NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR PATINO, No. 16-16675
Plaintiff - Appellant, D.C. No. 2:15-CV-00009-RFB-
PAL
v.
LAS VEGAS METROPOLITAN POLICE MEMORANDUM*
DEPARTMENT, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, II, District Judge, Presiding
Argued and Submitted November 13, 2017
William S. Boyd School of Law
University of Nevada, Las Vegas
Las Vegas, Nevada
Before: RAWLINSON and BYBEE, Circuit Judges, and MENDOZA** District
Judge.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Salvador Mendoza, Jr., District Judge for the U.S. District Court
for the Eastern District of Washington, sitting by designation.
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Victor Patino appeals from the district court’s summary judgment order in
favor of the Las Vegas Metropolitan Police Department (LVMPD), Sergeant
William Wilson, and Sheriff Douglas Gillespie on his constitutional unlawful-entry
and unlawful-seizure-of-property claims and state tort claims. We have jurisdiction
under 28 U.S.C. § 1291. We review the district court’s decision de novo. Toguchi
v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). Each of Patino’s claims arises from
the same two actions—Sgt. Wilson’s warrantless entry into Patino’s backyard and his
use of deadly force against Patino’s pit bull. Because Sgt. Wilson acted reasonably under
the circumstances, all of Patino’s claims fail. Accordingly, we affirm.
Summary judgment is proper on Patino’s unlawful-entry and unlawful-
seizure claims because the undisputed facts show Sgt. Wilson acted reasonably
under the circumstances. Sgt. Wilson’s warrantless entry into Patino’s backyard
after hearing what he believed to be a gun shot and moaning noises coming from
Patino’s yard was justified under the emergency aid exception. See United States v.
Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008) (holding officers may enter property
without a warrant or consent if they have an objectively reasonable belief that there
is an immediate need to protect others or themselves from serious harm and the
manner of entry is reasonable to meet the need). Sgt. Wilson’s use of deadly force
in self-defense against Patino’s 120-pound charging pit bull was also reasonable
under the circumstances. Patino asserts only bare allegations unsupported by the
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record to dispute the reasonableness of Sgt. Wilson’s actions. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“[A] party opposing a properly
supported motion for summary judgment ‘may not rest upon the mere allegations
or denials of his pleading, but . . . must set forth specific facts showing that there is
a genuine issue for trial.’” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288 (1968) (internal quotation marks omitted))).
Because Sgt. Wilson did not violate Patino’s constitutional rights, he need
not invoke qualified immunity. Nonetheless, we conclude that the district court
correctly held that Sgt. Wilson would be protected by qualified immunity because
no clearly established law prohibits his actions. Patino asserts that San Jose
Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 978
(9th Cir. 2005) (hereinafter Hells Angels Motorcycle Club), stands for the
proposition that killing a dog is unreasonable where officers are on notice that dogs
are on the property. Even if the court accepted this reading, substantial factual
differences prevent its application to the present case. Mueller v. Auker, 700 F.3d
1180, 1185 (9th Cir. 2012) (“The inquiry called for by [the doctrine of qualified
immunity] ‘must be undertaken in the light of the specific context of the case, not
as a broad general proposition.’”) (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004)). In Hells Angels Motorcycle Club, the court held that officers were not
entitled to qualified immunity when they shot and killed three dogs during the
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execution of a warrant. 402 F.3d at 975–76. The officers had applied for the
warrant over a week before its execution and had not developed a plan to restrain
the dogs they knew were present on the property. Id. at 977. Here, Sgt. Wilson was
not engaging in the calculated execution of a warrant, but responding to an
emergency.
We also affirm the district court’s grant of summary judgment in favor of
LVMPD and Sheriff Gillespie on Patino’s § 1983 claims for municipal and
supervising officer liability. Without a constitutional violation, there can be no
municipal liability for a § 1983 claim. See City of L.A. v. Heller, 475 U.S. 796, 799
(1986) (“If a person has suffered no constitutional injury at the hands of the
individual police officer, the fact that the departmental regulations might have
authorized [a constitutional violation] is quite beside the point.”). Likewise, there
is no basis to find that Sheriff Gillespie participated in or knew of and failed to
prevent any constitutional violation. See Hansen v. Black, 885 F.2d 642, 646 (9th
Cir. 1989) (holding there must be a “sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation” (citing Thompkins
v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987))).
Finally, we affirm the district court’s summary judgment on Patino’s state law
claims for negligence and intentional infliction of emotional distress because
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neither claim is supported by the record. See Scialabba v. Brandise Constr. Co.,
921 P.2d 928, 930 (Nev. 1996); Star v. Rabello, 625 P.2d 90, 91–92 (Nev. 1981).
AFFIRMED.
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