CA9: Ptf stated claim for unnecessary destruction of home in executing SW

Plaintiff stated a claim for unnecessary destruction of his home by police in executing a search warrant. Denby v. Engstrom, 2021 U.S. App. LEXIS 20397 (9th Cir. July 9, 2021):

The complaint plausibly alleges that defendants violated plaintiffs’ Fourth Amendment right to be free from unreasonably destructive searches. See Buie, 494 U.S. at 335-36; Hicks, 480 U.S. at 324-25; Liston, 120 F.3d at 979. The domestic-violence victim informed the Casa Grande Police Department that Ochoa was not armed with lethal force. Before entering the home, defendant Engstrom noticed movement under a tarp behind the house but did not investigate it. Instead, prior to obtaining a search warrant, a SWAT team used a “Bearcat” vehicle, operated by defendant Lapre, to drive through an exterior fence and into the side of plaintiffs’ home, breaking windows and the front door. The complaint alleges that defendants Gragg, Skedel, and Lapre were the leaders of the SWAT team. After obtaining a warrant, two robots were deployed to search the house, but there was no sign of Ochoa, nor did Ochoa respond to calls from a public address system.

The complaint alleges that over the course of six hours, defendants deployed approximately twenty-two times the required amount of tear gas and pepper spray to penetrate an area the size of plaintiffs’ home. Specifically, the complaint alleges that defendant Lapre launched the tear gas and pepper spray canisters and defendant Robinson provided security for defendant Lapre while he launched the chemical munitions. Every window in the home was broken, and defendants caused extensive damage. When defendants entered plaintiffs’ home, they allegedly crushed and smashed furniture “objectively too small to hide a human body,” tore open cushions and pillows, smashed all the windows and destroyed window coverings, smashed shower doors and bathroom mirrors, “obliterated” toilets, and stomped and smashed televisions, artwork, heirlooms, and antiques.

Defendants Engstrom, Gragg, Lapre, and Skedel are alleged to have either entered or directed others that entered plaintiffs’ home. Plaintiffs allege that defendants either destroyed all, or nearly all, of plaintiffs’ property within the residence, and caused extensive damage from burst plumbing, flooding, and chemical sprays.

Plaintiffs’ Fourth Amendment right to be free from unreasonably destructive searches was clearly established at the time of the search. We have held that individuals have a Fourth Amendment right to be free of “‘unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively.'” Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (quoting Liston, 120 F.3d at 979). The district court did not err by citing Mena, which was decided fourteen years before the events at issue here. The officers in Mena were investigating a drive-by shooting and were informed that the suspect was still armed with the .25 caliber handgun used in the shooting. Id. at 1034. The officers broke the door of the home with a battering ram, broke into the padlocked rooms, and detained the occupants in the garage for two to three hours before concluding the search. Id. at 1035-36. We held the officers were not entitled to qualified immunity, even though the suspect in that case presented a greater danger to the officers’ safety than Ochoa, because the officers used unnecessarily destructive force to effectuate the search, such as kicking in a patio door that was already open. Id. at 1041.

Defendants rely on West v. City of Caldwell, 931 F.3d 978 (9th Cir. 2019), to argue that they are entitled to qualified immunity. But West is distinguishable. It was decided five years after the subject search, and it involved an armed and extremely violent individual barricaded inside a home who had outstanding felony arrest warrants for several violent crimes, including driving his vehicle directly at a police officer. Id. at 981-82. West did not involve allegations that officers searched areas too small to hide a person. The district court correctly denied defendants’ motion to dismiss the unreasonable search claims on qualified immunity grounds.