Thomas Avina v. United States
2012 U.S. App. LEXIS 11876
| 9th Cir. | 2012Background
- In 2008, the Avinas sued the United States under the FTCA alleging assault and battery and intentional infliction of emotional distress arising from a DEA search of their mobile home.
- DEA obtained a January 19, 2007 search warrant for the Avina residence at 1601 Drew Road, space 14, Seeley, CA, believed to contain a vehicle linked to suspected drug trafficker Luis Alvarez; later evidence suggested the license recorded belonged to Thomas Avina instead.
- DEA executed the warrant on January 20, 2007, entering with guns drawn, banging on the door, and using a battering ram.
- Thomas and Rosalie Avina were restrained, handcuffed, and subjected to gunfire-like confrontations; Thomas was forcefully pushed to the ground during the initial entry.
- Daughters B.F.A. (14) and B.S.A. (11) were awakened by the raid, restrained, handcuffed, and forced to lie face down; agents pointed guns at them and conducted a roughly two-hour search.
- The district court granted summary judgment for the United States on adult claims, concluding the force was reasonable, while the record raised questions about the minors’ treatment; the Ninth Circuit affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the adults’ assault and battery claim was reasonable | Avinas contend agents used excessive force against Thomas and Rosalie. | USA argues force was reasonable under Fourth Amendment standards during an inherently dangerous search. | Reasonable as to adults; summary judgment affirmed for adults on assault/battery. |
| Whether the minors’ assault and battery claims were reasonable | A jury could find excessive force toward B.S.A. and B.F.A. given their ages. | Fourth Amendment/Leon good-faith warrant justification applies; no excess shown as to children under initial circumstances. | Issue of material fact exists; reversed for B.F.A. and B.S.A. on assault and battery; remanded. |
| Whether the minors’ intentional infliction of emotional distress claim survives | The conduct toward the minors constitutes extreme and outrageous behavior causing distress. | Reasonableness of force defeats IIED claim as a matter of law for minors. | Rational trier could find extreme conduct; reversed for B.F.A. and B.S.A. on IIED; remanded on that basis. |
| Whether the adults’ IIED claim is potentially meritorious | Adults’ distress claims may be supported by unreasonable acts during the search. | Reasonable force precludes IIED against adults. | No error in upholding district court for adults; IIED affirmed for Thomas and Rosalie. |
Key Cases Cited
- Muehler v. Mena, 544 U.S. 93 (U.S. 2005) (handcuffing during a protective sweep deemed reasonable for officer safety)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (good faith exception to the exclusionary rule; warrants trusted unless specific defects)
- Messerschmidt v. Millender, 132 S. Ct. 1235 (U.S. 2012) (applies Leon good-faith analysis in civil rights search cases)
- Tekle v. United States, 511 F.3d 839 (9th Cir. 2007) (guns pointed at an eleven-year-old during arrest; issues of excessive force)
- Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (gun-pointing at a minor during home search considered excessive)
- Michigan v. Summers, 452 U.S. 692 (U.S. 1981) (reasonableness of entry during search for narcotics and potential danger)
- Lowry v. Standard Oil Co. of Cal., 146 P.2d 57 (Cal. Ct. App. 1944) (assault defined as threatening touch under California law)
- Ashcraft v. King, 278 Cal. Rptr. 900 (Cal. Ct. App. 1991) (California battery concepts and intent requirements)