hours. That said, the parties dispute the applicability of the other 26 two Graham factors. As to the first Graham factor—the severity of the crime at issue— 27 Defendants contend that Mr. Ochoa was “wanted on a serious offense,” (Doc. 201 at 13), 28 while Plaintiff contends that Mr. Ochoa was merely wanted for a failure-to-appear on non- 1 violent charges.6 (Doc. 211-1 at 13). The fact that Mr. Ochoa’s arrest warrant was based 2 only on his failure to appear for non-violent charges is supportive of Plaintiff’s position on 3 this factor; such a crime is not a particularly serious offense. However, this overlooks the 4 reason Defendants were dispatched to the scene in the first place: reports of a domestic 5 disturbance involving Mr. Ochoa, a man who had a history of domestic violence, including 6 assaults of his girlfriend and the suspected stabbing of his brother just two weeks prior.7 7 The fact that Defendants were responding to and—at least initially—investigating reports 8 of domestic violence is supportive of Defendants’ position on the first factor. 9 As to the second (and most important) Graham factor—the immediacy of the threat 10 posed by the suspect—Defendants argue that Mr. Ochoa posed “an immediate threat to law 11 enforcement officers or others in the general area.” (Doc. 201 at 13). Plaintiff, meanwhile, 12 contends that “there were no active threats to justify the level of force used.” (Doc. 210 at 13 5). The Court finds that Mr. Ochoa’s general background and criminal history increased 14 the potential threat he posed, but that the actual circumstances of the incident at Plaintiff’s 15 Residence did not give rise to an immediate threat of the nature contended by Defendants. 16 To be sure, the threat level was heightened by Mr. Ochoa’s history of domestic violence 17 and other criminal activity, gang affiliations, and methamphetamine abuse. (See Doc. 203- 18 16 at 1–4 (detailing Mr. Ochoa’s felony history)). Defendants were aware of this 19 background information, and it was reasonable for them to perceive a more dangerous 20 situation because of it. Likewise, the risk of injury was further increased by Mr. Ochoa’s 21 fleeing from the initial scene, his apparent illegal entry into Plaintiff’s Residence, and the 22

23 6 To support this contention, Plaintiff relies on the testimony of his expert witness, Mark Hafkey, who declares that he analyzed Mr. Ochoa’s CAD and ACIC records and 24 concluded that Mr. Ochoa “had an arrest warrant merely for a failure-to-appear on non- 25 violent charges.” (Doc. 211-1 at 13).

26 7 Plaintiff points out that Defendants have failed to offer any evidence—other than 27 the Affidavit of Defendant Lapre—of this purported stabbing. (Doc. 211 at 44). The Court has taken this absence of evidence into consideration and does not give great weight to the 28 alleged stabbing in this analysis. 1 presence of guns inside that Residence. 2 That said, numerous other circumstances reasonably eased or even eliminated many 3 of these concerns. First, Mr. Ochoa never displayed any threatening or intimidating 4 behavior at any point during the nearly seven-hour incident. He never flashed or used any 5 weapons. He never yelled or used any hostile or aggressive language. He merely ran, and 6 then hid, from Defendants. Second, Defendants were made aware that Mr. Ochoa was not 7 under the influence of any drugs or alcohol. Third, Defendants were aware that—even if 8 Mr. Ochoa was inside the Residence—no other person was inside the Residence with him 9 or otherwise in immediate danger. Fourth, Defendants had control and a thorough 10 understanding of the entire scene. Plaintiff provided them with keys and immediate, 11 unrestricted access to the entire Residence. He also drew them a map of the Residence’s 12 interior and told them exactly where his firearms were located—in his bedroom. 13 Defendants established a perimeter and had constant, uninterrupted surveillance of the 14 Residence for nearly seven hours. Plaintiff claims to have observed officers “wandering 15 casually through his yard and walking up to windows and doors” and points out Defendant 16 Robinson’s admission “that he was ‘close enough to the residence to move a curtain back 17 from a window’ to look into the room.” (Doc. 210 at 4). This shows both the officers’ 18 control of the scene and their general ease with its threat level. 19 Fifth, the length of the incident—nearly seven hours—combined with the complete 20 absence of any communication with Mr. Ochoa or observance of any sounds or movement 21 inside the Residence further eased the level of threat. Despite Defendants’ contention, this 22 was not the sort of multi-hour, hotly contested standoff between officers and an armed 23 suspect who was barricading himself, actively rejecting the officers’ commands and 24 negotiation attempts, and outwardly threatening to harm himself, the officers, or some other 25 person. Compare with Lech v. City of Greenwood Vill., 791 Fed. Appx. 711, 713 (10th Cir. 26 2019) (suspect fired bullet from inside garage and struck officer’s car during “high-risk, 27 28 1 barricade situation”).8 Rather, the officers’ use of the PA system, the throw phone, the 2 chemical munitions, and the robots—not to mention the numerous, largely unobstructed 3 views into the Residence that they had through the broken windows—allowed them to clear 4 most rooms in the house and confirm that Mr. Ochoa was likely not inside. The truth of the 5 situation—that Mr. Ochoa was not in the Residence at all and that he was not seeking to 6 threaten or harm but rather merely hide from the officers—become increasingly clear with 7 every uneventful hour that passed without any signs of or contact with Mr. Ochoa. In turn, 8 the immediacy of the threat posed by Mr. Ochoa should have decreased. 9 Sixth, and finally, any concerns that Mr. Ochoa had access to Plaintiff’s firearms 10 were reasonably eased, particularly as the day wore on. As noted above, Plaintiff told the 11 officers exactly where his firearms were located—in his bedroom. He further explained 12 that his bedroom door was locked, and that even if the room was breached, the guns were 13 either locked in a gun safe or had trigger locks. The secured location of the guns was even 14 confirmed during the incident, when Defendants had “a direct line of sight into the Home 15 to Plaintiff’s locked bedroom door and could see it remained unopened, thus proving 16 Ochoa never had access to Plaintiff’s firearms, even if he had been in the Home.” (Doc. 17 210 at 3). In sum, the Court finds that Mr. Ochoa posed a moderate threat to the officers, 18 given his background and his fleeing from the initial scene. However, the Court cannot 19 find that the threat he posed was so severe or immediate as to freely permit all conduct by 20 Defendants, without any regard for the damages it may cause. 21 To be sure, some of the tactics used by Defendants in executing the search warrant— 22 and the damages resulting therefrom—may have been reasonable. Over the course of 23 nearly seven hours, Defendants steadily escalated their use of force: (1) using the PA 24 system to make commands; (2) using the Bearcat to break windows and deploy a throw- 25

26 8 The Court notes that Lech is not a Fourth Amendment case. Rather, the 27 constitutional provision at issue in Lech was the takings clause of the Fifth Amendment. Lech, 791 Fed. Appx. at 714. Nonetheless, the case shares factual similarities to the present 28 case, and Defendants rely on Lech in their Motion. (Doc. 201 at 11). 1 phone into the Residence; (3) deploying a robot into the Residence; (4) firing chemical 2 munitions into the Residence; (5) sending a second, smaller robot into the Residence; (6) 3 firing two NFDDs into the Residence; and (7) making a physical, dynamic entry into the 4 Residence. In their Motion, Defendants cite to caselaw holding that the use of tactics such 5 as chemical munitions, flash grenades, and dynamic entries with armored vehicles such as 6 a Bearcat are often reasonable when a dangerous suspect refuses to leave a building and 7 submit himself to officers. (Doc. 201 at 10–11, 15–16 & 18 (listing cases)). According to 8 the caselaw, when such tactics are reasonably used, damage to property—e.g., broken 9 windows and doors, or flooring damage—can be expected and generally does not render 10 the search unreasonable. See West v. City of Caldwell, 931 F.3d 978, 982 (9th Cir. 2019) 11 (finding use of tear gas reasonable under circumstances); Cook v. Gibbons, 308 Fed. Appx. 12 24, 30–31 (8th Cir. 2009) (case relied upon by Defendants where court found officers’ use 13 of tear gas, flash grenades, and dynamic entry via rammed side door to be reasonable). 14 In this case, however, Plaintiff raises numerous factual disputes relating to whether 15 it was reasonable for Defendants to use these escalating tactics in the first place. For 16 example, Plaintiff argues that Defendants’ use of the Bearcat was “unnecessarily 17 destructive, excessive, and therefore unreasonable” given that Defendants had the keys and 18 full, unlimited access to the Residence. (Doc. 210 at 16). Similarly, Plaintiff argues that 19 Defendants’ use of at least twenty-two canisters of chemical munitions was unnecessary 20 and unreasonable because the Residence was just 1,300 square feet and Defendants were 21 increasingly aware that Mr. Ochoa was not inside. (Id. at 17). Plaintiff argues that 22 Defendants lacked any reasonable belief that Mr. Ochoa was inside the Residence to begin 23 with because of the unreliability of the statements made by Plaintiff’s son, the impossibility 24 of footprints existing, and the layout of the Residence. (Id. at 5, 12–13). Plaintiff offers 25 expert testimony that Mr. Ochoa could not be considered a “barricaded subject” and that 26 the officers should not have called for the SWAT Team given the circumstances and their 27 failure to complete the requisite risk assessment. (Id. at 3–4). Plaintiff also argues that 28 Defendants lacked a reasonable belief that Mr. Ochoa was armed, given the true and 1 accurate statements of Plaintiff at the scene describing where his guns were located in the 2 Residence and the manner in which they were secured. (Id. at 3, 15–16). Plaintiff offers 3 expert testimony and refers to “nationally accepted police practices” to argue that 4 Defendants should have searched the yard and under the tarp sooner. (Id. at 3–6, 14–15). 5 Plaintiff argues that, after arresting Mr. Ochoa, Defendants exacerbated the chemical 6 damages and left water running in the Residence by abandoning the Residence and failing 7 to secure the property, call the fire department, or properly decontaminate the Residence. 8 (Id. at 6–7). Altogether, the Court finds that Plaintiff raises numerous factual disputes that 9 have a direct bearing on the reasonableness of Defendants’ tactics and escalating use of 10 force. Such disputes are properly left for the jury to decide. See Neal, 2015 WL 4227466, 11 at *11 (“Although a jury could find that those activities were an appropriate means of 12 effectuating [] the search, it could just as easily find that Defendants’ conduct [was] 13 unnecessary to conduct the search.”). 14 Plaintiff also suggests numerous alternatives that Defendants failed to consider. For 15 example, Plaintiff contends that Defendants could have: (i) used their K-9 unit, which was 16 “stationed at the house [during] the entirety of the incident” (Doc. 210 at 6); (ii) used the 17 keys and tactical shields to open the door instead of breaking it open with the Bearcat (Id. 18 at 6, 13); (iii) walked away and set up surveillance (Id. at 13); (iv) used a helicopter with 19 infrared cameras (Id.); (v) simply left the scene and arrested Mr. Ochoa another day, given 20 that he was wanted on non-violent offenses (Id. at 13–14); (vi) check under the tarp, given 21 that movement was seen at one point (Id. at 14); or (vii) allowed Mr. Ochoa’s girlfriend to 22 speak on the PA system (Id.). Although the Court will not speculate as to the viability of 23 any of these alternatives, the availability of alternative methods of capturing or subduing 24 the suspect is a factor that courts may consider. See Chew, 27 F.3d at 1440, n.5. 25 Setting aside Defendants’ use of chemical munitions, NFFDs, and the Bearcat, the 26 Court notes that the excessive damage sustained by Plaintiff’s Residence and personal 27 property also included damages having no apparent relation to such tactics. This 28 independently supports a finding of a constitutional violation. Specifically, Defendants 1 offer no explanation for the destruction of Plaintiff’s furniture, appliances, televisions, PT 2 Cruiser, artwork, heirlooms, clothes, family pictures, and antiques. Presumably, such 3 personal property could have been spared even with a reasonable use of chemical 4 munitions, NFFDs, and the Bearcat. More importantly, such property is entirely unrelated 5 to the search’s objective. As noted above, the sole purpose of all the actions taken by 6 Defendants—from their arrival, including their search of the Residence, and until Mr. 7 Ochoa was finally found—was to find and arrest Mr. Ochoa. This purpose was plain and 8 simple; it did not include any orders or motivations to search for contraband or recover 9 evidence—purposes that would have widened the scope of reasonably searchable areas in 10 the Residence and possibly justified damage to Plaintiff’s personal property. See Neal, 11 2015 WL 4227466, at *11 (explaining why searches may need to be more thorough when 12 target of search is evidence or contraband); see also Jackson ex rel. Jackson v. Suffolk 13 Cnty., 87 F. Supp. 3d 386, 401–02 (E.D.N.Y. 2015) (“The reasonableness of the damage 14 must be evaluated with reference to the target of the search, such as a more invasive 15 contraband search.”). As it stands, however, there is no reasonable explanation for 16 Defendants’ destruction of numerous objects far too small for Mr. Ochoa to be hiding in. 17 Finally, the Court must find that each individual Defendant engaged in some 18 conduct amounting to a constitutional violation. See Cunningham v. Gates, 229 F.3d 1271, 19 1287 (9th Cir. 2000) (“[I]n resolving a motion for summary judgment based on qualified 20 immunity, a court must carefully examine the specific factual allegations against each 21 individual defendant.”). That said, the actions of each individual Defendant need not rise 22 to the level of a constitutional violation. See Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th 23 Cir. 2004); Bravo v. City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011) (“Section 24 1983 liability extends to those who perform functions ‘integral’ to an unlawful search, even 25 if their individual actions do not themselves rise to the level of a constitutional violation.”). 26 Rather, the Ninth Circuit holds that liability may be imposed on an officer so long as he 27 was an “integral participant” in the unlawful conduct. Boyd, 374 F.3d at 780. Although the 28 “integral participation” doctrine “does not implicate government agents who are ‘mere 1 bystanders’ to an unconstitutional search,” see Bravo, 665 F.3d at 1090, the Ninth Circuit 2 has recognized that officers who provide armed backup to other officers conducting the 3 search—even if they do not themselves enter the residence or building being searched— 4 may be considered full, active participants. Boyd, 374 F.3d at 780 (citations omitted). 5 Here, each Defendant was at least an “integral participant” in the search of 6 Plaintiff’s Residence and therefore can be held liable for any constitutional violations that 7 occurred. First, Defendant Engstrom “was part of the entry team into the [R]esidence, and 8 located toward the end of the line or ‘stack’ of SWAT Team Operators.” (Docs. 203 at 17 9 & 211 at 35). Although the parties agree that Defendant Engstrom did not personally 10 operate the Bearcat or fire the NFDDs or chemical munitions, they acknowledge that he 11 was charged with maintaining the officers’ perimeter of the Residence and that he was 12 “assigned to cover the east perimeter wall” for a few hours. (Docs. 203 at 16–17 & 211 at 13 33–34). Given his participation in the entry team—and his duties of providing cover and 14 maintaining the officers’ perimeter around the Residence—the Court concludes that 15 Defendant Engstrom was an “integral participant” in the search. 16 Second, Defendant Robinson “took a perimeter position on the west side of the 17 [R]esidence to ensure Ochoa did not flee from the area of the residence he could observe, 18 and to provide security for law enforcement personnel doing their jobs.” (Docs. 203 at 28 19 & 211 at 58). He also provided cover for Defendant Lapre when Defendant Lapre was 20 firing chemical munitions into the Residence. (Docs. 203 at 29 & 211 at 59–60). Although 21 Defendant Robinson was not part of the entry team, he stated in his Affidavit that he 22 provided security for the other officers during the entirety of the incident, including during 23 the officers’ entry and search of the Residence. (Doc. 203-10 at 3). Given his role as 24 providing armed cover for the other Defendants during the search, the Court concludes that 25 Defendant Robinson was an “integral participant” in the search. 26 Third, Defendant Lapre was a member of the SWAT Team and the designated leader 27 of the Bravo Team. (Docs. 203 at 22 & 211 at 44–45). Defendant Lapre assumed the role 28 of grenadier and fired the twenty-two cannisters of chemical munitions into the Residence. 1 (Docs. 203 at 25 & 211 at 51). He was also part of the entry team. (Docs. 203 at 27–28 & 2 211 at 56). Given his direct participation in the search of the Residence, the Court finds 3 that Defendant Lapre was an “integral participant” in the search. 4 Fourth, Defendant Gragg was a Sergeant for the CGPD and the Assistant SWAT 5 Team Commander on the day of the incident. (Doc. 203-5 at 2). Defendant Gragg did not 6 operate the Bearcat, deploy chemical munitions, or deploy the NFDDs. (Id. at 4). He was 7 not part of the entry team and did not enter the Residence. (Id.). He did not search the 8 outside of the residence and the parties do not indicate that he provided cover for any other 9 officers during the incident. (Id.). Instead, Defendant Gragg remained at the command 10 post—which was down the street from the Residence—during the entirety of the incident. 11 (Id. at 3). Although he could not see the Residence from the command post, he states in his 12 Affidavit that he “would have provided some directions to the SWAT Team operators.” 13 (Id. at 4). According to the testimony of Plaintiff’s expert witness—who reviewed and 14 analyzed the evidence in this case—Defendant Gragg was the scene supervisor prior to the 15 SWAT Team’s arrival, and he remained in charge of the scene even after their arrival, “as 16 there is no evidence higher command personnel ever relieved him.” (Doc. 211-1 at 23). 17 Given his role as supervisor and his knowledge of all significant decisions relating to the 18 entry and search of the Residence, the Court finds that Defendant Gragg was an “integral 19 participant” in the search. See Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005) 20 (citations, quotations, and alteration omitted) (“A supervisor can be liable under § 1983 if 21 he sets in motion a series of acts by others . . . which he knew or reasonable should have 22 known, would cause others to inflict the constitutional injury. . . . Liability can exist without 23 direct participation by the supervisor.”). 24 Fifth, Defendant Skedel was a member of the SWAT Team and the designated 25 leader of the Charlie Team. (Docs. 203 at 32 & 211 at 66–67). Defendant Skedel deployed 26 the two NFDDs that were fired into the Residence—one of which destroyed the toilet and 27 eventually caused the water damage to the Residence’s foundation. (Docs. 203 at 34 & 211 28 at 71). Defendant Skedel also provided cover for Defendant Lapre while Defendant Lapre 1 was firing the chemical munitions. (Docs. 203 at 32 & 211 at 68). Defendant Skedel was 2 part of the entry team. (Docs. 203 at 35 & 211 at 74). Given his direct participation in the 3 search of the Residence—including his use of the NFDDs, his cover of Defendant Lapre, 4 and his participation on the entry team—the Court finds that Defendant Skedel was an 5 “integral participant” in the search. 6 In sum, each of the remaining Defendants were far more than mere bystanders 7 during the search of Plaintiff’s Residence. The Court finds that each of them were “integral 8 participants” in the search and that they can therefore be held liable for any constitutional 9 violations that occurred. Moreover, although the search in and of itself was justified based 10 on the need to find and arrest Mr. Ochoa, this did not free Defendants from their obligation 11 to execute the search reasonably. Plaintiff has demonstrated sufficient evidence showing 12 that the significant damage caused by Defendants’ intrusion was not reasonably necessary 13 and that they likely violated Plaintiff’s Fourth Amendment rights. The Court concludes 14 that the evidence put forth by the parties—viewed in the light most favorable to Plaintiff— 15 demonstrates that the authority to search for and arrest Mr. Ochoa “did not justify the level 16 of intrusion and excessive property damage that occurred during the search” of Plaintiff’s 17 Residence. Hells Angels, 402 F.3d at 972. The Court bases this conclusion on the narrow 18 purpose of Defendants’ search, the surprisingly extensive damage that occurred to 19 Plaintiff’s Residence and personal property, and the relatively low safety threat that was 20 posed by the circumstances. With respect to the first prong, the Court finds that the 21 evidence demonstrates that a constitutional violation occurred. 22 2. “Clearly Established” Prong 23 The second prong of the qualified immunity analysis asks whether the constitutional 24 right was “clearly established” at the time of the alleged constitutional violation. Peck v. 25 Montoya, 51 F.4th 877, 887 (9th Cir. 2022) (citation omitted). This inquiry is “a pure 26 question of law for the court to decide.” Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 27 1994) (citation omitted). “A constitutional right is clearly established if the official had fair 28 notice that her conduct was unlawful but still engaged in it.” Wright v. Beck, 981 F.3d 719, 1 734 (9th Cir. 2020) (internal quotations and citation omitted). To determine whether the 2 official had “fair notice,” courts usually look to binding precedent in search of “a case 3 where an officer acting under similar circumstances . . . was held to have violated” the 4 Constitution. White v. Pauly, 580 U.S. 73, 79 (2017). For a right to be considered “clearly 5 established,” it is generally important that the precedential caselaw be factually similar to 6 the case at issue. See Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) 7 (citing White, 580 U.S. at 79) (“For a right to be clearly established, case law must 8 ordinarily have been earlier developed in such a concrete and factually defined context to 9 make it obvious to all reasonable government actors, in the defendant’s place, that what he 10 is doing violates federal law.”). 11 In reviewing caselaw, courts “must be careful not to . . . defin[e] clearly-established 12 law ‘at a high level of generality.’” Wright, 981 F.3d at 734 (quoting Ashcroft, 563 U.S. at 13 742). This is because “broad pronouncements of an abstract right usually fail to provide a 14 clear sense of the outer limits of lawful conduct.” Id. (citing Saucier v. Katz, 533 U.S. 194, 15 202 (2001)); see also Anderson v. Creighton, 483 U.S. 635, 639–40 (1987) (stressing 16 consequences of defining the right too generally because it allows plaintiff “to convert the 17 rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging 18 violation of extremely abstract rights”). For example, it is obvious that all citizens enjoy a 19 “clearly established” right against unreasonable searches and seizures under the Fourth 20 Amendment. See id. at 734–35. This “constitutional truism” is entirely unhelpful, however, 21 in determining the “objective legal reasonableness” of an officer’s conduct during a 22 particular search or seizure. Id. Therefore, courts usually must conduct this inquiry “‘in 23 light of the specific context of the case, not as a broad general proposition,’ and determine 24 whether the right, as explicated, carries over to the facts” of the case at issue. Id. (quoting 25 Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). “Such specificity is especially important 26 in the Fourth Amendment context, where . . . it is sometimes difficult for an officer to 27 determine how the relevant legal doctrine . . . will apply to the factual situation the officer 28 confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotations and alterations omitted). 1 Here, Plaintiff cites to Mena v. City of Simi Valley, a case in which officers executed 2 a knock-and-announce search warrant on the plaintiff’s residence. 226 F.3d 1031, 1035 3 (9th Cir. 2000). During the search, the officers broke several doors that were already 4 unlocked and open. Id. at 1041. According to the plaintiff’s testimony, one of the officers 5 allegedly kicked an already-open door on the patio and stated, “I like to destroy these kind 6 of materials, it’s cool.” Id. The Ninth Circuit affirmed the lower court’s ruling that such 7 conduct amounted to a Fourth Amendment violation, finding that the officers “appear to 8 have damaged Plaintiffs’ property in a way that was ‘not reasonably necessary to execute 9 the search warrant.’” Id. (quoting Becker, 929 F.2d at 446). Plaintiff also cites to Hells 10 Angels, a case in which officers executed search warrants at the residences and clubhouse 11 of members of the Hells Angels. 402 F.3d at 965. The officers were searching for items 12 with indicia of Hells Angels affiliation to support a sentencing enhancement in a separate 13 murder trial. Id. In carrying out the searches, the officers jack-hammered a sidewalk, cut a 14 mailbox off its post, and broke a refrigerator. Id. at 974. The Ninth Circuit affirmed the 15 lower court’s denial of qualified immunity, finding the destruction caused by the officers 16 to be unnecessary to execute the narrow purpose of the warrants. Id. at 974–75. 17 Defendants’ primary contention is that the cases identified by Plaintiff contain 18 “stark factual differences” from the present case and therefore “preclude a conclusion that 19 the unreasonableness of any individual Defendants’ actions was clearly established in 20 December 2014.” (Doc. 215 at 3). Defendants distinguish Mena by pointing out that the 21 officers in that case were “relying on consent which [] was subject to scrutiny as to scope,” 22 whereas Defendants here were “duty-bound under a valid judicial warrant to find and 23 apprehend Ochoa,” a duty which “carried with it the implication that [the officers] would 24 have to break open doors in order to enter the residence, and while in the residence.” (Doc. 25 215 at 3). The Court is entirely unpersuaded by this argument. Defendants are incorrect 26 that the officers in Mena were relying on consent; the word “consent” does not even appear 27 in the Ninth Circuit’s decision. See Mena, 226 F.3d at 1034–35. Rather, the officers in 28 Mena—just like Defendants in this case—were acting on a valid judicial search warrant. 1 Id. If anything, the warrant in Mena authorized a more thorough—and potentially a more 2 destructive—search than the search authorized in this case because it directed the officers 3 to search for “deadly weapons, specifically firearms including ammunition, casings, 4 holsters and cleaning equipment, knives and accessories such as sheaves; and evidence of 5 street gang membership or affiliation with any street gang.” Id. at 1034. Such evidence 6 could have been hidden anywhere, which justified a thorough and detailed search and 7 explained why the officers would have been handling the plaintiff’s personal property. 8 Here, in contrast, Defendants were not authorized to search for evidence. Rather, they were 9 charged only with finding and arresting Mr. Ochoa, which narrowed the scope of 10 searchable areas to only those areas where a person could reasonably be hiding. 11 Defendants also attempt to distinguish Mena by pointing out that, in this case, 12 Plaintiff does not allege that any doors were already open or that he witnessed an officer 13 destroying his property “gratuitously” or because he thought it was “cool.” (Doc. 215 at 3– 14 4). Rather, Defendants argue they have each provided “undisputed testimony explaining 15 what force they used, and how that use of force was connected to a safe and effective 16 execution of the warrant.” (Id. at 4). The Court remains unpersuaded. Although Plaintiff 17 does not specifically contend that unlocked, already-open doors were unnecessarily broken 18 by Defendants, Plaintiff does contend that Defendants’ use of the Bearcat to break down 19 the Residence’s front door was equally as unnecessary because Defendants could have 20 simply entered the house using the keys provided to them by Plaintiff. However, even 21 ignoring this damage to the front door—or damage to any of Plaintiff’s doors for that 22 matter—the damage sustained by Plaintiff’s Residence in this case far exceeded the 23 damage sustained by the plaintiff’s house in Mena, a fact which is conveniently ignored by 24 Defendants’ fixation on “gratuitously destroyed doors.” Although Defendants here may 25 not have kicked open unlocked doors and stated that they thought causing such damage 26 was “cool,” they instead acted just as—or perhaps, more—unreasonably by unnecessarily 27 destroying Plaintiff’s furniture, appliances, televisions, PT Cruiser, artwork, heirlooms, 28 clothes, family pictures, and antiques. 1 Turning to Hells Angels, Defendants point out that the officers in that case were 2 charged with seizing indicia evidence to support a sentence enhancement for gang 3 affiliation—a purpose which was rather narrow given that “very few items” were needed. 4 (Doc. 215 at 8). The officers in Hells Angels far exceeded the scope of their warrant by 5 unnecessarily seizing “truckloads” of indicia evidence, including unnecessary items such 6 as concrete that was jack-hammered from the sidewalk, a mailbox which was cut off its 7 post, and a door ripped off of a refrigerator. See Hells Angels, 402 F.3d at 974. Here, 8 Defendants argue that they did not engage in such unnecessary destruction because they 9 were judicially charged with finding and apprehending Mr. Ochoa, and they had 10 comparably little time to plan their execution of the warrant. (Doc. 215 at 8). Defendants 11 are correct that their search in this case had a different purpose from the search executed 12 in Hells Angels. As discussed above, however, the purpose of Defendants’ search—to find 13 and arrest Mr. Ochoa—did not justify the extensive destruction caused to Plaintiff’s 14 Residence. This is no different than in Hells Angels, where the officers caused extensive, 15 unnecessary destruction that was not justified by the purpose of their search. 16 In sum, the Court finds that cases such as Mena and Hells Angels—each decided 17 well before the events at issue in this case—provided “fair notice” to Defendants that their 18 unnecessary destruction of Plaintiff’s Residence and personal property was 19 unconstitutional. Although Mena and Hells Angels have numerous factual differences from 20 the present case, such differences only highlight that Defendants’ actions in this case were 21 just as, or perhaps more, unconstitutional. Whereas the officers in Mena and Hells Angels 22 were searching for evidence—which could have been hidden anywhere—Defendants here 23 were only searching for Mr. Ochoa. Whereas the officers in Mena caused significant 24 damage to doors and the officers in Hells Angels caused significant damage to three items 25 of personal property, Defendants here caused near total-destruction of Plaintiff’s entire 26 Residence and destroyed a litany of items of personal property. 27 Moreover, the Ninth Circuit has recognized that, in some cases, it is less important 28 to identify perfectly analogous caselaw. In Wright, the Ninth Circuit explained that “an 1 official may have ‘fair notice’ that conduct is unlawful, ‘even without a body of relevant 2 case law,’ if the violation is so ‘obvious’ that no reasonable official would have engaged 3 in such behavior.” Wright, 981 F.3d at 735 (citation omitted). “The need for an on-point 4 case is further diluted when the ‘clearly established’ rule is concrete and specific.” Id. In 5 such circumstances, the Ninth Circuit has “not hesitated to deny qualified immunity to 6 officials . . . even without a case directly on point.” Id. (citations omitted); see also United 7 States v. Lanier, 520 U.S. 259, 271 (1997) (quotations, citation, and alteration omitted) 8 (“[I]n [some] instances a general constitutional rule already identified in the decisional law 9 may apply with obvious clarity to the specific conduct in question, even though the very 10 action in question has not previously been held unlawful.”); Boyd, 374 F.3d at 781 (quoting 11 Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)) (“However, a victim’s 12 constitutional rights may be clearly established in the absence of a case ‘on all fours 13 prohibiting the particular manifestation of unconstitutional conduct at issue.’ . . . Rather, 14 when an officer’s conduct ‘is so patently violative of the constitutional right that reasonable 15 officials would know without guidance from the courts that the action was unconstitutional, 16 closely analogous pre-existing case law is not required to show that the law is clearly 17 established.’”); Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015) 18 (“[S]ome things are so obviously unlawful that they don't require detailed explanation and 19 sometimes the most obviously unlawful things happen so rarely that a case on point is itself 20 an unusual thing.”). Therefore, the Ninth Circuit has “not hesitated to deny qualify 21 immunity to officials in certain circumstances, ‘even without a case directly on point.’” 22 Wright, 981 F.3d at 735; see also Bonivert v. City of Clarkson, 883 F.3d 865, 872 (9th Cir. 23 2018) (citation omitted) (“[I]f qualified immunity provided a shield in all novel factual 24 circumstances, officials would rarely, if ever, be held accountable for their unreasonable 25 violations of the Fourth Amendment.”). 26 Notably, in Wright, the Ninth Circuit cited to both Mena and Hells Angels as specific 27 examples of cases where qualified immunity was denied even in the absence of on-point 28 caselaw. Id. at 735. As to Mena, the Ninth Circuit explained: The need for an on-point case is further diluted when the 1 “clearly established” rule is concrete and specific. For example, in Mena, at the time of the allegedly unlawful 2 conduct, it was “clearly established” that officers violate the Fourth Amendment during the execution of a search warrant 3 when they engage in “unnecessarily destructive behavior.” 226 F.3d at 1041 (quoting Liston v. City of Riverside, 120 F.3d 965, 4 979 (9th Cir. 1997)). Thus, we concluded that an officer who destroyed an already-ajar door to a home during the execution 5 of a search warrant was not entitled to qualified immunity, even though we did not cite a specific on-point case. Id. That 6 is because what conduct constituted needless destruction was, 7 in that instance, self-evident. See id. 8 Id. In the present case, the Court agrees with Defendants that Plaintiff could have done a 9 better job in his Response of analogizing the facts of this case to the facts of precedential 10 cases. Likewise, the Court recognizes that the cases identified by the parties are, in many 11 ways, factually dissimilar to the present case. However, cases like Mena and Hells Angels 12 clearly established that unnecessarily destructive behavior during the execution of a search 13 warrant amounts to a constitutional violation. If the officers’ conduct in Mena and Hells 14 Angels was held to be unnecessarily destructive, it is without question that Defendants in 15 this case had fair notice that their own conduct—which was undoubtedly more destructive 16 and took place during a search with a narrower purpose—violated Plaintiff’s constitutional 17 rights. Therefore, although the Court does not “identify a case with the exact factual 18 situation involved here,” it concludes that, in light of the precedent that did exist at the time 19 of Defendants’ search, their actions violated Plaintiff’s clearly established constitutional 20 rights. See Id. at 736–37 (citing Mena, 226 F.3d at 1041); see also Neal, 2015 WL 4227466, 21 at *11–12 (finding that—at time of search in April 2013—clearly established law existed 22 holding that officers violate constitutional rights when they destroy property unrelated to 23 purpose of search, which, in that case, was to discover evidence of narcotic sales). 24 B. Failure to Intervene Claim 25 “[P]olice officers have a duty to intercede when their fellow officers violate the 26 constitutional rights of a suspect or other citizen.” Cunningham, 229 F.3d at 1289 27 (quotations omitted) (quoting United States v. Koon, 34 F.3d 1416, 1447, n.25 (9th Cir. 28 1994)). “Importantly, however, officers can be held liable for failing to intercede only if 2| they had an opportunity to intercede.” Jd. (citation omitted). 3 As noted above, Defendants Engstrom, Robinson, Lapre, Gragg, and Skedel were 4| each integral participants in the search of Plaintiff's Residence rather than mere bystanders. See supra pt. Ill, sec. A(1). Given their integral participation in the search—which ranged from directing other officers from the command post (Defendant Gragg), to providing 7 | cover for other officers from the perimeter (Defendant Robinson), to actual participation 8 | onthe entry team (Defendants Engstrom, Lapre, and Skedel)—the Court finds that Plaintiff has demonstrated sufficient evidence showing that each of these five Defendants had 10 | reason to be aware of the constitutional violations occurring and realistic opportunities to 11 | intercede, but failed to take any action to stop or impede the violations. The Court denies 12 | Defendants’ request for summary judgment as to the failure to intercede claim. 13 IV. CONCLUSION 14 In sum, the Court finds that Plaintiff has demonstrated sufficient evidence to prove 15 | that Defendants’ search of his Residence—which Defendants were each integral 16 | participants in—was carried out in a manner which violated Plaintiffs clearly established Fourth Amendment right against unnecessary and excessive destruction of property. 18 | Defendants are therefore not entitled to qualified immunity. The Court denies Defendants’ 19 | request for summary judgment. 20 Accordingly, 21 IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 201) is denied. 23 Dated this 4th day of April, 2023. 24

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