*1 1050, Cal., Shewry, 543 F.3d Inc. v. S.of light Managed Care, the district court abused
Pharmacy inter erroneously
its discretion when 30(A) procedural to include re
preted See such as cost studies.
quirements Care, Pharmacy 716 F.3d at
Managed briefing and record
1249-50. Because not decide what inadequate,
are we do propriety approval has on
impact CMS preliminary injunc granting Plaintiffs Instead, remand to the district
tion. we Sys., court. Flexible Inc. Cf. Lifeline 989, Lift,
Precision Cir.2011) (9th curiam); v. Mu (per Diouf
kasey, 542 F.3d Cir. the district court’s or-
We REVERSE pre- granting
der Plaintiffs’ motion for injunction, prelimi-
liminary VACATE
nary injunction, and REMAND for further disposi- with
proceedings consistent this THURSTON, Plaintiff-
Louisa
Appellant, OF NORTH
CITY LAS VEGAS DEPARTMENT; et
POLICE
al., Defendants-Appellees. 12-15729.
No. Appeals, States Court of
United
Ninth Circuit. Submitted Nov.
Argued and Jan.
Filed Rehearing
As Amended on Denial of En
Rehearing Banc Feb. 2014.* * rehearing rehearing petition en banc. petition Watford votes to *2 ***
MEMORANDUM appeals Louisa Thurston district grant summary judgment court’s of dis missing City her 1983 suit of Vegas (“city”), North Las of Vegas Department (“po North Las Police lice and individual officers department”), pet the unlawful seizure of her two for alleges In Thurston particular, police department’s members of the SWAT dogs during and killed her team shot risk warrant at high execution her home in violation of the Fourth and Fourteenth Amendments. The defendants qualified moved for immunity grounds. The district court held that, circumstances, under the dogs, and thus did violate as a matter of rights the district court deter law. Because mined that Thurston could not establish a violation, granted constitutional sum mary reaching the sec judgment without qualified immunity analy prong ond finding sis. The court’s that there was no Funk, Potter, III, Es- John C. Cal J. a matter Fourth Amendment violation as NV, Offices, Vegas, Law Las quire, Potter to address of law also obviated the need Plaintiff-Appellant. for Vegas whether of North Las Sanchez, Bethany Esquire, Rudd Sandra un subject municipal liability could be Las Douglass Morgan, Esquire, North Ve- Department Social Ser der Monell Office, Attorneys North Las gas City Ve- vices, 436 NV, gas, Defendants-Appellees. for (1978). a district court’s
We review de novo
summary judgment on
decision to
immunity.
Crowe v.
qualified
the basis
406, 427
Cnty.
Diego,
Cir.2010).
so, this court must
doing
(1)
determine whether
taken
Before: NOONAN and
Thurston, the facts al-
LYNN,
most favorable to
Judges, and
District
the officers violated
leged show
Judge.**
***
**
appropriate
publi-
Lynn,
disposition
District
This
is not
The Honorable Barbara M.G.
provid-
precedent except
the U.S. District Court for the
cation and is not
Texas, sitting by designa-
Northern District
by
ed
9th Cir. R. 36-3.
(2)
so,
right;
constitutional
and if
whether
animal control
before
al-
specialists
occurred,
leged
established at the
speaks
which
direct-
time of
shootings. Skoog Cnty.
ly
to the reasonableness of the officers’
*3
Clackamas,
469 F.3d
1229
Cir. conduct.
genuine
We find that
issues of
Second, there
genuine
is a
issue of fact
exist,
material fact
and thus reverse and
dogs
as to whether
attacked. The
remand
case for trial.
district court relied on the lack of evidence
directly contradicting the officers’ testimo-
improperly
The district court
ny
dogs
ig-
that
attacked. But this
ruled that the SWAT team officers acted
nores the
standard
reasonably as a matter of law in shooting
that
the court to view
requires
the evi-
bull
pet pit
and mastiff. The
in
light
dence
most favorable to Thur-
shooting
dog during a search warrant
ston and draw all reasonable inferences in
service must be reasonable under the cir
Liberty
her favor.
Lobby,
Anderson
cumstances to comply with the Fourth
477 U.S.
91
Amendment. San Jose Charter
Hells
(1986). Here,
Thur-
although
Angels Motorcycle
Club v.
San
ston
alleged
did not witness the
Jose,
(9th Cir.2005).
We
herself,
testify
dogs
she did
that her
were
must
totality
consider the
of the circum
not aggressive and that she had observed
stances to determine whether the destruc
her dogs sitting by
patio
the back
tion of property
reasonably necessary
looking happy
“wiggling
and
their tails”
to effectuate
performance
of the law
just prior
being
to her
escorted out of the
enforcement
by balancing
officers’ duties
Viewing
house.
evidence Thurston’s
“the nature
quality
of the intrusion on
favor,
jury
could infer that if her dogs
the individual’s Fourth Amendment inter
“wiggling
non-aggressive-
were
their tails”
ests
the countervailing government
attack,
ly right before the alleged
then
(internal
interests at stake.” Id.
quota
perhaps they did not attack at all.
omitted).
tions and citations
Viewing the
Third,
facts in the
most favorable to Thur
police
one of the
officers testified
ston,
genuine
there are
issues of
department policy
material
dictates attend-
ance,
fact
police
as to whether the
participation,
if not
anof
animal con-
reasonably.
trol
police
officer whenever
know there are
dogs present inside a home. The absence
First,
waited 20 minutes after
of an animal control officer—in contraven-
entering
firing
the home before
on the
general
tion of
despite
time to
dogs, even though Thurston and her
entry
summon one after
raises a
—further
daughter were zip-tied within a few min-
genuine issue of fact
as to
reasonable-
utes of the SWAT team’s entrance and
ness of the officers’ actions.
escorted out of
shortly
the house
thereaf-
ter. At
argument,
city’s
oral
attorney
points
The dissent
out that “the dogs
contended that
yet
the house had not
been
appeared
confined to the
secured at
shooting,
backyard,”
but
fenced-in
and that Thurston
produced no citation
to the record for this
suggesting
no evidence
the offi-
assertion. The absence of evidence that
cers knew or should have known that the
the house was still
unsecured at the time
could
the house. But Thurston
raises a
police initially
reasonable infer-
testified that when the
en-
ence that
enough
the officers had
time
tered the
both
were in the
dogs’
observe the
behavior
subsequently
and summon bedroom with her and
went
patio
Judge, dissenting:
out to the
area. That the
were
initially inside the house and then went
This is not a case where the officers
that the
assumption
outside undercuts
aggressive
proper
“safely
confined to the fenced-in ty
a week before
a low-risk
freely
If
leave
backyard.”
could
warrant,
planned
and then
on kill
then a
could
ing
part
as
of the search. See
just
easily
infer that the
re-
Angels Motorcy
San Jose Charter Hells
enter the house.
Jose,
cle
Club
F.3d
In Hells
genuine
there are
Given
*4
knowingly
the officers
executed a back
fact as to whether the
issues of material
yard-entry plan that made a confrontation
reasonably,
we address
inevitable,
with the
and did so with
whether Thurston’s
the intention of
the
Id. at
right
was
established at the time of
968-69, 976-77.
Callahan,
shooting.
the
Pearson v.
case,
contrast,
The officers in this
172 L.Ed.2d
high-risk
search warrant
(2009) (citation omitted).
We conclude
day. They
issued earlier
entered
An
it was. As this court ruled Hells
house,
through
backyard.
gels, a reasonable officer “should have
house,
Once inside
officers knew
a plan
known that to create
to enter the
large, potentially aggressive
there were
perimeter
person’s property, knowing
property,
but the
dogs ap-
on
presence
all the while
about
peared
confined to the fenced-
property,
considering
a meth
without
in backyard. The officers who shot Ms.
subduing
killing
od of
besides
standing
inside the
them, would violate the Fourth Amend
from
guarding
leading
ment.” Hells
lant shall recover her costs on