Harveston

MEMORANDUM *

Nathan Phillip Harveston (“Harveston”) appeals the district court’s adverse summary judgment in favor of Westport, Washington, police officers Charles Cunningham and Vennessia Daniels. In this 42 U.S.C. § 1983 action, Harveston alleges the officers violated his constitutional rights by illegally entering his home on July 23, 2000, illegally arresting him, and using excessive force against him.

We review summary judgment de novo, and we may affirm for any reason supported by the record. Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir.1994). The district court’s qualified immunity determination is also reviewed de novo. Elder v. Holloway, 510 U.S. 510, 516 , 114 S.Ct. 1019 , 127 L.Ed.2d 344 (1994). Qualified immunity is appropriate unless the evidence shows that (1) the officers violated Harveston’s constitutional rights, and (2) the rights violated were clearly established. See Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001).

Viewing the record in the light most favorable to Harveston, see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001), we nonetheless conclude that no genuine issue of material fact exists as to whether…

dissenting:

I respectfully disagree with the conclusion that on this record the officers are entitled to immunity. There is conflicting evidence in the record as to whether the officers were told that someone inside needed help. If the officers had information that someone inside needed help, even though there was no visible or audible disturbance at the scene when they arrived, qualified immunity would be proper. The dispatch report in the circumstances of this case is not sufficient to justify immunity for a warrantless entry into a residence. In my view there is a disputed issue of material fact and for that reason I cannot join the majority’s disposition.