                                                                           FILED
                             NOT FOR PUBLICATION                           AUG 08 2013

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



                              FOR THE NINTH CIRCUIT


NICHOLAS CRISCUOLO,                              No. 12-35335

                Plaintiff - Appellant,           D.C. No. 2:10-cv-00470-LRS

  v.
                                                 MEMORANDUM*
GRANT COUNTY, et al.,

                Defendants - Appellees,

and

CITY OF MOSES LAKE,

                Defendant.


                     Appeal from the United States District Court
                       for the Eastern District of Washington
                      Lonny R. Suko, District Judge, Presiding

                         Argued and Submitted May 10, 2013
                                Seattle, Washington

Before: HAWKINS and NGUYEN, Circuit Judges, and SELNA, District Judge.**


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
      Nicholas Criscuolo appeals the district court’s grant of summary judgment

in favor of Grant County Deputy Sheriff Beau Lamens and Grant County in this 42

U.S.C. § 1983 action arising from Lamens’s fatal shooting of Criscuolo’s dog,

Slyder. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in

part, and remand for further proceedings.

1.    The district court erred in finding at the summary judgment stage that

Lamens’s killing of Slyder was objectively reasonable under the Fourth

Amendment. Lamens intruded on Criscuolo’s Fourth Amendment interests by

killing Slyder. San Jose Charter of the Hells Angels Motorcycle Club v. City of San

Jose, 402 F.3d 962, 975 (9th Cir. 2005). Viewing the totality of the circumstances

in the light most favorable to Criscuolo, the nonmovant, the killing was not

reasonably necessary to protect the safety of Maddox, the police dog.

      A reasonable trier of fact could find that Lamens unreasonably shot Slyder

after the dogs separated, because Slyder posed no imminent threat to Maddox even

though the events occurred rapidly. Criscuolo and other witnesses claim that right

before Lamens fired, Slyder was not springing toward Maddox, Slyder was

stationary or retreating at a distance of 10–20 feet from Lamens and Maddox, and

Criscuolo was one to two feet away and about to leash Slyder.




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      Such facts, if credited, strengthen Criscuolo’s Fourth Amendment interests,

and a reasonable jury could conclude that Lamens did not need to make any “split-

second decision” to protect Maddox. See Altman v. City of High Point, 330 F.3d

194, 207 (4th Cir. 2003) (explaining that private Fourth Amendment interests are

“stronger when, although the dog is unleashed, the owner is nearby and attempting

to assert control over the dog”); Viilo v. City of Milwaukee, 552 F. Supp. 2d 826,

831, 838–42 (E.D. Wis.) (reasoning that the first shots fired at a dog were

reasonable, but disputed facts precluded summary judgment as to the third and

fourth shots, which were fired ten minutes later, given conflicting testimony as to

whether the dog was running toward the officers or whimpering and trying to

return to his owner), appeal dismissed, Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008).

The district court erred in resolving these material facts and making inferences in

favor of Lamens.

2.    The district court also erred in alternatively finding that Lamens in any event

is entitled to qualified immunity. At the time of the events in question, it was well

established “that the Fourth Amendment forbids the killing of a person’s dog . . .

when that destruction is unnecessary—i.e., when less intrusive, or less destructive,

alternatives exist.” Hells Angels, 402 F.3d at 977–78. Viewing the facts in the light

most favorable to Criscuolo and assuming Lamens “correctly perceived all of the


                                           3
relevant facts,” as we must, Torres v. City of Madera, 648 F.3d 1119, 1127 (9th

Cir. 2011), this case does not fall within the hazy spectrum between unreasonable

and reasonable seizures.

      Lamens shot Slyder after he retreated and when Criscuolo was about to

obtain custody—not when Slyder was about to attack. It is clearly established that

it is unreasonable to shoot an unleashed dog—even if it surprises an officer on

public property—if it poses no imminent or obvious threat, its owner is in close

proximity and desirous of obtaining custody, and deadly force is avoidable. Brown

v. Muhlenberg Twp., 269 F.3d 205, 210–11 (3d Cir. 2001) (explaining that

although good reason to believe a pet poses an imminent danger may justify

destroying it in the owner’s presence, “[t]his does not mean . . . that the state may,

consistent with the Fourth Amendment, destroy a pet when it poses no immediate

danger and the owner is looking on, obviously desirous of retaining custody”);

Viilo, 552 F. Supp. 2d at 839–40 (reasoning that deadly force may be unjustified

once a dog no longer poses an imminent threat).1 Accordingly, we reverse the



      1
         We do not believe the rapidity with which the events occurred sufficiently
distinguishes this case from others and renders the law not clearly established. To
grant qualified immunity because of the rapidity alone would “effectively wrench
of all meaning the Supreme Court’s admonition that ‘officials can still be on notice
that their conduct violates established law’” even in “novel” circumstances. Torres,
648 F.3d at 1129 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

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district court’s entry of judgment as a matter of law in favor of Lamens on his

personal liability and remand for further proceedings consistent with this opinion.

3.    We affirm the district court’s entry of judgment as a matter of law in favor

of Grant County on its municipal liability based on policy, inaction, and failure to

train. Grant County Sheriff’s Office Policy 7.14 provides that animals “who are

vicious and/or attacking persons or property may be killed at the discretion of the

deputy.” The policy’s “attacking persons and or property” language, at issue here,

does not authorize unconstitutional conduct or give officers unbridled discretion to

shoot any animal they encounter, even if it is not threatening. No reasonable jury

could find that Lamens’s actions “reflected [the] implementation of a generally

applicable rule,” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 406

(1997), or attribute fault and causation to Grant County itself. See Gibson v. Cnty.

of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002) (requiring the plaintiff to show the

municipality itself violated his rights or directed employees to do so); see also

Brown, 520 U.S. at 405 (“[P]roof that a municipality’s legislative body or

authorized decisionmaker has intentionally deprived a plaintiff of a federally

protected right necessarily establishes that the municipality acted culpably.”).

There also is no evidence that Grant County was “deliberately indifferent”; nothing

indicates that Grant County’s experiences—such as a pattern of tortious conduct by


                                           5
officers—or judicial precedent should have put it on actual or constructive notice

that any inadequacy in its policy or training caused or likely would cause

constitutional violations. See Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1186

(9th Cir. 2006).

4.    Because we reverse the district court’s grant of summary judgment on

Criscuolo’s Fourth Amendment claim against Lamens, we reinstate Criscuolo’s

pendent state law claims. See Sims v. Stanton, 706 F.3d 954, 959 n.3 (9th Cir.

2013). On remand, the district court is free to revisit whether to dismiss the state

claims.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Each party shall bear its own costs on appeal.




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