James Denby v. David Engstrom

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 5 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES W. DENBY, No. 23-15658

Plaintiff-Appellee, D.C. No. 2:17-cv-00119-SPL

v.

MEMORANDUM*

DAVID ENGSTROM; et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Submitted February 5, 2025**

San Francisco, California

Before: MURGUIA, Chief Judge, CHRISTEN, Circuit Judge, and LEFKOW,***

District Judge.

This case concerns Plaintiff James Denby’s claim that the defendants

violated his Fourth and Fourteenth Amendment rights when law enforcement

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

***

The Honorable Joan H. Lefkow, United States District Judge for the

Northern District of Illinois, sitting by designation.

officers destroyed his house and personal property while executing a warrant to

search his residence for another man, Abram Ochoa. Denby brought claims

pursuant to 42 U.S.C. § 1983 against the municipality and thirteen individual

officers, all but five of whom have been dismissed: David Engstrom, Rory Skedel,

Chris Lapre, Brian Gragg, and Jacob Robinson (collectively, Defendants).

Defendants appeal the district court’s denial of their motion for summary

judgment, arguing they are entitled to qualified immunity on Denby’s two

remaining claims: (1) that Defendants violated his Fourth and Fourteenth

Amendment rights by using unnecessary force when executing a search warrant,

resulting in the destruction of property, and (2) that Defendants violated his

constitutional rights because they had the opportunity to intercede to stop the

destruction of his property, but failed to do so.1 The parties are familiar with the

facts, and we recount them only as necessary to resolve the issues on appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291 for interlocutory orders

denying qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), but

only “[t]o the extent the district court’s order denies summary judgment on purely

legal issues,” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per

1

We previously affirmed the denial of Defendants’ motion to dismiss on the basis

of qualified immunity. Denby v. Engstrom, No. 20-16319, 2021 WL 2885846 (9th

Cir. July 9, 2021).

2

curiam). Within those jurisdictional confines, this Court “review[s] de novo the

denial of a motion for summary judgment predicated on qualified immunity.”

Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018). We affirm.

1. If disputed facts are viewed in Denby’s favor, a jury could decide that

defendants used excessive force in violation of the Fourth and Fourteenth

Amendments. “[O]fficers executing a search warrant occasionally ‘must damage

property in order to perform their duty.’” Liston v. County of Riverside, 120 F.3d

965, 979 (9th Cir.), as amended (Oct. 9, 1997) (quoting Dalia v. United States, 441

U.S. 238, 258 (1979)). But “unnecessarily destructive behavior, beyond that

necessary to execute [a] warrant[] effectively, violates the Fourth Amendment.”

San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d

962, 974 (9th Cir. 2005) (quoting Liston, 120 F.3d at 979).

Viewing disputed facts in Denby’s favor, the degree of force and resulting

property damage far exceeds that in cases in which we have affirmed a trial court’s

denial of qualified immunity. See Hells Angels, 402 F.3d at 974–75 (denying

qualified immunity where officers executing a search warrant for Hells Angels

insignia cut a mailbox off its post, jack-hammered the sidewalk outside the

clubhouse, and broke a refrigerator); Mena v. City of Simi Valley, 226 F.3d 1031,

1035–41 (9th Cir. 2000) (denying qualified immunity where officers executing a

search warrant for weapons broke the door of a home with a battering ram,

3

unnecessarily broke down two unlocked doors, and kicked in an open patio door).

Here, the warrant authorized police to search the premises only to find and arrest

Ochoa. After officers executed the warrant, it is undisputed Denby’s home

sustained the following damage: all exterior windows were broken, and the chain-

link fence and front door were destroyed, as were Denby’s PT Cruiser and another

vehicle, all furniture in the home, the appliances, televisions, cushions, pillows,

window coverings, shower doors, bathroom mirrors, a toilet, artwork, heirlooms,

family pictures, clothes, and antiques. 2 Many of these items were too small to hide

Ochoa. See Maryland v. Buie, 494 U.S. 325, 334–35 (1990) (permitting sweep of

home incident to arrest “only to [conduct] a cursory inspection of those spaces

where a person may be found”). The district court correctly concluded that a jury

could decide the use of force was unreasonable because Defendants’ tactics caused

the destruction of numerous objects too small to hide Ochoa, and were therefore

outside the scope of the warrant. See Hells Angels, 402 F.3d at 971.

It is also undisputed that officers abandoned Denby’s residence without

notifying Denby of the danger posed by the contaminants, or taking steps to

decontaminate the residual tear gas and pepper spray from Defendants’ use of

chemical munitions. The record contains no explanation for this decision, which

2

Defendants deny that the force they used was excessive, but they do not deny that

the damage resulted from their search. Hence, the question at trial will be whether

Defendants’ use of force was unreasonable under the circumstances.

4

violated Pinal County Sheriff’s Office SWAT Manual policy. Denby contends this

left his home uninhabitable, injured him, prevented him from stopping water that

was running from a toilet that was shattered by the officers’ tactics, and resulted in

the destruction of his home.

As the district court noted, factual disputes remain for the jury regarding

whether and when the search became unreasonable.3 We do not have jurisdiction

over “which facts the parties might be able to prove.” Foster, 908 F.3d at 1210

(quoting Johnson v. Jones, 515 U.S. 304, 311 (1995)). Because the excessive force

inquiry here “requires a jury to sift through disputed factual contentions, and to

draw inferences therefrom,” summary judgment is not appropriate. Avina v.

United States, 681 F.3d 1127, 1130 (9th Cir. 2012).

2. The district court sufficiently “examine[d] the specific factual allegations

against each individual defendant,” Cunningham v. Gates, 229 F.3d 1271, 1287

3

Some of the progressively escalating tactics Defendants used to apprehend Ochoa

may have been reasonable at the outset. See 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.”). But a jury could conclude that at some point over the seven-hour

incident (with no response from, or sighting of, Ochoa), the continued and

escalating use of force became unreasonable. Cf. id. at 396–97 (noting that the

reasonableness calculus must account for “split-second judgments” in “tense,

uncertain, and rapidly evolving” circumstances). The record evidence suggests

that the perceived immediacy of the threat Ochoa posed decreased over time, such

that officers wandered casually through the yard and deemed it safe to approach

the house’s windows and doors before Ochoa was discovered in the backyard.

5

(9th Cir. 2000), and correctly concluded that, viewed in Denby’s favor, the

evidence shows that each Defendant was at least an “integral participant” in the

search of Denby’s residence, see Peck v. Montoya, 51 F.4th 877, 891 (9th Cir.

2022).

Engstrom, Lapre, and Skedel: Viewed in the light most favorable to Denby,

the unexplained destruction of furniture and objects too small to hide Ochoa would

support a finding that each of the entry team defendants employed unnecessarily

destructive force during their search of Denby’s home. See Mena, 226 F.3d at

1041; Maryland, 494 U.S. at 334–35. Even if Engstrom, Lapre, and/or Skedel did

not personally use excessive force, the district court correctly identified that each

could have been at least an integral participant in the use of unreasonable force

because they “knew about and acquiesced in the constitutionally defective conduct

as part of a common plan with those whose conduct constituted the violation.”

Peck, 51 F.4th at 891. Defendants conceded that the “SWAT members met to

develop a plan to approach the residence, enter the structure, and clear the

interior.” A jury could conclude Engstrom, Lapre, and Skedel were part of that

meeting. Cf. Sjurset v. Button, 810 F.3d 609, 619 (9th Cir. 2015) (holding that

officers not “privy to any discussions, briefings, or collective decisions” were not

6

integral participants).4

Gragg: The undisputed facts would support a finding that Gragg, who

commanded the SWAT units, was an integral participant because he “set in motion

a series of acts by others which [Gragg] knew or reasonably should have known

would cause others to inflict” a Fourth Amendment injury. Peck, 51 F.4th at 891.

Gragg was involved in SWAT’s planning meeting and decision to enter the

residence and clear the interior. A fact finder must resolve whether each decision

to escalate the use of force was reasonable under the circumstances. Avina, 681

F.3d at 1130. Finally, the SWAT Manual states that the “designated team leader

will be responsible for initiating decontamination procedures as appropriate.” The

record indicates that Gragg, along with SWAT team leaders Lapre and Skedel,

directed or approved the abandonment of Denby’s contaminated residence without

4

A jury also could find that Skedel used excessive force when deploying two

noise-flash diversionary devices (NFDDs) during the entry team’s search, and that

Engstrom and Lapre were integral participants in that action. See Boyd v. Benton

County, 374 F.3d 773, 777–80 (9th Cir. 2004). A jury could find Lapre used

excessive force by shooting some or all of the 22 canisters of chemical munitions

into a 1,300 square foot house when a K-9 unit was available, and that Skedel was

an integral participant for providing armed cover to Lapre during that action. See

Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) (citing Boyd, 374 F.3d at

780) (recognizing that officers who provide “armed backup during an

unconstitutional search” satisfy the integral participant rule). Finally, a jury could

find Engstrom’s continued use of force was unreasonable after he noticed

movement under a tarp in the backyard and failed to investigate it. See Foster, 908

F.3d at 1207 (“[W]e lack jurisdiction to consider questions of evidentiary

sufficiency on interlocutory review.”).

7

following the decontamination procedures in the Pinal County Sheriff’s Office

SWAT Manual.

Robinson: The district court correctly concluded that a jury could find

Robinson was an integral participant given his role in providing armed cover for

the other Defendants during the search. See Hopkins, 573 F.3d at 770.

Specifically, if a jury decides that Lapre’s use of 22 canisters of chemical

munitions constituted unreasonable force, they could also hold Robinson

accountable for providing armed cover to Lapre during the deployment. Robinson

“cleared the scene” after SWAT personnel took Ochoa into custody, suggesting

that he had the opportunity to intervene as the officers decamped from the premises

without following the SWAT Manual decontamination procedures.

3. Denby’s “Fourth Amendment right to be free from unreasonably

destructive searches was clearly established at the time of the search.” Denby v.

Engstrom, No. 20-16319, 2021 WL 2885846, at *3 (9th Cir. July 9, 2021). This is

a case in which “a general constitutional rule already identified in the decisional

law . . . appl[ies] with obvious clarity to the specific conduct in question.” Taylor

v. Riojas, 592 U.S. 7, 9 (2020) (per curiam) (quoting Hope v. Pelzer, 536 U.S. 730,

741 (2002)); see also Andrew v. White, 604 U. S. ____ (2025), 2025 WL 247502,

at *4 (Jan. 21, 2025) (citing Hope and affirming that “[g]eneral legal principles can

constitute clearly established law” in the rigorous AEDPA context). Existing

8

precedent in Mena, 226 F.3d at 1041, and Hells Angels, 402 F.3d at 974, “place[s]

the . . . constitutional question beyond debate,” White v. Pauly, 580 U.S. 73, 79

(2017). These cases specifically and clearly establish that similarly destructive

force used in a home during the execution of a search warrant amounts to a

constitutional violation, and the force used here went above and beyond the force

used in those cases. Moreover, the Pinal County Sheriff’s Office SWAT Manual

should have caused Defendants to question whether their act of leaving a non-

suspect’s residence contaminated with tear gas without informing him of the

dangers was unreasonable. The district court did not err in concluding that the

Defendants “had fair notice that [their] conduct was unlawful but still engaged in

it.” Wright v. Beck, 981 F.3d 719, 734 (9th Cir. 2020).

4. Finally, we affirm the district court’s denial of Defendants’ request for

summary judgment on Denby’s failure to intercede claim. “‘[P]olice officers have

a duty to intercede when their fellow officers violate the constitutional rights of a

suspect or other citizen’ . . . if they had an opportunity to intercede.” Cunningham,

229 F.3d at 1289–90 (quoting United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th

Cir. 1994), rev’d on other grounds, 518 U.S. 81 (1996)). For the same reasons a

jury could find each Defendant was at least an integral participant, the jury could

also decide that each Defendant had a “realistic opportunity to intercede” in the

violation of Denby’s Fourth Amendment Rights. See id. at 1290; see, e.g., Hughes

9

v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) (combining the integral

participant and failure to intercede analysis). “By 201[4], we had clearly

established that ‘police officers have a duty to intercede when their fellow officers

violate the constitutional rights of a suspect or other citizen.’” Tobias v. Arteaga,

996 F.3d 571, 583–84 (9th Cir. 2021) (quoting Cunningham, 229 F.3d at 1289);

see also Bracken v. Okura, 869 F.3d 771, 778–80 (9th Cir. 2017).

AFFIRMED. Defendants-appellants to bear costs.

10