FILED

NOT FOR PUBLICATION

MAR 2 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KYLE CARDENAS, No. 22-15632

Plaintiff-Appellant, D.C. No. 2:17-cv-04749-SMM

v.

MEMORANDUM*

JOSIAH SALADEN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding

Argued and Submitted February 8, 2023 Phoenix, Arizona

Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.

Plaintiff Kyle Cardenas appeals the district court’s order granting summary

judgment for Gilbert Police Department (GPD) Officers Josiah Saladen and Larry

Sinks in Cardenas’ 42 U.S.C. § 1983 action alleging unlawful entry, unlawful

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. arrest, and excessive force. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

We review de novo a district court’s order granting summary judgment on

the basis of qualified immunity. Evans v. Skolnik, 997 F.3d 1060, 1064 (9th Cir.

2021). “Qualified immunity attaches when an official’s conduct ‘does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)).

1. The Officers are entitled to qualified immunity on Cardenas’ unlawful-

entry claim. The Officers’ initial warrantless entry into the home was justified

pursuant to the emergency doctrine because, considering the information the

Officers had received from GPD dispatch, they “had an objectively reasonable

basis for concluding there was an immediate need to protect others . . . from

serious harm.” United States v. Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008).

Dispatch had told the Officers that Cardenas was “feeding the dog poison,” that

Cardenas and his mother were in the same residence, that Cardenas was “extremely

irate” and had “t[aken] the phone away from [his] mother and wasn’t allowing her

to speak,” that he was suffering from PTSD, and that he was complaining of

childhood abuse and demanding to speak to Child Protective Services (CPS). This

2 information provided an objectively reasonable basis for the Officers to believe

Cardenas posed a threat to others who were in the family residence with him.

Though Cardenas’ parents arguably were no longer in immediate danger

once Cardenas entered his bedroom, the Officers’ warrantless entry into the

bedroom was also justified by an emergency because the Officers had an

objectively reasonable basis to believe Cardenas may have been a danger to

himself. The Officers had heard from dispatch that Cardenas “was not himself,”

believed his parents were trying to kill him, had PTSD, was claiming that he had

been abused since childhood, and was demanding to speak to CPS despite being an

adult man in his thirties. The Officers’ personal observations of Cardenas’ erratic

and volatile behavior and his mother’s reaction to his conduct also supported their

reasonable belief that he was having a mental health crisis and posed a danger to

himself.

Cardenas has not attempted to identify any controlling or persuasive case

law clearly establishing that the Officers’ entry into his home and bedroom was

unlawful, and we are not aware of any such case.

2. The Officers also are entitled to qualified immunity on Cardenas’

unlawful-arrest claim. “An officer who makes an arrest without probable cause . . .

may still be entitled to qualified immunity if he reasonably believed there to have

3 been probable cause.” Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th

Cir. 2011). An officer is therefore entitled to qualified immunity if “it is

reasonably arguable that there was probable cause for arrest—that is, whether

reasonable officers could disagree as to the legality of the arrest.” Id. Accepting

Cardenas’ factual account as true for purposes of summary judgment, we assume

he was not violent toward his parents, did not poison the family dog, and did not

order the dog to attack the Officers. But based on the information the Officers had

at the time, we conclude they could have reasonably believed that there was

probable cause to arrest Cardenas for animal cruelty. See Ariz. Rev. Stat. § 13-

2910(A)(3). Similarly, given the information the Officers had received from

dispatch and their personal observations, it was reasonable for them to suspect that

Cardenas had engaged in some form of disorderly conduct. See Ariz. Rev. Stat.

§ 13-2904. Cardenas has not identified any case holding that police officers

violated the Fourth Amendment by making an arrest under similar circumstances,

and we are not aware of any such case.

3. Last, the Officers are entitled to qualified immunity on Cardenas’

excessive-force claim. The Ninth Circuit cases Cardenas identifies do not

“‘squarely govern[]’ the specific facts at issue” in his appeal because they are

distinct in legally significant ways. See Kisela v. Hughes, 138 S. Ct. 1148, 1153

4 (2018) (per curiam) (quoting Mullenix, 577 U.S. at 15). In Mattos v. Agarano, the

plaintiff had been pulled over for a minor traffic infraction, was pregnant, did not

pose “even a potential threat to the officers’ or others’ safety,” and was tased in

drive-stun mode three times in rapid succession. 661 F.3d 433, 436–37, 445–46

(9th Cir. 2011) (en banc). And in Bryan v. MacPherson, the plaintiff was also

pulled over for a minor traffic infraction, was standing twenty to twenty-five feet

away from the officer, did not resist arrest “at all,” and was tased from behind

without warning. 630 F.3d 805, 822, 826–31 (9th Cir. 2010). By contrast, the

Officers suspected Cardenas had committed more serious and violent crimes, he

was belligerent, the Officers warned Cardenas that they would tase him if he

continued resisting their attempts to handcuff him, and Officer Sinks deployed his

taser only once. See Graham v. Connor, 490 U.S. 386, 396 (1989) (providing that

relevant considerations for the excessive-force analysis include the severity of the

crime at issue, whether the suspect poses an immediate threat to the officers or

others, and whether the suspect is actively resisting arrest).

The remaining cases Cardenas cites are not controlling authority and are

similarly distinguishable because they involved the gratuitous use of a taser, tasing

a suspect who was already subdued, or tasing a suspect who was not resisting

arrest or was at most simply noncompliant with an order. See, e.g., Fils v. City of

5 Aventura, 647 F.3d 1272, 1288–89 (11th Cir. 2011); Lewis v. Downy, 581 F.3d

467, 477–78 (7th Cir. 2009); Orem v. Rephann, 523 F.3d 442, 444, 446–47, 449

(4th Cir. 2008), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37

(2010). Because there is neither controlling authority nor a “robust ‘consensus of

cases of persuasive authority’” establishing that the Officers violated Cardenas’

Fourth Amendment rights by tasing him, we conclude that the Officers are entitled

to qualified immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (quoting

Wilson v. Layne, 526 U.S. 603, 617 (1999)).

AFFIRMED.

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