UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED
FEB 28 2014
LOUISA THURSTON, No. 12-15729
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 2:10-cv-00516-LRH-RJJ
District of Nevada,
v. Las Vegas
CITY OF NORTH LAS VEGAS POLICE
DEPARTMENT; CITY OF NORTH LAS ORDER
VEGAS; PAUL FREEMAN, Detective;
ANTHONY WATKINS, Detective;
MICHAEL WALLER, Sergeant;
LEONARD TAYLOR, Officer; ERIC
ROCKWELL, Officer; JASON
SCARALE, Officer,
Defendants - Appellees.
Before: NOONAN and WATFORD, Circuit Judges, and LYNN, District Judge.*
The memorandum disposition filed on January 9, 2014 is amended as
follows:
At page 6, line 4-5, “the police department and individual officers” will be
amended to read, “certain individual officers.”
*
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
With this amendment, Judge Noonan and Judge Lynn vote to deny the
petition for rehearing and recommend denying the petition for rehearing en banc.
Judge Watford votes to grant the petition for rehearing and petition for rehearing
en banc.
The petition for rehearing and the petition for rehearing en banc are
DENIED.
No further petitions for rehearing and petitions for rehearing en banc shall be
entertained.
2
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LOUISA THURSTON, No. 12-15729
Plaintiff - Appellant, D.C. No. 2:10-cv-00516-LRH-RJJ
v.
MEMORANDUM*
CITY OF NORTH LAS VEGAS POLICE
DEPARTMENT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted November 8, 2013
San Francisco, California
Before: NOONAN and WATFORD, Circuit Judges, and LYNN, District Judge.**
Louisa Thurston appeals the district court’s grant of summary judgment
dismissing her § 1983 suit against the City of North Las Vegas (“city”), the City of
North Las Vegas Police Department (“police department”), and individual officers
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
for the unlawful seizure of her two pet dogs. In particular, Thurston alleges that
members of the police department’s SWAT team shot and killed her dogs during
the execution of a high risk search warrant at her home in violation of the Fourth
and Fourteenth Amendments. The defendants moved for summary judgment on
qualified immunity grounds. The district court held that, under the circumstances,
the police officers acted reasonably in shooting the dogs, and thus did not violate
Thurston’s Fourth Amendment rights as a matter of law. Because the district court
determined that Thurston could not establish a constitutional violation, it granted
summary judgment without reaching the second prong of the qualified immunity
analysis. The court’s finding that there was no Fourth Amendment violation as a
matter of law also obviated the need to address whether the City of North Las
Vegas could be subject to municipal liability under Monell v. Department of Social
Service, 436 U.S. 658 (1978).
We review de novo a district court’s decision to grant summary judgment on
the basis of qualified immunity. Crow v. Cnty. of San Diego, 608 F.3d 406, 427
(9th Cir. 2010). In doing so, this court must determine whether (1) taken in the
light most favorable to Thurston, the facts alleged show that the officers violated a
constitutional right; and if so, (2) whether the right was clearly established at the
time of the shootings. Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1229 (9th Cir.
2
2006). We find that genuine issues of material fact exist, and thus reverse and
remand the case for trial.
1. The district court improperly ruled that the SWAT team officers acted
reasonably as a matter of law in shooting Thurston’s pet pit bull and mastiff. The
shooting of a dog during a search warrant service must be reasonable under the
circumstances to comply with the Fourth Amendment. San Jose Charter of Hells
Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005). We
must consider the totality of the circumstances to determine whether the
destruction of property was reasonably necessary to effectuate the performance of
the law enforcement officers’ duties by balancing “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing government interests at stake.” Id. (internal quotations and citations
omitted). Viewing the facts in the light most favorable to Thurston, there are
genuine issues of material fact as to whether the police officers acted reasonably.
First, the police waited 20 minutes after entering the home before firing on
the dogs, even though Thurston and her daughter were zip-tied within a few
minutes of the SWAT team’s entrance and escorted out of the house shortly
thereafter. At oral argument, the city’s attorney contended that the house had not
yet been secured at the time of the shooting, but produced no citation to the record
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for this assertion. The absence of evidence that the house was still unsecured at the
time of the shooting raises a reasonable inference that the officers had enough time
to observe the dogs’ behavior and summon animal control specialists before the
alleged attack occurred, which speaks directly to the reasonableness of the officers’
conduct.
Second, there is a genuine issue of fact as to whether the dogs attacked. The
district court relied on the lack of evidence directly contradicting the officers’
testimony that the dogs attacked. But this ignores the summary judgment standard
that requires the court to view the evidence in the light most favorable to Thurston
and draw all reasonable inferences in her favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Here, although Thurston did not witness the alleged
attack herself, she did testify that her dogs were not aggressive and that she had
observed her dogs sitting by the back patio door looking happy and “wiggling their
tails” just prior to her being escorted out of the house. Viewing the evidence in
Thurston’s favor, a jury could infer that if her dogs were “wiggling their tails” non-
aggressively right before the alleged attack, then perhaps they did not attack at all.
Third, one of the police officers testified that department policy dictates
attendance, if not participation, of an animal control officer whenever police know
there are dogs present inside a home. The absence of an animal control officer—in
4
contravention of general policy and despite time to summon one after
entry—further raises a genuine issue of fact as to the reasonableness of the
officers’ actions.
The dissent points out that “the dogs appeared to be safely confined to the
fenced-in backyard,” and that Thurston presented no evidence suggesting the
officers knew or should have known that the dogs could get in the house. But
Thurston testified that when the police initially entered the house, both dogs were
in the bedroom with her and subsequently went out to the patio area. That the dogs
were initially inside the house and then went outside undercuts the assumption that
the dogs were “safely confined to the fenced-in backyard.” If the dogs could freely
leave the house, then a jury could reasonably infer that the dogs could just as easily
re-enter the house.
2. Given that there are genuine issues of material fact as to whether the
officers acted reasonably, we address whether Thurston’s Fourth Amendment right
was clearly established at the time of the shooting. Pearson v. Callahan, 555 U.S.
223, 232 (2009) (citation omitted). We conclude it was. As this court ruled in Hells
Angels, 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 of subduing the dogs besides killing
5
them, would violate the Fourth Amendment.” Hells Angels, 402 F.3d at 978. Thus,
Thurston’s constitutional right was clearly established at the time of the shooting
and the officers are not entitled to qualified immunity.
3. Although Thurston’s constitutional claims against certain individual
officers may proceed to trial, the claims against the city must be dismissed. There
is no evidence that the officers shot Thurston’s dogs pursuant to a formal
governmental policy or longstanding practice which constitutes the standard
operating procedure of the city. Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.
1992). Accordingly, there can be no municipal liability against the city, and
Thurston’s Monell claim is dismissed.
REVERSED and REMANDED.
In Case No. 12-15729, Plaintiff-Appellant shall recover her costs on appeal..
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FILED
Thurston v. City of North Las Vegas, No. 12-15729 FEB 28 2014
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
This is not a case where the officers knew aggressive dogs were on the
property a week before executing a low-risk search warrant, and then planned on
killing the dogs as part of the search. See San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 976–77 (9th Cir. 2005). In
Hells Angels, the officers knowingly executed a backyard-entry plan that made a
confrontation with the dogs inevitable, and did so with the intention of shooting the
dogs. Id. at 968–69, 976–77.
The officers in this case, in contrast, were executing a high-risk search
warrant issued earlier that day. They entered through the house, not the backyard.
Once inside the house, the officers knew there were large, potentially aggressive
dogs on the property, but the dogs appeared to be safely confined to the fenced-in
backyard. The officers who shot Ms. Thurston’s dogs were standing inside the
house, guarding a door leading from the house to the backyard, when the dogs
unexpectedly flung the door open with their noses. The officers testified without
contradiction that the dogs—a 140-pound mastiff and a 70-pound pit
bull—growled, bared their teeth, and charged at them inside the house, causing the
officers to fear for their safety.
Page 2 of 2
On these facts, a rational jury could find that the officers acted unreasonably
only if Ms. Thurston presented evidence suggesting the officers knew or should
have known that the dogs could get in the house, but nonetheless took no steps to
prevent that from happening. Because Ms. Thurston presented no such evidence, I
would affirm.