Klapper

MEMORANDUM **

Michael Klapper appeals from the district court’s grant of summary judgment in his civil rights suit against the city of Los Angeles and several Los Angeles police officers, and the denial of his motion to amend his complaint. The facts are familiar to the parties and will not be repeated here.

We view the facts in the light most favorable to Klapper, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002), and conclude that there are critical factual issues that preclude us from determining whether officers had probable cause to enter his apartment. If, as Klapper argues, officers could not see Klapper clearly before they ordered him to open the exterior door to his apartment, they violated the Fourth Amendment by searching his apartment without probable cause. See United States v. Winsor, 846 F.2d 1569, 1573 (9th Cir.1988) (en banc) (holding that officers conduct a search when they “gain[] visual entry into [a] room through [a] door that [is] opened at their command”). Because resolution of this factual issue affects whether officers had probable cause to arrest Klapper, summary judgment was not appropriate.

Nevertheless, the district court also grounded its decision…

dissenting.

I would affirm.

As I read the court’s opinion, the court reverses the district’s grant of summary judgment dismissing the complaint because it concludes that there are disputed factual questions that “preclude us from determining whether officers had probable cause to enter” Klapper’s apartment, namely, whether police officers could see Klapper clearly before “they ordered him to open the exterior door to his apartment.” It relies on United States v. Winsor, 846 F.2d 1569 (9th Cir.1988), where the police, with drawn guns, knocked on the door of the defendant’s hotel room and announced: “Police. Open the door.” 846 F.2d at 1571 . The court held that this language constituted a “command” to open the door. Id. at 1573 .

In the present case, in contrast, I read the record as justifying the conclusion that the police “requested” rather than “demanded” that Klapper open the door. In his June 19, 2003 deposition, Kapper stated that the officers “said they were L.A.P.D., if I could open the door?” In his September 10, 2003 declaration, Klapper similarly stated that the officers “said words to the effect of ‘could you open the door?’ ” Although in his August 14, 2003…