SILVA v. CITY OF SAN LEANDRO

ving room. I was told to get on the ground and I did. Then my dog ran out of the bedroom at the officers. I heard a gunshot and saw the dog run back. I stayed on the ground in the living room. The police handcuffed me and took me outside to a police car. This is the truth to the best of my knowledge. Id. Officer Costa testified that he read the statement accurately to Hoy before Hoy signed it. Lavrinets Decl., Ex. F (Costa Decl.) at 15. However, Hoy testified at his deposition that although he had some memory of an officer reading a statement to him, it could not have been the statement quoted above because that statement is false. Yourke Decl., Ex. 2 at 99-103. Hoy also testified that he signed the statement without reading it and that at the time, it didn't really matter to him because he had been told that he would be free to go once he signed the statement and he wanted to check on the dog. Id. at 99-100.

In the meantime, Hemphill had been taken by Officer Khan to the SLPD station for booking. Joint Statement, No. 90. Officer Khan interviewed Hemphill about the events of that night. Id., No. 91. He prepared the following statement, which carries Hemphill's signature:

Today, 5/24/09 around 4:00 A.M., I was at my house, in my bedroom, going over some paperwork. I have been under some stress over some family matters. At this time I heard a knock at my front door. I answered the front door [] and saw [] two police officers. One of the officers said they were there because they got a medical call of someone overdosing at the house.

I knew as a fact my two roommates at the house were okay and not overdosing.

I told the officers no one was in need of help. The officers asked if they could come in and I told them no. I told them no because there was no medical emergency.

When I closed the door, I heard the officers knocking at the door. I also heard people in my back yard.

A short while (I don't remember the time frame) I opened the side door. I was met by some offices again. I was [taken] detained in hand cuffs.

I was then escorted by another officer away from my house. As I was leaving I tightened my muscle because I didn't know what was going on and because of my stress.

I had no intention of delaying the officers in any way.

This is a true statement.

Lavrinets Decl., Ex. J (Hemphill Statement).

Officer Khan states in his declaration that this statement is based on what Hemphill told him during the interview at the station and that Hemphill reviewed the statement before signing it. Khan Decl., ¶¶ 11-13. At his deposition, however, Hemphill testified that a number of the statements in the written account were false and that he had not actually read the statement. Yourke Decl., Ex. 3 (Hemphill Depo.) at 73. Rather, Hemphill stated that he had signed the statement after Officer Khan read something to him that he represented to be the written statement. Id. Hemphill noted that "he could have told me a total different story than what he wrote." Id.

C. The Complaint

In the Complaint, Plaintiffs assert claims under 42 U.S.C. § 1983 against the following Defendants: 1) City of San Leandro; 2) San Leandro Chief of Police Ian Willis, in his official capacity; 3) Sergeant Robert McManus; 4) Officer Brian Buss; 5) Officer Daniel Sellers; 6) Officer Michael Benz; 7) Officer Matthew Costa; 8) Officer Liaquat Khan; 9) Officer Dennis Mally; 10) Officer Jason Fletcher; and 11) Officer Suzanne Huckaby. Plaintiffs assert three claims.

In Claim One, Plaintiffs assert that their Fourth and Fourteenth Amendment rights to be free of unreasonable searches and seizures were violated. Within this claim, Plaintiffs assert that: 1) each of the Defendant police officers arrested or detained each of the Plaintiffs without probable cause; 2) Officer Khan used excessive force against Plaintiff Hemphill when he arrested Hemphill; and 3) each of the Defendant police officers, including Sergeant McManus, violated Plaintiffs' Fourth Amendment rights by entering the Residence without a warrant or lawful justification.

In Claim Two, Plaintiff Silva asserts that Officer Sellers violated her Fifth and Fourteenth Amendment rights to due process when he deliberately shot and killed Boo Boo without due process or lawful excuse or justification.

In Claim Three, Plaintiffs assert claims against the City of San Leandro and the Police Chief, Ian Willis, on the basis that these defendants were the proximate cause of Plaintiffs' injury because they failed to adequately train and supervise their officers.

D. The Motion

In the Motion, Defendants seek summary judgment on the following grounds:

1) Plaintiffs' claims under the Fourteenth Amendment, based on their alleged deprivation of substantive due process, fail as to all Defendants because the applicable amendment is the Fourth Amendment, not the Fourteenth Amendment. 2) Defendants' entry into the Residence and arrest of Plaintiffs did not violate Plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures because of the existence of exigent circumstances, which allows officers to enter a residence without a search warrant in emergency situations and to briefly detain residents while a search is being performed. Defendants further assert that even if the search was unreasonable, the Defendant officers are entitled to qualified immunity because the officers had a reasonable belief that they were acting lawfully. 3) Defendants' arrest of Plaintiff Hemphill, as a matter of law, did not violate the Fourth Amendment because the minimal use of force by Officer Khan was reasonable and, in any event, Officer Khan is entitled to qualified immunity as to this claim. 4) Defendants' detention of Plaintiffs Hoy and Silva, as a matter of law, did not violate the Fourth Amendment because exigent circumstances permitted the Officers to enter the house and briefly detain Hoy and Silva in order to conduct the search. 5) Defendant Sellers' shooting of Plaintiff Silva's dog, as a matter of law, did not violate the Fifth Amendment because none of the defendants are federal actors; nor did it violate the Fourteenth Amendments because a deprivation of property does not violate the Fourteenth Amendment's procedural due process right. 6) Plaintiffs, as a matter of law, cannot establish the liability of the City of San Leandro and Police Chief Ian Willis because there is no evidence of a widespread custom or practice, as required to establish municipal liability under Monell v. Dep't of Social Services, 436 U.S. 658, 691 (1978). In their Opposition, Plaintiffs assert that there are four issues that must go to trial because there are of disputed questions of material fact: 1) Whether Defendants' entry into the home was reasonable; Plaintiffs point to evidence which, indicating that after Hemphill was arrested, Silva and Hoy were not warned that the police were entering the house, were not warned to secure the dog and were never asked to simply open the front door and allow the police to enter. 2) Whether the shooting of the dog was reasonable; Plaintiffs point to evidence that Boo Boo did not attack the police and posed no serious threat to them 3) Whether the arrest and use of force against Hemphill by Officers Khan and Fletcher was reasonable; Plaintiffs point to evidence that Officers Khan and Fletcher "body-slammed" Hemphill to the hood of the car even though he was not resisting arrest; 4) whether the detention of Hoy was reasonable; Plaintiffs point to evidence that Hoy did not resist arrest or obstruct the police in conducting their search in any way. Plaintiffs concede that the claim based on the shooting of Boo Boo should have been pleaded under the Fourth Amendment rather than the Fifth and Fourteenth Amendments and request leave to amend the Complaint to assert the claim under the Fourth Amendment. Plaintiffs cite to San Jose Chapter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005) in support of their assertion that the shooting of a pet dog by police may violate the Fourth Amendment.

In their Reply brief, Defendants reiterate the arguments in the Motion. With respect to the Fourth Amendment claim that Plaintiffs seek to assert against Officer Sellers based on the shooting of Boo Boo, Defendants argue that the claim should be dismissed because the facts here are distinguishable from those in the Hells Angels decision and therefore, that Defendants are entitled to qualified immunity on this claim.

III. ANALYSIS

A. Legal Standard under Rule 56(c)

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Nissan Fire Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir. 2000). Once the movant has made this showing, the burden shifts to the party opposing summary judgment to "designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 323. To establish a "genuine" issue of fact when opposing summary judgment, a plaintiff must "produce at least some significant probative evidence tending to support" the allegations in the complaint. Smolen v. Deloitte, Haskins Sells, 921 F.2d 959, 963 (9th Cir. 1990).

B. Claims Dismissed on the Basis that Plaintiffs Have Not Opposed Summary Judgment and/or Cited to Evidence in Support of Them

1. Monell Claims

In the Motion, Defendants argued that the claims against Chief Ian Willis and the City of San Leandro should be dismissed because Plaintiffs have pointed to no evidence of a policy or practice on the part of the City that would allow for the imposition of municipal liability. The Court agrees.

Under Monell, a municipality cannot be held liable for constitutional injuries inflicted by its employees on a theory of respondeat superior. Monell, 436 U.S. at 691. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694. A plaintiff seeking to establish municipal liability under section 1983 may do so in one of three ways: 1) the plaintiff may demonstrate that a municipal employee committed the alleged constitutional violation "pursuant to a formal governmental policy or longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity;" 2) the plaintiff may demonstrate that the individual who committed the constitutional violation was an official with "final policy-making authority and that the challenged action itself thus constituted an act of official government policy;" or 3) the plaintiff may demonstrate that "an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

Here, Plaintiffs did not address in their Opposition brief Defendants' assertion that the claims against the City of San Leandro and the police chief fail as a matter of law. Further, there is no evidence in the record that the alleged violations were either committed by an individual with final policy-making authority or ratified by such an individual. Nor is there any evidence of a policy or custom to which the relevant conduct of the Defendant officers can be attributed. Therefore, Defendants' request for entry of summary judgment on the claims against the City of San Leandro and the police chief is granted.

2. Officer Huckaby

Defendants assert that Plaintiffs' claims as to Officer Huckaby should be dismissed because the only evidence of her involvement in the relevant events is that she drove Boo Boo to the emergency veterinarian after he was shot. The Court agrees. The undisputed evidence shows that Huckaby was not involved in the entry into the Residence or the arrest or detention of any of its residents. Accordingly, all of Plaintiffs' claims fail as to Officer Huckaby.

3. Fourteenth Amendment Claims

Defendants seek summary judgment as to all of Plaintiffs' claims under the Fourteenth Amendment on the basis that the Fourteenth Amendment due process clause applies only to federal actors and none of the named defendants is a federal actor. Plaintiffs do not address this argument in their Opposition brief, implicitly conceding that these claims fail. Accordingly, the Court grants Defendants' request for summary judgment as to all of Plaintiffs' Fourteenth Amendment claims.

C. Fourth Amendment Claim Based on Allegedly Illegal Entry

Defendants argue that the Court should enter summary judgment in their favor on all of Plaintiffs' Fourth Amendment claims based on the Defendant Officers' allegedly unreasonable entry into the Residence, asserting that the undisputed evidence establishes, as a matter of law, that exigent circumstances justified the Officers' conduct. Defendants further assert that even if it cannot be determined as a matter of law whether the Officers acted reasonably, they are nonetheless entitled to qualified immunity as to this claim because their conduct did not violate a clearly established right. The Court concludes that there are factual disputes that preclude summary judgment on both grounds.

1. Whether Exigent Circumstances Justified the Warrantless Entry

The Fourth Amendment guarantees: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The purpose of this amendment is to "safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528 (1967). Thus, it is well-established that "except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant.'" Michigan v. Tyler, 436 U.S. 499, 506 (1978) (quoting Camara v. City and County of San Francisco, 387 U.S. 523, 528-529 (1967)).

An exception to the search warrant requirement arises in the case of exigent or emergency circumstances in which police officers reasonably believe "that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392 (1978). The Ninth Circuit has adopted a two-part test for determining whether the emergency exception applies, which asks "whether: (1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search's scope and manner were reasonable to meet the need." U.S. v. Snipe, 515 F.3d 947, 951 (9th Cir. 2008). "When a government agent enters a home without a warrant, `the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.'" U.S. v. Davis, 290 F.3d 1239, 1242 (10th Cir. 2002) (quoting Welsh v. Wisconsin, 466 U.S. 740, 749 (1984)).

There is no bright-line rule as to whether a 911 call reporting that an occupant of a residence is in danger is sufficient to give rise to exigent circumstances. See, e.g., U.S. v. Brooks, 367 F.3d 1128, 1136 (9^th Cir. 2004); U.S. v. Davis, 290 F.3d 1239, 1242 (10th Cir. 2002). For example, in Brooks, the court of appeals affirmed the district court's holding, on a motion to suppress, that an officer who entered the defendant's hotel room without a warrant did not violate the Fourth Amendment because the officer reasonably believed that a woman inside was in serious danger. Id. The court explained its holding as follows:

The issue before us is whether the 911 call alerting police to a perceived domestic abuse and the corroborating facts known to Perez disclosed dangers creating an exigency that justified entry into Brooks's hotel room without a warrant. Many of the same facts that showed probable cause to suspect evidence of crime are also relevant to show Perez's exigent need to enter. Police received an emergency call for aid. Perez talked to the hotel guest who feared an assault was occurring in Brooks's room, and Perez confirmed by Brooks' statement that a woman was in the room. When Brooks opened the door, he admitted that the woman had been "loud." Perez saw the hotel room in disarray. No woman was in sight. Perez's entering the room was justified by an objectively reasonable belief that a woman might be injured and entry was "necessary to prevent physical harm" to her.

Id. at 1135-1136. The Court went on to reject the defendant's argument that the officer could have simply asked the woman to come out into the hall to be interviewed, noting that "[t]he Supreme Court has `repeatedly refused to declare that only the "least intrusive" search practicable can be reasonable under the Fourth Amendment.'" Id. (citations omitted).

In contrast, in U.S. v. Davis, the Tenth Circuit affirmed the district court's order granting a motion to suppress evidence that had been seized during a warrantless search, rejecting the government's assertion that the officers had not violated the defendant's Fourth Amendment rights when they entered his home without a search warrant because of exigent circumstances. 290 F.3d at 1244. In that case, the officers had received a dispatcher's report of a possible domestic disturbance at a residence that was known to the officers to be the home of Jason Davis and Desiree Coleman. Id. at 1240. When the officers arrived at the residence, they heard no noise and saw no sign of a disturbance. Id. Subsequently, Davis appeared at the door, with bloodshot eyes and alcohol on his breath. Id. He told the officers that he had been disciplining his child and that Ms. Coleman was out of town. Id. At this point, however, Ms. Coleman appeared. Id. at 1241. She wrapped her arms around Davis's waist and said that the two had been arguing. Id. Davis, however, was obstructing the officers' view of Coleman and preventing them from talking to her, while at the same time he was attempting to close the door. Id. At that point, the officers told Davis that they were coming in to check on Ms. Coleman. Id. Davis then quickly retreated to the back of the house and returned with a child in his arms. Id. The officers entered the house and observed signs of marijuana use, which they cited in support of a subsequent application for a search warrant. Id.

The defendant in Davis brought a motion to suppress the evidence that was uncovered in the subsequent search and the government opposed it, asserting that exigent circumstances justified the first (warrantless) entry. Id. In rejecting the government's argument, the court stated as follows:

There was no evidence introduced that indicated the officers believed Mr. Davis had a reputation for violence. Nor had he displayed a threatening or aggressive manner when he initially contacted the officers. It is true he lied about Ms. Coleman's whereabouts, but any concern that lie might have effected was allayed when she appeared without any signs of harm. Moreover, the only manifestation of resistance displayed by Mr. Davis was his insistence upon keeping the officers outside. As the district court noted, even Ms. Coleman, "the suspected victim[,] was trying to prevent" the officers from entering Mr. Davis' residence. United States v. Davis, No. 01-40036-01-RDR, 2001 WL 1013313, at *4 (D.Kan. Aug. 7, 2001). The court therefore logically concluded the officers "[o]bviously . . . could [have] check[ed] her condition without entering the home." Id. Moreover, as stated in Mr. Davis' brief, "Parsons knew Davis had children, so his withdrawal from police presence should have been wholly unthreatening."

Id. at 1243. For these reasons, the court granted the motion to suppress. Id.

In this case, the Court concludes that the evidence in the record does not provide a sufficient basis to conclude that exigent circumstances existed as a matter of law. See Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997) (holding that the district court had erred in holding, on summary judgment, that exigent circumstances justified warrantless entry because there were disputed questions of fact relating to circumstances). While it is undisputed that a 911 call had been received reporting that an individual was overdosing inside, it is also undisputed that the call was anonymous, in contrast with the facts of Brooks, in which the officer actually spoke with the individual who had placed the emergency call. Further, while Defendants cite to Hemphill's conduct when he answered the door as a separate basis for concern, the accounts of what occurred when the Officers first spoke to Hemphill are widely divergent. Hemphill testified that he offered to call all of the occupants to the front door so that the officers could see that no one was in danger and that in fact, he did call his roommates, who came to the front door while he was talking to the officers. He further testified that he closed the front door because he believed that the matter had been resolved, not because he was refusing the police entry. In contrast, the officers testified that Silva did not come to the door, that they could not see through the security grate, that Hemphill acted suspiciously and that he slammed the door on the officers, refusing to permit them to enter the house.

In short, in light of the factual disputes relating to the circumstances under which the officers entered the Residence, the Court finds that the question of whether there were exigent circumstances cannot be resolved on summary judgment.

2. Whether Defendants Are Entitled to Qualified Immunity on this Claim

Under the doctrine of qualified immunity, even if a constitutional violation occurred, governmental officials are immune if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a defendant is entitled to qualified immunity, courts must first ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 200 (2001). If not, the qualified immunity analysis ends here. Id. at 201. On the other hand, "if a violation could be made out on a favorable view of the parties' submissions, the next sequential step

is to ask whether the right was clearly established." Id. The inquiry as to this second question must be "particularized." Id. It is not enough that the general rule is established. Id. Rather, "[t]he relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202 (emphasis added). The Supreme Court has cautioned that courts should afford "deference to the judgment of reasonable officers on the scene" and should not use "20/20 hindsight vision." Id. at 205.

In Pearson v. Callahan, the Supreme Court clarified that the order of the two-step inquiry is not mandatory. Rather, courts should "exercise their sound discretion in deciding 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." ___ U.S. ___, 129 S.ct. 808, 818 (2009).

Applying the law of qualified immunity to the facts here, it is well-established that absent exigent circumstances, the Fourth Amendment requires that a search warrant be obtained to enter a private residence, as discussed above. Further, there are many disputed facts relating to the question of whether exigent circumstances existed when the Officers entered the Residence without a warrant. These disputed facts must be decided by a jury. Therefore, the final step of qualified immunity analysis must await the determination of issues of fact. Accordingly, the Court denies summary judgment on the basis of qualified immunity as to this claim.

D. Fourth Amendment Claim Based on Alleged Use of Excessive Force Against Hemphill

Defendants assert that Plaintiff Hemphill's excessive force claims against Officers Fletcher and Khan fail as a matter of law because the force used was "clearly reasonable and the minimal amount of force necessary in the face of Mr. Hemphill's resistance." Motion at 16. In any event, Defendants assert, Officers Fletcher and Khan are entitled to qualified immunity on these claims because they did not violate a clearly established right. The Court rejects both contentions.

"A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment's `objective reasonableness' standard." Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 921 (9th Cir. 2001). Determining whether the force used was reasonable "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396 (1989). "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Moreover, "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Id.

There are disputed issues of material fact as to whether Officers Fletcher and Khan used excessive force. According to Hemphill, he was slammed onto the hood of a car during the course of his arrest even though he was fully complying with the officers' orders and was not resisting arrest. According to Defendants, Hemphill was pushed against the hood of a car after he appeared to be resisting arrest by flexing his arm muscles. Whether the force used by the officers was reasonable depends on whose account is to be believed — a question that the jury must decide. Further, if the jury accepts Hemphill's account as true, the officers also are not entitled to qualified immunity because it is clearly established that officers may not use more force than is reasonable under the circumstances. See Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007) ("In assessing the state of the law at the time of [plaintiff's] arrest, we need look no further than Graham's holding that force is only justified when there is a need for force").

The Court denies Defendants' request for summary judgment on the excessive force claim.

E. Fourth Amendment Claims Based on Detention of Hoy and Silva

Defendants assert that they are entitled to summary judgment as to Plaintiffs' claims that the detention of Hoy and Silva violated their Fourth Amendment rights. In the alternative, Defendants assert that the Court should grant summary judgment on the basis that the Officers were entitled to qualified immunity on these claims. The Court concludes that Defendants are not entitled to summary judgment on these claims on either ground.

As discussed above, the " Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392 (1978). Further, an emergency situation may justify a warrantless seizure in the home. See Payton v. New York, 445 U.S. 573, 587-88 (1980); U.S. v. Walker, 474 F.3d 1249, 1252-53 (10th Cir. 2007)). However, "a warrantless search must be `strictly circumscribed by the exigencies which justify its initiation.'" Mincey, 437 U.S. at 393 (citing Terry v. Ohio, 392 U.S. 1, 25-26 (1968)).

In this case, it is undisputed that after Boo Boo was shot, Hoy was placed in handcuffs and taken outside, where he was put in the back seat of a patrol car. It is also undisputed that the officers found Silva in her bedroom, where they placed her in handcuffs as well, and that she was then taken outside to a separate patrol car, where she also was put in the back seat. According to Defendants, this detention was reasonable because of the officers' "inability to gain cooperation from the Residence's occupants." Motion at 16. Yet according to the accounts of the Plaintiffs, both Hoy and Silva were fully cooperative with the commands of the police officers. Indeed, it is undisputed that Hoy immediately dropped to the ground when ordered to do so by the officers. Further, Defendants have not cited to any testimony by the officers suggesting that they believed that Hoy or Silva posed a threat to the officers or would interfere with the officers' welfare check. Nor do they cite any evidence indicating that Hoy and Silva were released as soon as the officers completed the welfare check of the house. To the contrary, the undisputed evidence in the record indicates that Hoy and Silva were not released until sometime later, when each agreed to sign a statement drafted by the officers. Under these circumstances, and drawing all reasonable inferences in favor of Plaintiffs, there is no basis for the Court to find, as a matter of law, that the detention of Hoy and Silva did not violate the Fourth Amendment. Similarly, to the extent that it is well established that in an emergency situation detention of an individual in her residence without a search warrant is strictly circumscribed by the nature of the exigent circumstances — a question as to which the material facts are in dispute — Defendants also are not entitled to summary judgment on the basis of qualified immunity. F. Fourth Amendment Claim Based on Shooting of Boo Boo

The Court notes that Defendants cite Michingan v. Summers, 452 U.S. 692 (1981) in support of the proposition that so long as a warrantless search is proper, in light of exigent circumstances, the police have "limited authority to detain the occupants of the premises while a proper search is conducted." Motion at 13. That case, however, is distinguishable from the facts here. There, the Court addressed whether a pre-arrest detention of an individual in his residence, while officers were conducting a search at the individual's residence pursuant to a valid search warrant, violated the individual's Fourth Amendment rights. The Court found that it did not, placing "prime importance" on the fact that a neutral magistrate had already found that there was probable cause to search the premises for suspected contraband. Id. at 701-702. Under these circumstances, the Court concluded, the intrusion was not unreasonable when balanced against the law enforcement interests of preventing flight if incriminating evidence was found and ensuring the safety of the officers conducting the search. Id. Rather, the Court found that such a detention was within the exception articulated in Terry v. Ohio, 392 U.S. 1, 17 n. 15 (1968), allowing an officer to stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. See Terry, 490 at 30. Even assuming that the holding of Michigan v. Summers applies to a detention within in a residence where the associated search was conducted without a warrant, Defendants have not argued, much less cited to any evidence suggesting that the officers suspected Hoy or Silva of committing any crime. Moreover, as discussed above, Defendants have not pointed to any evidence that the officers were concerned that either Hoy or Silva would harm the officers or flee the scene as a result of anything found during the "search." Therefore, the rule articulated in Michigan v. Summers does not support Defendants' request for summary judgment on this claim.

In their Opposition brief, Plaintiffs conceded that the claim asserted on the basis of Officer Sellers' shooting of Boo Boo was improperly asserted under the Fifth and Fourteenth Amendments and requested leave to amend the complaint to assert the claim under the Fourth Amendment. Plaintiffs' request is GRANTED. Although as a general rule, plaintiffs are not permitted to amend their complaints simply to evade summary judgment, that rule is not applicable here because Defendants have long been on notice that this claim is the "heart and soul" of this case. In addition, Defendants were expressly instructed by the Court at the recent hearing on the Order to Show Case to address the Plaintiffs' claim under the Fourth Amendment in their Reply brief. As result, Defendants are not prejudiced by allowing Plaintiffs to assert this claim under the Fourth Amendment. Therefore, the Court concludes that it is in the interest of justice to permit Plaintiffs' to amend their complaint to add a Fourth Amendment claim based on the shooting of Boo Boo. See Fed.R.Civ.P. 15(a)(2).

Defendants assert that they are entitled to summary judgment on Plaintiff Silva's claim that the shooting of Boo Boo by Officer Sellers violated her Fourth Amendment rights because Officer Sellers' conduct was reasonable, as a matter of law. Because key facts concerning the circumstances under which Officer Sellers shot Boo Boo are disputed, Defendants are not entitled to summary judgment on this claim. Similarly, the Court is unable to determine whether Defendants are entitled to qualified immunity in light of these factual disputes.

In San Jose Charter of the Hell's Angels Motorcycle Club v. City of San Jose, the Ninth Circuit set forth the legal standard that applies where a dog has been killed in the course of a search or seizure:

[T]he destruction of property by state officials poses as much of a threat, if not more, to people's right to be `secure . . . in their effects' as does the physical taking of them." Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other grounds, Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002) (citation omitted). "The killing of [a] dog is a destruction recognized as a seizure under the Fourth Amendment" and can constitute a cognizable claim under § 1983. Id. Reasonableness is the touchstone of any seizure under the Fourth Amendment. . . . We look to the totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer's duties. See Deorle, 272 F.3d at 1279. "A seizure becomes unlawful when it is `more intrusive than necessary.'" Ganwich, 319 F.3d at 1122 ( quoting Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). To determine whether the shooting of the dogs was reasonable, we balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation and internal quotation marks omitted).

402 F.3d 962, 974 (9th Cir. 2005).

In Hells Angels, search warrants had been obtained to search the residences of Hell's Angels members suspected of possessing evidence relevant to a murder. Id. at 966-967. For each residence, an entry team and a search team was created. Id. The entry teams were given a week's notice to plan the entries. Id. at 967. During that time, the entry teams gathered information and conducted surveillance of the residences and on that basis, knew at the time of the searches that two of the residences had or might have dogs on the premises. Id. at 968. The officers planned to either isolate or kill the dogs upon entering the properties, but they made no specific plans to isolate the dogs or to allow the residents to do so. Id. Nor did they consider using any form of non-lethal force to subdue the dogs. Id. When the searches were conducted, the officers shot and killed dogs at both residences — at one, a Rottweiler who was allegedly growling and advancing on the officers and at another, two large Bullmastiffs who were barking loudly and would not retreat. Id. at 969.

The owners of the dogs in Hells Angels asserted claims under 42 U.S.C. § 1983, including a claim under the Fourth Amendment, based on the shooting of the dogs. Id. at 965. Defendants sought summary judgment on the claim on the basis of qualified immunity, which the was denied by the district court. The Ninth Circuit affirmed, explaining its reasoning as follows:

Here, the intrusion was severe. The officers shot and killed one of Souza's dogs, and two of the Vieiras' dogs. We have recognized that dogs are more than just a personal effect. . . . The emotional attachment to a family's dog is not comparable to a possessory interest in furniture. As noted in Lori Vieira's journal, the effect of her being handcuffed just yards from where her dog Sam lay dead and bleeding was extremely traumatic. . . . Viewing the facts in the light most favorable to the Vieras and Souza, the seizures were unreasonable, in violation of the Fourth Amendment. Most important, both entry teams had a week to plan the execution of the entry. At the Souza residence, despite advance knowledge of the presence of two guard dogs, the full extent of the plan to protect the entry team from the dogs was to either "isolate" or shoot the dogs. The officers had no specific plan for isolating the dogs. At the Vieira residence, Officer Nieves was in charge of handling the dogs. According to Officer Messier's declaration, "Officer Nieves was assigned to deal with dogs if there were any, which is why he had a shotgun and was first in the stacking order. However, I did not give Officer Nieves any specific instructions as to how to deal with any dogs." (emphasis added). Officer Nieves's "little plan" consisted of first hoping that the dogs would not appear at the gate. If they did, he planned to poke them through the fence with his shotgun to try and scare them. If that did not work, he planned to "engage" . . . the dogs to ensure the safety of the entry team. In short, as the district court concluded, despite a week to plan for the entry, the officers developed no realistic plan other than shooting the dogs while serving the search warrants.

Id. at 975. The Court went on to reject the defendants' arguments that killing the dogs advanced important governmental interests, namely, 1) allowing the officers to carry out the searches; 2) protecting the officers' ability to enter with stealth and speed; and 3) ensuring the safety of the officers. Id. at 976. The Court noted that none of the individuals whose houses were being searched were suspects in the murder that was being investigated, that the need for stealth was not persuasive because it was the officers' own gunshots that woke residents, and that concern for the officers' safety did not make the conduct reasonable, given that the officers knew well in advance that they were likely to encounter the dogs and yet made no plan to protect themselves. Id. at 977. The court noted, however, that the concern for officer safety might have been more persuasive if the officers had been unaware of the dogs at the time they entered the residences. Id.

Defendants assert that the facts of Hells Angels are distinguishable from the facts here and therefore, that Officer Sellers could not "conceivably be liable" to Silva under the Fourth Amendment for shooting her dog. Reply at 2. In particular, Defendants point out that the entry in this case was in response to an emergency 911 call, in stark contrast to the facts in Hells Angels, in which the officers had an entire week to plan the entry and knew that they were likely to encounter large dogs that might pose a threat to the officers. This distinction, however, does not persuade the court that the Officers' actions in this case were reasonable as a matter of law, or that they are entitled to qualified immunity on this claim. There are conflicting accounts as to whether Boo Boo acted in a threatening manner. If the jury credits Hoy's account that when he entered the living room Boo Boo was walking behind him in a manner that was not aggressive, and that he signaled to the officers to wait so that he could retrain Boo Boo, it may reasonably conclude that the Fourth Amendment was violated, especially in light of the undisputed facts that the officers did not ask Hoy or Silva at any time to restrain Boo Boo and that they were aware that there was a dog inside the house. In any event, the existence of disputed material facts regarding the events that led up to Boo

Boo's shooting preclude summary judgment, either as to whether Defendants violated Silva's Fourth Amendment rights or as to the question of qualified immunity on that claim.

IV. CONCLUSION

For the reasons stated above, Defendants' Motion is GRANTED in part and DENIED in part. In particular, the Motion is GRANTED as to all of Plaintiffs' claims against the City of San Leandro, Police Chief Ian Willis and Officer Huckaby, as well as Plaintiffs' claims based on the Fourteenth and Fifth Amendments. The Motion is DENIED as to Plaintiffs' Fourth Amendment claims based on the alleged unreasonable entry into the Residence, the alleged use of excessive force against Hemphill, the alleged unreasonable detention of Hoy and Silva and the alleged unreasonable shooting of Boo Boo, which shall proceed to trial.

IT IS SO ORDERED.

Dated: September 29, 2010