Sandoval v. Las Vegas Metropolitan Police Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS RODRIGUEZ SANDOVAL; No. 12-15654

ADRIANA RODRIGUEZ, individually

and as Guardian Ad Litem for Kenya D.C. No.

Rodriguez, a Minor; HENRY BRIAN 2:10-cv-01196-

RODRIGUEZ; MARTHA LEAL, as RCJ-PAL

Guardian Ad Litem for Jordhy Leal,

a Minor; MONICA MORENO, as

Guardian Ad Litem for David OPINION

Madueno, a Minor,

Plaintiffs-Appellants,

v.

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; CLARK COUNTY,

NEVADA; JAY R. ROBERTS, Sgt.;

MICHAEL DUNN, Officer;

CHRISTOPHER G. KOHNTOPP,

Officer; JUSTIN BYERS, Officer;

TROY GIVENS, Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted

October 17, 2013—San Francisco, California

2 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

Filed July 1, 2014

Before: Sidney R. Thomas and M. Margaret McKeown,

Circuit Judges, and Virginia M. Kendall, District Judge.*

Opinion by Judge McKeown

SUMMARY**

Civil Rights

The panel reversed in part and affirmed in part the district

court’s summary judgment and remanded in an action

brought pursuant to 42 U.S.C. § 1983 and Nevada state law

alleging that Las Vegas Metropolitan Police officers violated

plaintiffs’ constitutional rights when they entered, without a

warrant, plaintiffs’ home looking for intruders, handcuffed

and detained the teenage boys inside, and shot and killed the

family dog.

Reversing the district court’s summary judgment in favor

of the police officers, the panel held that taken in the light

most favorable to plaintiffs, officers did not have probable

cause to enter and search the residence for either evidence of

burglary or the lesser offense of prowling. The panel held that

police officer Michael Dunn was not entitled to qualified

*

The Honorable Virginia M. Kendall, District Judge for the U.S. District

Court for the Northern District of Illinois, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 3

immunity because it was clearly established law as of 2009,

that the warrantless search of a dwelling must be supported

by either the exigency or the emergency aid exception. The

panel further held that officers were not entitled to qualified

immunity on plaintiffs’ excessive force claim and were not

entitled to Nevada statutory immunity on certain state law

claims for intentional infliction of emotional distress, assault

and battery and false imprisonment.

Affirming the district court’s summary judgment in favor

of the police officers on plaintiffs’ claim for deprivation of

familial association, the panel held that a separation between

a father and his son for forty minutes did not shock the

conscience and that the shooting of the family dog did not fall

within the ambit of deprivation of a familial relationship. The

panel further determined that there was no evidence of an

equal protection violation and that plaintiffs’ bare-bones

allegations of municipal liability were insufficient.

COUNSEL

E. Brent Bryson (argued), Ales & Bryson, Las Vegas,

Nevada, for Plaintiffs-Appellants.

Craig R. Anderson (argued) and Joshua L. Benson, Marquis

Aurbach Coffing, Las Vegas, Nevada, for Defendants-

Appellees.

4 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

OPINION

McKEOWN, Circuit Judge:

This appeal arises out of the events of October 24, 2009,

when the Las Vegas police, on the lookout for two white

males, mistook a teenaged boy and his friends, all Hispanic,

for intruders in the boy’s own home. In the course of the

afternoon, police pointed guns at the boys, entered the home

without a warrant, handcuffed and detained the boys and

others, and shot and killed the family dog. The family (“the

Sandovals”1) brought suit against the police, alleging

violations of their constitutional rights and related rights

under state law. The district court granted summary judgment

to the police department and the officers on all claims. We

reverse the judgment on the Fourth Amendment claims for

excessive force and unlawful entry and on certain of the state

law claims, and affirm the judgment on the remaining claims.

BACKGROUND

On October 24, 2009, the Las Vegas Metropolitan Police

Department (“LVMPD”) received a 911 phone call from a

witness, Albert Schouten (“Schouten”), who said that he saw

two white males between ages 18 and 20, one carrying a

skateboard, jump a fence and start looking through the

1

Although not all of the plaintiffs-appellants are related, at times we

refer to them, for clarity, collectively as “The Sandovals.” This group

includes Jesus Rodriguez Sandoval, the father; Adriana Rodriguez, the

mother, individually and as guardian ad litem for their eleven-year-old

daughter, Kenya; Henry Brian Rodriguez, their eighteen-year-old-son;

Martha Leal, as guardian ad litem for Jordhy Leal, her sixteen-year-old

son; and Monica Moreno, as guardian ad litem for David Madueno, her

fifteen-year-old son.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 5

windows of a house in the neighborhood. There had been a

recent pattern of youths burglarizing homes in the area.

Sergeant Roberts and Officer Dunn of the LVMPD, and

later several of their colleagues, responded to the call, and

arrived at the residence of Jesus Sandoval, Adriana

Rodriguez, and their children.2 The officers entered the yard

and saw open windows, doors, and gates, consistent with

residential use, but did not identify any point of entry

indicators suggesting a burglary.

Roberts looked through an open bedroom window and

saw “three young males” who were “younger than 18 to 20,”

and were “about 14, 15.”3 Roberts conceded that the boys—

Henry, then 18, who lived at the house, and his two friends,

David, then 15, and Jordhy, then 16— “did not match” two of

the three metrics that Schouten had given him: the number of

suspects or the age of the suspects. As to race, Roberts agreed

that the suspects, who were Hispanic, were “not the color of

a white person that you typically think of as being white,” and

that “[w]hen [he] saw them for the first time [he] thought they

were either dark-skinned white males or Hispanic.” Two of

the boys later testified that they had never before been

2

On arrival, Roberts spoke with Schouten. There are no records of that

conversation, but in a statement to the police after the incident, Schouten

reported that before the officers arrived, “[t]he subject with the skateboard

came back over the fence and walked to [a different street] and was picked

up by a maroon SUV.” The police report noted that one subject was “H,”

meaning, according to Roberts, “gone on arrival, meaning . . . the guy . . .

can’t see him anymore.”

3

Roberts later contradicted this testimony and said that they “looked like

they could be 18 to 20,” but also testified several times that the boys did

not match Schouten’s description of their age.

6 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

described as white or confused for a white person. The boys

were listening to music, watching TV, and playing video

games.

Roberts did not ask the boys any basic identifying

questions. Instead, Roberts pointed his gun at the head of one

of the boys through the bedroom window, and gave the boys

conflicting commands, telling them “don’t move,” “[l]et me

see your hands,”and “turn the music down.” Roberts told

Jordhy to turn down the music, which Jordhy tried to do, and

then told him, “I told you don’t move, I could shoot you” or

“I’ll f***ing shoot you.” Roberts testified that the boys did

not comply with his commands at this stage, but that they

complied at all later stages. The boys, to the contrary,

testified that they followed the officers’ commands at this

point and throughout the events that followed. Henry, for

example, reported that when Roberts appeared in the window,

the boys “all froze,” that they “didn’t move,” and that he

“didn’t want to risk moving at all.” Roberts acknowledged

that the boys may not have heard certain of his commands.

Roberts’s colleague, Dunn, entered the house through the

sliding glass door. Dunn, who could not see the boys,

observed his partner pointing a gun and giving commands to

someone through the window. He said that he entered the

house because he thought that Roberts “could not control the

suspects,” since he heard Roberts issue commands more than

once and heard the tone of Roberts’s voice change. As Dunn

entered the house, he began giving commands at the same

time as Roberts, and recognized that this could have created

confusion.

Roberts ordered the boys to exit the bedroom. Henry

asked to be allowed to put away the family dog, Hazel, a pit

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 7

bull, before letting the officers into the home, but Roberts did

not allow him to do so.

As the boys exited the bedroom, Hazel slipped in front of

Henry and Jordhy, but continued to walk behind David,

according to David’s testimony. Dunn shot Hazel in the face,

twelve inches from David, and in the direction of Henry and

Jordhy. The officers ordered David and Jordhy to the floor,

handcuffed them, and brought them outside. Henry was

ordered outside, but was not cuffed until later, as he was

carrying Hazel, who was bleeding to death. The boys testified

that the handcuffing and other treatment by the officers

caused them pain.

Only after the boys were cuffed and exiting the house did

the officers begin to make their first inquiries as to the boys’

right to be in the home.

Henry called his father, Jesus Sandoval (“Sandoval”), and

told him that the police had entered the home and shot Hazel.

Henry also asked an officer to call the animal hospital, but the

officer said, “if you don’t shut the f*** up, I’m going to let

your dog die right there.” Sandoval rushed home with his

twelve-year-old daughter, Kenya, and found two of the boys

handcuffed on the lawn, a swarm of officers and patrol cars,

and Henry, covered in Hazel’s blood. Sandoval, who was

walking with a cane because of back surgery fifteen days

earlier, thought his son had been shot, and tried to go to him.

When officers told him he could not enter the property, he

became upset. Roberts ordered officers to handcuff Sandoval.

As the officers pushed Sandoval against a squad car,

Sandoval said, “please don’t do this . . . I had a back surgery

about 15 days ago. . . . I had major back surgery.” The

8 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

officers grabbed Sandoval’s arm to handcuff him, “pull[ed

Sandoval] up by the arm,” and, “holding [Sandoval] from

[his] belt or [his] pants,” “pushed” or “threw” Sandoval inside

the patrol car. Sandoval began “screaming” that he was in

“severe pain” and that he needed his medication. Sandoval

was detained in the patrol car for 25 to 30 minutes, still

“screaming . . . in pain,” before officers responded to his

requests for medication. Kenya witnessed all of these events.

When Animal Control arrived at the house, Henry ran to

the truck and placed Hazel inside. Henry was immediately

handcuffed by the police and was detained in the back of a

patrol car for 30 to 40 minutes. Soon afterwards, Hazel died.

None of the family members or the boys were cited or

charged with any crime, and Dunn testified that the boys

committed no crime. The officers eventually “just left.” Dunn

admitted that if he or Roberts had asked basic identifying

questions, the entire incident would not have happened.

The Sandovals brought suit under 42 U.S.C. § 1983

against the LVMPD and several officers, including Roberts

and Dunn, in their individual and official capacities. They

alleged violations of their Fourth, Fifth, and Fourteenth

Amendment rights to due process, equal protection, freedom

from excessive force, freedom from pre-conviction

punishment, and familial association. They also brought state

law claims for intentional infliction of emotional distress; for

assault and battery as to the three boys and Sandoval; and for

false imprisonment as to the three boys, Sandoval, and

Kenya.

The district court granted summary judgment in favor of

the LVMPD and its officers on all claims, primarily on the

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 9

basis of qualified immunity under federal law and

discretionary function immunity under Nevada state law.

ANALYSIS

FRAMEWORK FOR QUALIFIED IMMUNITY ANALYSIS

Our de novo review of a grant of summary judgment

based on qualified immunity involves two distinct steps.

Government officials are not entitled to qualified immunity

if (1) the facts “[t]aken in the light most favorable to the party

asserting the injury . . . show [that] the [defendants’] conduct

violated a constitutional right” and (2) the right was clearly

established at the time of the alleged violation. Saucier v.

Katz, 533 U.S. 194, 201 (2001). We may address these two

prongs in either order. Pearson v. Callahan, 555 U.S. 223,

236 (2009). Whether the defendants violated a constitutional

right and whether the right was clearly established at the time

of the violation are questions of law. Serrano v. Francis,

345 F.3d 1071, 1080 (9th Cir. 2003). If “genuine issue[s] of

material fact exist[] that prevent[] a determination of

qualified immunity at summary judgment, the case must

proceed to trial.” Id. at 1077.

I. FOURTH AMENDMENT UNLAWFUL ENTRY CLAIM

We first consider whether Dunn is entitled to qualified

immunity on the Sandovals’ claim that Dunn’s entry into

their home constituted an unreasonable search in violation of

the Fourth Amendment. Although the pleadings are not a

model of clarity, we adopt the district court’s view that the

10 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

Sandovals pleaded an unlawful entry claim with respect to the

home.4

A. CLEARLY ESTABLISHED RIGHT

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const.

amend. IV. Warrantless searches of the home or the curtilage

surrounding the home are “presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586 (1980). To make a

lawful entry into a home in the absence of a warrant, officers

must have either probable cause and exigent circumstances or

an emergency sufficient to justify the entry. Struckman,

603 F.3d at 738; see also Kirk v. Louisiana, 536 U.S. 635,

638 (2002) (per curiam). These exceptions to the warrant

requirement are “narrow and their boundaries are rigorously

guarded.” Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.

2009) (internal quotation marks omitted). The police must

“show that a warrant could not have been obtained in time,”

Struckman, 603 F.3d at 738 (internal quotation marks

omitted), and must demonstrate “specific and articulable facts

to justify the finding” of either exigent circumstance or

emergency. LaLonde v. Cnty. of Riverside, 204 F.3d 947, 957

(9th Cir. 2000).

4

The Sandovals’ enclosed back yard, which the officers entered just

before entering the home, was curtilage subject to Fourth Amendment

protection. United States v. Struckman, 603 F.3d 731, 738–39 (9th Cir.

2010) (noting that “a small, enclosed yard adjacent to a home in a

residential neighborhood” is curtilage). Nevertheless, the claim on appeal

is restricted to Dunn’s entry into the home, since the Sandovals challenge

neither the officers’ entry into the curtilage nor Roberts’s later entry into

the home.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 11

For qualified immunity purposes, in determining whether

a constitutional right was clearly established, it is not enough

that there is a generally established proposition that excessive

use of force is unlawful. See Saucier, 533 U.S. at 202. Rather,

the “contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Id. (internal quotation marks omitted). It

is, however, “not necessary that the alleged acts have been

previously held unconstitutional, as long as the unlawfulness

[of defendant’s actions] was apparent in light of pre-existing

law.” San Jose Charter of Hells Angels Motorcycle Club v.

City of San Jose, 402 F.3d 962, 977 (9th Cir. 2005)

(alterations in original) (internal quotation marks omitted).

Because it is “clearly established Federal law that the

warrantless search of a dwelling must be supported by

probable cause and the existence of exigent circumstances”

or emergency, the officers are not entitled to qualified

immunity unless their entry was justified by one of the two

exceptions. Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir.

2001); see also Hopkins, 573 F.3d at 772. We consider each

in turn.

B. VIOLATION OF CONSTITUTIONAL RIGHT

1. Warrantless Entry: Exigency Exception

The exigency exception permits warrantless entry where

officers “have both probable cause to believe that a crime has

been or is being committed and a reasonable belief that their

entry is necessary to prevent . . . the destruction of relevant

evidence, the escape of the suspect, or some other

consequence improperly frustrating legitimate law

12 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

enforcement efforts.” Hopkins, 573 F.3d at 763 (internal

quotation marks omitted).

We considered the bounds of the exigency exception in

Struckman, 603 F.3d at 739–40, 743–44. In that case, we held

that officers did not have probable cause for burglary or

attempted burglary where “upon arriving at the house, the

officers knew only that a neighbor had reported seeing a

white male wearing a black jacket throw a red backpack over

a fence and climb over the fence into the backyard when the

owners were reportedly not home,” where there were “no

indications that Struckman[, the arrestee, who matched the

informant’s description,] had entered or attempted to enter the

home,” and where “there were no signs of forced entry or the

presence of any tools consistent with a possible burglary.” Id.

at 740. Nevertheless, the presence of a person matching the

caller’s description led us to “assume[,] although the

assumption [wa]s weak,” that the officers had probable cause

for the lesser offense of criminal trespass. Id. at 743; see also

Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995)

(holding that officers did not have probable cause to enter a

house on the basis of a neighbor’s report of suspicious

activity and an open door), abrogated on other grounds by

United States v. Ramirez, 523 U.S. 65, 69-70 (1998).

Taking the facts in the light most favorable to the

Sandovals, we conclude that the officers here did not have

probable cause for either burglary or the lesser offense of

“prowling.” Saucier, 533 U.S. at 201. Simply put, this case is

not Struckman.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 13

When the officers arrived at the house, responding to a

“prowler call”5 and aware of Schouten’s tip, they observed

signs that Dunn admitted were consistent with either lawful

or unlawful activity.6 In contrast to Struckman, 603 F.3d at

740, in which officers encountered a suspect exactly

matching the informant’s description—white man, black

jacket, red backpack—the officers here encountered three

boys who did not match the informant’s description in race,

number, or age. Significantly, one of the two suspects had

already fled over the fence, so the scene the officers

encountered was a complete mismatch with the description in

the tip call. The officers gathered no information to suggest

that the boys were on the premises illegally. Indeed, neither

the physical signs at the scene nor the boys’ behavior—sitting

5

Dunn stated that the officers were responding to a “prowler call,” not

a “burglary call,” and that a prowler call is a misdemeanor call. Roberts,

reading the dispatch record, testified that the call was a “403,” which is a

misdemeanor prowler call, revising his earlier testimony.

Despite later deposition testimony that the call had been upgraded to

a possible burglary, the police continued to characterize the incident as a

“prowler call” even after it had ended. See Statement of Albert Schouten

(listing, in section of form completed by police officer, the “specific

crime” as “prowler”). The form was completed at 3:15 p.m. on the day of

the incident, approximately an hour and twenty minutes after the incident

was called in.

6

Roberts testified that the factors the officers saw upon arrival—an open

gate, an open window, an open shed, an open door, an open slider—did

not give rise to probable cause to believe that a crime was being

committed, and that he “would hope [his colleagues] would have the same

opinion as [he did].” Cf. Burrell v. McIlroy, 464 F.3d 853, 857 n.2 (9th

Cir. 2006) (amended opinion) (noting that “[b]ecause the detectives were

working in close concert, a court may consider the collective knowledge

of these detectives in considering their beliefs concerning probable cause

or reasonable suspicion”).

14 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

on a bed, watching television, listening to music, and playing

video games—was consistent with a burglary in progress. In

fact, the officers observed open doors and open windows

which they described as consistent with residential use. The

officers had no basis, either at the moment they breached the

curtilage or at the moment Dunn entered the house, to

conclude that the boys had violated any laws.

We note that the Supreme Court’s recent qualified

immunity cases do not shed light on the circumstances here.

For example, in Stanton v. Sims, 134 S. Ct. 3 (2013) (per

curiam), the Supreme Court addressed the nationwide

division “on the question whether an officer with probable

cause to arrest a suspect for a misdemeanor may enter a home

without a warrant while in hot pursuit of that suspect.” Id. at

5. In this case, unlike in Stanton, neither probable cause nor

hot pursuit was established.

Likewise, we recognize that “[n]ormally, when officers

suspect a burglary in progress, they have no idea who might

be inside and may reasonably assume that the suspects will,

if confronted, flee or offer armed resistance.” Frunz v. City

of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006). So long as

the officers have established probable cause for a burglary,

“[i]n such exigent circumstances, the police are entitled to

enter immediately, using all appropriate force.” Id. But here,

the officers arrived at the house to investigate a misdemeanor

“prowling” call, rather than a felony “burglary” or “attempted

burglary” call, and never had probable cause for prowling, let

alone for a burglary. This distinction matters, because

whereas burglary and attempted burglary are considered to

carry an inherent risk of violence, see, e.g., James v. United

States, 550 U.S. 192, 203–04 (2007), “prowling” is not

considered a violent crime, cf. Medway v. Cate, 756 F. Supp.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 15

2d 1280, 1297 (S.D. Cal. 2010). The officers were therefore

not entitled to enter the house without a warrant under Frunz.7

In sum, Dunn’s warrantless entry into the home was not

supported by probable cause, and thus violated the

Sandovals’ rights. See, e.g., Kirk v. Louisiana, 536 U.S. 635,

638 (2002) (per curiam) (noting that “police officers need

either a warrant or probable cause plus exigent circumstances

in order to make a lawful entry into a home”). Because it is

“clearly established Federal law that the warrantless search of

a dwelling must be supported by probable cause and the

existence of exigent circumstances,” Bailey, 263 F.3d at

1032; see also Hopkins, 573 F.3d at 772, the officers are not

entitled to qualified immunity unless they can demonstrate

that they entered the curtilage or the house pursuant to the

remaining emergency aid exception to the warrant

requirement.

2. Warrantless Entry: Emergency Aid Exception

The emergency aid exception typically has been

understood to permit law enforcement officers to “enter a

home without a warrant to render emergency assistance to an

injured occupant or to protect an occupant from imminent

injury.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006). We assess officers’ actions “from the perspective of

a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Ryburn v. Huff, 132 S. Ct. 987, 992

(2012) (per curiam) (internal quotation marks omitted).

7

The district court also conflated the standard for warrantless entry in

suspected burglary cases, see Frunz, 468 F.3d at 1145, with the standard

for the reasonable use of force, Graham, 490 U.S. at 395–96.

16 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

Before Brigham City, our caselaw considered officer

safety as part of the exigency exception, for which probable

cause is a prerequisite. See, e.g., United States v. Brooks,

367 F.3d 1128, 1133 n.5, 1135 (9th Cir. 2004). Following

Brigham City, the cases counsel that officer safety may also

fall under the emergency rubric. United States v. Snipe,

515 F.3d 947, 952 (9th Cir. 2008) (holding that threat to

officer safety falls under the emergency exception

requirement); see also Ryburn, 132 S. Ct. at 990–91 (holding

that a “reasonable police officer could read” Brigham City

and related decisions “to mean that the Fourth Amendment

permits an officer to enter a residence if the officer has a

reasonable basis for concluding that there is an imminent

threat of violence,” and noting that the officers in Ryburn

“could have come to the conclusion that there was an

imminent threat to their safety and the safety of others.”). We

need not determine whether officer safety should be

understood, post-Brigham City, as both emergency and

exigency, or as falling in only one of the two categories.

Either way, there is no objective basis for applying the

emergency aid exception to the Sandovals’ case.

The officers do not contend that Dunn entered the home

to protect anyone within the home, and the record, taken in

the light most favorable to the Sandovals, does not support an

objective view that Dunn entered the house in service of

officer safety. Roberts testified that he saw no weapons in the

boys’ hands and that he “never perceived a threat from the

kids to [his] personal safety.” The boys testified that they

obeyed the officers’ commands at all times. Even crediting

Dunn’s testimony that he felt that his partner “couldn’t

control the [boys]” from the window, or that he heard the tone

of his partner’s voice change, such a “concern,” particularly

if juxtaposed with Roberts’s lack of concern about a threat,

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 17

hardly supports a claim that entry was necessary to protect the

officers from imminent injury.

Dunn’s further testimony did not mention particularized

or imminent threats of violence, as the emergency aid

exception demands. See United States v. Ojeda, 276 F.3d 486,

488 (9th Cir. 2002) (per curiam) (noting that, where officers

seek to justify a warrantless entry on the basis of “a risk of

danger to the arresting officers or third persons,” the

“government bears the burden of showing specific and

articulable facts to justify” invoking the exception) (internal

quotation marks omitted). Dunn’s only mention of a threat

was in terms so general that they could apply to any

interaction involving suspects in a home: Dunn stated

“[b]ecause he’s inside—the subjects are inside, he [Roberts]

is outside. There’s multiple rooms that suspects could run to.

Possibly ambush us. Kill us. Unknown what weapons there

are in the house or what they have hidden inside that

residence at the time could possibly hurt us. So we had to

control the situation. And he could not control it from outside

the residence.” Construing such testimony as justifying entry

would eviscerate the warrant requirement and support

warrantless entry in every home burglary or prowler situation.

Simply invoking the unknown in these circumstances is not

sufficient. Indeed, Roberts’s clear statement about the lack of

any perceived threat best sums up the reality of the afternoon.

At best, this conflict raises a factual issue that cannot be

resolved against the Sandovals at this stage.

As we noted above, once officers have established

probable cause for a burglary, the exigent circumstances

exception may entitle them to enter a house without a

warrant. But a possible burglary confers no automatic

entitlement to enter under the emergency exception, nor does

18 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

a prowling investigation carry an inherent risk of violence.

Cf. Medway, 756 F. Supp. 2d at 1297. To the extent that the

district court’s holding that Dunn had a “reasonable belief

that an imminent threat of violence existed” relied on Frunz,

or on the finding that “[t]here were numerous indications that

a burglary may have been in progress,” the district court

erred.

This record stands in stark contrast to cases in which we

have held, under the emergency aid exception, that officers

had an “objectively reasonable basis for concluding that there

was an immediate need to protect others or themselves from

serious harm.” Snipe, 515 F.3d at 952. In Michigan v. Fisher,

the Supreme Court held that an emergency existed sufficient

to justify warrantless entry where officers arrived at a house

after a report that “a man was ‘going crazy,’” and arrived to

find “a household in considerable chaos,” including broken

house windows, shattered glass on the ground, a smashed

truck with blood on the hood, blood on the house door, and a

man, visible through a window, “inside the house, screaming

and throwing things.” 558 U.S. 45, 45–46 (2009) (per

curiam). In Ryburn, the Court held that officers could invoke

the emergency aid exception where, after arriving at the home

of a high school student who reportedly threatened to “‘shoot

up’ a school,” officers encountered facts, including the

suspected presence of weapons in the home and suspicious

behavior on the part of the student’s mother, that “led them to

be concerned for their own safety and for the safety of other

persons in the residence.” 132 S. Ct. at 988, 990, 992.

By contrast, Dunn and Roberts arrived at a home to find

a pattern consistent with either lawful or unlawful activity,

but with no evidence of weapons, violence, or threats. The

testimony that a reasonable officer would have perceived an

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 19

immediate threat to his safety is, at a minimum, contradicted

by certain portions of the record. The facts matter, and here,

there are triable issues of fact as to whether “violence was

imminent,” id. at 992, and whether Dunn’s warrantless entry

was justified under the emergency exception. We hold that

Dunn is not entitled to qualified immunity because it was

clearly established law as of 2009 that the warrantless search

of a dwelling must be supported by either the exigency or the

emergency aid exception. Cf. Payton, 445 U.S. at 586.

II. FOURTH AMENDMENT EXCESSIVE FORCE CLAIMS

We next consider whether the officers were entitled to

qualified immunity on the Sandovals’ excessive force claims.

The district court dismissed the claims, grounding its decision

in the notion that the officers “reasonably believed Henry,

Jordhy, and David were burglars.”

A. CLEARLY ESTABLISHED RIGHT

Excessive use of force in effectuating a seizure violates

the Fourth Amendment. Graham, 490 U.S. at 388. As with

the unlawful entry claim, we judge the reasonableness of the

use of force from the perspective of a reasonable officer at the

scene, rather than in hindsight. Ryburn, 132 S. Ct. at 992.

Two distinct instances of the use of force are at issue here.

The first question relates to pointing a gun at the head of at

least one of the boys. In Robinson v. Solano County, 278 F.3d

1007, 1014 (9th Cir. 2002) (en banc), we held that police

officers had used excessive force when they drew a gun and

pointed it at the head of an apparently unarmed misdemeanor

subject, a fact pattern similar to that here. The events of this

case took place in 2009, seven years after Robinson. The

20 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

constitutional right was clearly established for qualified

immunity purposes. See also Tekle v. United States, 511 F.3d

839, 845–47 (9th Cir. 2007) (reviewing cases); Frunz,

468 F.3d at 1146 (holding that “[b]ursting through the back

door unannounced with guns drawn and handcuffing the

occupants—the owner for a full hour—was neither necessary

nor reasonable” and that “[n]o reasonable officer familiar

with the law of searches and seizures could have thought

otherwise”).

The second question is whether the officers were on

notice that handcuffing, removing from their residence, and

detaining compliant persons not suspected of any crime, or

alternatively that causing excessive pain while handcuffing or

placing someone into a squad car, constituted excessive force.

Our cases are instructive on this point. In Meredith v. Erath,

we held that an agent was not entitled to qualified immunity

where he handcuffed a nonviolent resident of a house during

an IRS search of the premises, and further that he was not

entitled to qualified immunity where there was a genuine

issue of fact as to whether he handcuffed the resident in a

manner that caused her pain. 342 F.3d 1057, 1061 (9th Cir.

2003); see also Johnson v. Bay Area Rapid Transit Dist.,

724 F.3d 1159, 1175 (9th Cir. 2013) (noting that detaining a

suspected misdemeanant may violate the Fourth Amendment

where there is an insufficient basis to conclude that there is a

“likelihood for ongoing or repeated danger or escalation,” and

listing cases) (internal quotation marks omitted); Tekle,

511 F.3d at 845–47. Meredith reaffirmed that “handcuffing

substantially aggravates the intrusiveness of a detention,”

342 F.3d at 1062 (internal quotation marks omitted), and that

the use of handcuffs must be “justified by the totality of the

circumstances,” id. at 1063 (reviewing cases). After Franklin

v. Foxworth, a “detention conducted in connection with a

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 21

search may be unreasonable if it is unnecessarily painful.”

31 F.3d 873, 876 (9th Cir. 1994). Because the events of this

case took place years after both Meredith and Franklin, the

right to be free from excessive force under the circumstances

relevant here was clearly established for qualified immunity

purposes.

B. VIOLATION OF CONSTITUTIONAL RIGHT

We analyze claims that an officer used excessive force

under an “objective reasonableness” standard, which requires

balancing the “nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham, 490

U.S. at 395–96 (internal quotation marks omitted).

The district court found that the boys and Sandoval stated

claims for excessive use of force, but that governmental

interests in officer safety, investigating a possible crime

scene, and controlling an interaction with possible burglars

outweighed the intrusions upon the Sandovals’ rights.

In reaching this conclusion, the court improperly

“weigh[ed] conflicting evidence with respect to . . . disputed

material fact[s].” T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987); see

also Saucier, 533 U.S. at 201. For instance, the court justified

the use of force against the boys on the grounds that they

were “potentially noncompliant,” and against Sandoval and

Henry on the grounds that they were “acting irrationally” and

“not complying with the officers’ commands,” and that the

police were continuing to investigate a “potential” or

“possible crime scene.”

22 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

Each of these conclusions was based on conflicting

testimony, and drew upon the officers’ version of events

rather than the Sandovals’ testimony, as Saucier requires.

533 U.S. at 201. Taken in the light most favorable to the

Sandovals, the evidence reflects that the boys complied with

the officers’ commands at all times; that the officers detained

Henry despite what they concede was his full compliance

outside the house and despite their knowledge that he had

committed no crime; and that, by the time Sandoval returned

home, the officers knew or had come to assume that Henry

lived in the home and that none of the boys had been in the

house illegally.8 The evidence does not justify the district

court’s conclusion that the officers had a “reasonabl[e]

belie[f] that the three young men were committing a

burglary”9 or that the officers were investigating a “potential

crime scene” during the contested exercises of force.

To be sure, the reasonableness inquiry in the context of

excessive force balances “intrusion[s] on the individual’s

Fourth Amendment interests” against the government’s

8

Roberts stated that he started to realize “maybe these kids aren’t

burglars” after Henry said “you shot my dog,” because “from a

commonsense standpoint, why would a burglary suspect have a dog in a

residence? . . . So I started to think, maybe these aren’t burglary suspects.

Maybe they live there and we need to be— . . . we need to slow

everything down and calm everything.”

Roberts heard Henry outside the residence speaking on the phone to

his father and asking him to return home, and learned from this, if not

from earlier events, that Henry lived at the house. Roberts further stated

that, up to that point, he had “not observe[d] a crime.”

9

As we noted above, see text citing note 8, supra, and as is critical to a

balancing of equities under Graham, 490 U.S. at 395–96, the officers

never had probable cause for a crime bearing an inherent risk of violence.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 23

interests. Graham, 490 U.S. at 396 (internal quotation marks

omitted). But in weighing the evidence in favor of the

officers, rather than the Sandovals, the district court unfairly

tipped the reasonableness inquiry in the officers’ favor. We

reverse the grant of qualified immunity to the officers on the

Sandovals’ excessive force claims.

III. REMAINING FEDERAL CLAIMS

A. FAMILIAL ASSOCIATION CLAIM

The Sandovals claim that the officers deprived them of

the right to familial relations when they kept Sandoval and his

son Henry separated for forty minutes, when they used

excessive force, and when they shot the dog, Hazel. Although

parents have a “fundamental liberty interest” in

companionship with their children, Kelson v. City of

Springfield, 767 F.2d 651, 654–55 (9th Cir. 1985), where, as

with the Sandovals’ case, a separation is brief, or does not

“ris[e] to the level of conduct that ‘shocks the conscience,’”

there is no due process violation, Rosenbaum v. Washoe

Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (per curiam).

Likewise, the shooting of the family dog, albeit sad and

unfortunate, does not fall within the ambit of deprivation of

a familial relationship.10

10

The Sandovals’ excessive force claim as to the dog fares no better.

The Sandovals failed to plead unlawful seizure of property under the

Fourth Amendment, and the Fourth Amendment’s protection of “persons”

does not extend to dogs. See San Jose Charter of Hells Angels Motorcycle

Club, 402 F.3d at 975.

24 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

B. EQUAL PROTECTION

We also affirm the grant of summary judgment to the

officers on the family’s equal protection claim. The family

alleged that its rights were violated when officers, responding

to a tip about potential criminal activity by two “white

males,” pursued Henry and his friends, who were of Hispanic

origin and had a dark skin tone. To avoid summary judgment,

the family must “produce evidence sufficient to permit a

reasonable trier of fact to find by a preponderance of the

evidence that [the] decision . . . was racially motivated.”

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

754 (9th Cir. 2001) (amended opinion) (alteration in original)

(internal quotation marks omitted). No evidence supports a

finding of discriminatory intent by the officers.

C. MUNICIPAL LIABILITY

To impose liability on a local government under § 1983,

the Sandovals must prove that an “‘action pursuant to official

municipal policy’ caused their injury.” Connick v. Thompson,

131 S. Ct. 1350, 1359 (2011) (citing Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978)). In the alternative, they

must prove that inadequate training or supervision was the

moving force behind the deprivation. City of Canton v.

Harris, 489 U.S. 378, 387–90 (1989). The Sandovals’ bare-

bones allegations of municipal liability on the grounds that

“multiple officers with varying degrees of experience” were

involved in the events are insufficient to establish municipal

liability.

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 25

IV. STATE LAW CLAIMS

The district court granted summary judgment to the

officers on the Sandovals’ state law claims for intentional

infliction of emotional distress, assault, battery, and false

imprisonment on two grounds: first, that the officers were

entitled to discretionary-function immunity under Nevada

Revised Statute § 41.032, and second, because there was no

genuine issue of material fact as to these claims.11

Nevada’s discretionary-function immunity statute

provides that “no action may be brought” against a public

officer “[b]ased upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty

. . . whether or not the discretion involved is abused.” Nev.

Rev. Stat. § 41.032(2). Under Nevada law, state actors are

entitled to discretionary-function immunity if their decision

“(1) involve[s] an element of individual judgment or choice

and (2) [is] based on considerations of social, economic, or

political policy.” Martinez v. Maruszczak, 123 Nev. 433,

436–37 (2007).

11

We adopt the district court’s view that the Sandovals did not waive

this second ground. Moreover, the Sandovals submitted extensive factual

material and the district court reviewed the factual record in ruling on the

summary judgment motion. The Sandovals filed numerous materials with

their opposition to the motion for summary judgment, including

depositions from Roberts and Dunn, Officer Kohntopp, Jesus Sandoval,

Henry, David, and Jordhy; the LVMPD Incident Recall for the event; and

the statement of Albert Schouten, and at least cursorily incorporated these

“papers” by reference in their opposition to the motion for summary

judgment, though this is not dispositive. The court “kn[ew] of record

materials that show grounds for genuine dispute,” and as such, the court

was permitted “not to consider [a] fact as undisputed.” FED. R. CIV. P. 56

(e) advisory committee’s note, 2010.

26 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

Police officers “exercise[] discretion and [are] thus

generally immune from suit where the act at issue required

‘personal deliberation, decision, and judgment,’ rather than

‘obedience to orders, or the performance of a duty in which

the officer is left no choice of his own.’” Davis v. City of Las

Vegas, 478 F.3d 1048, 1059 (9th Cir. 2007) (quoting Maturi

v. Las Vegas Metro. Police Dep’t., 110 Nev. 307, 309

(1994)). Officers’ decisions “as to how to accomplish a

particular seizure or search [are] generally considered . . .

discretionary determination[s] under Nevada law, and officers

are therefore immune from suit as to state law claims arising

therefrom in most cases.” Id. But “where an officer’s actions

are ‘attributable to bad faith, immunity does not apply

whether an act is discretionary or not.’” Id. (quoting Falline

v. GNLV Corp., 107 Nev. 1004, 1009 n.3 (1991)). As we held

in Davis, “where an officer arrests a citizen in an abusive

manner not as the result of the exercise of poor judgment as

to the force required to make an arrest, but instead . . .

because of a willful or deliberate disregard for the rights of a

particular citizen or citizens, the officer’s actions are the

result of bad faith and he is not immune from suit.” Id. at

1060 (citing Falline, 107 Nev. at 1009 (noting that an officer

acts in bad faith where his acts bear “no relationship to a

rightful prerogative even if the result is ostensibly within the

actor’s ambit of authority”)); see also id. (noting that “[n]o

officer has the ‘rightful prerogative’ to engage in a malicious

battery of a handcuffed citizen who is neither actively

resisting arrest nor seeking to flee,” and holding that

Nevada’s discretionary immunity statute did not apply to

arrestee’s claim of battery where officer slammed handcuffed

arrestee into wall multiple times and punched him in the

face).

SANDOVAL V. LAS VEGAS METRO POLICE DEP’T 27

Taking the facts in the light most favorable to the

Sandovals, none of their claims survive, including Kenya’s,

except as to Jesus Sandoval’s claims and the boys’ claims

related to their handcuffing and detention once the officers

knew no crime had been committed. A reasonable juror could

find that the officers’ decisions to, among others, handcuff

and force the ailing Jesus Sandoval into a cruiser and ignore

his requests for medication, as well as to continue to detain

and handcuff the boys after it was clear no detention was

justified, “w[ere] not merely an exercise or abuse of

discretion but instead constituted a deliberate and willful

disregard for the law . . . .” Id.; cf. Pike v. Hester, No. 3:12-

cv-00283, 2013 WL 3491222, at *5 (D. Nev. July 9, 2013)

(denying summary judgment on Nevada immunity grounds

because the plaintiff had attested to his belief that an officer’s

personal animus towards him was the cause of the illegal

search of his office). The district court erred in granting

summary judgment to the officers on the grounds of statutory

immunity.

The district court also erred in finding that the Sandovals

failed to establish any genuine issues of material fact as to

these claims. Viewing the state law claims through the lens

presented by the Sandovals, as Saucier requires, material

issues of fact exist for each of the state law claims not

precluded by discretionary-function immunity. 533 U.S. at

201. We accordingly reverse the district court’s grant of

summary judgment to the officers on the state law intentional

infliction of emotional distress, assault and battery, and false

imprisonment claims as they relate to (1) Jesus Sandoval and

(2) the handcuffing and detention of the boys once the

officers knew no crime had been committed. We affirm the

dismissal of the remaining state law claims.

28 SANDOVAL V. LAS VEGAS METRO POLICE DEP’T

We therefore REVERSE the district court on the Fourth

Amendment claims for excessive force and unlawful entry,

and on the state law claims detailed immediately above,

AFFIRM the judgment on the remaining claims, and

REMAND for proceedings consistent with this opinion.

Each party shall pay its own costs on appeal.

REVERSED IN PART; AFFIRMED IN PART AND

REMANDED.