CA9: Ptf refused entry to house on a domestic call, and police broke in and tasered him; grant of QI reversed

Plaintiff refused entry to the police on a domestic call. They broke in and tasered him on the floor. The district court erred in granting qualified immunity to the officers. He refused entry, which was his right, and this case parallels Georgia v. Randolph. Bonivert v. City of Clarkston, 2018 U.S. App. LEXIS 4625 (9th Cir. Feb 26, 2018):

“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?” 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, 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.

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