Opinion
21-16826
11-01-2022
GARY MILLER, Plaintiff-Appellant, v. COUNTY OF NYE, DBA Nye County Animal Control, DBA Nye County Sheriff's Office; JOHN TOLLE, Deputy, Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2022 San Francisco, California
Appeal from the United States District Court for the District of Nevada No. 2:19-cv-00601-JAD-DJA Jennifer A. Dorsey, District Judge, Presiding
Before: CLIFTON, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
While responding to an activation of Appellant Gary Miller's home-security system, Appellee Deputy John Tolle fatally shot Miller's dog-a 56-pound pit bull named "Blu"-after it began barking and running in Tolle's direction. Miller sued Tolle pursuant to 42 U.S.C. § 1983, claiming that Tolle violated the Fourth Amendment. The district court granted Tolle's motion for summary judgment based on qualified immunity. We affirm.
Because the parties are familiar with the facts of the case, we recite them only as necessary to the disposition of this appeal. The incident in question was captured on Tolle's body-worn camera, and we may rely on this footage in our analysis. See Scott v. Harris, 550 U.S. 372, 378 (2007). We review de novo a district court's grant of summary judgment based on qualified immunity. Crowe v. Cnty. of San Diego, 608 F.3d 406, 427 (9th Cir. 2010). We view the evidence in the light most favorable to the plaintiff. Id.
Once an official invokes qualified immunity, the plaintiff bears the burden of proving that: (1) taken in the light most favorable to the plaintiff, the facts alleged show that the officers violated a constitutional right; and if so, (2) the right was clearly established at the time of the violation. Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 946 (9th Cir. 2017). For a right to be clearly established, the plaintiff need not find "a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The precedent must state the right within the "specific context of the case, not as a broad general proposition." Mueller v. Auker, 700 F.3d 1180, 1185 (9th Cir. 2012) (quotations omitted).
We exercise our discretion to address only the second prong of qualified immunity, Pearson v. Callahan, 555 U.S. 223, 236 (2009), and conclude that the Fourth Amendment right asserted by Miller was not clearly established. There is no genuine dispute that Tolle was confronting circumstances of unknown severity and type when he was approaching Miller's front door. It is further undisputed that Blu-a 56-pound pit bull-ran in Tolle's direction while barking loudly. Tolle had only 12 seconds to determine how to deal with Blu. Tolle already had his gun drawn and believed that he needed to be ready to confront the situation taking place in Miller's home. Miller cites no Fourth Amendment precedent requiring an officer in this specific context to analyze the body-language of an approaching, barking pit bull and attempt to use less-than-lethal methods of deterrence before shooting it. Miller's rights were not clearly established, and Tolle is entitled to qualified immunity as a matter of law.
We reject Miller's four arguments to the contrary.
First, Miller argues that his rights were clearly established because Tolle violated Nevada Statutes Section 289.595, which requires certain law enforcement officers "to be trained in effective responses to incidents involving dogs or where dogs are present." Tolle concedes he did not take this training. But a violation of state law generally does not create liability under Section 1983. Campbell v. Burt, 141 F.3d 927, 930 (9th Cir. 1998). One exception is where the "statute or regulation provides the basis of the cause of action sued upon," id., but Miller does not explain how section 289.595 creates a protectable liberty interest, much less does he cite a case establishing this proposition as of April 2017. See id. And while we may consider these training materials in excessive force cases, see Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003); Vazquez v. County of Kern 949 F.3d 1153, 1164-65 (9th Cir. 2020), they are "not dispositive." Drummond, 343 F.3d at 1059. Under the specific facts of this case, including the fact that Tolle had already drawn his weapon and could not switch to his pepper spray while maintaining his ability to respond to the perceived emergency in Miller's home, we conclude that Nevada's dog-encounter training materials are not dispositive.
Second, Miller relies on our holding in San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose ("Hells Angels"), 402 F.3d 962 (9th Cir. 2005). But the facts in Hells Angels are too distinguishable to have put Tolle on "fair notice" of the Fourth Amendment violation alleged here. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004). We expressly stated that the officers in Hells Angels were not "reacting to a sudden unexpected situation" or being "confronted with exigent circumstances." 402 F.3d at 978. We further explained that "the governmental interest of safety might . . . provide[] a sound justification for the intrusion had the officers been surprised by the presence of the dogs." Id. at 977. Our holding in Hells Angels therefore did not place the constitutionality of Tolle's actions "beyond debate" such that we may say the right was clearly established. al-Kidd, 563 U.S. at 741.
Third, we reject Miller's reliance on Hells Angels' progeny. Miller cites Thurston v. City of North Las Vegas Police Department and Criscuolo v. Grant County, both of which reversed the district courts' grants of summary judgment based on genuine issues of fact as to the dogs' aggression. 552 Fed.Appx. 640, 641 (9th Cir. 2014); 540 Fed.Appx. 562, 563 (9th Cir. 2013). But a reasonable officer could have believed that the specific facts of this case were closer to Wickersham v. Washington, Patino v. Las Vegas Metropolitan Police Department, and Perez v. City of Placerville, all of which found no Fourth Amendment violation when an officer confronting exigent circumstances shot an approaching dog. 2015 WL 224810, at *2 (W.D. Wash. Jan. 15, 2015), aff'd, 694 Fed.Appx. 559 (9th Cir. 2017); 207 F.Supp.3d 1158, 1162 (D. Nev. 2016), aff'd, 706 Fed.Appx. 427 (9th Cir. 2017); 2008 WL 4279386, *8 (E.D. Cal. Sept. 9, 2008). "[I]f officers of reasonable competence could disagree on this issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986).
The parties urge us to consider opinions issued after the shooting in April 2017, including court of appeals' decisions reviewing two of the above-cited district court decisions. See Wickersham, 694 Fed.Appx. 559 (decided July 24, 2017); Patino, 706 Fed.Appx. 427 (decided December 15, 2017)); see also Strong v. Perrone, No. 17-CV-6183-FPG, 2020 WL 1445877, at *3 (W.D.N.Y. Mar. 25, 2020)). We decline to consider these decisions in our analysis. See Brosseau, 543 U.S. at 198 ("[R]easonableness is judged against the backdrop of the law at the time of the conduct.").
Finally, Miller argues that "it is well-established that the unreasonable seizure of a pet is a Fourth amendment violation." Of course that is true. But we may not define the asserted right at a "high level of generality." Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) ("This Court has repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality." (cleaned up)).
Analyzing Miller's asserted right within the specific context of this case, as we must, we conclude it was not clearly established.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.