No. IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 No. IN THE SUPREME COURT OF THE UNITED STATES LAS VEGAS METROPOLITAN POLICE DEPARTMENT; CLARK COUNTY, NEVADA; JAY R. ROBERTS, Sgt.; MICHAEL DUNN, Officer; CHRISTOPHER G. KOHNTOPP, Officer; JUSTIN BYERS, Officer; TROY GIVENS, Officer, v. Petitioners, JESUS RODRIGUEZ SANDOVAL; ADRIANA RODRIGUEZ, individually and as Guardian Ad Litem for Kenya Rodriguez, a Minor; HENRY BRIAN RODRIGUEZ; MARTHA LEAL, as Guardian Ad Litem for Jordhy Leal, a Minor; MONICA MORENO, as Guardian Ad Litem for David Madueno, a Minor, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI Craig R. Anderson, Esq. Micah S. Echols, Esq. Counsel of Record Marquis Aurbach Coffing Park Run Dr. Las Vegas, NV (702) mechols@maclaw.com LEGAL PRINTERS LLC, Washington DC! ! legalprinters.com

2 i QUESTIONS PRESENTED In Stanton v. Sims, 134 S.Ct. 3 (2013), this Court concluded that a police officer was entitled to qualified immunity because the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established. Id. at 7. In the instant case, the Ninth Circuit once again disobeyed the qualified immunity principles outlined by this Court and concluded that the Defendant police officers responding to a 911 call for a suspected burglary may not enter a home without a warrant. Sandoval v. Las Vegas Metro. Police Dep t, 756 F.3d 1154, (9th Cir. 2014). The Ninth Circuit reclassified the suspected burglary as a suspected misdemeanor for prowling (which does not actually exist in Nevada law) to conclude that the Defendant police officers were not permitted to enter a home for a suspected misdemeanor. Id. at The questions presented are: 1. Whether a police officer s warrantless entry into a home is justified under the Fourth Amendment in responding to a 911 call for burglary, regardless of whether the suspected crime is classified as a felony or as a misdemeanor. 2. Whether a police officer is, alternatively, entitled to qualified immunity because it is not clearly established that the warrantless entry into a home in responding to a 911 call for burglary is limited to only a suspected crime classified as a felony.

3 ii PARTIES TO THE PROCEEDINGS Petitioners, Las Vegas Metropolitan Police Department ( LVMPD ); Clark County, Nevada ( Clark County ); Jay R. Roberts, Sgt. ( Sgt. Roberts ); Michael Dunn, Officer ( Ofc. Dunn ); Christopher G. Kohntopp, Officer ( Ofc. Kohntopp ); Justin Byers, Officer ( Ofc. Byers ); Troy Givens, Officer ( Ofc. Givens ) (collectively the LVMPD Defendants ) were the defendants-appellees in the United States Court of Appeals for the Ninth Circuit and the defendants in the United States District Court, District of Nevada. Respondents, Jesus Rodriguez Sandoval ( Mr. Sandoval ); Adriana Rodriguez ( Ms. Rodriguez ), individually and as Guardian Ad Litem for Kenya Rodriguez ( Kenya ), a Minor; Henry Brian Rodriguez ( Henry ); Martha Leal ( Ms. Leal ), as Guardian Ad Litem for Jordhy Leal ( Jordhy ), a Minor; Monica Moreno ( Ms. Moreno ), as Guardian Ad Litem for David Madueno ( David ), a Minor (collectively the Sandovals ), were the plaintiffsappellants in the United States Court of Appeals for the Ninth Circuit and the plaintiffs in the United States District Court, District of Nevada. CORPORATE DISCLOSURE STATEMENT Pursuant to Supreme Court Rule 29.6, the LVMPD Defendants state that no corporations are involved in this proceeding. LVMPD and Clark County are governmental entities. All other Petitioners are individuals.

4 iii TABLE OF CONTENTS Questions Presented... i Parties to the Proceedings... ii Table of Authorities... iv Opinions Below... 1 Jurisdiction... 1 Constitutional and Statutory Provisions Involved.. 1 Statement of the Case... 3 Reasons for Granting the Petition Conclusion Appendix: Court of Appeals Opinion Filed July 1, District Court Order Filed February 24, a 34a District Court Judgment Filed February 24, a Court of Appeals Order Denying Petition for Rehearing Filed August 8, a

5 CASES iv TABLE OF AUTHORITIES PAGE(S) Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588 (2004) Frunz v. City of Tacoma, 468 F.3d 1141 (9th Cir. 2006)... 5, 11, 15, 28 Georgia v. Randolph, 547 U.S. 103, 126 S.Ct (2006) Graham v. Connor, 490 U.S. 386 (1989)... 10, 17 Hill v. California, 401 U.S. 797, 91 Southern Ct (1971) In re William S., 122 Nev. 432, 132 P.3d 1015 (2006) James v. United States, 550 U.S. 192 (2007). 12, 15 Malley v. Briggs, 475 U.S. 335, 106 S.Ct (1986) Martin v. City of Oceanside, 360 F.3d 1078 (9th Cir. 2004) Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983) Medway v. Cate, 756 F.Supp. 2d 1280 (S.D. Cal. 2010)... 5, 12, 19, 25

6 v Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995) Nelson v. City of Las Vegas, 99 Nev. 548, 665 P.2d 1141 (1983)... 5, 29 Parker v. Municipal Judge of City of Las Vegas, 83 Nev. 214, 427 P.2d 642 (1967) Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009) Ryburn v. Huff, 132 S.Ct. 987 (2012)... 3, 10, 16, 17 Sandoval v. Las Vegas Metropolitan Police Department, 756 F.3d 1154 (9th Cir. 2014).. i, 12 Stanton v. Sims, 134 S.Ct. 3 (2013).. i, 4, 13, 14, 22 State v. White, 330 P.3d 482 (Nev. 2014) United States v. Richardson, 208 F.3d 626 (7th Cir. 2000) United States v. Singer, 687 F.2d 1134 (8th Cir. 1982) United States v. Tibolt, 72 F.3d 965 (1st Cir. 1995) United States v. Warner, 843 F.2d 401 (9th Cir. 1988) Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010)... 10, 17

7 vi CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Constitution, Amend. IV... passim 28 U.S.C. 1254(1) U.S.C Nev. Rev. Stat , 23, 24, 26 Nev. Rev. Stat (1)... 4 Nev. Rev. Stat (2)... 4 Nev. Rev. Stat , 19, 23 Nev. Rev. Stat (1)(i) Nev. Rev. Stat (4) OTHER AUTHORITIES A.B. 77, Comm. on Judiciary, 67th Leg. (Nev. 1993)... 3, 19

8 1 Petitioners respectfully petition this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the Ninth Circuit Court of Appeals, reported at 756 F.3d 1154, is reprinted in the Appendix ( App. ) at 1a 33a. The opinion of the District Court for the District of Nevada, reported at 854 F.Supp.2d 860, is reprinted at App. 34a 71a. JURISDICTION The Ninth Circuit filed its opinion on July 1, App. 1a 33a. The LVMPD Defendants timely filed a petition for rehearing en banc, which the Ninth Circuit denied on August 8, App. 74a 75a. This Court has jurisdiction according to 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

9 2 affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Nev. Rev. Stat , in pertinent part, provides: 1. Except as otherwise provided in subsection 5, a person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary. 2. Except as otherwise provided in this section, a person convicted of burglary is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000. * * * *

10 3 STATEMENT OF THE CASE This case illustrates the Ninth Circuit s continued disobedience to this Court s qualified immunity precedent for police officers. In October 2009, the LVMPD officers responded to a 911 call for a suspected residential burglary in an area where youth had previously burglarized homes during school hours. 1 App. 5a, 35a 36a. Instead of acknowledging the inherent dangers that police officers confront in burglaries, the Ninth Circuit recast the entire case and concluded that the LVMPD police officers should have obtained a warrant before entering the Sandovals home, 2 despite exigent circumstances and the existence of probable cause. See, e.g., Ryburn v. Huff, 132 S.Ct. 987, 992 (2012) ( [R]easonable police officers in petitioners position could have come to the conclusion that the Fourth Amendment permitted them to enter the Huff residence if there was an objectively reasonable basis for fearing that violence was imminent. ). 1 The Ninth Circuit used the term prowling as a supposed misdemeanor under Nevada law. However, prowling has not existed as a misdemeanor since 1993 when it was removed from Nev. Rev. Stat See A.B. 77, Comm. on Judiciary, 67th Leg. (Nev. 1993). 2 The Ninth Circuit collectively referred to the Plaintiffs as the Sandovals, even though they are not all related. App. 4a, n. 1.

11 4 Even though this Court recently confirmed that the law is not clearly established with regard to a warrantless entry into a home when the underlying offense is a misdemeanor, the Ninth Circuit insisted on making the same rejected distinction to deny qualified immunity to the LVMPD police officers. See Stanton v. Sims, 134 S.Ct. 3, 7 (2013). As such, the LVMPD Defendants first ask this Court to grant certiorari to answer the questions left open by Stanton regarding the constitutionality of a police officer s warrantless entry into a home under similar circumstances. Alternatively, the LVMPD Defendants request that this Court grant certiorari to clarify that the qualified immunity holding of Stanton governs the outcome of this case because it is not clearly established that the LVMPD police officers were not permitted to enter the Sandovals home without a warrant in responding to a 911 call for a suspected burglary. The Ninth Circuit s artificial characterization that a suspected burglary (a felony in Nevada) 3 was treated as a non-existent misdemeanor charge for prowling was simply not clearly established in 2009 (or at the present day). App. 16a 17a. The Ninth Circuit reasoned that while burglaries are inherently dangerous and do not generally require a warrant to enter a home, a mere misdemeanor prowling charge does not involve any inherent danger, and police officers are 3 See Nev. Rev. Stat (1)&(2).

12 5 required to obtain a warrant before entering a home for a misdemeanor investigation. Id. Notably, for its distinction, the Ninth Circuit relied upon a 2010 California Federal District Court case applying California law, even though the events of this case took place in Nevada in App. 17a (citing Medway v. Cate, 756 F.Supp.2d 1280, 1297 (S.D. Cal. 2010)). On this alternative basis, the Court should similarly grant this petition. If the Court grants any relief to the LVMPD Defendants, the ruling will necessarily affect the Ninth Circuit s reasoning for the Sandovals other surviving claims. That is, this Court s determination of a lawful entry into the Sandovals home based on the Fourth Amendment will necessarily eliminate their excessive force claim and state law claims for intentional infliction of emotional distress, assault and battery, and false imprisonment. See Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006) ( Normally, when officers suspect a burglary in progress, they have no idea who might be inside and may reasonably assume that the suspects will, if confronted, flee or offer armed resistance. In such exigent circumstances, the police are entitled to enter immediately, using all appropriate force. ); Nelson v. City of Las Vegas, 99 Nev. 548, 552, 665 P.2d 1141, 1144 (1983) ( [A]n arrest made with probable cause is privileged and not actionable. ). Therefore, if the Court reverses the Ninth Circuit s order on the Sandovals Fourth Amendment unlawful entry claim, the Court should also remand

13 6 for a reexamination of the Sandovals remaining claims for possible dismissal. A. The 911 Call to LVMPD and Ofc. Dunn and Sgt. Roberts Entry into the Sandovals Home. On October 24, 2009, LVMPD received a 911 call from a witness, Albert Schouten ( Schouten ), regarding a possible burglary. App. 5a, 35a. Schouten reported that he had seen two white males going over the fence into the backyard at 31 Onyx Way in Las Vegas (which turned out to be the Sandovals home) and attempting to open the sliding back door. App. 35a. Sgt. Roberts first responded to the 911 call and interviewed Schouten. Id. Sgt. Roberts was concerned about a possible burglary because there had been a rash of daytime burglaries in the area where youth would skip school and ransack homes. Id. Ofc. Dunn and Ofc. Kohntopp later arrived at the scene to assist in the investigation. App. 36a. Sgt. Roberts and Ofc. Dunn approached the back of the home while Ofc. Kohntopp covered the access leading to the back of the home. App. 36a. Sgt. Roberts and Ofc. Dunn discovered that the side gate had been opened along with the security door to the garage and the door to the shed in the backyard. Id. Given that there had been other daytime burglaries in the area, Sgt. Roberts was concerned that a burglary may be occurring. Id. Sgt. Roberts and Ofc. Dunn first checked the shed and then

14 7 approached the sliding door where Schouten said the suspects had attempted to enter. Id. The officers noticed that the sliding door was ajar. Id. Ofc. Dunn waited outside the sliding door while Sgt. Roberts cleared the rest of the backyard. App. 36a. As Sgt. Roberts approached the window to the home in the backyard, he observed three young males moving around inside. Id. Upon seeing the three males, Sgt. Roberts believed that these were the suspects and that they were ransacking the room. App. 37a. With his gun drawn and pointed into the window, Sgt. Roberts issued a variety of commands to the three males (who turned out to be Henry, Jordhy, and David). Id. Henry admitted in his deposition that they had marijuana in the room with them when Sgt. Roberts approached the window: Q: Is that your marijuana? A: Yes. Q: And you had marijuana in the room that day? A: Yeah. Q: Now, while you re in your room, does a police officer ever show up at your window? A: Yes.

15 8 Excerpts of Record ( ER ), Vol. 1, pg. 286 filed in the Ninth Circuit. Observing that the three males were not complying with Sgt. Roberts commands, Ofc. Dunn, who had been waiting outside the sliding door, entered the home to control the situation. App. 37a. Once inside, Ofc. Dunn issued commands for the three males to exit the room. Id. Ofc. Dunn was successful in controlling the situation and removing the three males from the home. App. 37a 38a. The other police officers listed as Defendants in this lawsuit later arrived at the Sandovals home, as did Mr. Sandoval. App. 38a 39a. B. The Sandovals Complaint Against the LVMPD Defendants and the District Court s Order Granting Summary Judgment to the LVMPD Defendants. In their complaint, the Sandovals alleged a variety of constitutional claims through the vehicle of 42 U.S.C and state law claims against the LVMPD Defendants. App. 40a 41a. For purposes of this petition, the only relevant claim is the Sandovals Fourth Amendment unlawful entry claim against Ofc. Dunn. As the Ninth Circuit noted, the Sandovals did not challenge Sgt. Roberts and Ofc. Dunn s entry onto their curtilage or Sgt. Roberts later entry into their home. App. 11a, n. 4. Once Ofc. Dunn s act of entering the Sandovals home is justified under the circumstances of this case, the

16 9 Sandovals remaining claims will likewise be subject to dismissal. The District Court s opinion granting summary judgment to the LVMPD Defendants catalogued the police officers probable cause in entering the Sandovals home, as well as the exigent circumstances accompanying the suspected burglary. App. 34a 71a. Ultimately, the District Court concluded that Ofc. Dunn had a reasonable belief that an imminent threat of violence existed. App. 55a. This conclusion was based upon the following articulated points to support probable cause: There were numerous indications that a burglary may have been in progress, including the fact [that] burglaries by youth were common in the area, an eyewitness reported seeing two young men prowling around the home, and open doors. App. 55a 56a. [Ofc.] Dunn was instructed by [Sgt.] Roberts to watch the open sliding glass door so that the officers would not be surprised if somebody exited the residence while [Sgt.] Roberts finished clearing the north part of the backyard. App. 56a. [Ofc. Dunn] then observed [Sgt.] Roberts raise his weapon to the bedroom window and repeatedly yell at the suspects let me see your hands and stop reaching for stuff. Id.

17 10 This could reasonably lead [Ofc.] Dunn to conclude that the suspects in the room presented a threat, that they were not complying with [Sgt.] Roberts commands, and that they were potentially reaching for weapons. Id. [Ofc.] Dunn stated that he heard the tone of [Sgt.] Roberts[ ] voice suddenly change, which could lead him to believe the situation had become dangerous. Id. In essence, Ofc. Dunn perceived that there was a dangerous situation that permitted him to enter the Sandovals home. See Graham v. Connor, 490 U.S. 386, 396 (1989) (stating that courts review the record from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight ); Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010) (explaining that the critical inquiry is what [the officer] perceived ). In granting summary judgment on the Sandovals Fourth Amendment unlawful entry claim, the District Court also relied upon precedent from this Court and the Ninth Circuit. App. 55a. The District Court s opinion reflects that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence. Id. (citing Ryburn v. Huff, 132 S.Ct. 987, 990 (2012)). Additionally, the District Court relied upon precedent from the Ninth Circuit with a similar

18 11 holding: [W]hen officers suspect a burglary in progress, they have no idea who might be inside and may reasonably assume that the suspects will, if confronted, flee or offer armed resistance. In such exigent circumstances, the police are entitled to enter immediately. Id. (citing Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006)). Thus, the District Court articulated a legal and a factual basis for granting summary judgment to the LVMPD Defendants based upon Ofc. Dunn s perception of the events on October 24, C. The Ninth Circuit s Opinion Reversing Summary Judgment in Part and Denying Rehearing En Banc. The Ninth Circuit s opinion omitted Ofc. Dunn s perspective under the guise of construing the summary judgment standard. App. 1a 33a. In that regard, the Ninth Circuit described the activities of the three males in the Sandovals home as listening to music, watching TV, and playing video games and nothing more. App. 6a. Thus, the Ninth Circuit concluded that there was no probable cause for Ofc. Dunn to enter the Sandovals home. The Ninth Circuit also made a novel distinction on the classification of a burglary. While the Ninth Circuit acknowledged that the investigation of a burglary entitles police officers to enter a home without a warrant because of the inherent dangers, the Ninth Circuit did not apply this law to the instant case. App. 16a 17a. Instead,

19 12 the Ninth Circuit concluded, [T]he officers arrived at the house to investigate a misdemeanor prowling call, rather than a felony burglary or attempted burglary call, and never had probable cause for prowling, let alone for a burglary. App. 17a. Continuing its artificial distinction, the Ninth Circuit explained, This distinction matters, because whereas burglary and attempted burglary are considered to carry an inherent risk of violence, prowling is not considered a violent crime. Id. (citing James v. United States, 550 U.S. 192, (2007); Medway v. Cate, 756 F.Supp.2d 1280, 1297 (S.D. Cal. 2010)). In the end, the Ninth Circuit concluded that the officers were therefore not entitled to enter the house without a warrant... App. 17a. Due to the Ninth Circuit s failure to abide by this Court s qualified immunity cases for police officers, the LVMPD Defendants moved the Ninth Circuit for rehearing en banc, particularly because the Ninth Circuit s opinion is now published precedent. App. 1a 33a. Without any discussion or justification of its artificial felony/misdemeanor distinction, the Ninth Circuit denied the petition for rehearing en banc. App. 74a 75a. REASONS FOR GRANTING THE PETITION The Ninth Circuit s opinion in Sandoval v. Las Vegas Metro. Police Dep t, 756 F.3d 1154 (9th Cir. 2014) is a departure from this Court s precedent, the Ninth Circuit s own precedent, Nevada state court

20 13 precedent, and the case law from various other state and federal courts. Ofc. Dunn s entry into the Sandovals home was supported by legally exigent circumstances and articulated probable cause. App. 55a 56a. Yet, the Ninth Circuit has created an artificial felony/misdemeanor distinction using 2010 case law, even though the events of this case took place in Additionally, this Court has already rejected the Ninth Circuit s identical faulty distinction in the similar context of a police officer s warrantless entry into a home or curtilage for a fleeing misdemeanant under the hot pursuit exception to the Fourth Amendment. Stanton v. Sims, 134 S.Ct. 3 (2013). Because of these conflicts, which satisfy Supreme Court Rule 10, the Court should grant this petition for a writ of certiorari. A. Ofc. Dunn s Warrantless Entry into the Sandovals Home Was Justified Under the Fourth Amendment Due to Exigent Circumstances and the Existence of Probable Cause. Since the Ninth Circuit concluded that Ofc. Dunn was not permitted to enter the Sandovals home without a warrant under the circumstances of this case, the logical inference is that he needed to obtain a warrant while he was standing in the Sandovals backyard waiting to see if any suspected burglars emerged from the sliding glass door that was left ajar. Not only is the Ninth Circuit s conclusion legally absurd, but it conflicts with controlling precedent. Just as in Stanton, this Court

21 14 should be troubled by the Ninth Circuit s opinion in the instant case because Ofc. Dunn acted in accordance with Nevada and Ninth Circuit case law. See Stanton, 135 S.Ct. at 7 ( It is especially troubling that the Ninth Circuit would conclude that Stanton was plainly incompetent and subject to personal liability for damages based on actions that were lawful according to courts in the jurisdiction where he acted. ). In short, this Court should resolve the conflict in the Ninth Circuit s opinion and determine that Ofc. Dunn s warrantless entry into the Sandovals home did not violate the Fourth Amendment. 1. Nevada and Federal Case Law Acknowledge the Inherent Dangers of Suspected Burglaries. The Ninth Circuit did not examine Nevada case law discussing the inherent dangers of suspected burglaries, even though the District Court specifically cited such references. App. 49a. For example, the Nevada Supreme Court articulated, We consider burglary to be a very serious crime. Intentional and trespassory invasion of the home of another, especially in the nighttime, can arguably be considered as a form of violence. It is an offense which conduces towards violence and may cause serious and permanent psychological harm to the victim. Matter of Seven Minors, 99 Nev. 427, 438, 664 P.2d 947, 954 (1983), disapproved of on other grounds by In re William S., 122 Nev. 432, 132 P.3d 1015 (2006). Notably, the Nevada Supreme Court

22 15 did not carve out an exception for prowling as supposedly being non-violent. Instead, the Supreme Court stated that trespassory invasion is considered as a form of violence. Similarly, in Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006), the Ninth Circuit s own precedent has explicitly acknowledged that when officers suspect a burglary in progress, they have no idea who might be inside and may reasonably assume that the suspects will, if confronted, flee or offer armed resistance. Likewise, as the Ninth Circuit acknowledged (App. 17a), this Court s case law on the inherent dangers of a suspected burglary recognizes that the main risk of burglary arises not from the simple physical act of wrongfully entering onto another s property, but rather from the possibility of a face-toface confrontation between the burglar and a third party whether an occupant, a police officer, or a bystander who comes to investigate. James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 1594 (2007). Thus, unlike the Ninth Circuit s contrary holding, there can be no dispute that a police officer investigating a suspected burglary can reasonably expect to face a violent situation.

23 16 2. Ofc. Dunn s Warrantless Entry into the Sandovals Home Was Also Justified Due to the Existence of Probable Cause. The emergency situation of the suspected burglary coupled with probable cause that a crime had been committed justified Ofc. Dunn s warrantless entry into the Sandovals home. Notably, prior to Ofc. Dunn s entry into the Sandovals home, Sgt. Roberts had probable cause to arrest Henry for the independent basis of Henry s admitted possession of marijuana, which is a misdemeanor according to Nev. Rev. Stat (4) for the first offense. ER, Vol. 1, pg With regard to the suspected burglary that the LVMPD police officers investigated at the Sandovals home, this Court s opinion in Ryburn v. Huff, 132 S.Ct. 987 (2012) is particularly instructive. In Ryburn, this Court summarily reversed the Ninth Circuit in a case involving Fourth Amendment claims for police officers entry into a home. In Ryburn, police officers became aware of a potential threat that a high school student would shoot up the school. Id. at 988. Police officers took precautions by visiting the student s home, but there was initially no response. Id. After the police officers contacted the student s mother and entered the home, they were later sued for unlawful entry. This Court cited its own precedent and held that it would be silly to suggest that the police would commit a tort by entering [a residence]... to determine

24 17 whether violence... is about to (or soon will) occur. Id. at 990 (citing Georgia v. Randolph, 547 U.S. 103, 118, 126 S.Ct (2006) (internal quotation marks omitted)). As Ryburn also outlined, the Ninth Circuit panel majority s method of analyzing the string of events that unfolded at the Huff residence was entirely unrealistic. Id. at 991. Similarly, the Ninth Circuit s version of the facts in the instant case simply omits facts that do not fit into the Ninth Circuit s unrealistic version of what actually happened. Even the summary judgment standard cannot completely disregard the police officer s perspective. See Graham v. Connor, 490 U.S. 386, 396 (1989) (stating that courts review the record from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight ); Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010) (explaining that the critical inquiry is what [the officer] perceived ). As the District Court carefully articulated, Ofc. Dunn had probable cause to enter the Sandovals home without a warrant: There were numerous indications that a burglary may have been in progress, including the fact [that] burglaries by youth were common in the area, an eyewitness reported seeing two young men prowling around the home, and open doors. App. 55a 56a.

25 18 [Ofc.] Dunn was instructed by [Sgt.] Roberts to watch the open sliding glass door so that the officers would not be surprised if somebody exited the residence while [Sgt.] Roberts finished clearing the north part of the backyard. App. 56a. [Ofc. Dunn] then observed [Sgt.] Roberts raise his weapon to the bedroom window and repeatedly yell at the suspects let me see your hands and stop reaching for stuff. Id. This could reasonably lead [Ofc.] Dunn to conclude that the suspects in the room presented a threat, that they were not complying with [Sgt.] Roberts commands, and that they were potentially reaching for weapons. Id. [Ofc.] Dunn stated that he heard the tone of [Sgt.] Roberts[ ] voice suddenly change, which could lead him to believe the situation had become dangerous. Id. Thus, Ofc. Dunn s warrantless entry into the Sandovals home was also justified due to the existence of probable cause.

26 19 3. The Ninth Circuit s Felony/ Misdemeanor Distinction for a Police Officer s Warrantless Entry into a Home Conflicts with the Opinions from Several Other Courts. To avoid the controlling effect of this Court s qualified immunity cases, the Ninth Circuit created an artificial distinction that while a felony burglary charge carries an inherent danger, a misdemeanor prowling charge supposedly does not carry any inherent danger. For this artificial distinction, the Ninth Circuit relied upon Medway v. Cate, 756 F.Supp. 2d 1280 (S.D. Cal. 2010). App. 17a. Yet, Medway is equivocal because it lists robbery, burglary, drugs, trespassing, prowling, and receiving stolen property as being non-violent offenses. Id. at But, the Ninth Circuit already conceded that burglary was, in fact, an inherently dangerous crime. App. 16a 17a. So, the Ninth Circuit s opinion is not even internally consistent. Moreover, Medway discussed prowling in the context of California law, not Nevada law where no such crime exists. 4 To emphasize its artificial distinction, the Ninth Circuit emphasized the use of the terms prowling or prowler anytime it happened to be 4 Prowling has not existed as a misdemeanor since 1993 when it was removed from Nev. Rev. Stat See A.B. 77, Comm. on Judiciary, 67th Leg. (Nev. 1993).

27 20 mentioned in the record, as if the mere mention of a word could change the nature of what the LVMPD police officers would encounter in responding to a 911 call. App. 14a 15a, n. 5. This type of subjective assignment is directly contrary to this Court s holding in Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 594 (2004). In Devenpeck, this Court reiterated, [T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. So, even if the LVMPD police officers believed they were investigating a nonexistent prowling charge, the constitutional analysis must focus on what they actually encountered, which was a suspected burglary. Other courts reviewing police officers actions in the context of an emergency 911 call for burglary or similar crimes have not made any limitations similar to the Ninth Circuit. Even previous Ninth Circuit precedent holds that warrantless entry is justified where there are requests that prompted the police to fulfill their responsibility to investigate potentially suspicious activity and protect the communities they serve. Martin v. City of Oceanside, 360 F.3d 1078, 1083 (9th Cir. 2004). Other jurisdictions have held that 911 calls reporting an emergency can be enough to support warrantless searches under the exigent circumstances exception, particularly where... the caller identified himself. United States v.

28 21 Richardson, 208 F.3d 626, 630 (7th Cir. 2000). The nature of police work requires that officers are able to respond promptly to reports of emergencies without unnecessary second-guessing. Id. Yet, under the Ninth Circuit s framework in the instant case, police officers will have to determine whether the potential crime is a felony or a misdemeanor before entering a home without a warrant to provide assistance in response to a 911 call. Even a police officer s mistake as to the location where an emergency response is needed did not create a Fourth Amendment violation. United States v. Tibolt, 72 F.3d 965, (1st Cir. 1995). Cf. Hill v. California, 401 U.S. 797, 802, 91 S.Ct. 1106, 1110 (1971) ( When the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest. ) (citation omitted). Similarly, the Eighth Circuit allowed a warrantless entry where it seemed apparent that a burglary was in progress. United States v. Singer, 687 F.2d 1134, 1144 (8th Cir. 1982). As such, the Ninth Circuit s artificial distinction between a permissible warrantless entry into a home based upon a felony, but not a misdemeanor is directly at odds with the holdings of these other courts. In summary, the LVMPD Defendants ask this Court to grant this petition for a writ of certiorari to clarify that a police officer s warrantless entry into a home is justified under the Fourth Amendment in responding to a 911 call for burglary, regardless of

29 22 whether the suspected crime is classified as a felony or a misdemeanor. B. Ofc. Dunn Is, Alternatively, Entitled to Qualified Immunity Because It Is Not Clearly Established that the Warrantless Entry into a Home Is Limited to Only Suspected Felonies. Even if the Court does not reach the substantive Fourth Amendment unlawful entry issue presented in this petition, the Court should, alternatively, grant this petition based upon the fact that the Ninth Circuit s artificial felony/misdemeanor distinction does not exist in Nevada and was not clearly established in 2009 when the events of this case occurred. See Stanton, 134 S.Ct. at 7 ( [T]he law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established. ). 1. Under Nevada Law, a Misdemeanor for Prowling Has Not Existed Since 1993, Nor Do the Facts of this Case Support the Ninth Circuit s Felony/Misdemeanor Distinction. Although the Ninth Circuit makes an artificial distinction between a felony burglary charge, permitting a warrantless entry, and a misdemeanor prowling charge, not allowing such an entry, a misdemeanor for prowling has not existed in Nevada since In any event, the three males were inside the Sandovals home, so there was a reasonable

30 23 inference under the circumstances that any prowling had elevated to burglary with the entry. Accordingly, not only is the Ninth Circuit s distinction non-existent, but it was most certainly not clearly established and cannot form the basis for liability under the Fourth Amendment. Prior to 1993, Nev. Rev. Stat (1)(i) made it a misdemeanor for a person who [l]oiters, prowls or wanders upon the private property of another, without visible or lawful business with the owner or occupant thereof, or who, while loitering, prowling or wandering upon the private property of another, peeks in the door or window of any inhabited building or structure located thereon, without visible or lawful business with the owner or occupant thereof. These provisions were included prior to 1993 as part of what was formerly a vagrancy statute. Yet, in 1967, the Nevada Supreme Court declared certain portions of this vagrancy statute unconstitutional as a violation of due process. See Parker v. Municipal Judge of City of Las Vegas, 83 Nev. 214, 216, 427 P.2d 642, 643 (1967) ( We should say now, and in no uncertain terms, that a man s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States. ) (citation and internal quotation marks omitted). As such, the misdemeanor for prowling was not a lesser included offense to burglary, which is set forth in Nev. Rev. Stat

31 24 The elements of burglary under this statute require entry with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses. In the instant case, the three males had gone beyond mere looking into the windows (as reported by Schouten, App. 5a) to entry into the Sandovals home. As such, any possibility of mere prowling was eliminated once they entered the home. App. 6a. In essence, even if prowling existed as a misdemeanor in Nevada, the facts of this case demonstrate that the three males entered into the Sandovals home. This entry signals a burglary, which is a felony under Nev. Rev. Stat , thus making the LVMPD police officers warrantless entry justified under the Fourth Amendment, or at a minimum, protected by qualified immunity for not being clearly established. 2. The Ninth Circuit s Opinion Directly Conflicts With this Court s Precedent on the Clearly- Established Component of a Qualified Immunity Analysis. In a qualified immunity analysis, a police officer cannot be liable for constitutional harms unless they were clearly established at the time of the officer s acts. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct (1986). A specific case on point is not required, but existing precedent must have placed the statutory or constitutional question beyond debate. Id. The Ninth Circuit s opinion in

32 25 the instant case violates this qualified immunity principle on a number of levels. First, the Ninth Circuit s citation to Medway v. Cate, 756 F.Supp. 2d 1280 (S.D. Cal. 2010) for the notion that prowling is a non-violent misdemeanor without rights of warrantless entry is completely inapposite to the 2009 events of this case. Certainly, case law from 2010 could not have clearly established anything one year prior in See Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 816 (2009) ( [T]he court must decide whether the right at issue was clearly established at the time of defendant s alleged misconduct. ). Second, Medway applies California law, and the events of the instant case took place in Nevada. App. 5a 10a. Additionally, the broad references in Medway to the alleged non-violent nature of certain crimes, including prowling, certainly does not put the nature of any similar offense in Nevada beyond debate. In fact, Medway is equivocal because it lists robbery, burglary, drugs, trespassing, prowling, and receiving stolen property as being non-violent offenses, Id. at 1286, even though the Ninth Circuit acknowledged that burglary is a violent crime. App. 17a. So, Medway does not establish exactly which crimes are violent and which are not for purposes of the Ninth Circuit s artificial distinction for warrantless entries. Third, the Nevada Supreme Court has not fully placed the contours of the Nevada burglary

33 26 statute (Nev. Rev. Stat ) beyond debate. At the time of the events of this case in 2009, it was conceivable that the Sandovals could have been charged with burglary on their own home. It was not until July 2014 that the Nevada Supreme Court addressed for the first time whether a person can burglarize his or her own home. State v. White, 330 P.3d 482, 483 (Nev. 2014). Ultimately, the Supreme Court concluded that a person cannot commit burglary of a home when he or she has an absolute right to enter the home. Id. In light of White, just because the three males were inside the Sandovals home does not mean that they could not also be charged with burglary. Finally, police officers reading case law from the Ninth Circuit available in 2009 could have reasonably believed that they did not need a warrant to enter a home when they were responding to a 911 call for a possible burglary. For example, Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995) contains a number of similarities to the instant case. In Murdock, the Ninth Circuit affirmed a district court s grant of summary judgment when police officers briefly entered the plaintiff s house without a warrant and detained the plaintiff while the officers investigated a possible burglary. Id. at A neighbor reported a possible burglary at the plaintiff s house. Id. Police officers responded to the call where they noticed that the back sliding door was opened 8 to 10 inches. Id. Initially, no one responded to the officers announcements that they had entered the home. Id. Eventually, the officers

34 27 found the owner of the home who was asleep in a blanket, at which time they searched him and asked him for identification. Id. The Ninth Circuit confirmed the officers ability to enter the home without a warrant because of the need for quick action in an emergency situation. Id. at 1440 (citing United States v. Warner, 843 F.2d 401, 403 (9th Cir.1988) (noting that presence of exigent circumstances necessarily implies insufficient time to obtain a warrant)). The Ninth Circuit then recounted the facts of the Murdock case and determined that probable cause existed for the warrantless entry. Id. at Additionally, the Ninth Circuit left open the possibility that an exigent circumstances search could qualify under an emergency doctrine, but the case did not resolve that issue. Id. at 1441, n. 3 (collecting cases illustrating the emergency doctrine). Therefore, the Ninth Circuit s conclusion that the LVMPD police officers warrantless entry into the Sandovals home violated clearly established law conflicts with this Court s qualified immunity principles. Therefore, the Court should grant this petition for a writ of certiorari on this alternative basis that the felony/misdemeanor distinction made by the Ninth Circuit is not clearly established, thus entitling Ofc. Dunn to qualified immunity.

35 28 C. The Resolution of this Petition in Favor of the LVMPD Defendants on the Fourth Amendment Unlawful Entry Issue Would Require the Ninth Circuit to Reexamine the Sandovals Other Surviving Claims. The District Court granted summary judgment to the LVMPD Defendants on all claims. App. 34a 71a. On appeal, the Ninth Circuit allowed the Sandovals Fourth Amendment unlawful entry claim against Ofc. Dunn to survive, as well as their Fourth Amendment excessive force claim. App. 32a. Mr. Sandoval s state law claims for intentional infliction of emotional distress, assault and battery, and false imprisonment also survived. The Ninth Circuit also permitted the three males to claim unlawful handcuffing and detention for the period after the LVMPD police officers were allegedly aware that no crime had been committed. Yet, if this Court grants any relief to the LVMPD Defendants, these remaining federal and state law claims must be evaluated on remand for possible dismissal, depending on the nature of this Court s ruling. For example, when police officers pursue a suspected burglary, they are entitled to use an appropriate amount of force. See Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006) ( Normally, when officers suspect a burglary in progress, they have no idea who might be inside and may reasonably assume that the suspects will, if confronted, flee or offer armed resistance. In such exigent circumstances, the police are entitled to

36 29 enter immediately, using all appropriate force. ). As such, the Ninth Circuit must reexamine whether it was reasonable for Sgt. Roberts and Ofc. Dunn to draw their guns on the three males since the police officers believed that they were burglary suspects. Similarly, under Nevada state law, when an arrest is carried out with probable cause, it is privileged and not actionable. Nelson v. City of Las Vegas, 99 Nev. 548, 552, 665 P.2d 1141, 1144 (1983). In other words, if the LVMPD police officers entry into the Sandovals home falls within the bounds of the Fourth Amendment, all the Sandovals remaining claims must be viewed through that lens. Therefore, if the Court reverses the Ninth Circuit s opinion on the Fourth Amendment unlawful entry claim, the Court should also remand for a reexamination of the remaining claims for possible dismissal.

37 30 CONCLUSION For the foregoing reasons, this petition for a writ of certiorari should be granted. November 6, 2014 Respectfully submitted, Craig R. Anderson, Esq. Micah S. Echols, Esq. Counsel of Record Marquis Aurbach Coffing Park Run Dr. Las Vegas, NV (702) mechols@maclaw.com

38 1a FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS RODRIGUEZ SANDOVAL; ADRIANA RODRIGUEZ, individually and as Guardian Ad Litem for Kenya Rodriguez, a Minor; HENRY BRIAN RODRIGUEZ; MARTHA LEAL, as Guardian Ad Litem for Jordhy Leal, a Minor; MONICA MORENO, as Guardian Ad Litem for David Madueno, a Minor, Plaintiffs-Appellants, No D.C No. 2:10-cv RCJ-PAL OPINION Filed: 07/01/2014 v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; CLARK COUNTY, NEVADA; JAY R. ROBERTS, Sgt.; MICHAEL DUNN, Officer; CHRISTOPHER G. KOHNTOPP, Officer; JUSTIN BYERS, Officer; TROY GIVENS, Officer, Defendants-Appellees.

39 2a Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding Argued and Submitted October 17, 2013 San Francisco, California Filed July 1, 2014 Before: Sidney R. Thomas and M. Margaret McKeown, Circuit Judges, and Virginia M. Kendall, District Judge.* Opinion by Judge McKeown SUMMARY** Civil Rights The panel reversed in part and affirmed in part the district court s summary judgment and remanded in an action brought pursuant to 42 U.S.C and Nevada state law alleging that Las Vegas Metropolitan Police officers violated * The Honorable Virginia M. Kendall, District Judge for the U.S. District Court for the Northern District of Illinois, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

40 3a plaintiffs constitutional rights when they entered, without a warrant, plaintiffs home looking for intruders, handcuffed and detained the teenage boys inside, and shot and killed the family dog. Reversing the district court s summary judgment in favor of the police officers, the panel held that taken in the light most favorable to plaintiffs, officers did not have probable cause to enter and search the residence for either evidence of burglary or the lesser offense of prowling. The panel held that police officer Michael Dunn was not entitled to qualified immunity because it was clearly established law as of 2009, that the warrantless search of a dwelling must be supported by either the exigency or the emergency aid exception. The panel further held that officers were not entitled to qualified immunity on plaintiffs excessive force claim and were not entitled to Nevada statutory immunity on certain state law claims for intentional infliction of emotional distress, assault and battery and false imprisonment. Affirming the district court s summary judgment in favor of the police officers on plaintiffs claim for deprivation of familial association, the panel held that a separation between a father and his son for forty minutes did not shock the conscience and that the shooting of the family dog did not fall within the ambit of deprivation of a familial relationship. The panel further determined that there was no evidence of an equal protection

41 4a violation and that plaintiffs bare-bones allegations of municipal liability were insufficient. COUNSEL E. Brent Bryson (argued), Ales & Bryson, Las Vegas, Nevada, for Plaintiffs-Appellants. Craig R. Anderson (argued) and Joshua L. Benson, Marquis Aurbach Coffing, Las Vegas, Nevada, for Defendants-Appellees. OPINION McKEOWN, Circuit Judge: This appeal arises out of the events of October 24, 2009, when the Las Vegas police, on the lookout for two white males, mistook a teenaged boy and his friends, all Hispanic, for intruders in the boy s own home. In the course of the afternoon, police pointed guns at the boys, entered the home without a warrant, handcuffed and detained the boys and others, and shot and killed the family dog. The family ( the Sandovals 1 ) brought suit against the 1 Although not all of the plaintiffs-appellants are related, at times we refer to them, for clarity, collectively as The Sandovals. This group includes Jesus Rodriguez Sandoval, the father; Adriana Rodriguez, the mother, individually and as guardian ad litem for their eleven-year-old daughter, Kenya; Henry Brian Rodriguez, their eighteen-year-old-son; Martha Leal, as guardian ad litem for Jordhy Leal, her sixteen-year-old

42 5a police, alleging violations of their constitutional rights and related rights under state law. The district court granted summary judgment to the police department and the officers on all claims. We reverse the judgment on the Fourth Amendment claims for excessive force and unlawful entry and on certain of the state law claims, and affirm the judgment on the remaining claims. BACKGROUND On October 24, 2009, the Las Vegas Metropolitan Police Department ( LVMPD ) received a 911 phone call from a witness, Albert Schouten ( Schouten ), who said that he saw two white males between ages 18 and 20, one carrying a skateboard, jump a fence and start looking through the windows of a house in the neighborhood. There had been a recent pattern of youths burglarizing homes in the area. Sergeant Roberts and Officer Dunn of the LVMPD, and later several of their colleagues, responded to the call, and arrived at the residence of Jesus Sandoval, Adriana Rodriguez, and their children. 2 The officers entered the yard and saw son; and Monica Moreno, as guardian ad litem for David Madueno, her fifteen-year-old son. 2 On arrival, Roberts spoke with Schouten. There are no records of that conversation, but in a statement to the police after the incident, Schouten reported that before the officers arrived, [t]he subject with the skateboard came back over the