                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 31 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANGELICA HART; ERICA FRAKES;                     No. 13-35080
JEFFREY G. SHARP; SHONNA REED,
                                                 DC No. CV 12-0031 AA
              Plaintiffs-Appellants,

 and                                             MEMORANDUM*

THERESA MCNERNEY, Guardian Ad
Litem for W.N.,

              Plaintiff

 v.

BENTON COUNTY (OR) SHERIFF’S
OFFICE; KEVIN MILLS; RYAN
EATON; CHRISTOPHER DUFFITT;
GREG GOLLER; JAMES HARDISON;
BEN DRONGENSEN; DAVE IVERSON;
JUSTIN BOWERS; DAVID PETERSON;
BRIAN HORN, Deputies; CORVALLIS
POLICE DEPARTMENT,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Ann L. Aiken, District Judge, Presiding

                        Argued and Submitted April 7, 2016
                               Pasadena, California

Before:     TASHIMA, SILVERMAN, and GRABER, Circuit Judges.

      Plaintiffs-Appellants Angelica Hart, Erica Frakes, Jeffrey Sharp, and Shonna

Reed (“Plaintiffs”) appeal the district court’s order granting summary judgment to

Defendants-Appellees, Benton County Sheriff’s Office, Corvallis Police

Department, and ten individual police officers (“Defendants”).1 We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      In October 2011, nine officers of the Benton County Sheriff’s Office and the

Corvallis Police Department executed a search warrant at a residence, seeking

evidence that one of the occupants had failed to register as a sex offender.2 The

house belonged to Plaintiff Sharp, who considered it (the “Sharp residence”) to be

a boarding house for homeless people in the area. The officers were aware that

several homeless people, including convicted felons, parolees, and probationers,


      1
              Nine of the officers-defendants, Sergeant David Peterson, and
Deputies Brian Horn, Ryan Eaton, Christopher Duffitt, Greg Goller, James
Hardison, Ben Drongensen, Dave Iverson, and Justin Bowers, participated in both
searches. Deputy Kevin Mills was on standby at the station during the first search,
but participated in the second search.
      2
             Plaintiffs do not challenge the particularlity of the search warrant or
the probable cause finding underlying the warrant.

                                           2
intermittently lived at the Sharp residence. When the officers arrived at the Sharp

residence, noone answered the door. The officers then tried the door, which was

unlocked, and entered the house. They had no idea who or what was waiting for

them inside. While the officers were securing the residence in preparation for the

search, they pointed their guns at Plaintiffs Hart, Frakes, and Reed.

      When the officers found a substance consistent with methamphetamine, they

promptly halted their search and obtained a second warrant to search for evidence

of controlled substances and drug paraphernalia. After the second search, Reed,

who remained handcuffed during both searches, was arrested for possession of

methamphetamine.3

      Plaintiffs brought claims under 42 U.S.C. § 1983 against the officers

involved in the searches, alleging that the officers used excessive force and

conducted an illegal search in violation of the Fourth Amendment. The district

court granted summary judgment to Defendants. Plaintiffs appeal.

      We review a district court’s grant of summary judgment de novo to

determine whether, “viewing the evidence in the light most favorable to . . . the

nonmoving party, there are any genuine issues of material fact and whether the



      3
            Neither Reed nor any of the other occupants of the Sharp residence
were criminally charged based on these searches.

                                          3
district court correctly applied the substantive law.” Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004) (citation omitted).

      1.    Plaintiffs contend that Defendants used excessive force against them in

violation of the Fourth Amendment by pointing guns at them and by detaining

Reed in handcuffs for several hours.4

A.    Legal Framework

      Police officers executing a search warrant may lawfully “detain the

occupants of the premises while a proper search is conducted.” Bailey v. United

States, 133 S. Ct. 1031, 1037 (2013) (quoting Michigan v. Summers, 452 U.S. 692,

705 (1981)). To effectuate such a detention lawfully, officers must use objectively

reasonable force. Muehler v. Mena, 544 U.S. 93, 98–99 (2005). To determine

whether a particular use of force is reasonable, we balance “the nature and quality

of the intrusion on the individual’s Fourth Amendment interests against the

      4
              Plaintiffs also argue that Defendants used excessive force by
deploying nine officers to execute the search warrant. Under our precedent, the
deployment of multiple officers to execute a search warrant is not analyzed as a
type of “force” under Graham v. Connor, 490 U.S. 386 (1989). Instead, the Court
has considered the number of officers on a scene in relation to whether the plaintiff
posed an immediate threat to the officers and thus whether the officers had a
legitimate interest in the use of force. See, e.g., Green v. City & Cty. of S.F., 751
F.3d 1039, 1050 (9th Cir. 2014).
       In this case, there were eight people in the Sharp residence when nine police
officers arrived to execute the first search warrant. Thus, the number of officers on
the scene does not factor significantly into the excessive force analysis.

                                          4
countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386,

396 (1989) (internal quotation marks omitted). We must evaluate the

reasonableness of the force used “from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Id.

      We apply Graham’s excessive force test in three steps. “First, we must

assess the severity of the intrusion on the individual’s Fourth Amendment rights by

evaluating ‘the type and amount of force inflicted.’” Glenn v. Wash. Cty., 673 F.3d

864, 871 (9th Cir. 2011) (quoting Espinosa v. City & Cty. of S.F., 598 F.3d 528,

537 (9th Cir. 2010)). “Second, we evaluate the government’s interest in the use of

force.” Id. (citing Graham, 490 U.S. at 396). “Finally, ‘we balance the gravity of

the intrusion on the individual against the government’s need for that intrusion.’”

Id. (quoting Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003)).

B.    The Severity of the Intrusion

      In evaluating the severity of the intrusion on a plaintiff’s Fourth Amendment

rights, we examine both “the type and amount of force inflicted.” Miller, 340 F.3d

at 964. We have said that “pointing a loaded gun at a suspect, employing the threat

of deadly force, is use of a high level of force.” Espinosa, 598 F.3d at 537. The

Supreme Court has determined that “correctly apply[ing]” handcuffs on an




                                          5
occupant of a home being searched pursuant to a valid warrant constitutes a

“marginal intrusion” on her rights. Muehler, 544 U.S. at 99.

      In this case, Defendants used a high level of force against Hart, Frakes, and

Reed by pointing guns at them.5 This force was exerted only briefly, however,

while Defendants secured the premises and ascertained that Plaintiffs were

compliant and non-threatening. Defendants also kept Reed in handcuffs while both

search warrants were executed, and while she was taken to a police station after

being arrested. This constituted a “marginal intrusion” on her rights. Id.

C.    The Officers’ Countervailing Interests

      Under Graham’s second step, we evaluate the officers’ countervailing

interests. Miller, 340 F.3d at 964. This evaluation is guided mainly by three

factors: “(1) the severity of the crime at issue, (2) whether the suspect posed an

immediate threat to the safety of the officers or others, and (3) whether the suspect

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

      5
              Hart testified that, when a police officer entered her bedroom, he
pointed a gun at her upper body. Frakes said that a police officer ordered her to get
on the ground and pointed a gun at her head from approximately one foot away
while she was doing so, for about thirty seconds. Reed was asleep in her room
when four police officers entered the room, grabbed her by her upper arm, and
pulled her to her feet. As Reed woke up, she saw a gun pointed at her face. Reed
estimated that the gun was pointed at her for approximately one minute as she
stood up and was told she was being detained. The officer pointing the gun then
holstered it and handcuffed her.

                                           6
Graham, 490 U.S. at 396). These factors are not exclusive; rather, we should

“examine the totality of the circumstances and consider whatever specific factors

may be appropriate in a particular case, whether or not listed in Graham.” Glenn,

673 F.3d at 872 (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.

2010)).

            1. The Severity of the Crime

      The officers initially entered the Sharp residence to look for documentary

evidence of an occupant’s failure to register as a sex offender. This is a non-

violent felony. See Or. Rev. Stat. § 181.812 (2011). The officers knew that the

suspect- occupant was incarcerated when the warrant was executed. Thus, the

officers had no reason to expect violence or resistance based on the crime being

investigated. This factor accordingly weighs in Plaintiffs’ favor.

            2. Whether Plaintiffs Posed an Immediate Threat to the Officers’
               Safety

      We must also consider whether Plaintiffs posed an immediate threat to the

officers. “[A] simple statement by an officer that he fears for his safety or the

safety of others is not enough; there must be objective factors to justify such a

concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).




                                           7
      The record does not show that objective factors led the officers to believe

that Plaintiffs themselves posed a threat to officer safety. However, as discussed in

more detail below, the officers had reason to believe that they would encounter one

or more dangerous individuals in the Sharp residence. In light of this safety

concern, the officers pointed guns at Hart, Frakes, and Reed for a few seconds – in

Reed’s case, no longer than a minute – until the officers ascertained that they were

unarmed and not otherwise threatening. Thus, this factor weighs only slightly in

favor of Plaintiffs’ claim that the officers’ use of guns constituted excessive force.

The officers did, however, keep Reed in handcuffs for the duration of the two

searches, even after determining that she was non-threatening. This factor thus

weighs relatively more heavily in favor of Reed’s claim that the use of handcuffs

during her detention constituted excessive force.

            3. Whether Plaintiffs Resisted or Attempted to Evade Arrest

      Plaintiffs immediately complied with the officers’ orders, and there is no

evidence that Plaintiffs resisted the officers. As soon as Plaintiffs proved

compliant, however, the officers lowered their weapons. Because the officers

pointed their weapons only until it was clear that Plaintiffs would comply with the

search, this factor also weighs only slightly in favor of Plaintiffs. Again, this factor




                                           8
weighs more heavily in favor of Reed’s excessive force claim because she

continued to be handcuffed even after proving compliant.

            4. Other Factors

In evaluating the government’s interests in the use of force, the above three

factors are not exclusive. Rather, we must “examine the totality of the

circumstances and consider whatever specific factors may be appropriate in a

particular case, whether or not listed in Graham.” Glenn, 673 F.3d at 872 (quoting

Bryan, 630 F.3d at 826). Such other factors may include “whether a warrant was

used” and “whether other dangerous or exigent circumstances existed at the time of

the arrest.” Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994).

      The police officers entered the Sharp residence pursuant to a valid search

warrant, which weighs against a finding of excessive force. Further, from the

perspective of a reasonable officer on the scene, entering the Sharp residence was

potentially dangerous. The officers in this case had previous experience with the

Sharp residence, which significantly raised the governmental interests in the use of

force. The officers knew that convicted felons, parolees, and probationers

regularly stayed at the Sharp residence. The officers also knew that in June 2011, a

man had been arrested at the Sharp residence for holding a knife to a woman’s

throat and punching her in the face. Thus, when the officers entered the Sharp


                                          9
residence, they reasonably believed they might be faced with violent individuals

who would threaten their safety. This factor weighs strongly against a finding of

excessive force in this case.

D.    Weighing the Conflicting Interests

      After evaluating the intrusion on Plaintiffs’ rights and the government’s

interests in the use of force, we must “balance the gravity of the intrusion on the

individual against the government’s need for that intrusion.” Glenn, 673 F.3d at

871 (quoting Miller, 340 F.3d at 964).

      We conclude, under the totality of the circumstances, that the officers’ use of

force was reasonable. The officers entered the Sharp residence not knowing how

many people were staying there at the time. They had reason to believe that at

least one of the occupants could be violent or dangerous. The officers did not

significantly outnumber the occupants. They pointed their guns at Hart, Frakes,

and Reed only briefly, until they determined that Plaintiffs did not pose a threat.

Finally, although Reed was handcuffed for the duration of the two searches, the

“correctly applied” handcuffs constituted only a “marginal intrusion” in addition to

her lawful detention. See Muehler, 544 U.S. at 99.

      We conclude that Defendants did not employ excessive force against

Plaintiffs in violation of the Fourth Amendment.


                                          10
      2.    Plaintiffs also challenge the reasonableness of Defendants’ search of

the Sharp residence under the first search warrant. The warrant authorized a search

of the Sharp residence for “[e]vidence of the crime of failure to register as a sex

offender,” including “mail addressed to Gary Goodwin, receipts, documents, and

other documents containing rental information.” Plaintiffs contend that the officers

should have conducted a narrower search of the residence, avoiding the closets and

dressers in bedrooms where Goodwin was not staying. We disagree.

A.    The Search Was Reasonable

      “A search warrant for the entire premises of a single family residence is

valid, notwithstanding the fact that it was issued based on information regarding

the alleged illegal activities of one of several occupants of a residence.” United

States v. Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991). By contrast, if a warrant

authorizes the search of separate apartments or units, even though probable cause

exists to search only one of them, the warrant is overbroad. See id. A search

conducted pursuant to such a warrant is unreasonable unless “the officers’ failure

to realize the overbreadth of the warrant [is] objectively understandable and

reasonable.” Id. (quoting Maryland v. Garrison, 480 U.S. 79, 88 (1987)).

      Here, the search warrant authorized the search of the “residence . . . located

at 732 NW 29th Street in Corvallis, Benton County, Oregon.” The Sharp residence


                                          11
was not set up as a multi-unit dwelling with distinct, separate residential units. The

residents shared common areas. When the officers entered, they observed no

indication that Plaintiffs’ rooms were locked or set up as separate living units.

Under these circumstances, it was reasonable for the officers to believe that

evidence covered by the first search warrant could be located throughout the Sharp

residence, not just in the attic, where Goodwin slept. Thus, a search of all the

rooms – which was permitted by the warrant – was reasonable.

B.    Any Knock-and-Announce Claim is Waived

      Plaintiffs also contend that the search was unreasonable because Defendants

failed to knock and announce their presence before entering. Although the

Amended Complaint alleges that Defendants “barged in the unlocked but closed

front door (without knocking and waiting 30 seconds),” Plaintiffs made no

argument in support of that claim in their briefing on any motion, or otherwise,

before the district court. “[A]n issue will generally be deemed waived on appeal if

the argument was not raised sufficiently for the trial court to rule on it.” In re

Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (internal

quotation marks omitted). Because the district court did not have an opportunity to

rule on the issue, it is deemed waived.

                                       •   !    •


                                           12
      Because both of Plaintiffs’ Fourth Amendment claims fail as a matter of law,

the district court did not err in granting Defendants’ motion for summary

judgment.

      AFFIRMED.




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