FILED NOT FOR PUBLICATION JUL 9 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES W. DENBY; WILMA J. No. 20-16319 LOGSTON, D.C. No. 2:17-cv-00119-SPL Plaintiffs-Appellees,
and MEMORANDUM*
ELIZABETH J. TORRES,
Plaintiff,
v.
DAVID ENGSTROM; et al.,
Defendants-Appellants,
and
CITY OF CASA GRANDE; COUNTY OF PINAL,
Defendants.
Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted March 17, 2021 San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,** District Judge.
This interlocutory appeal arises from the search of plaintiffs’ home by
defendants City of Casa Grande, County of Pinal, and individually named police
officers. Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 alleging a violation
of their Fourth Amendment rights. Defendants contend the district court erred by
denying their motion to dismiss, which sought qualified immunity for five
individual officers. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm
the district court’s ruling.1
We review the denial of qualified immunity de novo. Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006). Dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6) is appropriate “where the allegations in the
complaint do not factually support a cognizable legal theory.” Dent v. Nat’l
Football League, 968 F.3d 1126, 1130 (9th Cir. 2020) (internal citation omitted).
We “accept as true all well-pleaded allegations of material fact,” and construe
** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 1 The parties are familiar with the facts, and we recount them only as necessary to resolve the issues on appeal. 2 those facts “in the light most favorable to the nonmoving party.” Daniels-Hall v.
Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “Once the defense of
qualified immunity is raised by the defendant, the plaintiff bears the burden of
showing that the rights allegedly violated were ‘clearly established.’” LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).
1. The district court previously granted in part and denied in part
defendants’ first Rule 12(b)(6) motion. The court dismissed with prejudice Claim
Three, for municipal liability, which was only alleged against the City of Casa
Grande and Pinal County, and Claim Four, for failure to train/supervise, which was
alleged against all defendants. The court denied the motion to dismiss Claim One
(unreasonable search and seizure) and Claim Two (failure to intervene) with
respect to all thirteen individual defendants in a one-line denial of qualified
immunity on the ground that the claims required “further factual development.”
Defendants appealed. In a memorandum disposition, we remanded with direction
to the district court to examine the allegations against each defendant. The district
court conducted an individualized assessment of the officers’ conduct on remand,
and granted qualified immunity to eight of the individual defendants. The only
issue in this second appeal is the district court’s denial of qualified immunity
3 asserted by the five remaining defendants, David Engstrom, Rory Skedel, Chris
Lapre, Brian Gragg2, and Jacob Robinson, for Claims One and Two.
2. Qualified immunity protects government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “gives
government officials breathing room to make reasonable but mistaken judgments
about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). In
determining whether to grant qualified immunity, the court considers “(1) whether
there has been a violation of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged misconduct.” Lal v.
California, 746 F.3d 1112, 1116 (9th Cir. 2014). A right is clearly established if
its contours are “sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.
2011) (internal citation omitted).
2 The complaint spells defendant Gragg’s last name as “Gregg.” We adopt the spelling used in defendant Gragg’s affidavit filed in the district court. 4 3. The district court did not err by denying qualified immunity to
defendants Engstrom, Skedel, Lapre, Gragg, and Robinson on plaintiff’s Fourth
Amendment claim for an unreasonable search and seizure. To assess the
reasonableness of a search authorized by a warrant, we examine whether the degree
of intrusion matched the underlying purpose of the intrusion. See San Jose
Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971
(9th Cir. 2005). Here, plaintiffs allege that defendants searched their home in an
attempt to arrest Ochoa, a suspect in a domestic-violence incident. Plaintiffs allege
the search of their home was unreasonable because defendants searched spaces too
small to hide a person and used unnecessarily destructive force. See Maryland v.
Buie, 494 U.S. 325, 334–35 (1990) (permitting protective sweep of home incident
to arrest “only to [conduct] a cursory inspection of those spaces where a person
may be found”); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (taking action
unrelated to an authorized intrusion constitutes a separate, unjustified invasion of
the Fourth Amendment); United States v. Lemus, 582 F.3d 958, 964 (9th Cir. 2009)
(permitting search of room where arrest took place because it was large enough to
hide another person).
Evaluating the reasonableness of a search “will reflect a careful balancing of
governmental and private interests.” Soldal v. Cook County, 506 U.S. 56, 71
5 (1992) (internal quotation marks and citation omitted).
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FILED NOT FOR PUBLICATION JUL 9 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES W. DENBY; WILMA J. No. 20-16319 LOGSTON, D.C. No. 2:17-cv-00119-SPL Plaintiffs-Appellees,
and MEMORANDUM*
ELIZABETH J. TORRES,
Plaintiff,
v.
DAVID ENGSTROM; et al.,
Defendants-Appellants,
and
CITY OF CASA GRANDE; COUNTY OF PINAL,
Defendants.
Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted March 17, 2021 San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,** District Judge.
This interlocutory appeal arises from the search of plaintiffs’ home by
defendants City of Casa Grande, County of Pinal, and individually named police
officers. Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 alleging a violation
of their Fourth Amendment rights. Defendants contend the district court erred by
denying their motion to dismiss, which sought qualified immunity for five
individual officers. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm
the district court’s ruling.1
We review the denial of qualified immunity de novo. Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006). Dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6) is appropriate “where the allegations in the
complaint do not factually support a cognizable legal theory.” Dent v. Nat’l
Football League, 968 F.3d 1126, 1130 (9th Cir. 2020) (internal citation omitted).
We “accept as true all well-pleaded allegations of material fact,” and construe
** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 1 The parties are familiar with the facts, and we recount them only as necessary to resolve the issues on appeal. 2 those facts “in the light most favorable to the nonmoving party.” Daniels-Hall v.
Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “Once the defense of
qualified immunity is raised by the defendant, the plaintiff bears the burden of
showing that the rights allegedly violated were ‘clearly established.’” LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).
1. The district court previously granted in part and denied in part
defendants’ first Rule 12(b)(6) motion. The court dismissed with prejudice Claim
Three, for municipal liability, which was only alleged against the City of Casa
Grande and Pinal County, and Claim Four, for failure to train/supervise, which was
alleged against all defendants. The court denied the motion to dismiss Claim One
(unreasonable search and seizure) and Claim Two (failure to intervene) with
respect to all thirteen individual defendants in a one-line denial of qualified
immunity on the ground that the claims required “further factual development.”
Defendants appealed. In a memorandum disposition, we remanded with direction
to the district court to examine the allegations against each defendant. The district
court conducted an individualized assessment of the officers’ conduct on remand,
and granted qualified immunity to eight of the individual defendants. The only
issue in this second appeal is the district court’s denial of qualified immunity
3 asserted by the five remaining defendants, David Engstrom, Rory Skedel, Chris
Lapre, Brian Gragg2, and Jacob Robinson, for Claims One and Two.
2. Qualified immunity protects government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “gives
government officials breathing room to make reasonable but mistaken judgments
about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). In
determining whether to grant qualified immunity, the court considers “(1) whether
there has been a violation of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged misconduct.” Lal v.
California, 746 F.3d 1112, 1116 (9th Cir. 2014). A right is clearly established if
its contours are “sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.
2011) (internal citation omitted).
2 The complaint spells defendant Gragg’s last name as “Gregg.” We adopt the spelling used in defendant Gragg’s affidavit filed in the district court. 4 3. The district court did not err by denying qualified immunity to
defendants Engstrom, Skedel, Lapre, Gragg, and Robinson on plaintiff’s Fourth
Amendment claim for an unreasonable search and seizure. To assess the
reasonableness of a search authorized by a warrant, we examine whether the degree
of intrusion matched the underlying purpose of the intrusion. See San Jose
Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971
(9th Cir. 2005). Here, plaintiffs allege that defendants searched their home in an
attempt to arrest Ochoa, a suspect in a domestic-violence incident. Plaintiffs allege
the search of their home was unreasonable because defendants searched spaces too
small to hide a person and used unnecessarily destructive force. See Maryland v.
Buie, 494 U.S. 325, 334–35 (1990) (permitting protective sweep of home incident
to arrest “only to [conduct] a cursory inspection of those spaces where a person
may be found”); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (taking action
unrelated to an authorized intrusion constitutes a separate, unjustified invasion of
the Fourth Amendment); United States v. Lemus, 582 F.3d 958, 964 (9th Cir. 2009)
(permitting search of room where arrest took place because it was large enough to
hide another person).
Evaluating the reasonableness of a search “will reflect a careful balancing of
governmental and private interests.” Soldal v. Cook County, 506 U.S. 56, 71
5 (1992) (internal quotation marks and citation omitted). “[O]fficers executing a
search warrant occasionally must damage property in order to perform their
duty . . . [and] only unnecessarily destructive behavior, beyond that necessary to
execute a warrant effectively, violates the Fourth Amendment.” Liston v. County
of Riverside, 120 F.3d 965, 979 (9th Cir. 1997) (internal quotation marks and
citation omitted). We must adopt the perspective of a reasonable police officer on
the scene. Id. at 976. The objective reasonableness of the use of force is not
assessed with 20/20 hindsight. Id.
The complaint plausibly alleges that defendants violated plaintiffs’ Fourth
Amendment right to be free from unreasonably destructive searches. See Buie, 494
12 U.S. at 335–36; Hicks, 480 U.S. at 324–25; Liston, 120 F.3d at 979. The
domestic-violence victim informed the Casa Grande Police Department that Ochoa
was not armed with lethal force. Before entering the home, defendant Engstrom
noticed movement under a tarp behind the house but did not investigate it. Instead,
prior to obtaining a search warrant, a SWAT team used a “Bearcat” vehicle,
operated by defendant Lapre, to drive through an exterior fence and into the side of
plaintiffs’ home, breaking windows and the front door. The complaint alleges that
defendants Gragg, Skedel, and Lapre were the leaders of the SWAT team. After
obtaining a warrant, two robots were deployed to search the house, but there was
6 no sign of Ochoa, nor did Ochoa respond to calls from a public address system.
The complaint alleges that over the course of six hours, defendants deployed
approximately twenty-two times the required amount of tear gas and pepper spray
to penetrate an area the size of plaintiffs’ home. Specifically, the complaint alleges
that defendant Lapre launched the tear gas and pepper spray canisters and
defendant Robinson provided security for defendant Lapre while he launched the
chemical munitions. Every window in the home was broken, and defendants
caused extensive damage. When defendants entered plaintiffs’ home, they
allegedly crushed and smashed furniture “objectively too small to hide a human
body,” tore open cushions and pillows, smashed all the windows and destroyed
window coverings, smashed shower doors and bathroom mirrors, “obliterated”
toilets, and stomped and smashed televisions, artwork, heirlooms, and antiques.3
Defendants Engstrom, Gragg, Lapre, and Skedel are alleged to have either entered
or directed others that entered plaintiffs’ home. Plaintiffs allege that defendants
3 We refer to defendants collectively where the complaint does. This case arose at the 12(b)(6) stage. Discovery may later demonstrate that different defendants took particular actions. 7 either destroyed all, or nearly all, of plaintiffs’ property within the residence, and
caused extensive damage from burst plumbing, flooding, and chemical sprays.4
Plaintiffs’ Fourth Amendment right to be free from unreasonably destructive
searches was clearly established at the time of the search. We have held that
individuals have a Fourth Amendment right to be free of “‘unnecessarily
destructive behavior, beyond that necessary to execute a warrant effectively.’”
Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (quoting Liston,
120 F.3d at 979). The district court did not err by citing Mena, which was decided
fourteen years before the events at issue here. The officers in Mena were
investigating a drive-by shooting and were informed that the suspect was still
armed with the .25 caliber handgun used in the shooting. Id. at 1034. The officers
broke the door of the home with a battering ram, broke into the padlocked rooms,
and detained the occupants in the garage for two to three hours before concluding
the search. Id. at 1035–36. We held the officers were not entitled to qualified
immunity, even though the suspect in that case presented a greater danger to the
officers’ safety than Ochoa, because the officers used unnecessarily destructive
4 Ochoa was ultimately located behind the house under the tarp where an officer had noticed movement before the Bearcat was employed. 8 force to effectuate the search, such as kicking in a patio door that was already
open. Id. at 1041.
Defendants rely on West v. City of Caldwell, 931 F.3d 978 (9th Cir. 2019), to
argue that they are entitled to qualified immunity. But West is distinguishable. It
was decided five years after the subject search, and it involved an armed and
extremely violent individual barricaded inside a home who had outstanding felony
arrest warrants for several violent crimes, including driving his vehicle directly at a
police officer. Id. at 981–82. West did not involve allegations that officers
searched areas too small to hide a person. The district court correctly denied
defendants’ motion to dismiss the unreasonable search claims on qualified
immunity grounds.
4. The district court did not err by denying qualified immunity to
defendants Engstrom, Skedel, Lapre, Gragg, and Robinson on plaintiffs’ failure-to-
intervene claim. “[P]olice officers have a duty to intercede when their fellow
officers violate the constitutional rights of a suspect or other citizen” if they have a
“realistic opportunity” to intercede. Cunningham v. Gates, 229 F.3d 1271,
1289–90 (9th Cir. 2000) (quoting United States v. Koon, 34 F.3d 1416, 1447 n.25
(9th Cir. 1994), rev’d on other grounds, 518 U.S. 81 (1996)). “[T]he constitutional
right violated by the passive defendant is analytically the same as the right violated
9 by the person who strikes the blows.” Koon, 34 F.3d at 1447 n.25. The district
court concluded the complaint plausibly alleged that each individual defendant had
a realistic opportunity to intercede during the destruction of plaintiffs’ property. At
the 12(b)(6) stage, these allegations are sufficient to support the denial of qualified
immunity to defendants Engstrom, Lapre, Skedel, Gragg, and Robinson on the
failure-to-intervene claim.
AFFIRMED. Defendants-appellants to bear costs.