UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT FILED

FEB 28 2014

LOUISA THURSTON, No. 12-15729

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Plaintiff - Appellant, D.C. No. 2:10-cv-00516-LRH-RJJ District of Nevada, v. Las Vegas

CITY OF NORTH LAS VEGAS POLICE

DEPARTMENT; CITY OF NORTH LAS ORDER

VEGAS; PAUL FREEMAN, Detective; ANTHONY WATKINS, Detective; MICHAEL WALLER, Sergeant; LEONARD TAYLOR, Officer; ERIC ROCKWELL, Officer; JASON SCARALE, Officer,

Defendants - Appellees.

Before: NOONAN and WATFORD, Circuit Judges, and LYNN, District Judge.*

The memorandum disposition filed on January 9, 2014 is amended as

follows:

At page 6, line 4-5, “the police department and individual officers” will be

amended to read, “certain individual officers.”

* The Honorable Barbara M. G. Lynn, District Judge for the U.S. District Court for the Northern District of Texas, sitting by designation. With this amendment, Judge Noonan and Judge Lynn vote to deny the

petition for rehearing and recommend denying the petition for rehearing en banc.

Judge Watford votes to grant the petition for rehearing and petition for rehearing

en banc.

The petition for rehearing and the petition for rehearing en banc are

DENIED.

No further petitions for rehearing and petitions for rehearing en banc shall be

entertained.

2

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT FEB 28 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LOUISA THURSTON, No. 12-15729

Plaintiff - Appellant, D.C. No. 2:10-cv-00516-LRH-RJJ

v.

MEMORANDUM*

CITY OF NORTH LAS VEGAS POLICE

DEPARTMENT; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted November 8, 2013 San Francisco, California

Before: NOONAN and WATFORD, Circuit Judges, and LYNN, District Judge.**

Louisa Thurston appeals the district court’s grant of summary judgment

dismissing her § 1983 suit against the City of North Las Vegas (“city”), the City of

North Las Vegas Police Department (“police department”), and individual officers

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Barbara M. G. Lynn, District Judge for the U.S. District Court for the Northern District of Texas, sitting by designation. for the unlawful seizure of her two pet dogs. In particular, Thurston alleges that

members of the police department’s SWAT team shot and killed her dogs during

the execution of a high risk search warrant at her home in violation of the Fourth

and Fourteenth Amendments. The defendants moved for summary judgment on

qualified immunity grounds. The district court held that, under the circumstances,

the police officers acted reasonably in shooting the dogs, and thus did not violate

Thurston’s Fourth Amendment rights as a matter of law. Because the district court

determined that Thurston could not establish a constitutional violation, it granted

summary judgment without reaching the second prong of the qualified immunity

analysis. The court’s finding that there was no Fourth Amendment violation as a

matter of law also obviated the need to address whether the City of North Las

Vegas could be subject to municipal liability under Monell v. Department of Social

Service, 436 U.S. 658 (1978).

We review de novo a district court’s decision to grant summary judgment on

the basis of qualified immunity. Crow v. Cnty. of San Diego, 608 F.3d 406, 427

(9th Cir. 2010). In doing so, this court must determine whether (1) taken in the

light most favorable to Thurston, the facts alleged show that the officers violated a

constitutional right; and if so, (2) whether the right was clearly established at the

time of the shootings. Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1229 (9th Cir.

2 2006). We find that genuine issues of material fact exist, and thus reverse and

remand the case for trial.

1. The district court improperly ruled that the SWAT team officers acted

reasonably as a matter of law in shooting Thurston’s pet pit bull and mastiff. The

shooting of a dog during a search warrant service must be reasonable under the

circumstances to comply with the Fourth Amendment. San Jose Charter of Hells

Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005). We

must consider the totality of the circumstances to determine whether the

destruction of property was reasonably necessary to effectuate the performance of

the law enforcement officers’ duties by balancing “the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing government interests at stake.” Id. (internal quotations and citations

omitted). Viewing the facts in the light most favorable to Thurston, there are

genuine issues of material fact as to whether the police officers acted reasonably.

First, the police waited 20 minutes after entering the home before firing on

the dogs, even though Thurston and her daughter were zip-tied within a few

minutes of the SWAT team’s entrance and escorted out of the house shortly

thereafter. At oral argument, the city’s attorney contended that the house had not

yet been secured at the time of the shooting, but produced no citation to the record

3 for this assertion. The absence of evidence that the house was still unsecured at the

time of the shooting raises a reasonable inference that the officers had enough time

to observe the dogs’ behavior and summon animal control specialists before the

alleged attack occurred, which speaks directly to the reasonableness of the officers’

conduct.

Second, there is a genuine issue of fact as to whether the dogs attacked. The

district court relied on the lack of evidence directly contradicting the officers’

testimony that the dogs attacked. But this ignores the summary judgment standard

that requires the court to view the evidence in the light most favorable to Thurston

and draw all reasonable inferences in her favor. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). Here, although Thurston did not witness the alleged

attack herself, she did testify that her dogs were not aggressive and that she had

observed her dogs sitting by the back patio door looking happy and “wiggling their

tails” just prior to her being escorted out of the house. Viewing the evidence in

Thurston’s favor, a jury could infer that if her dogs were “wiggling their tails” non-

aggressively right before the alleged attack, then perhaps they did not attack at all.

Third, one of the police officers testified that department policy dictates

attendance, if not participation, of an animal control officer whenever police know

there are dogs present inside a home. The absence of an animal control officer—in

4 contravention of general policy and despite time to summon one after

entry—further raises a genuine issue of fact as to the reasonableness of the

officers’ actions.

The dissent points out that “the dogs appeared to be safely confined to the

fenced-in backyard,” and that Thurston presented no evidence suggesting the

officers knew or should have known that the dogs could get in the house. But

Thurston testified that when the police initially entered the house, both dogs were

in the bedroom with her and subsequently went out to the patio area. That the dogs

were initially inside the house and then went outside undercuts the assumption that

the dogs were “safely confined to the fenced-in backyard.” If the dogs could freely

leave the house, then a jury could reasonably infer that the dogs could just as easily

re-enter the house.

2. Given that there are genuine issues of material fact as to whether the

officers acted reasonably, we address whether Thurston’s Fourth Amendment right

was clearly established at the time of the shooting. Pearson v. Callahan, 555 U.S.

223, 232 (2009) (citation omitted). We conclude it was. As this court ruled in Hells

Angels, a reasonable officer “should have known that to create a plan to enter the

perimeter of a person’s property, knowing all the while about the presence of dogs

on the property, without considering a method of subduing the dogs besides killing

5 them, would violate the Fourth Amendment.” Hells Angels, 402 F.3d at 978. Thus,

Thurston’s constitutional right was clearly established at the time of the shooting

and the officers are not entitled to qualified immunity.

3. Although Thurston’s constitutional claims against certain individual

officers may proceed to trial, the claims against the city must be dismissed. There

is no evidence that the officers shot Thurston’s dogs pursuant to a formal

governmental policy or longstanding practice which constitutes the standard

operating procedure of the city. Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.

1992). Accordingly, there can be no municipal liability against the city, and

Thurston’s Monell claim is dismissed.

REVERSED and REMANDED.

In Case No. 12-15729, Plaintiff-Appellant shall recover her costs on appeal..

6

FILED

Thurston v. City of North Las Vegas, No. 12-15729 FEB 28 2014

MOLLY C. DWYER, CLERK

WATFORD, Circuit Judge, dissenting: U.S. COURT OF APPEALS

This is not a case where the officers knew aggressive dogs were on the

property a week before executing a low-risk search warrant, and then planned on

killing the dogs as part of the search. See San Jose Charter of Hells Angels

Motorcycle Club v. City of San Jose, 402 F.3d 962, 976–77 (9th Cir. 2005). In

Hells Angels, the officers knowingly executed a backyard-entry plan that made a

confrontation with the dogs inevitable, and did so with the intention of shooting the

dogs. Id. at 968–69, 976–77.

The officers in this case, in contrast, were executing a high-risk search

warrant issued earlier that day. They entered through the house, not the backyard.

Once inside the house, the officers knew there were large, potentially aggressive

dogs on the property, but the dogs appeared to be safely confined to the fenced-in

backyard. The officers who shot Ms. Thurston’s dogs were standing inside the

house, guarding a door leading from the house to the backyard, when the dogs

unexpectedly flung the door open with their noses. The officers testified without

contradiction that the dogs—a 140-pound mastiff and a 70-pound pit

bull—growled, bared their teeth, and charged at them inside the house, causing the

officers to fear for their safety. Page 2 of 2 On these facts, a rational jury could find that the officers acted unreasonably

only if Ms. Thurston presented evidence suggesting the officers knew or should

have known that the dogs could get in the house, but nonetheless took no steps to

prevent that from happening. Because Ms. Thurston presented no such evidence, I

would affirm.