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Bonivert v. City of Clarkston

United States Court of Appeals, Ninth Circuit

February 26, 2018

Ryan J. Bonivert, Plaintiff-Appellant,
City of Clarkston; County of Asotin, Washington; Gary Snyder; Joseph Snyder; Jennifer L. Snyder; Shawn Rudy, Deputy; Grimm, Deputy; Paul Purcell; Teresa R. Purcell; Daniel Combs; Claudia A. Combs, Defendants-Appellees.

          Argued and Submitted August 28, 2017 Seattle, Washington

         Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, Chief District Judge, Presiding D.C. No. 2:14-cv-00056-TOR

          James E. Lobsenz (argued), Carney Badley Spellman P.S., Seattle, Washington, for Plaintiff-Appellant.

          Christopher Joseph Kerley (argued), Evans Craven & Lackie P.S., Spokane, Washington, for Defendant-Appellee City of Clarkston.

          Ann Elizabeth Trivett (argued) and Thomas P. Miller, Christie Law Group PLLC, Seattle, Washington, for Defendants-Appellees County of Asotin, Gary Snyder, Joseph Snyder, Jennifer L. Snyder, Shawn Rudy, Deputy Grimm, Paul Purcell, Teresa R. Purcell, Daniel Combs, and Claudia A. Combs.

          Before: Michael Daly Hawkins and M. Margaret McKeown, Circuit Judges, and Barbara Jacobs Rothstein, [*] District Judge.

         SUMMARY [**]

         Civil Rights

         The panel reversed the district court's grant of summary judgment on qualified immunity grounds and remanded in a 42 U.S.C. § 1983 action in which plaintiff alleged that police officers violated his Fourth Amendment rights when they forced their way into his home without a warrant, threw him to the ground and then tasered and arrested him.

         The panel held that the scenario in this case closely paralleled Georgia v. Randolph, 547 U.S. 103 (2006), where the Supreme Court held that a warrantless search was unreasonable as to a defendant who is physically present and expressly refuses consent to entry. Following the Court's reasoning, the panel concluded that the warrantless entry into plaintiff's home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The panel further held that the evidence did not justify the district court's conclusion that "no reasonable jury could find the use of force within the home excessive." The panel concluded that genuine issues of fact prevented a determination of qualified immunity at summary judgment such that the case must proceed to trial.


          McKEOWN, Circuit Judge:

         "An open door says, 'Come in, '" the poet Carl Sandburg once wrote. "If a door is open and you want it open, why shut it?"[1] The corollary, of course, is that a locked door says, "stay out, " and a shut door certainly does not say, "come in."

         This appeal arises out of a domestic dispute call to the police from the home of Ryan Bonivert. During an evening gathering with friends, Bonivert reportedly argued with his girlfriend, Jessie Ausman, when she attempted to leave with the couple's nine-month old daughter. By the time police arrived, the disturbance was over: Ausman, the baby, and the guests had safely departed the home, leaving Bonivert alone inside. At that point, there was no indication that Bonivert had a weapon or posed a danger to himself or others. Nor does the record suggest that Ausman intended to reenter the house or otherwise asked police to accompany her inside. When Bonivert failed to respond to repeated requests to come to the door, the officers decided they needed to enter the house. No attempt was made to obtain a search warrant. Though Bonivert locked the door to his house and refused police entreaties to talk with them, the police broke a window to unlock and partially enter the back door. Even then, Bonivert tried to shut the door, albeit unsuccessfully. Although Ausman consented to the officers entering the house, Bonivert's actions were express-stay out. Nevertheless, the officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, [2] handcuffed him, and arrested him.

         The scenario here closely parallels Georgia v. Randolph, 547 U.S. 103 (2006), where the Supreme Court held that a warrantless search was unreasonable as to a defendant who is physically present and expressly refuses consent to entry. Id. at 106. Following the Court's reasoning, we conclude that the warrantless entry into Bonivert's home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The officers are not entitled to qualified immunity.


         In the early morning hours of January 8, 2012, Sergeant Danny Combs and Officer Paul Purcell of the City of Clarkston, Washington (the "City") Police Department received a "physical domestic" dispatch to the home of Ryan Bonivert. The dispatcher relayed to the officers that an argument between a man and a woman had become "physical at one point, " and that the dispatcher had been "advised the male, " Bonivert, "was inside the house being restrained by other males, " and "the female, " Bonivert's girlfriend Jessie Ausman, was "outside in a car with a child."

         When Purcell and Combs arrived, they encountered five people standing in front of Bonivert's house: Ausman; Ausman's sister, Tasha; Ausman's mother, Ann McCann; James Gray; and Brad Miller. Purcell spoke to the three women, who reported that the entire group, including Bonivert, had been at a social gathering in the house. Bonivert and Ausman, who had a nine-month old daughter and had been living together in Bonivert's home for the past two years, began arguing about their relationship when Ausman announced that she was leaving with the baby. Bonivert reportedly became angry. According to the women, Bonivert grabbed Ausman and threw her to the ground. Ausman further told the officers that all of the adults in the residence had been drinking that evening.

         Combs, meanwhile, interviewed Gray and Miller. Both men told Combs that in the middle of an argument, Ausman had told Bonivert that she was leaving with the baby. According to Gray and Miller, Bonivert warned Ausman she was not leaving with the child and attempted to "rush[]" her, but Miller tackled Bonivert before he could make contact, enabling Ausman to safely exit the house with the baby. The only difference in Gray and Miller's version of events and that of the women was that neither saw "anything physical" occur between Bonivert and Ausman. Bonivert later stated that after Ausman and his guests had departed, he decided to go to bed. Bonivert remained inside the house during the entirety of the officers' conversations with the witnesses.

         The officers exchanged narratives and, after discussing the discrepancies between the men and women's stories, decided to speak to Bonivert. The officers initially approached the front door of the residence, knocked, identified themselves as police, and instructed Bonivert to come to the door. Combs testified that he believed-but was uncertain whether-Bonivert heard the initial knock-and-announce. Bonivert testified that he heard yelling and loud banging on the front door, but did not know who was there or what was being said.

         Receiving no response from Bonivert, Combs knocked on other doors and windows of the house, peering into the windows using his flashlight. The officers found that both the front door and the back door were locked. As Combs approached the side door, Bonivert realized it was unlocked and locked the deadbolt from inside. Combs, upon hearing the door lock, believed that Bonivert did not want to speak or have any contact with him. After Bonivert locked the side door, he heard someone outside announce that they were police and ask him to come outside. Purcell testified that at some point, Combs yelled loudly, "Come out or we are coming in, " or words to that effect. Bonivert, however, made no attempt to speak to the officers.

         The officers went back to the front of the house to question the witnesses again. In response to an inquiry whether Bonivert was a danger to himself, Ausman informed Combs that there were no weapons in the home. Ausman also told police that she did not believe Bonivert was a danger to himself. When the officers inquired how Bonivert would respond to having his home broken into, Ausman warned Combs that Bonivert had a problem with authority and recounted Bonivert's angry-but not violent-behavior towards officers during a recent drunk driving arrest.

         At this point, Combs decided he needed to assess Bonivert's condition. Combs claims he wanted to "find out what was going on, to assess [Bonivert]" and "see what his state of mind were [sic]." According to Combs, he was concerned by the fact that Bonivert was "not talking to" the officers. Ausman, who had been living in Bonivert's home for approximately two years, gave Sergeant Combs permission to enter the house. The parties dispute whether Ausman also gave permission for Combs to break a door or window to gain entry. Nothing in the record suggests, however, that Ausman intended to reenter the home or asked Combs for his assistance to do so.

         Combs and Purcell requested assistance from the Asotin County Sheriff's Office (the "County").[3] The officers also radioed a "Code 4" message to the County, which meant that "there are no problems" with "the police and the people they are with, " and that everyone is "safe" and nobody is "being injured."

         Upon arrival, Asotin County Deputies Gary Snyder and Joseph Snyder spoke with Combs, who told them that Bonivert was locked inside the residence and refused to come out after a physical encounter with his wife. Combs requested their assistance to enter the house. The County deputies were aware that the City officers did not have a warrant to enter the home or arrest Bonivert. They did not obtain information about who owned the residence, who lived at the residence, whether there were outstanding arrests, or what basis the City officers had for entering the home. Instead, the County deputies deferred to Combs, the highest ranking City officer on the scene.

         The officers collectively developed a plan of entry. Purcell remained stationed at the front door, on the east side of the residence, while Combs and the County deputies went around to the north side of the residence. Combs again knocked on the side and back doors, identified himself as the police, and advised Bonivert to open the door. Combs and Gary Snyder directed their flashlights through the windows and saw Bonivert retreat into the back of the house. On at least one occasion when a flashlight beam hit Bonivert, he ducked out of sight. Combs then approached the back door, with Joseph Snyder directly behind him and Gary Snyder standing farther back to maintain visibility of the front door.

         Combs used his flashlight to shatter a window pane on the back door and reached through the opening to unlock it. At that point, Bonivert opened the door and began shouting that the officers were going to pay for the damage to his window. Combs stated that he ordered Bonivert to stay back, calm down, and get on the ground. Joseph Snyder similarly ordered Bonivert to get on the ground and show his hands. Bonivert disputed that he was given these commands and stated that there were flashlights pointed at him, which caused him to lower his hands to shield his eyes, and that he was unable to understand what the officers were saying. The parties dispute whether Bonivert advanced upon the officers, or remained at the door. The video footage from the taser is inconclusive: it appears to show Bonivert at the threshold of the door.

         Without warning, Combs and Gary Synder then deployed their tasers at Bonivert in dart mode. In response, Bonivert brushed off the darts, cursed at the officers, and attempted to close the door. Before Bonivert could completely close the door on the officers, however, Combs shoved the door open with enough force to throw Bonivert to the other side of the room, and the officers entered the home.

         Once inside the house, the parties dispute whether Bonivert swung his fists and attacked Combs. In any event, Joseph Snyder tackled Bonivert to the ground while Combs drive-stunned Bonivert multiple times in his upper right shoulder. Eventually, all three officers held Bonivert to the ground. Bonivert can be heard in the taser video-in response to an officer's repeated commands to "give me your hands" and "hold still"-screaming "no, " "why, " and "why are you in my house?, " and sobbing. Combs deployed his taser in drive-stun mode once more after Bonivert was handcuffed. Comb's taser report shows his taser was activated in drive-stun mode four times within approximately one minute. Bonivert was placed under arrest for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree.

         Bonivert brought claims under 42 U.S.C. § 1983 against the City, the County, Combs, Purcell, Gary Synder, and Joseph Synder, alleging warrantless entry and excessive force in violation of Bonivert's constitutional rights. The district court granted ...

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