Ryan Bonivert v. City of Clarkston

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN J. BONIVERT, No. 15-35292

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-00056-

TOR

CITY OF CLARKSTON; COUNTY OF

ASOTIN, WASHINGTON; GARY

SNYDER; JOSEPH SNYDER; JENNIFER OPINION

L. SNYDER; SHAWN RUDY, Deputy;

GRIMM, Deputy; PAUL PURCELL;

TERESA R. PURCELL; DANIEL

COMBS; CLAUDIA A. COMBS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, Chief District Judge, Presiding

Argued and Submitted August 28, 2017

Seattle, Washington

Filed February 26, 2018

2 BONIVERT V. CITY OF CLARKSTON

Before: Michael Daly Hawkins and M. Margaret

McKeown, Circuit Judges, and Barbara Jacobs Rothstein, *

District Judge.

Opinion by Judge McKeown

SUMMARY **

Civil Rights

The panel reversed the district court’s grant of summary

judgment on qualified immunity grounds and remanded in a

42 U.S.C. § 1983 action in which plaintiff alleged that police

officers violated his Fourth Amendment rights when they

forced their way into his home without a warrant, threw him

to the ground and then tasered and arrested him.

The panel held that the scenario in this case closely

paralleled Georgia v. Randolph, 547 U.S. 103 (2006), where

the Supreme Court held that a warrantless search was

unreasonable as to a defendant who is physically present and

expressly refuses consent to entry. Following the Court’s

reasoning, the panel concluded that the warrantless entry

into plaintiff’s home violated the Fourth Amendment as

none of the lawful exceptions to the warrant requirement

applied. The panel further held that the evidence did not

justify the district court’s conclusion that “no reasonable jury

could find the use of force within the home excessive.” The

*

The Honorable Barbara Jacobs Rothstein, United States District

Judge for the Western District of Washington, 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.

BONIVERT V. CITY OF CLARKSTON 3

panel concluded that genuine issues of fact prevented a

determination of qualified immunity at summary judgment

such that the case must proceed to trial.

COUNSEL

James E. Lobsenz (argued), Carney Badley Spellman P.S.,

Seattle, Washington, for Plaintiff-Appellant.

Christopher Joseph Kerley (argued), Evans Craven & Lackie

P.S., Spokane, Washington, for Defendant-Appellee City of

Clarkston.

Ann Elizabeth Trivett (argued) and Thomas P. Miller,

Christie Law Group PLLC, Seattle, Washington, for

Defendants-Appellees County of Asotin, Gary Snyder,

Joseph Snyder, Jennifer L. Snyder, Shawn Rudy, Deputy

Grimm, Paul Purcell, Teresa R. Purcell, Daniel Combs, and

Claudia A. Combs.

4 BONIVERT V. CITY OF CLARKSTON

OPINION

McKEOWN, Circuit Judge:

“An open door says, ‘Come in,’” the poet Carl Sandburg

once wrote. “If a door is open and you want it open, why

shut it?” 1 The corollary, of course, is that a locked door says,

“stay out,” and a shut door certainly does not say, “come in.”

This appeal arises out of a domestic dispute call to the

police from the home of Ryan Bonivert. During an evening

gathering with friends, Bonivert reportedly argued with his

girlfriend, Jessie Ausman, when she attempted to leave with

the couple’s nine-month old daughter. By the time police

arrived, the disturbance was over: Ausman, the baby, and the

guests had safely departed the home, leaving Bonivert alone

inside. At that point, there was no indication that Bonivert

had a weapon or posed a danger to himself or others. Nor

does the record suggest that Ausman intended to reenter the

house or otherwise asked police to accompany her inside.

When Bonivert failed to respond to repeated requests to

come to the door, the officers decided they needed to enter

the house. No attempt was made to obtain a search warrant.

Though Bonivert locked the door to his house and refused

police entreaties to talk with them, the police broke a

window to unlock and partially enter the back door. Even

then, Bonivert tried to shut the door, albeit unsuccessfully.

Although Ausman consented to the officers entering the

house, Bonivert’s actions were express—stay out.

Nevertheless, the officers forced their way in, throwing

1

THE SANDBURG RANGE 119 (1957).

BONIVERT V. CITY OF CLARKSTON 5

Bonivert to the ground, and then drive-stunned him with a

taser several times, 2 handcuffed him, and arrested him.

The scenario here closely parallels Georgia v. Randolph,

547 U.S. 103 (2006), where the Supreme Court held that a

warrantless search was unreasonable as to a defendant who

is physically present and expressly refuses consent to entry.

Id. at 106. Following the Court’s reasoning, we conclude

that the warrantless entry into Bonivert’s home violated the

Fourth Amendment as none of the lawful exceptions to the

warrant requirement applied. The officers are not entitled to

qualified immunity.

BACKGROUND

In the early morning hours of January 8, 2012, Sergeant

Danny Combs and Officer Paul Purcell of the City of

Clarkston, Washington (the “City”) Police Department

received a “physical domestic” dispatch to the home of Ryan

Bonivert. The dispatcher relayed to the officers that an

argument between a man and a woman had become

“physical at one point,” and that the dispatcher had been

“advised the male,” Bonivert, “was inside the house being

restrained by other males,” and “the female,” Bonivert’s

girlfriend Jessie Ausman, was “outside in a car with a child.”

When Purcell and Combs arrived, they encountered five

people standing in front of Bonivert’s house: Ausman;

Ausman’s sister, Tasha; Ausman’s mother, Ann McCann;

2

“When a taser is used in drive[-]stun mode, the operator removes

the dart cartridge and pushes two electrode contacts located on the front

of the taser directly against the victim. In this mode, the taser delivers

an electric shock to the victim, but it does not cause an override of the

victim’s central nervous system as it does in dart-mode.” Mattos v.

Agarano, 661 F.3d 433, 443 (9th Cir. 2011).

6 BONIVERT V. CITY OF CLARKSTON

James Gray; and Brad Miller. Purcell spoke to the three

women, who reported that the entire group, including

Bonivert, had been at a social gathering in the house.

Bonivert and Ausman, who had a nine-month old daughter

and had been living together in Bonivert’s home for the past

two years, began arguing about their relationship when

Ausman announced that she was leaving with the baby.

Bonivert reportedly became angry. According to the

women, Bonivert grabbed Ausman and threw her to the

ground. Ausman further told the officers that all of the adults

in the residence had been drinking that evening.

Combs, meanwhile, interviewed Gray and Miller. Both

men told Combs that in the middle of an argument, Ausman

had told Bonivert that she was leaving with the baby.

According to Gray and Miller, Bonivert warned Ausman she

was not leaving with the child and attempted to “rush[]” her,

but Miller tackled Bonivert before he could make contact,

enabling Ausman to safely exit the house with the baby. The

only difference in Gray and Miller’s version of events and

that of the women was that neither saw “anything physical”

occur between Bonivert and Ausman. Bonivert later stated

that after Ausman and his guests had departed, he decided to

go to bed. Bonivert remained inside the house during the

entirety of the officers’ conversations with the witnesses.

The officers exchanged narratives and, after discussing

the discrepancies between the men and women’s stories,

decided to speak to Bonivert. The officers initially

approached the front door of the residence, knocked,

identified themselves as police, and instructed Bonivert to

come to the door. Combs testified that he believed—but was

uncertain whether—Bonivert heard the initial knock-and-

announce. Bonivert testified that he heard yelling and loud

BONIVERT V. CITY OF CLARKSTON 7

banging on the front door, but did not know who was there

or what was being said.

Receiving no response from Bonivert, Combs knocked

on other doors and windows of the house, peering into the

windows using his flashlight. The officers found that both

the front door and the back door were locked. As Combs

approached the side door, Bonivert realized it was unlocked

and locked the deadbolt from inside. Combs, upon hearing

the door lock, believed that Bonivert did not want to speak

or have any contact with him. After Bonivert locked the side

door, he heard someone outside announce that they were

police and ask him to come outside. Purcell testified that at

some point, Combs yelled loudly, “Come out or we are

coming in,” or words to that effect. Bonivert, however,

made no attempt to speak to the officers.

The officers went back to the front of the house to

question the witnesses again. In response to an inquiry

whether Bonivert was a danger to himself, Ausman informed

Combs that there were no weapons in the home. Ausman

also told police that she did not believe Bonivert was a

danger to himself. When the officers inquired how Bonivert

would respond to having his home broken into, Ausman

warned Combs that Bonivert had a problem with authority

and recounted Bonivert’s angry—but not violent—behavior

towards officers during a recent drunk driving arrest.

At this point, Combs decided he needed to assess

Bonivert’s condition. Combs claims he wanted to “find out

what was going on, to assess [Bonivert]” and “see what his

state of mind were [sic].” According to Combs, he was

concerned by the fact that Bonivert was “not talking to” the

officers. Ausman, who had been living in Bonivert’s home

for approximately two years, gave Sergeant Combs

permission to enter the house. The parties dispute whether

8 BONIVERT V. CITY OF CLARKSTON

Ausman also gave permission for Combs to break a door or

window to gain entry. Nothing in the record suggests,

however, that Ausman intended to reenter the home or asked

Combs for his assistance to do so.

Combs and Purcell requested assistance from the Asotin

County Sheriff’s Office (the “County”). 3 The officers also

radioed a “Code 4” message to the County, which meant that

“there are no problems” with “the police and the people they

are with,” and that everyone is “safe” and nobody is “being

injured.”

Upon arrival, Asotin County Deputies Gary Snyder and

Joseph Snyder spoke with Combs, who told them that

Bonivert was locked inside the residence and refused to

come out after a physical encounter with his wife. Combs

requested their assistance to enter the house. The County

deputies were aware that the City officers did not have a

warrant to enter the home or arrest Bonivert. They did not

obtain information about who owned the residence, who

lived at the residence, whether there were outstanding

arrests, or what basis the City officers had for entering the

home. Instead, the County deputies deferred to Combs, the

highest ranking City officer on the scene.

The officers collectively developed a plan of entry.

Purcell remained stationed at the front door, on the east side

of the residence, while Combs and the County deputies went

around to the north side of the residence. Combs again

knocked on the side and back doors, identified himself as the

police, and advised Bonivert to open the door. Combs and

3

Because the City of Clarkston is located within Asotin County,

County officers will respond to requests for assistance from the City

when the incident is within the City of Clarkston.

BONIVERT V. CITY OF CLARKSTON 9

Gary Snyder directed their flashlights through the windows

and saw Bonivert retreat into the back of the house. On at

least one occasion when a flashlight beam hit Bonivert, he

ducked out of sight. Combs then approached the back door,

with Joseph Snyder directly behind him and Gary Snyder

standing farther back to maintain visibility of the front door.

Combs used his flashlight to shatter a window pane on

the back door and reached through the opening to unlock it.

At that point, Bonivert opened the door and began shouting

that the officers were going to pay for the damage to his

window. Combs stated that he ordered Bonivert to stay

back, calm down, and get on the ground. Joseph Snyder

similarly ordered Bonivert to get on the ground and show his

hands. Bonivert disputed that he was given these commands

and stated that there were flashlights pointed at him, which

caused him to lower his hands to shield his eyes, and that he

was unable to understand what the officers were saying. The

parties dispute whether Bonivert advanced upon the officers,

or remained at the door. The video footage from the taser is

inconclusive: it appears to show Bonivert at the threshold of

the door.

Without warning, Combs and Gary Synder then

deployed their tasers at Bonivert in dart mode. In response,

Bonivert brushed off the darts, cursed at the officers, and

attempted to close the door. Before Bonivert could

completely close the door on the officers, however, Combs

shoved the door open with enough force to throw Bonivert

to the other side of the room, and the officers entered the

home.

Once inside the house, the parties dispute whether

Bonivert swung his fists and attacked Combs. In any event,

Joseph Snyder tackled Bonivert to the ground while Combs

drive-stunned Bonivert multiple times in his upper right

10 BONIVERT V. CITY OF CLARKSTON

shoulder. Eventually, all three officers held Bonivert to the

ground. Bonivert can be heard in the taser video—in

response to an officer’s repeated commands to “give me

your hands” and “hold still”—screaming “no,” “why,” and

“why are you in my house?,” and sobbing. Combs deployed

his taser in drive-stun mode once more after Bonivert was

handcuffed. Comb’s taser report shows his taser was

activated in drive-stun mode four times within

approximately one minute. Bonivert was placed under arrest

for assaulting an officer, resisting arrest, and domestic

violence assault in the fourth degree.

Bonivert brought claims under 42 U.S.C. § 1983 against

the City, the County, Combs, Purcell, Gary Synder, and

Joseph Synder, alleging warrantless entry and excessive

force in violation of Bonivert’s constitutional rights. The

district court granted summary judgment in favor of the

defendants on the basis of qualified immunity.

ANALYSIS

I. 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), rev’d on other

grounds by Pearson v. Callahan, 555 U.S. 223 (2009); see

also Saucier, 533 U.S. at 202 (“The relevant, dispositive

inquiry in determining whether a right is clearly established

is whether it would be clear to a reasonable officer that his

BONIVERT V. CITY OF CLARKSTON 11

conduct was unlawful in the situation he confronted.”). Both

prongs entail questions of law that we may answer in either

order. Pearson, 555 U.S. at 236. If a “genuine issue of

material fact exists that prevents a determination of qualified

immunity at summary judgment, the case must proceed to

trial.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.

2003).

Since the Fourth Amendment guarantees the right to be

free from “unreasonable searches and seizures,” U.S. Const.

amend. IV, the first question—whether the officer violated a

constitutional right—will typically turn on the

“reasonableness” of the officer’s actions. See Mattos,

661 F.3d at 442. But notably, the reasonableness standard

governing violations of a Fourth Amendment right is distinct

from the reasonableness standard governing whether the

right was “clearly established.” Saucier, 533 U.S. at 204–

05. The former protects an officer who reasonably, but

mistakenly, perceives facts that would have made his actions

lawful had they been true. See id. at 206 (“Officers can have

reasonable, but mistaken, beliefs as to the facts establishing

the existence of probable cause or exigent circumstances, for

example, and in those situations courts will not hold that they

have violated the Constitution.”). The latter, by contrast,

goes further by acknowledging “that reasonable mistakes

can be made as to the legal constraints on particular police

conduct.” Id. at 205. Thus, even an officer who correctly

perceives the facts establishing that his conduct was

“unreasonable” under the Fourth Amendment is entitled to

immunity if he was mistaken “as to what the law require[d]”

under the circumstances, so long as the mistake was

“reasonable.” Id.

Importantly, though, “it is not necessary that the alleged

acts have been previously held unconstitutional” in order to

12 BONIVERT V. CITY OF CLARKSTON

determine that a right was clearly established, “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). In some circumstances, “a general constitutional

rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even

though ‘the very action in question has [not] previously been

held unlawful.’” United States v. Lanier, 520 U.S. 259, 271

(1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

These parameters counsel that officials may “still be on

notice that their conduct violates established law even in

novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730,

741 (2002). We are particularly mindful of this principle in

the Fourth Amendment context, where the constitutional

standard—reasonableness—is inevitably a fact-intensive

inquiry. After all, “[i]f qualified immunity provided a shield

in all novel factual circumstances, officials would rarely, if

ever, be held accountable for their unreasonable violations

of the Fourth Amendment.” Mattos, 661 F.3d at 442. Such

a result would not further the purpose of qualified immunity

to balance the competing “need to hold public officials

accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.”

Pearson, 555 U.S. at 231.

II. FOURTH AMENDMENT UNLAWFUL ENTRY CLAIM

The officers’ entry into Bonivert’s house—his

“castle”—requires us to invoke bedrock Fourth Amendment

principles. The Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers, and

BONIVERT V. CITY OF CLARKSTON 13

effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV. It has long been recognized that the

“physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.” Payton

v. New York, 445 U.S. 573, 585–86 (1980) (quoting United

States v. U.S. Dist. Court for E. Dist. of Mich., 407 U.S. 297,

313 (1972)). This “special protection” of the home “as the

center of the private lives of our people” reflects an ardent

belief in “‘the ancient adage that a man’s house is his castle

to the point that the poorest man may in his cottage bid

defiance to all the forces of the Crown.’” Randolph,

547 U.S. at 115 (quoting Minnesota v. Carter, 525 U.S. 83,

99 (1998); Miller v. United States, 357 U.S. 301, 307 (1958)

(internal alterations omitted)). For that reason, “[i]t is a

‘basic principle of Fourth Amendment law’” that warrantless

searches of the home or the curtilage surrounding the home

“are presumptively unreasonable.” Payton, 445 U.S. at 586

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 477

(1971)).

Among constitutional rules, few are as well established,

frequently applied, and familiar to police officers as the

warrant requirement and its exceptions. Because there is no

dispute that the officers failed to obtain a warrant before

entering Bonivert’s home, the entry was presumptively

unreasonable. The officers argue that their entry was

nevertheless justified by the three exceptions to the warrant

requirement: consent, emergency aid, and exigent

circumstances. Alternatively, the officers claim they are

entitled to qualified immunity because it was not clearly

14 BONIVERT V. CITY OF CLARKSTON

established law that these exceptions did not justify a

warrantless entry under the circumstances. 4

This is not a case involving “such an undeveloped state

of the law” that qualified immunity is necessary to protect

the officers from the special unfairness that results when

they are “expected to predict the future course of

constitutional law.” Wilson v. Layne, 526 U.S. 603, 617–18

(1999) (quoting Procunier v. Navarette, 434 U.S. 555, 562

(1978) (internal quotation marks omitted)). Rather, it is one

demanding “knowledge of . . . basic, unquestioned

constitutional rights.” Wood v. Strickland, 420 U.S. 308,

322 (1975). To the extent the officers were mistaken “as to

what the law require[d]” to justify a warrantless entry that

evening, we conclude their mistake was not “reasonable.”

Saucier, 533 U.S. at 205.

Taken in the light most favorable to Bonivert, Saucier,

533 U.S. at 201, the facts demonstrate that the officers

violated Bonivert’s constitutional right because no exception

to the Fourth Amendment’s warrant requirement justified

the officers’ entry into Bonivert’s home. Additionally, the

unlawfulness of the officers’ entry under each exception was

clearly established because it “was apparent in light of pre-

existing law.” San Jose Charter, 402 F.3d at 977 (internal

quotation mark omitted). We explain our holding with

respect to each exception below.

4

Because the district court concluded that the officers were entitled

to qualified immunity based on both the consent exception and the

emergency exception, it did not reach the issue of whether the exigency

exception, including “hot pursuit,” applied. The parties briefed those

issues at the summary judgment stage and on appeal. We address the

exigent circumstances exception, including “hot pursuit,” on de novo

review.

BONIVERT V. CITY OF CLARKSTON 15

A. WARRANTLESS ENTRY: CONSENT EXCEPTION

Although the consent exception ordinarily permits

warrantless entry where officers have obtained consent to

enter from a third party who has common authority over the

premises, Georgia v. Randolph held that an occupant’s

consent to a warrantless search of a residence is

unreasonable as to a co-occupant who is physically present

and objects to the search. 547 U.S. at 106. Such is the

situation here.

By way of background, the Court in Randolph noted that

the “constant element in assessing Fourth Amendment

reasonableness in . . . consent cases” has been “the great

significance given to widely shared social expectations.” Id.

at 111. The Court went on to explain that “[s]ince the co-

tenant wishing to open the door to a third party has no

recognized authority in law or social practice to prevail over

a present and objecting co-tenant, his disputed invitation,

without more, gives a police officer no better claim to

reasonableness in entering than the officer would have in the

absence of any consent at all.” Id. at 114. For that reason,

the Court held that “a physically present inhabitant’s express

refusal of consent to a police search is dispositive as to him,

regardless of the consent of a fellow occupant.” Id. at 122–

23. Randolph stands in contrast to a situation in which a co-

occupant grants access to enter a shared dwelling but the co-

occupant is absent. See United States v. Matlock, 415 U.S.

164, 170–71 (1974).

Although Randolph was decided in the context of an

evidentiary search, there is no talismanic distinction, for

Fourth Amendment purposes, between a warrantless “entry”

and a warrantless “search.” “The two intrusions share this

fundamental characteristic: the breach of the entrance to an

16 BONIVERT V. CITY OF CLARKSTON

individual’s home.” See Payton, 445 U.S. at 589. 5 As a

matter of clearly established law, “the Fourth Amendment

has drawn a firm line at the entrance to the house. Absent

exigent circumstances, that threshold may not reasonably be

crossed without a warrant.” Id. at 590.

Indeed, Randolph called out an important exigent

circumstance related to domestic violence, explicitly

acknowledging that a co-occupant’s refusal is vitiated where

there is a threat to the victim: “No question has been raised,

or reasonably could be, about the authority of the police to

enter a dwelling to protect a resident from domestic

violence.” 547 U.S. at 118 (emphasis added); see also id. at

119 (citing cases involving the emergency aid and exigent

circumstances exceptions to support that “there is no danger

that the fearful occupant will be kept behind the closed door

of the house simply because the abusive tenant refuses to

consent to a search”). Later in the opinion, we specifically

discuss that neither the exigent circumstances nor

emergency aid exception is applicable. Here, it is important

to underscore that neither Ausman nor the baby were in

danger because they were safely outside the house when

police entered.

Applying Randolph, we hold that the consent exception

to the warrant requirement did not justify the officers’ entry

into Bonivert’s home. Even though the officers secured

Ausman’s consent, Bonivert was physically present inside

5

Before Bonivert’s arrest, other courts had already applied

Randolph to police entries and searches generally. See, e.g., United

States v. Uscanga-Ramirez, 475 F.3d 1024, 1027–28 (8th Cir. 2007);

Richardson v. City of Antioch, 722 F. Supp. 2d 1133, 1140 (N.D. Cal.

2010).

BONIVERT V. CITY OF CLARKSTON 17

and expressly refused to permit the officers to enter on two

different occasions.

As the district court recognized, Bonivert expressly

refused entry when he locked the side door to his house.

During the initial “knock and talk,” Combs and Purcell

knocked and attempted to open the front and back doors to

the house, but found them to be locked. As the officers

circled the house to approach the side door, Bonivert realized

it was unlocked and locked it as Combs was approaching.

Combs heard the door lock and informed Purcell.

Bonivert also expressly refused entry when he attempted

to close the back door on the officers after Combs broke in. 6

Once the officers decided to enter the home by force, Combs

used his flashlight to shatter a window pane in the back door,

reached through the opening, and unlocked the door. At that

point, Bonivert partially opened the door and confronted the

officers, which prompted the officers to fire their tasers in

dart mode. All parties agree that after the darts failed to

make contact, Bonivert tried to shut the door, placing it

between himself and the officers, but ultimately was

prevented from doing so when Combs rushed through with

such force that he threw Bonivert to the other side of the

room.

The City and County dispute that Bonivert’s conduct at

the side and back doors constituted “express refusal” of

consent within the meaning of Randolph. According to the

County, “express refusal means verbal refusal.” We

6

The parties dispute whether Ausman gave the officers permission

to break into the house, rather than enter it. Ausman testified that the

officers “said, he’s not opening or answering any of the doors. He said,

do I have permission to enter your home? And I said, yes.” Ausman

also stated that she “didn’t know that they were going to break the door.”

18 BONIVERT V. CITY OF CLARKSTON

disagree, as this interpretation finds no support in either

common sense or the case law. For example, a few years

before Randolph, the Sixth Circuit held a warrantless entry

unlawful under the Fourth Amendment when the inhabitant

of a residence attempted to close the door on police officers,

but one of the officers wedged his foot in the doorframe,

forced the door open, and proceeded inside. See Cummings

v. City of Akron, 418 F.3d 676, 679, 685 (6th Cir. 2005). The

Sixth Circuit explained that the inhabitant’s “attempt to close

the door constituted a termination of the consensual

encounter, and communicated his lack of consent to any

further intrusion by the officers.” Id. at 685 (emphasis

added) (citation and internal quotation marks omitted); see

also Vinson v. Vermilion Cty., 776 F.3d 924, 930 (7th Cir.

2015) (“In fact, upon first seeing the men approach the

house, [the defendant’s daughter] ran inside and locked the

door, hardly the actions of a person consenting to a search of

the home.”).

Not long after Randolph, the Eighth Circuit held that a

co-occupant’s consent to search “was no longer valid once

[the defendant],” who was physically present and shared

common authority over that room, “slammed the door and

put the dead bolt on.” United States v. Williams, 521 F.3d

902, 907 (8th Cir. 2008) (emphasis added) (citing Randolph,

547 U.S. at 121; United States v. Sanders, 424 F.3d 768, 775

(8th Cir. 2005)). 7 Applying the law clearly established in

both Randolph and Williams, Ausman’s consent “was no

longer valid once” Bonivert expressly refused entry by

“put[ting] the dead bolt on” and attempting to “slam[] the

door” on the officers. See id. A reasonable officer would

7

The Eighth Circuit ultimately upheld the lawfulness of the search

under the exigency exception to the warrant requirement. See 521 F.3d

at 908–09.

BONIVERT V. CITY OF CLARKSTON 19

have understood this to be the case. And although Randolph

is an objective test, we emphasize that this was, in fact,

Combs’ subjective conclusion: when Combs heard the side

door lock, he specifically formed the opinion that Bonivert

“didn’t want to talk to [him]” and “didn’t want contact with

[him].” While not dispositive, Combs’ testimony leaves no

doubt that Bonivert’s refusal of consent was “express.” 8

Based on the foregoing, we hold that the officers are not

entitled to qualified immunity under the consent exception

to the Fourth Amendment’s warrant requirement. Simply

put, a reasonable officer would have understood that no

means no. 9

8

The City’s reliance on United States v. McKerrell, 491 F.3d 1221

(10th Cir. 2007), is misplaced. The police had outstanding warrants to

arrest McKerrell. When they showed up to do so, McKerrell barricaded

himself in the house, which the court concluded “related solely to his

desire to avoid arrest.” Id. at 1224. After McKerrell peacefully

surrendered, his wife gave consent to search the house. The factual

findings, warrants, peaceful surrender, and timing of the wife’s consent

place this case far beyond the teachings of Randolph or Bonivert’s

situation.

9

Although it does not bear on our qualified immunity analysis

because it was decided after the events giving rise to this appeal took

place, we note that our decision in United States v. Moore, 770 F.3d 809

(9th Cir. 2014), is entirely consistent with the preceding analysis. In

Moore, we upheld a warrantless entry and search as valid where the

defendant’s fiancée consented to the search of their joint residence and

Moore, the defendant, failed to respond to the officers entirely. Key to

our decision was the distinction we made between the “express refusal”

in Randolph and Moore’s inaction. Id. at 813–14. We termed such

behavior “[a]cquiesence” to Jones’s consent and concluded that Moore’s

refusal of entry was at best “implicit” because, unlike the defendant in

Williams, Moore failed to “engage in any affirmative conduct to

physically prevent the police officers from coming inside the house.” Id.

20 BONIVERT V. CITY OF CLARKSTON

B. WARRANTLESS ENTRY: EMERGENCY

EXCEPTION

The emergency aid exception permits 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 v. Stuart,

547 U.S. 398, 403 (2006). An entry pursuant to the

emergency aid exception “is ‘reasonable’ under the Fourth

Amendment, regardless of the individual officer’s state of

mind, ‘as long as the circumstances, viewed objectively,

justify [the] action.’” Id. at 404 (quoting Scott v. United

States, 436 U.S. 128, 138 (1978)) (alteration in original).

However, “the police bear a heavy burden when attempting

to demonstrate an urgent need that might justify warrantless

searches or arrests,” Welsh v. Wisconsin, 466 U.S. 740, 749–

50 (1984), because the emergency exception is “narrow” and

“rigorously guarded,” see, e.g., United States v. Stafford,

416 F.3d 1068, 1073 (9th Cir. 2005).

Viewing the facts in the light most favorable to Bonivert,

there were simply no circumstances pointing to an actual or

imminent injury inside the home. By the time the officers

arrived, both Ausman and the child were safely outside,

surrounded by four other adults intent on protecting them

from harm. During the entire time that the officers spoke to

the witnesses, circled and attempted to enter the home from

various points, and called on Deputies Gary and Joseph

Snyder for backup, the house was silent. Ausman further

assured the officers that there were no weapons in the house

(emphasis added). Here, of course, it is undisputed that Bonivert

engaged in affirmative conduct to prevent the police from entering his

home both when he locked the side door and when he attempted to close

the back door on the approaching officers.

BONIVERT V. CITY OF CLARKSTON 21

and that Bonivert did not pose a danger to himself.

Ausman’s statements were all but confirmed by Combs on

at least two separate occasions, when Combs peered into

different windows and “observed [Bonivert] inside” with no

visible injuries or weapons on his person. Most tellingly,

though, Combs and Purcell acknowledged that they sent a

“Code 4” message to the deputies, indicating that “the police

and the people they are with . . . [are] not being injured,”

before the deputies had even arrived. Purcell later confirmed

that a “Code 4” message means that “there is no immediate

danger of death or significant harm.”

The officers contend that within the unique “context of a

police domestic violence response,” Bonivert’s behavior led

them to believe it was necessary to enter the home in order

to prevent him from hurting “himself or others, including

[the] officers.” Combs explained that “domestic violence

calls, by their nature, are volatile, emotionally charged, and

unpredictable.” We agree, and we recognize the especially

volatile nature of domestic disputes, where “violence may be

lurking and explode with little warning.” United States v.

Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (quoting

Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir. 1999)).

Nevertheless, we have refused to hold that “domestic abuse

cases create a per se” emergency justifying warrantless

entry. United States v. Brooks, 367 F.3d 1128, 1136 (9th

Cir. 2004).

Indeed, all of our decisions involving a police response

to reports of domestic violence have required an objectively

reasonable basis for believing that an actual or imminent

injury was unfolding in the place to be entered. See, e.g.,

United States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2007);

Brooks, 367 F.3d at 1135; Martinez, 406 F.3d at 1162, 1165.

In Randolph, the Supreme Court reinforced that “domestic

22 BONIVERT V. CITY OF CLARKSTON

abuse is a serious problem in the United States.” 547 U.S.

at 117. But the Court went on to say that Randolph “has no

bearing on the capacity of the police to protect domestic

victims.” Id. at 118.

Combs offered no objectively reasonable basis to

suggest that Bonivert could harm a third party, as Bonivert

was alone in the residence. Nor did Combs offer an

objective reason that Bonivert was a harm to himself, other

than that “[Bonivert] was . . . hiding” from officers inside the

house. Any belief about Bonivert’s past volatility was belied

by Ausman’s statement that Bonivert was not a danger to

himself or others.

Combs’ only mention of an actual threat was in terms so

general that they could apply to any interaction involving a

criminal suspect in a home. Combs stated that he did not

credit Ausman’s “statement about there being no weapons in

the residence” because he “always assume[s] there are

weapons in a residence, including clubs and knives.” But

construing such testimony as justifying entry would

eviscerate the warrant requirement and support warrantless

entry in response to every reported domestic dispute where

the suspect remains inside the home. We refuse to extend

the emergency aid exception to such an inflexible

assumption, as opposed to a reasonable belief.

Ultimately, the record in this case stands in stark contrast

to any other case in which we have held, under the

emergency aid exception, that officers responding to reports

of a domestic dispute had “an objectively reasonable basis

for concluding that there was an immediate need to protect

others or themselves from serious harm.” See United States

v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). The facts matter,

and here, there are at least triable issues of fact as to whether

“violence was imminent,” and whether warrantless entry

BONIVERT V. CITY OF CLARKSTON 23

was justified under the emergency aid exception. Ryburn v.

Huff, 565 U.S. 469, 477 (2012) (per curiam). The officers

are not entitled to qualified immunity under the emergency

aid exception.

C. 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

enforcement efforts.” Hopkins v. Bonvicino, 573 F.3d 752,

763 (9th Cir. 2009) (citation and internal quotation marks

omitted). Not one of these circumstances is present here, as

counsel for the City candidly acknowledged at oral

argument: “I would agree with Mr. Bonivert that the cases

indicate that if the . . . alleged victim of the domestic

violence is not in the house and is instead standing outside

and in no apparent jeopardy, as long as there’s . . . nothing

else going on inside the house, exigent circumstances

doesn’t really fit.” Bonivert, who was inside his home when

the alleged domestic assault occurred and remained there

even after the officers broke into his back door, was never a

“fleeing suspect.” See Kentucky v. King, 563 U.S. 452, 460

(2011). The officers never articulated any other “legitimate”

law enforcement justification for entry under the exigency

exception.

Our decision in Martinez, which reads like a template for

this case, squarely forecloses application of the exigency

exception. In Martinez, we explained:

[T]he exigency doctrine is inapplicable

because the officer did not believe that

24 BONIVERT V. CITY OF CLARKSTON

evidence of a crime would be found inside the

house. When the domestic violence victim is

still in the home, circumstances may justify

an entry pursuant to the exigency doctrine. In

Brooks, we applied the exigency doctrine to

allow entry when loud fighting had been

heard, the officers saw the room in disarray,

and the victim was still on the premises but

not visible to the officers. As we noted in that

case, the officers had probable cause to

suspect evidence of crime and had an exigent

need to enter the premises to make sure that

the victim was safe. Here, in contrast, the

victim had left the premises and the officer

did not have probable cause to believe there

was contraband or evidence of a crime in the

house.

406 F.3d at 1164 (internal citations omitted). As in

Martinez, the alleged victim of the domestic assault,

Ausman, was safely outside the home before the officers

even arrived. Because the officers, like those in Martinez,

indisputably had no “probable cause to believe that [there

was] contraband or evidence of a crime [in Bonivert’s

house],” the exigency doctrine did not justify their entry. Id.

We recognize that police officers responding to reports

of domestic violence are “not conducting a trial, but” rather

are “required to make . . . on-the-spot decision[s].” Black,

482 F.3d at 1040. In this case, however, the facts of the

situation did not entitle officers to “disregard the overriding

respect for the sanctity of the home that has been embedded

in our traditions since the origins of the Republic.” Payton,

445 U.S. at 601. The officers are not entitled to qualified

immunity on Bonivert’s warrantless entry claim because it

BONIVERT V. CITY OF CLARKSTON 25

was clearly established law, as of 2012, that neither consent,

the emergency aid exception, nor the exigency exception

justified the officers’ warrantless entry.

D. INTEGRAL PARTICIPATION

The final issue we address with respect to Bonivert’s

unlawful entry claim is whether the County Deputies Gary

and Joseph Snyder are liable for Combs’ decision to enter

Bonivert’s home without a warrant.

An officer can be held liable for a constitutional violation

only when there is a showing of “integral participation” or

“personal involvement” in the unlawful conduct, as opposed

to mere presence at the scene. Jones v. Williams, 297 F.3d

930, 935–36 (9th Cir. 2002). As we held in Boyd v. Benton

County, 374 F.3d 773 (9th Cir. 2004), “integral participation

does not require that each officer’s actions themselves rise

to the level of a constitutional violation.” Id. at 780. Rather,

we have recognized that officers who provide armed backup,

stand at the door with a gun while other officers conduct a

search inside an apartment, and participate in the search

operation are integral participants. See id.; Melear v. Spears,

862 F.2d 1177, 1186 (5th Cir. 1989) (holding that an officer

who was a “full, active participant in the [unconstitutional]

search, not a mere bystander,” was liable for Fourth

Amendment violation).

The County points to no basis for its suggestion that the

deputies’ knowledge of the senior officer’s investigation,

rather than their own actions, dictates whether they were

integral participants. Here, the deputies developed a plan of

entry with Combs and Purcell, provided armed backup to

Combs as he broke into Bonivert’s back door, and entered

the home on Combs’ heels. Viewing the facts in the light

most favorable to Bonivert, the deputies were not bystanders

26 BONIVERT V. CITY OF CLARKSTON

but integral participants in the unlawful entry and are not

entitled to qualified immunity.

III. FOURTH AMENDMENT EXCESSIVE FORCE

CLAIM

We next consider whether the officers were entitled to

qualified immunity on Bonivert’s excessive force claim.

A. CLEARLY ESTABLISHED RIGHT

Excessive use of force in effectuating a seizure violates

the Fourth Amendment. Graham v. Connor, 490 U.S. 386,

388 (1989). 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, 565 U.S. at 477.

The instance of force at issue on appeal is Combs’ use of

his taser in “drive-stun” mode inside Bonivert’s home. 10 In

Mattos, we recognized that use of a taser in drive-stun mode

on a person who “actively resisted arrest,” but posed no

“immediate threat to the safety of the officers or others,”

constituted excessive force. 661 F.3d at 445–46. The events

of this case took place in 2012, the year after we decided

Mattos. The constitutional right was clearly established for

qualified immunity purposes.

B. VIOLATION OF CONSTITUTIONAL RIGHT

Whether an officer used excessive force is analyzed

under an “objective reasonableness” standard, which

10

Bonivert does not appear to argue that Combs’ initial deployment

of his taser in dart mode—which was ultimately ineffective—constituted

excessive force.

BONIVERT V. CITY OF CLARKSTON 27

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 (citation and internal quotation marks

omitted).

The district court found that Bonivert stated a claim for

excessive use of force, but that governmental interests in

officer safety, investigating a possible crime, and controlling

an interaction with a potential domestic abuser outweighed

the intrusion upon Bonivert’s 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.

The Supreme Court has cautioned that attempting to decide

excessive force cases at summary judgment requires courts

to “slosh our way through the factbound morass of

‘reasonableness,’” with predictably messy results. See Scott

v. Harris, 550 U.S. 372, 383 (2007). That is precisely what

happened when the district court granted summary

judgment. Once the officers broke the windowpane and

unlocked the back door, a chaotic and confusing scene

unfolded, generating equally confusing and chaotic

evidence.

To begin, based on the taser video, the district court

concluded that Bonivert appeared to move beyond the

threshold of the door towards the officers in a manner that

caused them to reasonably view Bonivert as a threat, which

in turn justified deployment of the tasers in dart mode and

the officers’ forced entry into the home. The two seconds of

video that depict Bonivert’s retreat are inconclusive,

especially since the shaky footage comes from a taser. But

the video starts with Bonivert standing at what appears to be

28 BONIVERT V. CITY OF CLARKSTON

the threshold of the door and moving backwards. The

footage does not show whether prior to the start of the video,

Bonivert had been advancing towards the officers, or

whether Bonivert had opened the door and stood at its

threshold without making further movements in the officers’

direction. Additionally, Combs testified that at the time he

deployed his taser, Bonivert was not outside his house.

Bonivert said that he was standing on the threshold of the

door, with “the majority of [his] body” in the house.

Bonivert repeatedly denied that he advanced upon the

officers at any point after he opened the door, stating: “I had

just separated myself from a hostile environment [and] I was

trying to avoid another one.”

The district court decided that the officers’ tackling of

Bonivert and the repeated use of tasers in drive-stun mode

was warranted based on the following disputed facts:

Bonivert attacked Combs; Bonivert screamed at the officers

and yelled profanities; and Bonivert continued to struggle

and failed to obey the officers’ commands.

Each of these conclusions was based on conflicting

testimony, and drew upon the officers’ version of events

rather than Bonivert’s testimony. In the taser video, both

Bonivert and the officers can be heard yelling amidst the

sound of taser deployments, and Bonivert can be heard

sobbing near the end of the video. But the video does not

show what happened following Combs’ forcible entry and

whether Bonivert was physically resisting arrest. Bonivert

testified that after Combs threw him to the back of the room,

he stood up, but did not attempt to fight the officers. When

asked if he resisted arrest, Bonivert stated that he “tried

distancing [him]self” but that “the entire time being Tased

for prolonged periods of time,” he had “no muscle

movements” and “[h]ardly an ability to speak.” Bonivert

BONIVERT V. CITY OF CLARKSTON 29

denies resisting arrest, while the officers deny that Bonivert

posed no immediate threat to their safety.

Taken in the light most favorable to Bonivert, the

evidence reflects that Bonivert remained inside the home at

all times; that Bonivert did not threaten or advance toward

the officers; that Bonivert posed no immediate threat to the

officers; that Combs threw Bonivert across the back room;

that Bonivert did not resist arrest; and that Combs tasered

Bonivert several times in drive-stun mode notwithstanding

Bonivert’s compliance. The evidence does not justify the

district court’s conclusion that “no reasonable jury could

find the use of force within the home excessive.”

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

interests. Graham, 490 U.S. at 396 (citation and internal

quotation marks omitted). But in weighing the evidence in

favor of the officers, rather than Bonivert, the district court

unfairly tipped that inquiry in the officers’ favor. See Act

Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)

(“[T]he determination of what conduct underlies the alleged

violation—what the officer and claimant did or failed to

do—is a determination of fact.”). Thus, genuine issues of

fact “prevent[] a determination of qualified immunity at

summary judgment [such] that the case must proceed to

trial.” See id.

For the foregoing reasons, we REVERSE the district

court’s grant of summary judgment on qualified immunity

grounds on the Fourth Amendment claims for unlawful entry

and excessive force, and REMAND for proceedings

consistent with this opinion.

REVERSED AND REMANDED.