Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

Phillip LONG, et al., Plaintiffs-Appellees,v.Sherman T. BLOCK, Sheriff, Defendant,andDaniel McLeod, Richard Myers, Robert J. Guilbault, TimothyWilliams and Clarence Wilson, Defendants-Appellants.

No. 89-55934.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1990.Decided Jan. 28, 1991.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

Phillip Long and Mary Long, husband and wife acting in pro per, brought this civil rights action against four Los Angeles County deputy sheriffs, who entered their home to investigate a report that Mr. Long was physically abusing his 12-year-old daughter, Cam Long. Long was arrested for felony child abuse under Cal.Penal Code Sec. 273(a) (1).

The Longs contend that the law enforcement officials entered their house without probable cause, improperly arrested Long, and used excessive and deadly force. The deputies sought summary judgment based on qualified immunity, and, in the alternative, for summary adjudication of issues. The district court denied their motion for summary judgment on the ground that material facts exist in relation to their immunity claim.1 

We review the denial of a qualified immunity defense de novo. See Baker v. Racansky, 887 F.2d 183, 185 (9th Cir. 1989). We affirm the district court's determination that material issues of fact exist as to whether the deputies used excessive and deadly force. However, we disagree that material issues of fact also exist with respect to the deputies' entry of the Longs' residence and arrest of Mr. Long. Accordingly, we grant the deputies' qualified immunity against these claims.

Although qualified immunity is designed to free public officials from unnecessary and burdensome litigation, see Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982), it may only be granted if a reasonable officer would have believed that the disputed actions were lawful and did not violate any clearly established statutory or constitutional rights. See Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). In assessing the officers' actions, "only the information [the government officials] had when they made the challenged decision is relevant." Baker, 887 F.2d at 185 n. 1.

* Whether or not the deputies are entitled to qualified immunity for their warrantless entry of the Longs' home depends on whether a reasonable officer in similar circumstances would have believed that Cam Long was being or was in danger of being physically abused. The deputies argue that they responded reasonably to a report by a neighbor, Alma Estrella, that Long was physically abusing Cam. The evidentiary record supports this argument.

In a sworn statement, Estrella testified that she had told the deputies that she had personally seen Phillip Long beat and hit his daughter. Indeed, Estrella said she had told the deputies that when Cam had arrived home in a car with several friends, Long had grabbed Cam's hair, pulled her over the front seat and pushed her to the ground. He then had pulled her by the arm, dragged her behind the car across the street, and into his front yard. "I told deputy McLeod that Cam was unable to stand or walk because her father was using so much force," Estrella said. Defendants' Exhibit A to Motion for Summary Judgment.

In addition, Estrella stated that she had told the deputies that Cam had cried, "Don't hit me," while she tried to escape Long's grasp. According to Estrella, she then told the deputies that Long had pulled Cam into the house and closed the door and that "it sounded ... like a fight was going on inside the house." Id. After listening to Estrella's account, the deputies said they had knocked on Long's door and announced that they were deputies responding to a call of suspected child abuse. Long had refused to let the deputies in without a search warrant, they said. According to the deputies, they then looked through the window and saw Cam, her clothes torn, sobbing uncontrollably and holding a cloth over her face. Based on a reasonable belief that Cam was in physical danger, they contend, three deputies forcibly entered Long's house through a rear door.

Because the officers had no reason to doubt Estrella's undisputed account that Long was physically abusing his daughter, we hold that the deputies acted reasonably in entering the Longs' home. In White by White v. Pierce County, 797 F.2d 812, 814-16 (9th Cir. 1986), the deputies went to the plaintiff's residence to investigate a report that the plaintiff's child had welts on his back. The plaintiffs in White refused to allow the deputies to examine the child without a warrant or court order. Nevertheless, we upheld the deputies' warrantless entry, concluding that they had probable cause to believe that the child was in immediate danger. As we stated in White, "the deputies could reasonably conclude that [the plaintiff] was attempting to hide past abuse, and that if they left to get a court order, [he] might abuse the child again or flee with him." 797 F.2d at 816.

Likewise, in Baker, 887 F.2d at 183, we held that the defendants had qualified immunity in removing a child from the custody of his parents on the basis of reports from a neighbor that the plaintiff had sexually abused the neighbor's children, as well as his own. Although the plaintiff's child denied that he had been molested, the court nevertheless held that the social workers had reason to believe that the child should be placed in protective custody.

Because Estrella's account and Long's own actions gave the deputies sufficient basis to believe that Cam was in danger, they did not violate any clearly established constitutional or statutory rights. Accordingly, they are entitled to qualified immunity against the claim based upon the warrantless entry of the Longs' home.

II

We also hold that the deputies are entitled to qualified immunity for their arrest of Long. In addition to Estrella's testimony, deputy McLeod also interviewed Cam, who reported that her right arm, neck and head were hurting and that she felt dizzy. According to the deputies, Cam also told McLeod that her father had a temper and had hit her in the past with a belt, a pan, a Polaroid camera and other implements. That night, Cam told McLeod that her father had slammed her head against the wall, slammed her to the floor, and slapped her. In addition, deputy McLeod said he examined Cam and saw her ripped clothing and bleeding mouth. Based on these facts, the deputies placed Cam in protective custody and arrested Long.

Because Long presents no evidence to rebut the deputies description of events, we conclude that the deputies had sufficient basis to arrest Long. Accordingly, they are entitled to qualified immunity. See Anderson, 107 S. Ct. at 3039 (qualified immunity protects law enforcement officers in cases in which they "reasonably but mistakenly conclude that probable cause is present....").

III

Long's final claim, that the deputies use and discharge of a firearm violated his fourth amendment rights, has considerably more substance. Long disputes the deputies' version that one of their firearms was discharged accidently when one deputy tripped over a step, causing him to fall and strike his right elbow and left hand against the floor. Long points to a report by Ramtech Laboratories, which concluded that "it is physically impossible for deputy Williams to have made the 29" elevation bullet in [the] kitchen when his elbow struck the floor." Clerk's Record 40, at 67, Exhibit 2. In addition, the report stated that the physical evidence was "totally inconsistent" with the deputies' statements. Id.

Whether the deputies are entitled to qualified immunity for the level of force employed depends on the reasonableness of the officers' actions. See Smith v. Fontana, 818 F.2d 1411 (9th Cir. 1987) (quoting McKenzie v. Lamb, 738 F.2d 1005, 1011 (9th Cir. 1984) ("Where a victim of a seizure alleged that officers unreasonably employed excessive force ... 'the reasonableness of force should be analyzed in light of such factors as the requirement for the officers' safety, the motivation for the arrest, [or detention], and the extent of the injury inflicted.")). The nature and quality of the intrusion must be balanced against the governmental interest at stake. See Graham v. Connor, 109 S. Ct. 1865, 1871-72 (1989).

The deputies' contention that their use of force was not excessive hinges on their claim that the firearm discharge was accidental. Long's assertion, to the contrary, that the firearm could not have been discharged in the way the deputies claim suggests otherwise. Because the evidence relating to the incident is in dispute, a material issue of fact is raised as to whether the deputies were entitled to qualified immunity for their use of force. Accordingly, the district court properly denied the deputies' motion for summary judgment.2 

The district court's denial of qualified immunity for the warrantless entry of Long's home and arrest of Long is REVERSED. The district court's denial of qualified immunity for the deputies' use of force is AFFIRMED. The case is REMANDED for further proceedings.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The Longs do not appeal the summary judgment entered in favor of Sheriff Sherman Block, who was also named as a defendant

 2

The deputies also claim that they are entitled to absolute immunity for their actions. In addition to cases from other circuits, the deputies cite Mazor v. Shelton, 637 F. Supp. 330 (N.D. Cal. 1986) (granting social workers absolute immunity for placing child in protective custody). In addition to contradicting precedent in this circuit entitling social workers to only qualified immunity for the placing of a child in protective custody before the initiation of any judicial proceedings, see Coverdale v. Dept. of Social and Health Services, 834 F.2d 758, 764 (9th Cir. 1987); Meyers v. Contra Costa County Dept. of Social Services, 812 F.2d 1154, 1157 (9th Cir. 1987), cert. denied, 484 U.S. 829 (1987), Mazor has no relevance to the claims raised in this dispute. The Longs' claims are based on the deputies' warrantless entry of their home, arrest of Long, and use of force, not the placing of their daughter in protective custody