Summary
noting that plaintiff provided evidence that the dogs were friendly and that during twenty to thirty encounters over the course of several years, they had never seen the dogs be aggressive
Summary of this case from Newman v. Cnty. of FresnoOpinion
Civ. No. 2:14-2921 WBS CKD
07-05-2016
THERESA MARIE NIESEN, Plaintiff, v. L. GARCIA, YOLO COUNTY SHERIFF'S DEPUTY; J. CEJA, YOLO COUNTY SHERIFF'S DEPUTY; J. LAZARO, YOLO COUNTY SHERIFF'S DEPUTY; M. NEVIS, YOLO COUNTY SHERIFF'S DEPUTY; OFFICER BIGELOW, ANIMAL CONTROL OFFICER FOR YOLO COUNTY; YOLO COUNTY SHERIFF'S DEPARTMENT; YOLO COUNTY PROBATION DEPARTMENT, and Does 1 through 50, et al., Defendants.
MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Theresa Niesen brought this civil rights action under 42 U.S.C. § 1983 alleging that defendants violated her Fourth Amendment rights by unlawfully seizing her dogs and arresting her following a probation search of her home. The matter is now before the court, pursuant to Federal Rule of Civil Procedure 56, on (1) defendants Yolo County Sheriff's Deputies Lech Garcia, Juan Ceja, and Jerry Lazaro's ("Deputies") motion for summary judgment on all of plaintiff's claims, (Docket No. 20), and (2) defendants Yolo County Animal Control Officers Michael Nevis and Vanus Bigelow's ("Officers") motion for summary judgment on all of plaintiff's claims, (Docket No. 21).
I. Factual and Procedural Background
On June 26, 2012, Shane Edington was sentenced in the Superior Court of California, County of Yolo, to three years' summary probation for various misdemeanor convictions. (Req. for Judicial Notice ("RJN") Ex. A (Docket No. 20-3).) The terms of Edgington's probation required him to submit to any search of his person, vehicle, or residence for stolen property "at any time of day or night[,] with or without [a] warrant, upon the request of any peace officer." (Id.)
Plaintiff does not oppose defendants' requests for judicial notice. The court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citation omitted); see Fed. R. Evid. 201. The court takes judicial notice of the following records filed in Yolo County Superior Court in People v. Edgington, No. CR-M-12-58, and People v. Niesen, No. CR-F-12-2023-2: (1) Edgington's June 26, 2012 probation sentence; (2) August 10, 2012 and January 15, 2013 bench warrants for Edgington; and (3) August 10 and October 23, 2012 docket entries and minute orders as to Edgington.
In December 2012, Yolo County Sheriff's Deputy Lazaro planned to conduct a probation search of Edgington. (Dehoff Decl. Ex. H ("Lazaro Dep.") at 6:25-22:6 (Docket No. 20-4).) To obtain Edgington's most recent address, Deputy Lazaro spoke with a confidential informant that he had used on five previous occasions and believed to be reliable. (Id.) The informant told Deputy Lazaro that Edgington resided with plaintiff, his girlfriend, at 138 Antelope Street in Woodland, California (the "House"). (Id.) Deputy Lazaro then followed up with Yolo County Superior Court's Criminal Division to inquire about Edgington's most recent listed address. (Id.) The court informed Deputy Lazaro that its master court file listed Edgington's current address as 138 Antelope Street in Woodland, California. (Id.; see Dehoff Decl. Ex. G.)
Based on this information and believing that Edgington resided in the House, Deputies Lazaro, Ceja, and Garcia arrived at the House on December 17, 2012 at 9:00 a.m. to conduct the probation search. (Lazaro Dep. at 22:16-24:10.) Plaintiff, who resided in the House, was not home at the time of the probation search. (Dehoff Decl. Ex. L ("Van Asperen Dep.") at 9:14-15:19; Dehoff Decl. Ex. N ("Niesen Dep.") at 12:9-13:11.) The Deputies knocked on the front door and announced themselves as sheriffs. (Lazaro Dep. at 23:1-23.) After receiving no response, the Deputies entered the House through the front door. (Id.; Dehoff Decl. Ex. J ("Garcia Dep.") at 12:16-15:19.) The Deputies encountered one male, Vincent Van Asperen, and one female, Carol Vitalie, on the sofa in the living room. (Lazaro Dep. at 23:24-24:10.) Van Asperen and Vitalie consented to a search of their persons, which revealed a methamphetamine glass pipe in each of their possessions. (Id. at 61:1-21; Garcia Dep. at 15:20-18:18.)
Deputy Lazaro performed a protective sweep of the House and found a bedroom with a closed door in the back of the House. (Lazaro Dep. at 27:16-30:10.) Upon partially opening the bedroom door, Deputy Lazaro observed three pit bull terriers barking and growling, video monitoring equipment that showed the front of the House, and an open sliding glass door on the other side of the room leading out to the backyard. (Id.) Suspecting that Edgington was in the bedroom and had taken off, Deputy Lazaro called Animal Control to secure the three pit bulls so the Deputies could search the bedroom. (Id. at 58:21-59:2; Dehoff Decl. Ex. I ("Ceja Dep.") at 52:11-53:14.)
The Yolo County Animal Control Division, also known as Animal Services, is a division of the Yolo County Sheriff's Department that provides animal control services to the County and cities therein, including the City of Woodland. See Yolo County Code §§ 6-1.201, 6.1-202; City of Woodland, Cal. Code of Ordinances § 3-1-1.
Animal Control Officer Nevis arrived a short time later with a snare pole used for catching, holding, and releasing animals. (Lazaro Dep. at 30:11-32:14; Dehoff Decl. Ex. K ("Nevis Dep.") at 12:5-13:25.) Officer Nevis and Deputy Lazaro, who had his Taser out, partially opened the bedroom door and observed the three pit bulls barking and growling inside. (Lazaro Dep. at 30:11-32:14.) Officer Nevis snared the first pit bull and began to lead it out of the bedroom. (Id.) As Nevis was leading the snared dog out of the door, the second pit bull jumped over the snared dog and advanced toward Officer Nevis. (Id.) Deputy Lazaro tased the second pit bull and momentarily subdued it. (Id.) The third pit bull then ran out of the bedroom and, in doing so, dislodged the Taser wires attached to the second dog, which stopped the shocking process and freed it. (Id.) The two free pit bulls then ran down the hallway toward the living room, and Deputy Lazaro yelled a warning to the other Deputies. (Id.; Nevis Dep. at 12:5-13:25.)
One pit bull ran toward Deputy Ceja, who initially shot it three times and then four additional times when it "continued to come at [him]." (Ceja Dep. at 19:15-23:12, 28:2-23, 54:7-55:3.) The other pit bull ran toward the sofa where Van Asperen, Vitalie, and Deputy Garcia were. Deputy Garcia shot the pit bull twice from six to eight feet away as it ran toward them. (Garcia Dep. at 24:24-26:1; Van Asperen Dep. at 40:24-41:9.) Animal Control Officer Bigelow subsequently arrived at the House and took possession of the snared dog from the bedroom, as Officer Nevis and Deputy Ceja placed the two wounded pit bulls in Nevis' vehicle and Nevis drove them to an animal clinic at the University of California at Davis, School of Veterinary Medicine. (Ceja Dep. at 27:12-17, 29:4-12; Dehoff Decl. Ex. O-1 ("Bigelow Dep.") at 15:17-17:12 (Docket No. 21-3).) By the time Officer Nevis reached the clinic, however, the dogs had died from their wounds. (Nevis Dep. at 14:7-9, 20:16-21:24.)
The Deputies then searched the remainder of the House. In the bedroom they found (1) .35 grams of methamphetamine; (2) a glass smoking pipe; (3) a letter from Yolo County Superior Court addressed to Edgington at the House's address; and (4) Edgington's name written on boxes containing clothes and other belongings. (Lazaro Dep. at 37:1-52:7, Ex. 5.) The Deputies and Officers also found three more pit bulls in a kennel in the backyard and another pit bull in the garage of the House. (Id.; Ceja Dep. at 31:13-35:25; Niesen Decl. ¶¶ 8-9 (Docket No. 26-1).)
Officer Nevis returned to the House and, together with Officer Bigelow, snared and removed the remaining dogs and transported them to the Yolo County Animal Services shelter pending reclamation by their owner. (Ceja Dep. at 31:13-16; Nevis Dep. at 22:7-254:7; Bigelow Dep. at 17:18-18:23; Niesen Decl. ¶ 12.) Van Asperen and Vitalie were placed under arrest for possession of drug paraphernalia and transported to Yolo County Jail. (Lazaro Dep. at 61:1-63:13; Garcia Dep. at 30:2-17; Van Asperen Dep. at 31:7-33:15.) At approximately 11:40 a.m., the Deputies declared the House secure and left the premises. (Ceja Dep. at 36:16-17.)
Upon returning from the search, Deputy Lazaro filled out and signed a declaration for probable cause to arrest plaintiff for possession of a controlled substance and drug paraphernalia based on the .35 grams of methamphetamine and glass smoking pipe found in her bedroom. (Lazaro Dep. at 45:19-46:14.) On December 19, 2012, pursuant to the probable cause declaration, Deputy Ceja returned to the House with three other deputies and arrested plaintiff. (Ceja Dep. at 37:19-40:23, 59:20-65:3.) Plaintiff spent two days in Yolo County Jail because she was unable to post bail. (Niesen Decl. ¶¶ 18-20.) On December 21, 2012, she was released and informed that the District Attorney declined to prosecute her for the drugs and paraphernalia found during the December 17, 2012 search. (Id. ¶ 20; Niesen Dep. at 175:19-176:21.) Following the incident, plaintiff could afford to retrieve only three of her five dogs from Animal Services. (Niesen Decl. ¶¶ 14-16.)
At the time, and unrelated to the events in this case, plaintiff was already being separately prosecuted for felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. (RJN Ex. F.)
Plaintiff filed a Complaint for damages on September 12, 2016, alleging claims under 42 U.S.C. § 1983 against Deputies Lazaro, Ceja, and Garcia and Officers Bigelow and Nevis. (Compl. ¶¶ 1-14 (Docket No. 1).) Plaintiff alleges that (1) the killing of her two dogs and seizure of her five other dogs on December 17, 2012 constituted an unreasonable search and seizure in violation of her Fourth Amendment rights, and (2) plaintiff's arrest on December 19, 2012 and ensuing detention violated her Fourth Amendment rights because "there was no evidence that Plaintiff had committed any crime." (Id. ¶¶ 17-25.)
Counsel for plaintiff acknowledged at the hearing that Officer Nevis was incorrectly identified as a deputy sheriff in the Complaint. (See Compl. ¶ 10; Nevis Dep. at 6:7-14.)
On April 16, 2015, the court dismissed plaintiff's third and fourth claims for violation of her due process rights under the Fourteenth Amendment and Monell claim against the individually-named defendants. (Docket No. 14.) The court also dismissed all of plaintiff's claims against Yolo County. (Id.) Though the court granted plaintiff leave to amend her Complaint, plaintiff filed a notice of non-opposition to the court's dismissal on May 8, 2015 and asked that her current Complaint proceed in accordance with the court's dismissal Order. (Docket No. 15.)
Plaintiff seeks emotional distress and punitive damages and compensatory damages for the loss of the value of her two dogs that were killed, the amount she paid to retrieve three of her other dogs from Animal Services, and the loss of the value of the two remaining dogs she could not afford to retrieve. (Id. ¶¶ 5, 20.) The Deputies and Officers now move for summary judgment on plaintiff's Fourth Amendment claims. (Docket Nos. 20-21.)
II. Legal Standard
A party may move for summary judgment on a "claim or defense." Fed. R. Civ. P. 56(a). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). A material fact is one that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists if the evidence produced would allow a reasonable trier of fact to reach a verdict in favor of the non-moving party. Id.
The moving party bears the initial burden of establishing that no genuine issue of material fact exists as to the particular claim or defense. Id. at 256. Where the moving party seeks summary judgment on a claim or defense for which it bears the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find for the non-moving party on that claim or defense. Soremekun v. Thrifty Payless Inc., 509 F.3d 978, 994 (9th Cir. 2007). If summary judgment is sought on a claim or defense for which the non-moving party bears the burden of proof at trial, the moving party must either (1) produce evidence negating an essential element of the non-moving party's claim or defense, or (2) show that the non-moving party cannot produce evidence to support an essential element of its claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has met its initial burden, the burden shifts to the non-moving party to produce concrete, specific evidence establishing a genuine issue of material fact. Id. at 324; Anderson, 477 U.S. at 256. To carry this burden, the non-moving may not rely "solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, it must produce sufficient evidence beyond the pleadings that would allow a reasonable trier of fact to find in its favor. Anderson, 477 U.S. at 256. If it does so, then "there is a genuine issue of fact that requires a trial." Id. at 257.
In ruling on a motion for summary judgment, the court may not weigh the evidence, make credibility determinations, or determine the truth of the matters asserted, and it must view all inferences drawn from the factual record in the light most favorable to the non-moving party. Id. at 249, 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party" unless that evidence is "uncontradicted and unimpeached" and "comes from disinterested witnesses." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation omitted).
III. Discussion
Title 42 U.S.C. § 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. "Section 1983 does not create substantive rights; it merely serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979)).
To establish § 1983 liability, a plaintiff must show both (1) the deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was caused by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011). Section 1983 "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels v. Williams, 474 U.S. 327, 329-30 (1986). There is no dispute here that the various defendants acted under color of state law.
A. Shooting of the Two Dogs
The Fourth Amendment guarantees citizens the right "to be secure in their . . . effects[ ] against unreasonable searches and seizures . . . ." U.S. Const. amend. IV. "The killing of a dog is a destruction recognized as a seizure under the Fourth Amendment and can constitute a cognizable claim under § 1983." San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005) ("Hells Angels") (quotation marks and alterations omitted). Plaintiff's first § 1983 claim alleges that the Deputies' shooting of her two dogs constituted unlawful seizures in violation of the Fourth Amendment.
Plaintiff's contention that defendants were "negligent in their efforts to secure" the dogs, (Compl. ¶ 19), is immaterial to her § 1983 claim. "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles." Baker v. McCollan, 443 U.S. 137, 146 (1979).
1. Deputies' Liability for Shooting the Dogs
The Deputies argue that summary judgment is warranted because (1) they acted in self-defense in shooting plaintiff's two dogs and thus did not violate plaintiff's Fourth Amendment right; and (2) even if the court finds a Fourth Amendment violation, the Deputies are entitled to qualified immunity because a reasonable deputy under the same circumstances would have believed that the probation search could not occur without removing the dogs from the bedroom, Animal Control was the best way to remove the dogs from the bedroom safely, and self-defense justified the shootings when the dogs unexpectedly escaped from the bedroom.
In suits under § 1983, qualified immunity "shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam). Qualified immunity is an "immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). "The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). "When properly applied, [qualified immunity] protects 'all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
"Determining whether a defendant is entitled to qualified immunity involves a two-pronged analysis," which first assesses whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right" and, if so, "whether the right was clearly established." Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (internal quotation marks and citations omitted).
Courts have discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236. The Supreme Court has recognized that delving into difficult constitutional questions may be unnecessary when a court can resolve the case on qualified immunity based on the lack of a clearly established right at the time of the defendants' alleged misconduct. See al-Kidd, 563 U.S. at 735 ("Courts should think carefully before expending 'scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will 'have no effect on the outcome of the case.'" (citing Pearson, 555 U.S. at 236-42)).
After considering the difficulty of the Fourth Amendment question in this case, the court finds that this is the type of case the Supreme Court had in mind when it determined that a court may assume the existence of a constitutional violation on the first inquiry and then determine whether the constitutional right was clearly established. See Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) ("[C]ourts may grant qualified immunity on the ground that a purported right was not 'clearly established' by prior case law, without resolving the often more difficult question whether the purported right exists at all. This approach comports with our usual reluctance to decide constitutional questions unnecessarily."). The court will therefore assume, without deciding, that the Deputies violated plaintiff's Fourth Amendment right when they shot her two dogs and determine whether the Deputies are nonetheless entitled to qualified immunity because the right was not clearly established.
"To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Id. at 2093 (quotation marks and alterations omitted). "Whether the law was clearly established is an objective standard; the defendant's subjective understanding of the constitutionality of his or her conduct is irrelevant." Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011); see also al-Kidd, 563 U.S. at 736 (stating that "[t]his approach recognizes that the Fourth Amendment regulates conduct rather than thoughts"). "If the controlling law is not clearly established, an official cannot be liable, because a reasonable person would not be expected to know how to structure his conduct to avoid liability." Cruz v. Kauai County, 279 F.3d 1064, 1069 (9th Cir. 2002) (quotation marks omitted).
The right must be defined in a "particularized, and hence more relevant, sense." Saucier v. Katz, 533 U.S. 194, 202 (1991); see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam) ("[C]ourts should define the clearly established right at issue on the basis of the specific context of the case." (quotation marks omitted)). The court must therefore strike a balance between defining a right too generally so that the definition necessarily leads to the conclusion that the right is clearly established and defining it too narrowly so that prior precedent must mirror the facts of the case in order to conclude that the right has been clearly established. Saucier, 533 U.S. at 202-03. The Supreme Court has emphasized that it has "repeatedly told courts--and the Ninth Circuit in particular--not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established." al-Kidd, 563 U.S. at 742 (citation omitted).
"Even if the violated right was clearly established, the Supreme Court recognized that it may be difficult for a police officer fully to appreciate how the legal constraints apply to the specific situation he or she faces. Under such a circumstance, if the officer's mistake as to what the law requires is reasonable, the officer is entitled to the immunity defense." Sjurset v. Button, 810 F.3d 609, 616 (9th Cir. 2015) (alterations omitted) (citing Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007)). If reasonable officers could disagree on whether they would have taken the alleged action, qualified immunity must be granted. Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir. 2006) (citing Malley, 475 U.S. at 341) (emphasizing that if "officers of reasonable competence could disagree on th[e] issue, immunity should be recognized").
"[W]hether the law governing the conduct at issue is clearly established is a question of law for the court." Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The plaintiff bears the burden to show that the contours of the right were clearly established." Clairmont, 632 F.3d at 1109.
For purposes of the qualified immunity analysis and determining the facts relevant to the clearly established inquiry, the court must view the evidence in the light most favorable to plaintiff and resolve all factual disputes in favor of plaintiff. See Blankenhorn, 485 F.3d at 477 ("Where [factual] disputes exist, summary judgment is appropriate only if Defendants are entitled to qualified immunity on the facts as alleged by the non-moving party."). Here, it is undisputed that the plaintiff's dogs were full-grown pit bulls. (Van Asperen Dep. at 62:1-3; Nevis Dep. at 17:18-21.) There are genuine disputes, however, about the propensities of the dogs leading up to the shootings. Defendants have consistently testified that the dogs were extremely aggressive prior to the shootings. (See, e.g., Lazaro Dep. at 29:23-30:7 (describing the dogs as "really big, aggressive, mean, barking, scratching, biting dogs"); Nevis Dep. at 12:14-19 (testifying that, when he arrived to assist the Deputies, the pit bulls in the bedroom were barking aggressively and growling at him).)
Plaintiff, on the other hand, indicates that her pit bulls were "family dogs and are friendly." (Niesen Decl. ¶ 13.) Van Asperen also testified that he had encountered plaintiff's dogs twenty to thirty times over the course of several years and had "[n]ever seen any of her dogs be aggressive" or bite anybody and that they were "good pups" and were always friendly to visitors. (Van Asperen Dep. at 23:4-23, 38:9-40:23, 59:10-60:7.) According to Van Asperen, the pit bull running toward Deputy Garcia was a "[t]ail wagging, want to jump up on your lap, lick you type of dog" and merely wanted to "give [him] a kiss because that's what [plaintiff's] dogs do." (Id. at 27:5-8, 39:19-21, 60:8-16.)
At the same time, however, plaintiff acknowledges in her Complaint that the pit bulls that "came out of the bedroom . . . were obviously upset at having strangers in their home." (Compl. ¶ 19); see Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) ("Factual assertions in pleadings . . . are considered judicial admissions conclusively binding on the party who made them."). It is also undisputed that the dogs were running toward the Deputies when they exited the bedroom. (See, e.g., Van Asperen Dep. at 64:20-22; Ceja Dep. at 21:23-22:6, 25:3-6.) Although there is a dispute as to whether the dogs were barking when they ran out of the bedroom, (see Ceja Dep. at 25:8-11 (barking); Garcia Dep. at 25:5-6 (barking); Van Asperen Dep. at 27:16-21, 39:11-14 (not barking); Vitalie Dep. at 60:19-25 (barking)), it is undisputed that they were barking before they escaped from the bedroom, (see Garcia Dep. at 25:11-12; Van Asperen Dep. at 26:10-12, 38:21-23; Vitalie Dep. at 60:5-12).
Although Van Asperen believed one of the dogs was running to him, it is undisputed that Deputy Garcia "was right in front of" Van Asperen when the pit bull ran toward them and that Deputy Garcia's firearm was approximately "a foot" from Van Asperen's face when he shot the pit bull. (Van Asperen Dep. at 28:3-7, 41:11-13, 64:18-22.)
Resolving these factual disputes in favor of plaintiff, the question here is whether it was clearly established on December 17, 2012 that an officer's shooting of a dog while conducting a lawful residential search violates the Fourth Amendment when the dog is running toward the officer after unexpectedly escaping from a room and after less intrusive methods to control the dog have failed. Although the Supreme Court does "not require a case directly on point" to clearly establish the right at issue, "existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U.S. at 741.
Plaintiff contends that this right was clearly established in light of Hells Angels. In that case, the Ninth Circuit held it was clearly established in 2005 "that the Fourth Amendment forbids the killing of a person's dog, or the destruction of a person's property, when that destruction is unnecessary--i.e., when less intrusive, or less destructive, alternatives exist." Hells Angeles, 402 F.3d at 977-78. The Hells Angels court concluded that "[a] reasonable officer should have known that to create a plan to enter the perimeter of a person's property, knowing all the while about the presence of dogs on the property, without considering a method for subduing the dogs besides killing them, would violate the Fourth Amendment." Id. at 978.
The Hells Angels case addressed the unconstitutionality of the shooting of dogs in two different searches conducted simultaneously as part of the same investigation. Id. at 967. In the first search of James Souza's residence, the officers learned about one week prior to the search that the Souzas had two guard dogs, one of which was a Rottweiler that was known to attack without provocation. Id. at 968. Despite their knowledge of these dogs in the week prior to the search, the only plan that the officers developed to handle the dogs was to "isolate or to shoot." Id. The Ninth Circuit emphasized that the officers had "no plan to use non-lethal methods of incapacitation," never formulated a "specific plan for 'isolating' the dogs," and never intended to give "Souza the opportunity to isolate his Rottweiler himself." Id. At the time the officer shot Souza's Rottweiler, the search team was already "safely inside" the Souza residence and the dogs were in the backyard without access to the inside of the house. Id. As the Ninth Circuit pointed out, "the teams could have conducted their search inside the house without hurriedly dealing with the dogs in the backyard." Id.
The second search and shootings in Hells Angels occurred at the Vieira residence. The officers also had about one week to plan for that search, knew that there might be dogs present, and learned during their briefing on the morning of the search that the residence was guarded by three large dogs. Id. at 969. The officers' plan to deal with the dogs at the Vieira residence was to "poke them through the fence with [a] shotgun and try to scare them" and, "[i]f that did not work, . . . to assess the situation and engage the dogs." Id. When the officers encountered the dogs, they were behind a tall, padlocked fence that the officers wanted to enter to gain access to the residence. Id. The dogs therefore did not pose an immediate threat to the safety of the officers, but the officers did not give the Vieiras the opportunity to restrain the dogs because they wanted "to secure quick entry to preserve an element of surprise and prevent the possible destruction of evidence." Id. After unsuccessfully attempting to prompt the dogs to retreat from the gate by yelling at them and poking one with a gun, an officer shot two of the dogs at point blank range and killed them. Id.
Unlike the shootings in Hells Angels, the Deputies here had no advance notice that pit bulls were on the premises to be searched. (See Lazaro Dep. at 46:21-48:13.) It is undisputed that Deputy Lazaro asked his confidential informant for Edgington's address only "days before" the probation search and followed up with Yolo County Superior Court to confirm the address "either the day of or the day before" the search. (Id. at 7:25-8:2, 13:14-21.) It is also undisputed that Deputies Ceja and Garcia were only briefed on the probation search "that same day, prior to going there." (Ceja Dep. 6:24-7:20; Garcia Dep. at 11:2-4.) Plaintiff conceded that none of the Deputies had ever visited her House prior to the probation search, (Niesen Dep. at 87:9-88:22), and the Deputies had no evidence particular to plaintiff's House prior to the search that suggested dogs would be there, (see Lazaro Dep. at 46:21-48:13). Unlike in Hells Angels, therefore, the need to develop a plan to handle dogs at the House would not have been as obvious to a reasonable officer in this case.
Of equal importance is the fact that, unlike the officers in Hells Angels, the Deputies here did not immediately resort to shooting plaintiff's dogs. Initially, the Deputies asked Van Asperen to clear the pit bulls from the bedroom, which is exactly the type of response the Ninth Circuit suggested the officers in Hells Angels should have considered. See 402 F.3d at 968 (emphasizing that the officers' plan did not include "giving Souza the opportunity to isolate his Rottweiler himself" and that the officers "had no intention of calling on the Vieiras to control their dogs"). Although plaintiff contends the Deputies should have contacted her to remove the dogs, there is no evidence that, at the time of the search, the Deputies knew the dogs belonged to plaintiff, knew where plaintiff was, or knew how to reach her. (See Lazaro Dep. at 46:21-48:13; Ceja Dep. at 36:19-24; Garcia Dep. at 36:20-25; Nevis Dep. at 22:21-25.)
Despite having been in the House with the dogs while plaintiff was gone, Van Asperen refused to remove the dogs from the bedroom because he was concerned that they would bite him if he went inside the bedroom: "I thought it could be a possibility if I tried to go in [the bedroom] . . . I could be bit." (Van Asperen Dep. at 58:16-18.) He states that the Deputies' probation search "had the dogs riled up. And there's no way I'm going in there. You know, that's [the pit bulls'] place. That's their house . . . yeah, I was actually scared. Get the dogs all riled up and then send me in there. I don't think so." (Id. at 23:21-24:3; see also id. 24:10-12 (testifying that, "if someone [the dogs] didn't know went into [plaintiff's bedroom] without her being there, I don't know what they would do").)
After Van Asperen refused to go in the bedroom to secure the dogs, the Deputies requested Animal Control to help remove the dogs and waited for their arrival. (Lazaro Dep. at 29:23-30:7.) The Animal Control Officers intended to safely remove the dogs from the room with a snare pole. (Nevis Dep. at 12:5-13:25.) When that plan unexpectedly went awry because the second dog jumped over the snared dog, Deputy Lazaro attempted to subdue the second dog with his Taser. (Lazaro Dep. at 30:11-32:14.) Again, this is exactly the type of force the Ninth Circuit suggested should have been utilized in Hells Angels before the officers shot the dogs. See 402 F.3d at 969 & n.8 (noting that none of the officers attempted to use the pepper spray they had or brought a Taser with them). Only after the third dog unexpectedly dislodged the Taser wires and the two dogs escaped from the bedroom, did the Deputies resort to deadly force. (Ceja Dep. at 21:1-23:12.)
It is also undisputed that Deputy Ceja observed Deputy Lazaro's failed attempt at using his Taser to subdue the second pit bull. (Id. at 20:17-21:24.) The undisputed evidence also establishes that the Deputies were surprised at the pit bulls' escape from the bedroom. (See id.; Nevis Dep. at 12:5-13:25); cf. Hells Angels, 402 F.3d at 977 (recognizing that "the governmental interest of [officer] safety might have provided a sound justification for the [killing of the dogs] had the officers been surprised by the presence of the dogs").
The risk to the Deputies at the time the force was used is also distinguishable from Hells Angels. At the Souza residence, the officer shot the dog in the backyard even though it did not pose any threat to the safety of the search team in the house and there was no immediate need to go into the backyard. Hells Angels, 402 F.3d at 968. Similarly, at the Vieira residence, the officers were protected from the dogs by a locked fence and the officers' only reason for shooting the dogs was to allow quicker access to the house. Id. at 969. The Ninth Circuit emphasized that the officers killed the dogs only to advance their "interest in preserving evidence," id. at 978, not to protect their safety.
In finding that reasonable officers would have known that the shootings in Hells Angels ran afoul of the Fourth Amendment, the Ninth Circuit distinguished the case from "the kind where the officer was reacting to a sudden unexpected situation, where the officers were confronted with exigent circumstances." Id. The Supreme Court has also emphasized that courts must allow "for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 397 (1989); see Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (applying this principle to the clearly established inquiry). This is precisely that type of case, where the officers attempted to use several less intrusive methods to remove the dogs without harming them and resorted to shooting them only after those attempts were unsuccessful and the dogs unexpectedly escaped and were running toward the officers.
While plaintiff does not dispute that the Fourth Amendment would have allowed the Deputies to shoot her dogs if they posed an imminent threat to the Deputies, she strongly disputes whether her dogs were attempting to attack the Deputies or would have attacked them if they had not been shot. Even assuming, as the court must on summary judgment, that the dogs were friendly and merely running toward the Deputies to greet them and thus the Deputies mistakenly believed that the dogs were going to attack them, the court finds for purposes of qualified immunity that such a mistake of fact was reasonable. See Pearson, 555 U.S. at 231 (stating that "qualified immunity applies" to an official's "mistake of fact"). The objective facts known to the Deputies at the time the dogs were running toward them were that the dogs had been isolated from the other occupants of the House in a bedroom where they were barking and riled up and Van Asperen, who was familiar with the dogs, did not want to go into the bedroom to remove them because of how the dogs were reacting to the Deputies' search.
The Deputies were also dealing with a breed of dog that is known for fighting, aggressive behavior, and causing serious injury. These general characteristics made the belief that this breed of dog is more likely to attack and was about to attack even more reasonable. (See Nevis Dep. at 27:11-17 (explaining that the typical breed that officers see for fighting dogs are pit bulls); see also United States v. Sutton, 336 F.3d 550, 551 (7th Cir. 2003) ("[T]he police discussed several potential threats to officer safety--including the fact that pit bull dogs (known for their hostility to strangers) had been seen on the property."); Altman v. City of High Point, 330 F.3d 194, 206 (4th Cir. 2003) ("[P]it bulls, like Rottweilers, are a dangerous breed of dog."); Vanater v. Village of South Point, 717 F. Supp. 1236, 1240-41 (S.D. Ohio 1989) ("Pit Bulls . . . possess the quality of gameness, which is not a totally clear concept, but which can be described as the propensity to catch and maul an attacked victim unrelentingly until death occurs, or as the continuing tenacity and tendency to attack repeatedly for the purpose of killing. It is clear that the unquantifiable, unpredictable aggressiveness and gameness of Pit Bulls make them uniquely dangerous."); see generally Russell G. Donaldson, Annotation, Validity and Construction of Statute, Ordinance, or Regulation Applying to Specific Dog Breeds, Such as "Pit Bulls" or "Bull Terriers", 80 A.L.R. 4th 70 (1990).
Unlike people, dogs can never state their "intent" and, while an owner of a dog may develop such a bond that allows her to better predict what the animal might do based on its behavior, a dog's behavior can never be predicted with certainty and none of the Deputies were familiar with plaintiff's dogs so as to give them any insight into their tendencies. (See, e.g., Lazaro Dep at 55:7-11 (stating that "[p]it bulls are difficult to read [because] they could have the same look whether they're going to bite you or . . . they want to get pet").) After the dogs had unexpectedly escaped from the bedroom in which they were confined and barking and were running toward the Deputies, a reasonable conclusion of the Deputies, if not the only reasonable conclusion, was that the dogs were about to attack the strangers in the House. (See, e.g., Nevis Dep. at 33:10-12 (testifying that the pit bulls appeared very much like they were going to attack).)
"[T]he Fourth Amendment does not require omniscience, and absolute certainty of harm need not precede an act of self-protection." Wilkinson v. Torres, 610 F.3d 546, 553 (9th Cir. 2010) (quotation marks omitted). A reasonable officer would thus not believe that, after exhausting less intrusive methods, the law required him to give the dog the benefit of the doubt and wait until the dog's jaws are locked on the officer before shooting. Accord Dziekan v. Gaynor, 376 F. Supp. 2d 267, 272 (D. Conn. 2005) ("Defendant had heard from plaintiff that the dog would not bite, but he had no way to ascertain the truth of that representation within the time period at issue. Under such circumstances, the law does not require the officer to wait until the approaching animal is within biting distance or is leaping at him before taking protective action."); Birkes v. Tillamook County, Civ. No. 09-1084 AC, 2011 WL 1792135, at *7 (D. Or. May 10, 2011) ("Here, [the officer] was faced with a pit bull moving toward him in a rapid manner which the dog's guardian could not restrain. . . . [T]hese facts are enough to establish that [the officer] acted reasonably [in shooting the dog]."); Perez v. City of Placerville, Civ. No. S-07-927 FCD GGH, 2008 WL 4279386, at *7-8 (E.D. Cal. Sept. 9, 2008) (citing Hells Angels in holding that an officer "did not violate plaintiff's Fourth Amendment rights" in killing the plaintiff's dog where the officer "responded first with pepper spray," only when "that did not work did he use his weapon to shoot [the dog]," and "[w]ithin twenty minutes of the shooting, the officers transported [the dog] to the nearest veterinarian's office"); cf. Hunter v. Bryant, 502 U.S. 224, 229 (1991) ("Th[e] accommodation for reasonable error exists because 'officials should not err always on the side of caution' because they fear being sued." (citation omitted)).
Accordingly, because the Deputies resorted to shooting the dogs only after less intrusive methods had proven unsuccessful and were reasonable in believing that the pit bulls running toward them were about to attack, they did not violate a clearly established Fourth Amendment right and are thus entitled to qualified immunity. The court must therefore grant the Deputies' motion for summary judgment on plaintiff's Fourth Amendment claim based on the shooting of her dogs.
Because the court determines that the Deputies are entitled to qualified immunity, it need not address Deputy Lazaro's separate argument that he cannot be liable for the shootings because he did not participate in them.
2. Officers' Liability for Shooting the Dogs
The Officers argue that they cannot be held liable for seizing the killed dogs because they did not participate in shooting the dogs. The Ninth Circuit has "reject[ed] the idea that mere presence at a search or membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under section 1983." Jones v. Williams, 297 F.3d 930, 939 (9th Cir. 2002). Consequently, an officer who is merely a bystander to his colleagues' allegedly unlawful conduct cannot be found to have caused any injury. Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009); see also Chuman v. Wright, 76 F.3d 292, 295 (9th Cir. 1996) (rejecting a jury instruction in a § 1983 case allowing the jury to "lump all the defendants together, rather than require it to base each individual's liability on his own conduct").
Under the integral participation doctrine, the Officers may be liable under § 1983 for the shooting of the two dogs if they were "fundamentally involved" in the shootings by (1) being aware of the plan to shoot the dogs or having reason to know of such a plan without objecting to it; and (2) providing some affirmative physical support at the scene of the shootings. Monteilh v. County of Los Angeles, 820 F. Supp. 2d 1081, 1089 (C.D. Cal. 2011). Plaintiff has not presented any evidence that a plan to shoot the dogs existed or, that once the split-second decision to shoot was made, the Officers knew or had reason to know of the decision. Plaintiff also fails to put forth any evidence that Officer Bigelow was inside the House at the time Deputies Ceja and Garcia shot plaintiff's two pit bulls. Nor does plaintiff dispute defendants' evidence that Officer Bigelow arrived on the scene after the shootings and that his only involvement was in removing the remaining five dogs from the House. (Nevis Dep. at 14:7-10; Bigelow Dep. at 15:17-17:12.)
As a matter of law, therefore, neither Officer Nevis nor Officer Bigelow was an integral participant in the shooting of plaintiff's two dogs. See Hopkins, 573 F.3d at 770 ("[I]t is clear that an officer who waits in the front yard interviewing a witness and does not participate in the unconstitutional search in any fashion cannot be held liable under [§ 1983]."); Blankenhorn, 485 F.3d at 481 n.12 ("Roman, who arrived on the scene after the arrest was completed, and Montano, who at most provided crowd control, did not participate in any integral way in the arrest. Therefore, summary judgment in their favor was properly granted."). Accordingly, the Officers cannot be held liable under § 1983 for the shooting of the two dogs and, even if they could, they would be entitled to qualified immunity for the same reasons as the Deputies.
B. Removal of the Remaining Dogs
1. Officers' Liability for Removing the Dogs
The Officers contend that they are entitled to qualified immunity for removing the remaining five dogs from the House. The court will again assume, without deciding, that the Officers' removal of plaintiff's five dogs violated her Fourth Amendment right for purposes of qualified immunity and determine whether that right was clearly established. See Reichle, 132 S. Ct. at 2093.
It is undisputed that Van Asperen and Vitalie, who were the only occupants in the House after the shooting, were arrested and thus the five remaining dogs would have been left unattended if they were not removed. (Nevis Dep. at 22:19-23:19.) The relevant inquiry is thus whether, at the time the Officers removed plaintiffs' dogs on December 17, 2012, it was clearly established that the Fourth Amendment prohibited animal control officers who are lawfully inside a home to remove dogs when the only occupants are arrested and the dogs would remain unattended.
"[A]n officer who acts in reliance on a duly-enacted statute or ordinance is ordinarily entitled to qualified immunity." Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994). Under California Penal Code § 597.1, which was in effect at the time of the dogs' removal, "[e]very owner, driver, or keeper of any animal who permits the animal to be in any building [or] enclosure . . . without proper care and attention is guilty of a misdemeanor." Cal. Penal Code § 597.1(a)(1) (2012). Section 597.1 specifically provides that "[a]ny peace officer . . . or animal control officer shall take possession of the stray or abandoned animal and shall provide care and treatment for the animal until the animal is deemed to be in suitable condition to be returned to the owner." Id. "When the officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall immediately seize the animal . . . ." Id. Officer Nevis explained that, "[i]f a person ends up going to jail, we take their dogs or their fish or their goat or their snake or whatever [the animal] happens to be. We end up taking it and putting it in our custody" because "if you're taking away the only people that are going to be there, you can't leave those [animals] by themselves." (Nevis Dep. at 23:3-19.)
The statute was amended on January 1, 2013 without substantive change.
There is no evidence suggesting that the Officers knew when someone might return to care for the dogs and ensure that they had adequate food and water. (See id. at 22:17-23:24.) The removal also occurred in mid-December and there is no evidence that the dogs in the backyard kennel were sheltered from the cold or rain. Officer Nevis further testified that, as he and Officer Bigelow were removing the remaining dogs from the House following the shooting, plaintiff's next-door neighbor approached them and, after describing the dogs as "aggressive," told the Officers: "Thank God you're taking these dogs because they get out all the time and they chase people on a regular basis." (Id. at 31:21-32:11.) The circumstances and neighbor's statements could provide reasonable animal control officers in the same situation additional reasonable grounds to believe that the dogs' removal was "required to protect the health or safety of the [dogs] or the . . . safety of" the surrounding neighbors and, thus, that they were required to "seize the animal[s]" pursuant to California Penal Code § 597.1(a)(1).
Plaintiff has not provided and the court cannot find any authority prohibiting the Officers' conduct or establishing that the removal of the dogs under the circumstances of this case violated the Fourth Amendment. In the absence of any statutory or case law contrary to the clear duties imposed by California Penal Code § 597.1, the contours of plaintiff's Fourth Amendment right were not sufficiently clear such that every reasonable animal control officer would have suspected, let alone have fair notice, that his conduct amounted to an unreasonable seizure of plaintiff's property. See Mullenix v. Luna, 136 S. Ct. 305, 314 (2015) (per curiam) ("[T]he crux of the qualified immunity test is whether officers have 'fair notice' that they are acting unconstitutionally."). Accordingly, because the Officers are entitled to qualified immunity on plaintiff's claim for the unlawful seizure of her dogs, the court must grant their motion for summary judgment on that claim.
2. Deputies' Liability for Removing the Dogs
Even assuming that the Deputies were integral participants in the removal of the five remaining dogs from plaintiff's House and may be liable under § 1983, the Deputies would be entitled to qualified immunity for the same reasons as the Officers and thus the court must grant the Deputies' motion for summary judgment on plaintiff's claim against them for the unlawful seizure of her remaining dogs.
C. Unlawful Arrest
Plaintiff alleges that she "was arrested and held in custody for two days even though there was no evidence that she had committed a crime." (Compl. ¶ 24.) At oral argument, counsel for plaintiff conceded that only Deputies Lazaro and Ceja had any involvement in plaintiff's arrest.
"A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification." Lacey, 693 F.3d at 918 (quotation marks omitted). Probable cause exists if the arresting officers "had knowledge and reasonably trustworthy information of facts and circumstances sufficient to lead a prudent person to believe that the arrestee had committed or was committing a crime." Maxwell v. County of San Diego, 697 F.3d 941, 951 (9th Cir. 2012) (citation and alterations omitted). Under the collective knowledge doctrine, a court looks to the collective knowledge of all the officers involved in the criminal investigation. Torres v. City of Los Angeles, 548 F.3d 1197, 1207 (9th Cir. 2008). Once probable cause is established, "an officer is under no duty to investigate further or to look for additional evidence which may exculpate the accused." Cameron v. Craig, 713 F.3d 1012, 1019 (9th Cir. 2013) (citation omitted).
It is undisputed that Deputy Lazaro, after returning from the December 17, 2012 probation search, filled out and signed a declaration for probable cause to arrest plaintiff for possession of .35 grams of methamphetamine, a felony at the time, and possession of drug paraphernalia found in her bedroom. (Lazaro Dep. at 45:19-46:14.) It is also undisputed that, on December 19, 2012, Deputy Ceja arrived at plaintiff's House with three other deputies who were not involved in the probation search--Deputies Hembree, Whitehead, and Mount--and arrested plaintiff pursuant to Deputy Lazaro's probable cause declaration. (Ceja Dep. at 37:19-40:23, 59:20-65:3.) It is further undisputed that Deputy Ceja received and read the probable cause declaration before arresting plaintiff and that he relied on the declaration in arresting plaintiff. (Id. at 59:20-65:3.)
As a matter of law, probable cause existed to arrest plaintiff on December 19, 2012, and counsel for plaintiff conceded as much at oral argument. Accordingly, because there was probable cause to arrest plaintiff on December 19, 2012, the court must grant defendants' motions for summary judgment on her unlawful arrest claim.
Although plaintiff argues that Deputy Lazaro and Ceja arrested her to intimidate her so that she would not complain about what had happened to her dogs, the Deputies' subjective intent is not relevant to determining probable cause. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) ("Our cases make clear that an arresting officer's state of mind . . . is irrelevant to the existence of probable cause.").
Plaintiff argues in her opposition that Deputy Ceja used force when arresting her, but counsel acknowledged at oral argument that those allegations are not relevant to plaintiff's wrongful arrest claim and that she did not assert an excessive force claim in her Complaint. See Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (stating that the unlawful arrest and excessive force inquiries are distinct).
IT IS THEREFORE ORDERED that:
(1) defendants Lech Garcia, Juan Ceja, and Jerry Lazaro's motion for summary judgment, (Docket No. 20), be, and the same hereby is GRANTED on all of plaintiff's claims; and
(2) defendants Michael Nevis and Vanus Bigelow's motion for summary judgment, (Docket No. 21), be, and the same hereby is, GRANTED on all of plaintiff's claims. Dated: July 5, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE