                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 MARTY EMMONS; MAGGIE EMMONS,                     No. 16-55771
            Plaintiffs-Appellants,
                                                   D.C. No.
                     v.                         3:14-CV-01662-
                                                   JM-DHB
 CITY OF ESCONDIDO; CRAIG CARTER,
 EPD Chief of Police; JIM MAHER,
 Former EPD Chief of Police; KEVIN                  OPINION
 TOTH, EPD Sgt.; ROBERT CRAIG,
 EPD Officer; JAKE HOUCHIN, EPD
 Officer; JOSEPH LEFFINWELL, EPD
 Officer; DOES, 2–50, inclusive;
 COREY MOLES, DOE 1, Former
 Acting EPD Chief of Police,
               Defendants-Appellees.



     On Remand from the United States Supreme Court

                      Filed April 25, 2019

 Before: Susan P. Graber and Andrew D. Hurwitz, Circuit
    Judges, and Algenon L. Marbley, * District Judge.

                      Per Curiam Opinion

     *
       The Honorable Algenon L. Marbley, United States District Judge
for the Southern District of Ohio, sitting by designation.
2               EMMONS V. CITY OF ESCONDIDO

                          SUMMARY **


                           Civil Rights

    Following a remand by the United States Supreme Court,
the panel affirmed the district court’s summary judgment in
favor of a police officer in an action brought pursuant to 42
U.S.C. § 1983 alleging that the officer used excessive force
when he grabbed plaintiff and took him to the ground during
an investigation of a reported domestic violence incident.

    The panel held that it was unable to find a specific case
precisely on point that would establish that the officer’s
conduct violated a clearly established constitutional right of
which a reasonable official would have known, and therefore
the officer was entitled to qualified immunity. The panel
stated that although plaintiff posed no apparent danger to the
police officer, it was mindful of the Supreme Court’s
conclusion that a case involving police force employed in
response to mere “passive resistance” to police was not
sufficiently on point with this case as to satisfy the Court’s
demand for specificity.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              EMMONS V. CITY OF ESCONDIDO                  3

                        OPINION

PER CURIAM:

    The district court granted summary judgment in favor of
the City of Escondido and several Escondido police officers
in this 42 U.S.C. § 1983 action. Emmons v. City of
Escondido, 168 F. Supp. 3d 1265, 1276 (S.D. Cal. 2016).
We affirmed in part and reversed in part, holding that
Officers Toth and Craig were not entitled to qualified
immunity. 716 F. App’x 724, 726 (9th Cir. 2018)
(unpublished). The Supreme Court granted certiorari,
reversed our decision as to Officer Toth, and vacated and
remanded as to Officer Craig. 139 S. Ct. 500, 502 (2019)
(per curiam). We ordered supplemental briefing on the
following question: Did “clearly established law prohibit[]
the officers from stopping and taking down a man in these
circumstances?” After considering that briefing, we affirm
the district court’s grant of summary judgment in favor of
Officer Craig.

                             I.

    At the time this action was filed, Maggie Emmons lived
in Escondido, California, with her husband, their two
children, and a roommate, Ametria Douglas. In April 2013,
Maggie called 911, accusing her husband of domestic
violence. Emmons, 139 S. Ct. at 501. Escondido police
arrested the husband, but he was never prosecuted. Id.

   In May 2013, Douglas was on the phone with her mother.
After the call dropped, Douglas’s mother called 911 to report
what she believed was an on-going fight at the apartment.
The Escondido police were asked to conduct a welfare
check. Officer Craig was one of the responding officers.
4             EMMONS V. CITY OF ESCONDIDO

    When the Escondido officers arrived on the scene, they
found Douglas with the Emmons children at the swimming
pool complex of the apartment. Douglas told the officers
that everything was fine and that they were not needed. The
officers proceeded to the apartment nonetheless. Maggie
and her father, Marty Emmons, were watching television.
Although Marty urged her to cooperate, Maggie refused to
allow the officers to enter the apartment despite their
repeated requests.

     Marty then emerged from the apartment, and the
physical encounter with Craig that is the subject of this case
ensued. The parties dispute what happened and, on this
appeal from an adverse summary judgment, we must take
the facts in the light most favorable to Marty. Tolan v.
Cotton, 572 U.S. 650, 655–57 (2014) (per curiam). Marty
testified that he stepped out of the apartment with his back
to the exterior hallway and began to close the door. He could
not see any officers by the door and did not hear anyone
telling him to keep the door open. He first knew that Craig
was there when Craig grabbed him and threw him to the
ground. Douglas, who was watching from the pool,
described the interaction as one in which “Mr. Emmons was
pulled out of the door,” and “tackled to the ground.”

    The police body cameras recorded Craig saying the
following: “Hi. How you doing sir? Don’t close the door.
Get your hands behind your back. Get on the ground, get on
the ground, get on the ground.” The physical interaction
with Marty occurs as Craig is speaking.

                             II.

    Qualified immunity shields government officials from
liability for civil damages when “their conduct does not
violate clearly established statutory or constitutional rights
              EMMONS V. CITY OF ESCONDIDO                    5

of which a reasonable person would have known.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). In this context,
“clearly established” means that, “at the time of the officer’s
conduct, the law was ‘sufficiently clear that every reasonable
official would understand that what he is doing’ is
unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). Courts must “define the ‘clearly established’ right
at issue on the basis of the ‘specific context of the case.’”
Tolan, 572 U.S. at 657 (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)). Thus, liability will not attach unless there
exists “a case where an officer acting under similar
circumstances . . . was held to have violated the Fourth
Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(per curiam); see also Kisela v. Hughes, 138 S. Ct. 1148,
1153 (2018) (per curiam) (“[P]olice officers are entitled to
qualified immunity unless existing precedent ‘squarely
governs’ the specific facts at issue.” (quoting Mullenix v.
Luna, 136 S. Ct. 305, 309 (2015))). A plaintiff “bears the
burden of showing that the right at issue was clearly
established.” Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.
2011) (citing Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.
2002)).

    Marty cited several cases that he believes clearly
establish that Craig used excessive force. Those cases,
however, do not present sufficiently similar factual
circumstances to have “placed the . . . constitutional question
beyond debate.” al-Kidd, 563 U.S. at 741. In several of the
cases, the force used was significantly greater than the force
used in this case or involved differently situated plaintiffs.
See, e.g., Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1091–
92 (9th Cir. 2013) (tasing a bystander); Nelson v. City of
Davis, 685 F.3d 867, 878 (9th Cir. 2012) (shooting an
6             EMMONS V. CITY OF ESCONDIDO

individual in the eye with “a pepperball projectile”);
Blankenhorn v. City of Orange, 485 F.3d 463, 478–79 (9th
Cir. 2007) (gang-tackling a suspected trespasser at a
shopping mall); Santos v. Gates, 287 F.3d 846, 853–54 (9th
Cir. 2002) (taking down an individual, resulting in a broken
back); Headwaters Forest Def. v. County of Humboldt,
276 F.3d 1125, 1130–31 (9th Cir. 2002) (using pepper spray
against protesters).

    Marty also cited Meredith v. Erath, 342 F.3d 1057 (9th
Cir. 2003). But, in that case, IRS agents had entered the
plaintiff’s office, and although she “made no attempt to
leave,” one “grabbed her by her arms, forcibly threw her to
the ground, and, twisting her arms, handcuffed her.” Id. at
1061. Here, as the Supreme Court emphasized, Marty was
attempting to step out of his daughter’s apartment and close
the door. Emmons, 139 S. Ct. at 504.

    The case closest to this one that we have discovered is
Hansen v. Black, 885 F.2d 642 (9th Cir. 1989). Investigating
a gas station robbery, police officers went to the plaintiff’s
residence, suspecting that her son may have been involved.
Id. at 643. They found the plaintiff outside, taking out her
trash, and we held that that the officers used excessive force
in handcuffing her “in an abusive manner” after she refused
to comply with an officer’s order to put the trash down. Id.
at 645. But here, the officers were investigating an incident
that occurred inside the Emmons home, and Marty had not
been ruled out as a possible suspect.

    Although Marty posed no apparent danger to Craig, we
are mindful of the Supreme Court’s conclusion that a case
involving police force employed in response to mere
“passive resistance” to police is not sufficiently on point to
constitute clearly established law. Emmons, 139 S. Ct. at
503. The Court therefore must have concluded implicitly
                EMMONS V. CITY OF ESCONDIDO                          7

that Marty’s actions involved more than passive resistance.
Otherwise, the Court would not have vacated our decision in
the face of our citation to Gravelet-Blondin, 728 F.3d at
1093, in which we held that “[t]he right to be free from the
application of non-trivial force for engaging in mere passive
resistance was clearly established prior to 2008.” Given the
Court’s admonition, we are unable to find a case so precisely
on point with this one as to satisfy the Court’s demand for
specificity. Officer Craig is therefore entitled to qualified
immunity. 1

    AFFIRMED.




    1
      Because we hold that Craig is entitled to qualified immunity, we
do not address whether he violated Mr. Emmons’s constitutional rights.
See Pearson, 555 U.S. at 236–37. The Supreme Court has advised that
“lower courts ‘should think hard, and then think hard again,’ before
addressing both qualified immunity and the merits of an underlying
constitutional claim.” Wesby, 138 S. Ct. at 589 n.7 (quoting Camreta v.
Greene, 563 U.S. 692, 707 (2011)).
