                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 23 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

CHRISTOPHER J WATSON,                            No. 11-35641

              Plaintiff - Appellant,             D.C. No. 3:10-cv-05692-BHS

  v.
                                                 MEMORANDUM*
CITY OF BONNEY LAKE,

              Defendant,

  and

MARCUS KOEHN, in his individual
capacity and ROBERT KOCHER, in his
individual capacity,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                        Argued and Submitted July 11, 2012
                               Seattle, Washington

Before: REINHARDT, KLEINFELD, and M. SMITH, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff Christopher Watson appeals the district court’s grant of summary

judgment in favor of defendants, Officers Koehn and Kocher, on his claim that the

officers violated his Fourth Amendment rights when they used force to enter his

home without a warrant. We review de novo the district court’s grant of summary

judgment and we must reverse if, when viewing the evidence in the light most

favorable to Watson, there remains a genuine dispute of material fact. Martin v.

City of Oceanside, 360 F.3d 1078, 1081 (9th Cir. 2004).

      The officers approached Watson outside of his home and placed him under

arrest, believing at the time that he was an individual named “Jeff Ross,” for whom

there was an outstanding warrant for a misdemeanor offense. After receiving an

initial verification of his identity, the officers unhandcuffed Watson and instructed

him to retrieve his driver’s license from his home to prove that he was not, in fact,

Jeff Ross. Watson’s evidence and the defendants’ evidence differ on what

happened next. Because the case was decided on summary judgment, we must

review de novo taking the facts most favorable to Watson. According to Watson’s

version of the facts, he entered his home and grabbed his wallet, which was on a

table near the door. He stood on the threshold of his home, attempting to exit with

his wallet in his hands, but his egress was obstructed by the officers who stood

approximately two feet from the entrance of the house. After a brief discussion


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with the officers as they stood outside his home, Watson was physically pushed

into his home by Koehn and the officers entered and searched the house.

      “[T]he most basic constitutional rule in this area is that searches conducted

outside the judicial process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment—subject only to a few specifically

established and well delineated exceptions. The exceptions are jealously and

carefully drawn, and there must be a showing by those who seek exemption . . .

that the exigencies of the situation made that course imperative.” Coolidge v. New

Hampshire, 403 U.S. 443, 454-55 (1971) (internal citations and quotation marks

omitted). The officers’ sole justification for their warrantless entry into Watson’s

home is the exception recognized in Washington v. Chrisman, 455 U.S. 1 (1982).

Under Chrisman, an officer who arrests an individual outside of his home may

accompany the arrestee if he enters his home to obtain identification, and the

officer has a “right to remain literally at [the arrestee’s] elbow at all times.” Id. at

6. Because the Supreme Court recognized that “[e]very arrest must be presumed to

present a risk of danger to the arresting officer,” this exception was crafted to

satisfy “[t]he officer’s need to ensure his own safety[,] as well as the integrity of

the arrest,” id. at 7, when the arrestee is permitted to reenter his home.




                                            3
      Under the facts as presented by Watson, construed in the light most

favorable to him, the officers did not accompany him into his home, but rather,

waited until he had effectively exited before attempting to gain entry. See, e.g.,

United States v. Santana, 427 U.S. 38, 42-43 (1976) (holding that the doorway of

the home is a public place for purposes of the warrant requirement of the Fourth

Amendment). Under Chrisman, the officers would have been permitted to enter

the house with Watson, or even to enter after him while he remained in the home.

There is, however, no exception to the Fourth Amendment that would permit the

officers to enter the house of an arrestee after he has already exited, nor is there an

exception that would permit the officers to force an arrestee into his home in order

to justify their warrantless entry. Cf. United States v. Whitten, 706 F.2d 1000,

1015 (1983) (“[The] arresting officers [may not] lead the accused from place to

place and use his presence in each location to justify a search incident to the

arrest.”) (quoting United States v. Mason, 523 F.2d 1122, 1126 (D.C. Cir. 1975)).

Under Watson’s version of the event, the officers’ warrantless entry constituted an

illegal search under the Fourth Amendment.

      When determining whether the use of force by the police is unreasonable,

we balance the factors justifying the use of force against the degree of

governmental intrusion. Graham v. Connor, 490 U.S. 386, 396 (1989). Here,


                                           4
under Watson’s version of the facts, the officers entered Watson’s home without a

warrant and in the absence of any valid exception to the warrant requirement.

They did so by using force against an individual that the officers have not

contended posed any threat to their safety, who was suspected of, at most, a

misdemeanor, and who did not resist arrest or attempt to flee. The amount of force

used was sufficient to knock Watson off balance and backwards and down into his

kitchen stove. We cannot say that, as a matter of law, the force used by the officers

was reasonable under these circumstances.

      The clearly established prong of the qualified immunity analysis is intended

to recognize that “government officials . . . generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). “To show that the right in question here

was ‘clearly established,’ [Watson] need not establish that [the officers’] behavior

had been previously declared unconstitutional, only that the unlawfulness was

apparent in light of preexisting law.” Jensen v. City of Oxnard, 145 F.3d 1078,

1085 (1998) (quoting Blueford v. Prunty, 108 F.3d 251, 254 (9th Cir.1997))

(internal quotation marks omitted). With regard to the warrantless entry, “the

burden is on the government to demonstrate exigent circumstances that overcome


                                           5
the presumption of unreasonableness that attaches to all warrantless home entries.”

Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). Under the facts as presented by

Watson, it would have been clear to reasonable officers that the Chrisman

exception did not apply because Watson was no longer in his home and the

underlying law enforcement needs that justified the Chrisman exception had

dissipated. Similarly, given the lack of governmental interest justifying the use of

force, it would have been clear to reasonable officers that even the limited amount

of force they employed was unreasonable. See Guite v. Wright, 147 F.3d 747, 750

(8th Cir. 1998) (officers used excessive force when they pushed an individual up

against an open door when he refused to consent to their entry); see also Liberal v.

Estrada, 632 F.3d 1064, 1078-79 (9th Cir. 2011) (officers used excessive force

when they pushed an individual against a police car).

      There exists a genuine dispute of material facts that, if resolved in Watson’s

favor, would allow him to prevail on both his warrantless entry and excessive force

claims. The officers are not entitled to qualified immunity on either claim if

Watson’s factual account is accepted, thus summary judgment was improperly

granted. We therefore reverse and remand for further proceedings.



REVERSED and REMANDED.


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