Marty Emmons v. City of Escondido

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTY EMMONS; MAGGIE EMMONS, No. 16-55771

Plaintiffs-Appellants,

D.C. No.

v. 3:14-CV-01662-

JM-DHB

CITY OF ESCONDIDO; CRAIG CARTER,

EPD Chief of Police; JIM MAHER,

Former EPD Chief of Police; KEVIN OPINION

TOTH, EPD Sgt.; ROBERT CRAIG,

EPD Officer; JAKE HOUCHIN, EPD

Officer; JOSEPH LEFFINWELL, EPD

Officer; DOES, 2–50, inclusive;

COREY MOLES, DOE 1, Former

Acting EPD Chief of Police,

Defendants-Appellees.

On Remand from the United States Supreme Court

Filed April 25, 2019

Before: Susan P. Graber and Andrew D. Hurwitz, Circuit

Judges, and Algenon L. Marbley, * District Judge.

Per Curiam Opinion

*

The Honorable Algenon L. Marbley, United States District Judge

for the Southern District of Ohio, sitting by designation.

2 EMMONS V. CITY OF ESCONDIDO

SUMMARY **

Civil Rights

Following a remand by the United States Supreme Court,

the panel affirmed the district court’s summary judgment in

favor of a police officer in an action brought pursuant to 42

U.S.C. § 1983 alleging that the officer used excessive force

when he grabbed plaintiff and took him to the ground during

an investigation of a reported domestic violence incident.

The panel held that it was unable to find a specific case

precisely on point that would establish that the officer’s

conduct violated a clearly established constitutional right of

which a reasonable official would have known, and therefore

the officer was entitled to qualified immunity. The panel

stated that although plaintiff posed no apparent danger to the

police officer, it was mindful of the Supreme Court’s

conclusion that a case involving police force employed in

response to mere “passive resistance” to police was not

sufficiently on point with this case as to satisfy the Court’s

demand for specificity.

**

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

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

EMMONS V. CITY OF ESCONDIDO 3

OPINION

PER CURIAM:

The district court granted summary judgment in favor of

the City of Escondido and several Escondido police officers

in this 42 U.S.C. § 1983 action. Emmons v. City of

Escondido, 168 F. Supp. 3d 1265, 1276 (S.D. Cal. 2016).

We affirmed in part and reversed in part, holding that

Officers Toth and Craig were not entitled to qualified

immunity. 716 F. App’x 724, 726 (9th Cir. 2018)

(unpublished). The Supreme Court granted certiorari,

reversed our decision as to Officer Toth, and vacated and

remanded as to Officer Craig. 139 S. Ct. 500, 502 (2019)

(per curiam). We ordered supplemental briefing on the

following question: Did “clearly established law prohibit[]

the officers from stopping and taking down a man in these

circumstances?” After considering that briefing, we affirm

the district court’s grant of summary judgment in favor of

Officer Craig.

I.

At the time this action was filed, Maggie Emmons lived

in Escondido, California, with her husband, their two

children, and a roommate, Ametria Douglas. In April 2013,

Maggie called 911, accusing her husband of domestic

violence. Emmons, 139 S. Ct. at 501. Escondido police

arrested the husband, but he was never prosecuted. Id.

In May 2013, Douglas was on the phone with her mother.

After the call dropped, Douglas’s mother called 911 to report

what she believed was an on-going fight at the apartment.

The Escondido police were asked to conduct a welfare

check. Officer Craig was one of the responding officers.

4 EMMONS V. CITY OF ESCONDIDO

When the Escondido officers arrived on the scene, they

found Douglas with the Emmons children at the swimming

pool complex of the apartment. Douglas told the officers

that everything was fine and that they were not needed. The

officers proceeded to the apartment nonetheless. Maggie

and her father, Marty Emmons, were watching television.

Although Marty urged her to cooperate, Maggie refused to

allow the officers to enter the apartment despite their

repeated requests.

Marty then emerged from the apartment, and the

physical encounter with Craig that is the subject of this case

ensued. The parties dispute what happened and, on this

appeal from an adverse summary judgment, we must take

the facts in the light most favorable to Marty. Tolan v.

Cotton, 572 U.S. 650, 655–57 (2014) (per curiam). Marty

testified that he stepped out of the apartment with his back

to the exterior hallway and began to close the door. He could

not see any officers by the door and did not hear anyone

telling him to keep the door open. He first knew that Craig

was there when Craig grabbed him and threw him to the

ground. Douglas, who was watching from the pool,

described the interaction as one in which “Mr. Emmons was

pulled out of the door,” and “tackled to the ground.”

The police body cameras recorded Craig saying the

following: “Hi. How you doing sir? Don’t close the door.

Get your hands behind your back. Get on the ground, get on

the ground, get on the ground.” The physical interaction

with Marty occurs as Craig is speaking.

II.

Qualified immunity shields government officials from

liability for civil damages when “their conduct does not

violate clearly established statutory or constitutional rights

EMMONS V. CITY OF ESCONDIDO 5

of which a reasonable person would have known.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). In this context,

“clearly established” means that, “at the time of the officer’s

conduct, the law was ‘sufficiently clear that every reasonable

official would understand that what he is doing’ is

unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). Courts must “define the ‘clearly established’ right

at issue on the basis of the ‘specific context of the case.’”

Tolan, 572 U.S. at 657 (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). Thus, liability will not attach unless there

exists “a case where an officer acting under similar

circumstances . . . was held to have violated the Fourth

Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(per curiam); see also Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (per curiam) (“[P]olice officers are entitled to

qualified immunity unless existing precedent ‘squarely

governs’ the specific facts at issue.” (quoting Mullenix v.

Luna, 136 S. Ct. 305, 309 (2015))). A plaintiff “bears the

burden of showing that the right at issue was clearly

established.” Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.

2011) (citing Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.

2002)).

Marty cited several cases that he believes clearly

establish that Craig used excessive force. Those cases,

however, do not present sufficiently similar factual

circumstances to have “placed the . . . constitutional question

beyond debate.” al-Kidd, 563 U.S. at 741. In several of the

cases, the force used was significantly greater than the force

used in this case or involved differently situated plaintiffs.

See, e.g., Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1091–

92 (9th Cir. 2013) (tasing a bystander); Nelson v. City of

Davis, 685 F.3d 867, 878 (9th Cir. 2012) (shooting an

6 EMMONS V. CITY OF ESCONDIDO

individual in the eye with “a pepperball projectile”);

Blankenhorn v. City of Orange, 485 F.3d 463, 478–79 (9th

Cir. 2007) (gang-tackling a suspected trespasser at a

shopping mall); Santos v. Gates, 287 F.3d 846, 853–54 (9th

Cir. 2002) (taking down an individual, resulting in a broken

back); Headwaters Forest Def. v. County of Humboldt,

276 F.3d 1125, 1130–31 (9th Cir. 2002) (using pepper spray

against protesters).

Marty also cited Meredith v. Erath, 342 F.3d 1057 (9th

Cir. 2003). But, in that case, IRS agents had entered the

plaintiff’s office, and although she “made no attempt to

leave,” one “grabbed her by her arms, forcibly threw her to

the ground, and, twisting her arms, handcuffed her.” Id. at

1061. Here, as the Supreme Court emphasized, Marty was

attempting to step out of his daughter’s apartment and close

the door. Emmons, 139 S. Ct. at 504.

The case closest to this one that we have discovered is

Hansen v. Black, 885 F.2d 642 (9th Cir. 1989). Investigating

a gas station robbery, police officers went to the plaintiff’s

residence, suspecting that her son may have been involved.

Id. at 643. They found the plaintiff outside, taking out her

trash, and we held that that the officers used excessive force

in handcuffing her “in an abusive manner” after she refused

to comply with an officer’s order to put the trash down. Id.

at 645. But here, the officers were investigating an incident

that occurred inside the Emmons home, and Marty had not

been ruled out as a possible suspect.

Although Marty posed no apparent danger to Craig, we

are mindful of the Supreme Court’s conclusion that a case

involving police force employed in response to mere

“passive resistance” to police is not sufficiently on point to

constitute clearly established law. Emmons, 139 S. Ct. at

503. The Court therefore must have concluded implicitly

EMMONS V. CITY OF ESCONDIDO 7

that Marty’s actions involved more than passive resistance.

Otherwise, the Court would not have vacated our decision in

the face of our citation to Gravelet-Blondin, 728 F.3d at

1093, in which we held that “[t]he right to be free from the

application of non-trivial force for engaging in mere passive

resistance was clearly established prior to 2008.” Given the

Court’s admonition, we are unable to find a case so precisely

on point with this one as to satisfy the Court’s demand for

specificity. Officer Craig is therefore entitled to qualified

immunity. 1

AFFIRMED.

1

Because we hold that Craig is entitled to qualified immunity, we

do not address whether he violated Mr. Emmons’s constitutional rights.

See Pearson, 555 U.S. at 236–37. The Supreme Court has advised that

“lower courts ‘should think hard, and then think hard again,’ before

addressing both qualified immunity and the merits of an underlying

constitutional claim.” Wesby, 138 S. Ct. at 589 n.7 (quoting Camreta v.

Greene, 563 U.S. 692, 707 (2011)).