                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 21 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KIMBERLY CURIEL; et al.,                         No. 07-17233

             Plaintiffs - Appellants,            D.C. No. CV-06-05751-WHA

  v.
                                                 MEMORANDUM *
THE COUNTY OF CONTRA COSTA; et
al.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Alsup, District Judge, Presiding

                        Argued and Submitted July 15, 2009
                            San Francisco, California

Before: HALL, W. FLETCHER, and PAEZ, Circuit Judges.

       Appellants are members of two families present when fourteen deputies

from the County of Contra Costa entered and searched their house for murder

suspect, Scott Dyleski. Appellants sued for Fourth Amendment violations

stemming from the deputies’ warrantless, unannounced entry into their home, the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
force used in that entry, and the subsequent 13-hour detention and questioning.

The district court granted the County and Sheriff’s Department employees’

(collectively “Appellees”) motion for summary judgment, finding that, because no

constitutional violations occurred, Appellees were entitled to federal immunity and

the County could not be liable under Monell. That lack of constitutional violations

also led the district court to grant summary judgment as to Appellants’ state law

claims. Appellants challenge the decision, and this court has jurisdiction pursuant

to 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

                                         I.

      Scott Dyleski and Robin Croen, sixteen-year-old friends, concocted a plan to

steal credit card information and use those stolen numbers to purchase equipment

to grow marijuana in Dyleski’s closet. Dyleski lived in a house on Hunsaker

Canyon Road with his mother, Esther, and two other families, the Curiels and

McClure-Sikkemas.

      On the morning of October 15, 2005, Pamela Vitale was murdered in her

home on Hunsaker Canyon Road. The crime was a brutal one, involving multiple

blows to the head and a stab wound, a symbol carved into her back, and a large

amount of blood. The case garnered significant media attention. Although some

weapons were found at the scene, the knife used was not found. Tracking dogs


                                         -2-
indicated the perpetrator left on foot. In the evening of that same day, Dyleski

arrived at Croen’s house with scratches on his face, supposedly from a bush he ran

into while walking in the canyon around his home.

      In the following days, detectives from the Contra Costa County Sheriff’s

processed evidence from the Vitale murder, while Croen had conversations with an

increasingly agitated Dyleski. Dyleski said his housemates knew about the credit

card fraud, and he planned on admitting it to one of them, Fred Curiel, in an

attempt to separate himself from the murder case. His only explanation for how

the two were connected was that he had come into contact with Vitale during his

walk and was afraid his DNA would be on her. During this same period, Curiel

told Croen’s father that Dyleski had attempted, unsuccessfully, to wipe his

computer of evidence of the credit card fraud. Because some of the equipment

ordered had been scheduled to ship to Vitale’s address, Curiel was concerned

Dyleski and Croen might be involved in Vitale’s death.

      On October 19, 2005, Croen and his father contacted the detectives, saying

they had information about the Vitale murder. Two detectives and a deputy district

attorney began interviewing them, while also instructing Sergeant James Mahoney

to gather detectives at the Field Operations Bureau in case they were needed to

serve search and arrest warrants. During the interview, the detectives became


                                         -3-
concerned that evidence might be destroyed or that Dyleski might flee because (1)

he had attempted to destroy evidence in a related crime days earlier, (2) his

housemates had accessed the computer days earlier, (3) those housemates had not

come to police with their information but had instead (4) visited an attorney the

night before and called Croen’s father to dissociate Dyleski from the murder, (5)

Dyleski had been agitated the day before about being linked through evidence to

the murder, and (6) Croen might tip off Dyleski because the two were good friends.

At 7:30 pm., they decided that exigency supported a warrantless entry. At that

time, Mahoney conducted a meeting of the detectives who had gathered at the

Bureau, telling them they would be looking for a teen male who lived in a home

with other families. The warrant had not yet issued and they did not know whether

Dyleski was present at that address at that time. At 8:35 pm., the detectives

ordered Mahoney to freeze1 Dyleski’s address, and Mahoney and the thirteen

detectives he had gathered did so.

      Ten deputies in dark raid gear moved to enter, while four remained on the

perimeter. Because they saw unidentified people running through the house as




      1
       A freeze occurs when officers enter and take control of—but do not
search—a location to secure any weapons or dangerous people and prevent any
evidence from being removed prior to a search warrant.

                                         -4-
they were about to enter, they did not knock or announce themselves.2 At the time,

Appellants—nine people in all—were in the house. Deputies entered through the

front and rear doors with guns drawn.

      What followed over the next roughly seven minutes was a chaotic scene,

with deputies rushing through the house to locate the inhabitants and secure the

residence, while inhabitants attempted to run, hide, and leave the house. The

deputies used profanity and pointed guns at residents, including children, as the

deputies came upon them in bedrooms and behind closed doors in closets and

bathrooms. Minor injuries occurred as the deputies encountered several residents.

Eventually, the inhabitants were assembled on the couches in the living room, at

which point guns were no longer pointed at them, and Fred Curiel had been

handcuffed. Michael Sikkema came through the front door with groceries and

flowers and was promptly handcuffed for approximately ten minutes.

      Twenty-three minutes after they had arrived, ten deputies left to go to

another address where they were told they would find Dyleski, while four deputies

remained to keep the house and its ten inhabitants secure. Roughly an hour after

Fred’s handcuffs had been put on, and after three requests to have them removed



      2
        Given conflicting reports, we assume the deputies did not knock before
entering.

                                         -5-
due to tightness, they were removed. Appellants remained on the couches for

some time, given permission to get food and blankets, and later allowed greater

movement. They could not use the telephone.

      A search warrant was issued at 10:55 pm., but because the nighttime service

box was not checked, new warrants had to be prepared and were authorized at 1:36

am. on October 20, 2005. Once the search warrant arrived, deputies began

conducting an extensive search of the house and grounds. At some point, Fred

Curiel, Hazel McClure, and Michael Sikkema were taken to the Field Operations

Bureau for questioning about the credit card fraud, murder, and computer. Fred

and Hazel agreed to go. At some point, media arrived. The deputies remained,

searching, until 11 am.

                                          II.

      We find that the district court erred in holding the warrantless entry justified

by exigency as a matter of law. Based on the facts alleged, a jury could reasonably

find that the deputies had no specific facts indicating that Dyleski was an imminent

flight risk or that any imminent destruction of evidence by Dyleski or Appellants

was likely, given that neither Dyleski nor Appellants had any suspicion of

immediate apprehension or the deputies’ imminent arrival, which distinguishes this

case from others where exigency was found. See United States v. George, 883


                                         -6-
F.2d 1407, 1412–15 (9th Cir. 1989); see also Illinois v. McArthur, 531 U.S. 326,

331–32 (2001); Dixon v. Wallowa County, 336 F.3d 1013, 1018 (9th Cir. 2003);

United States v. Lindsey, 877 F.2d 777, 781 (9th Cir. 1989); United States v. Blake,

632 F.2d 731, 734 (9th Cir. 1980). A jury could also find the deputies failed to

show insufficient time to obtain a warrant. United States v. Reid, 226 F.3d 1020,

1028 (9th Cir. 2000). Because the government failed to meet its “heavy burden” to

show “specific and articulable facts [justifying] the finding of exigent

circumstances” that would support departing from the usual procedure of obtaining

a warrant, United States v. Driver, 776 F.2d 807, 810 (9th Cir. 1985), a jury could

reasonably find that Appellants’ Fourth Amendment rights were violated.

      However, while the requirement of imminence is settled, the lack of case law

considering a situation in which evidence has previously been destroyed and in

which additional factors such as the suspect’s escalating agitation, the serious

crime, and significant media attention influencing the officers’ decisions are all

present makes the violation not clearly established. Additionally, the federal

district court judge found no constitutional violation here, suggesting the violation

may not have been clear to the officers. Thus, Appellees were entitled to qualified

immunity. See Blankenhorn v. City of Orange, 485 F.3d 463, 476 (9th Cir. 2007)

(finding qualified immunity proper where there is a reasonable mistake as to what


                                          -7-
the law requires). Because we may affirm the district court on any ground

supported by the record, Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009), we

affirm the district court’s grant of summary judgment as to the warrantless entry.

                                        III.

      We find that a jury could also reasonably conclude that the failure to knock-

and-announce constituted a violation of Appellants’ Fourth Amendment rights

because the deputies created their own exigency. See Driver, 776 F.2d at 810–11.

However, this violation was likewise not a clearly established one, given case law

suggesting that an intentional creation of the exigency (absent in this case) was

required. See United States v. VonWillie, 59 F.3d 922, 926 (9th Cir. 1995).    Thus,

Appellees were also entitled to qualified immunity on this issue, see Blankenhorn,

485 F.3d at 476, and we affirm the district court’s grant of summary judgment as to

the failure to announce.

                                         IV.

      The district court also granted summary judgment on Appellants’ Fourth

Amendment excessive force claims, concluding that the force used was reasonable




                                         -8-
and necessary to secure the premises.3 The court therefore determined that the

officers were entitled to qualified immunity. We disagree.

      We evaluate Appellants’ excessive force claims under the Fourth

Amendment’s reasonableness standard. Graham v. Connor, 490 U.S. 386 (1989).

In so doing we consider all the facts and circumstances surrounding the deputies’

conduct, such as “the severity of the crime at issue, whether the suspect pose[d] an

immediate threat to the safety of the officers or others, and whether he [was]

actively resisting arrest or attempting to evade arrest by flight.” Id. at 396 (citing

Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); see also Chew v. Gates, 27 F.3d

1432, 1440 n.5 (9th Cir. 1994). Here, a reasonable jury could find that the deputies

used excessive force to seize Appellants and therefore violated their Fourth

Amendment rights.




      3
        The district court did not address the conduct of each of the deputies who
made up the entry team. As we understand Appellants’ arguments, their excessive
force claims focus on the deputies who initially entered the house: Park, Mahoney,
Goldberg, Bailey, Fawell, Garibay, Moore, Uyeda, Santiago and Ryan. Four other
deputies, Daley, Clark, Van Zelf and Oest, were present but remained outside until
the premises were secure. One other deputy, Aranda, and trainee Hadley arrived
after the entry team had secured the house. Appellants do not argue that deputies
Daly, Clark, Van Zelf, Oest and Aranda, and trainee Hadley either engaged in
wrongful conduct or that, for some other reason, they too should be responsible for
any use of excessive force. Accordingly, we affirm the grant of summary
judgment in favor of these Appellees on Appellants’ excessive force claims.

                                           -9-
      The brutal murder that the deputies were investigating and the deputies’

knowledge that Scott Dyleski resided at the house and that a rifle might be stored

there suggest that the deputies’ conduct was reasonable. While we do not diminish

the significance of these circumstances, when balanced against other facts, a

reasonable jury could find that the force used was not reasonable.

      Without having obtained a search warrant, the deputies, dressed in dark raid

gear, burst into the Curiel’s home to look for Scott Dyleski and evidence of the

murder of Vitale. They entered the house, unannounced, with their guns drawn,

and pointed their guns at the occupants, including children, while giving

commands to get down on the floor. In one instance, Deputy Uyeda pointed his

modified m-16 assault rifle at Hazel McClure and her children as they cowered in

one of the bathrooms. In several other encounters, the deputies pointed their guns

within inches of the person’s head. Not only did the deputies train their guns on

the occupants, they threatened deadly harm if the individuals failed to comply with

their commands. The threats were laced with vulgar profanity.

      As the deputies searched the house, they kicked in one interior door and

damaged another. After Fred Curiel complied with an order to get down on the

floor, he was handcuffed in such a way that the cuffs caused pain. Although he

complained that the handcuffs hurt, they were not removed for approximately one


                                        -10-
hour. During the encounter with Fred Curiel, one of the deputies slammed his head

to the ground when he yelled, “Please don’t shoot my family.” At approximately

the same time, Deputy Parker pinned Fred Curiel’s daughter, J., to the ground by

placing her left boot on J.’s back and her right knee on J.’s arm. Although the

physical injuries sustained by these appellants were minor, significant physical

injury is not required to maintain an excessive force claim. Wilks v. Reyes, 5 F.3d

412, 416 (9th Cir. 1993).

      When Michael Sikkema returned home with a bag of groceries, he was

greeted inside the house with a gun pointed to his head, and threatened with harm

if he did not comply with the officers’ commands. Once he was on the ground, he

too was handcuffed.

      The officers pursued this course of conduct even though it was obvious that

none of the occupants resembled a sixteen-year old white male. Although it took

only fifteen to twenty minutes to secure the house, the intensity of the deputies’

actions and their threats of harm while pointing guns caused considerable fear

among the occupants. In light of all these circumstances, we conclude that a

reasonable jury could find that the entry team deputies used excessive force in

violation of the Fourth Amendment.




                                         -11-
      Having determined that Appellants’ factual submissions could establish a

constitutional violation, we proceed to consider “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 202 (2001). “This step . . . is an inquiry into the

reasonableness of the officer’s belief in the legality of his actions.” Wilkins v. City

of Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (emphasis in original).

      We recognized in Robinson v. Solano County, 278 F.3d 1007, 1014-15 (9th

Cir. 2002) (en banc), that pointing a gun at someone may constitute excessive

force, even if it does not cause physical injury. We also have held that overly tight

handcuffs may constitute excessive force. See Meredith v. Erath, 342 F.3d 1057,

1063-64 (9th Cir. 2003). Nevertheless, because the deputies dispute Appellants’

version of what happened inside the Curiel’s home and resolution of those facts are

material to a proper determination of the reasonableness of the deputies’ belief in

the legality of their actions, we leave the determination of qualified immunity to

the district court on remand. See Santos v. Gates, 287 F.3d 846, 855 n.12 (9th Cir.

2002) (finding it premature to decide the qualified immunity issue “because

whether the officers may be said to have made a ‘reasonable mistake’ of fact or law

may depend on the jury’s resolution of disputed facts and the inferences it draws

therefrom”) (internal citation omitted).


                                           -12-
      Although Appellants emphasize the deputies’ use of profanity and threats of

harm, they do not allege or argue that such conduct, without more, constitutes a

separate Fourth Amendment violation. We therefore do not address whether

Appellees are entitled to qualified immunity for such conduct.

      We reverse the grant of summary judgment on these claims and remand for

further proceedings.

                                          V.

      Next, we find no constitutional violation as to Appellants’ detention. During

the period prior to Scott’s capture, exigency justified the seizure because a

reasonable officer could believe that permitting Appellants to leave or have access

to a telephone when they knew where Dyleski was might imperil the safety of the

officers trying to catch a dangerous suspect or “improperly frustrate legitimate law

enforcement efforts.” United States v. George, 883 F.2d 1407, 1412 (9th Cir.

1989); see Illinois v. McArthur, 531 U.S. 326, 330 (2001) (looking to whether

exigent circumstances permitted temporary warrantless seizure). Detention during

the roughly two-hour period between Dyleski’s capture and the procurement of a

search warrant was justified by the fear that evidence would be destroyed by

Dyleski’s housemates. Based on Appellants behavior in the previous days, the

deputies had “good reason to fear” Appellants might be complicit in the crimes or


                                         -13-
have an interest in keeping the evidence out of police hands once they knew the

deputies were about to discover it. McArthur, 531 U.S. at 332. Finally, the

detention during the period during which a search occurred attendant to a search

warrant, was likewise reasonable. The need to “facilitat[e] the orderly completion

of [a] search” provides substantial justification for detaining an occupant, even if

not a suspect, Muehler v. Mena, 544 U.S. 93, 98, 99 n.2 (2005), and there is no

indication the deputies wasted time in the conduct of this difficult search, see

Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006). Throughout, the

manner of detention was reasonable, in light of the efforts made to make

Appellants comfortable and the need to prevent media leaks that would have made

the search more difficult. See id. at 1066, 1069; Ganwich v. Knapp, 319 F.3d

1115, 1123 (9th Cir. 2003) (permitting the curtailment of telephone usage “so long

as that restriction is carefully tailored to its underlying justification”).

       For these reasons, Appellees were entitled to qualified immunity and we

affirm the district court’s grant of summary judgment as to this issue.

                                           VII.

       Finally, the questioning of Fred Curiel and Hazel McClure did not constitute

a Fourth Amendment violation. The district court found Fred and Hazel agreed to

talk and their release was not explicitly conditioned on their cooperation. These


                                           -14-
findings are not clearly erroneous. The consensual questioning was permissible

and did not prolong the detention. See Florida v. Bostick, 501 U.S. 429, 434–35

(1991); Muehler v. Mena, 544 U.S. 93, 101 (2005). Thus, we affirm the district

court’s finding of qualified immunity and grant of summary judgment as to claims

arising from this questioning.

                                         VIII.

      For these reasons, we AFFIRM the district court’s grant of summary

judgment as to the claims stemming from the warrantless, unannounced entry, the

detention, and the questioning of Curiel and McClure. We REVERSE the district

court’s decision to grant summary judgment as to the excessive force claim.

Because we have held that a jury could find constitutional violations, we also

REVERSE the district court’s grant of summary judgment to the County on the

issue of municipal liability for those violations, and REVERSE the grant of

summary judgment as to Appellants’ state law claims for assault, battery, violation

of California Civil Code § 52.1, and intentional infliction of emotional distress, to

the extent the last claim was based on the entry or force used. Each party is to bear

its own costs.

      AFFIRM in part and REVERSED and REMANDED in part.




                                         -15-
