Patino v. Las Vegas Metropolitan Police Department

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 15 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR PATINO, No. 16-16675

Plaintiff - Appellant, D.C. No. 2:15-CV-00009-RFB-

PAL

v.

LAS VEGAS METROPOLITAN POLICE MEMORANDUM*

DEPARTMENT, et al.,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware, II, District Judge, Presiding

Argued and Submitted November 13, 2017

William S. Boyd School of Law

University of Nevada, Las Vegas

Las Vegas, Nevada

Before: RAWLINSON and BYBEE, Circuit Judges, and MENDOZA** District

Judge.

*

This disposition is not appropriate for publication and is not precedent except as

provided by Ninth Circuit Rule 36-3.

**

The Honorable Salvador Mendoza, Jr., District Judge for the U.S. District Court

for the Eastern District of Washington, sitting by designation.

1

Victor Patino appeals from the district court’s summary judgment order in

favor of the Las Vegas Metropolitan Police Department (LVMPD), Sergeant

William Wilson, and Sheriff Douglas Gillespie on his constitutional unlawful-entry

and unlawful-seizure-of-property claims and state tort claims. We have jurisdiction

under 28 U.S.C. § 1291. We review the district court’s decision de novo. Toguchi

v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). Each of Patino’s claims arises from

the same two actions—Sgt. Wilson’s warrantless entry into Patino’s backyard and his

use of deadly force against Patino’s pit bull. Because Sgt. Wilson acted reasonably under

the circumstances, all of Patino’s claims fail. Accordingly, we affirm.

Summary judgment is proper on Patino’s unlawful-entry and unlawful-

seizure claims because the undisputed facts show Sgt. Wilson acted reasonably

under the circumstances. Sgt. Wilson’s warrantless entry into Patino’s backyard

after hearing what he believed to be a gun shot and moaning noises coming from

Patino’s yard was justified under the emergency aid exception. See United States v.

Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008) (holding officers may enter property

without a warrant or consent if they have an objectively reasonable belief that there

is an immediate need to protect others or themselves from serious harm and the

manner of entry is reasonable to meet the need). Sgt. Wilson’s use of deadly force

in self-defense against Patino’s 120-pound charging pit bull was also reasonable

under the circumstances. Patino asserts only bare allegations unsupported by the

2

record to dispute the reasonableness of Sgt. Wilson’s actions. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“[A] party opposing a properly

supported motion for summary judgment ‘may not rest upon the mere allegations

or denials of his pleading, but . . . must set forth specific facts showing that there is

a genuine issue for trial.’” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288 (1968) (internal quotation marks omitted))).

Because Sgt. Wilson did not violate Patino’s constitutional rights, he need

not invoke qualified immunity. Nonetheless, we conclude that the district court

correctly held that Sgt. Wilson would be protected by qualified immunity because

no clearly established law prohibits his actions. Patino asserts that San Jose

Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 978

(9th Cir. 2005) (hereinafter Hells Angels Motorcycle Club), stands for the

proposition that killing a dog is unreasonable where officers are on notice that dogs

are on the property. Even if the court accepted this reading, substantial factual

differences prevent its application to the present case. Mueller v. Auker, 700 F.3d

1180, 1185 (9th Cir. 2012) (“The inquiry called for by [the doctrine of qualified

immunity] ‘must be undertaken in the light of the specific context of the case, not

as a broad general proposition.’”) (quoting Brosseau v. Haugen, 543 U.S. 194, 198

(2004)). In Hells Angels Motorcycle Club, the court held that officers were not

entitled to qualified immunity when they shot and killed three dogs during the

3

execution of a warrant. 402 F.3d at 975–76. The officers had applied for the

warrant over a week before its execution and had not developed a plan to restrain

the dogs they knew were present on the property. Id. at 977. Here, Sgt. Wilson was

not engaging in the calculated execution of a warrant, but responding to an

emergency.

We also affirm the district court’s grant of summary judgment in favor of

LVMPD and Sheriff Gillespie on Patino’s § 1983 claims for municipal and

supervising officer liability. Without a constitutional violation, there can be no

municipal liability for a § 1983 claim. See City of L.A. v. Heller, 475 U.S. 796, 799

(1986) (“If a person has suffered no constitutional injury at the hands of the

individual police officer, the fact that the departmental regulations might have

authorized [a constitutional violation] is quite beside the point.”). Likewise, there

is no basis to find that Sheriff Gillespie participated in or knew of and failed to

prevent any constitutional violation. See Hansen v. Black, 885 F.2d 642, 646 (9th

Cir. 1989) (holding there must be a “sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation” (citing Thompkins

v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987))).

Finally, we affirm the district court’s summary judgment on Patino’s state law

claims for negligence and intentional infliction of emotional distress because

4

neither claim is supported by the record. See Scialabba v. Brandise Constr. Co.,

921 P.2d 928, 930 (Nev. 1996); Star v. Rabello, 625 P.2d 90, 91–92 (Nev. 1981).

AFFIRMED.

5