Case Information
*1 Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
*2
Pacific Marine Center, Inc. and Sona Vartanian appeal from the district court’s grant of partial summary judgment in favor of California Department of Motor Vehicles investigators Scott Silva, Tom Wilson, Dan Ayala, Kevin Buchanan, Dan Horsford, Gideon Coyle, and Christopher Wagner; Fresno city police officer George Imirian; and Madera County deputy sheriff Edward Essegian (collectively “officers”). They also appeal from the court’s subsequent entry of judgment in favor of all officers following a jury verdict in Essegian’s favor on the sole claim left open by the court’s partial summary judgment order. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I
A
Appellants contend the district court erred in granting partial summary
judgment by concluding that Investigator Silva did not procure the search warrant
through judicial deception. To prevail on a claim of judicial deception, Appellants
“must show that the defendant deliberately or recklessly made false statements or
omissions that were material to the finding of probable cause.”
Ewing v. City of
Stockton
,
B
The search warrant alleges that Investigator Silva had probable cause to
believe that he would find property that was “Stolen or Embezzled.” Appellants
assert that the facts set forth in the probable-cause affidavit did not support an
essential element of the crime of embezzlement. But “a warrant can be held to be
valid when an affidavit provides probable cause that a law
other than the statute
specified in the affidavit
has been violated.”
United States v. Nguyen
, 673 F.3d
1259, 1264 n.2 (9th Cir. 2012) (emphasis added);
see also United States v. Meek
,
II
Appellants further maintain that the district court erred in holding that the
officers did not violate clearly established law in destroying property, detaining
Vartanian, and displaying unreasonable force in executing the search warrant. In
applying the qualified immunity doctrine, we need not determine whether a Fourth
Amendment violation occurred if an officer did not violate clearly established law.
Cameron v. Craig
,
A
Appellants argue the district court erred in granting summary judgment on
their claim for unreasonable destruction of property because the evidence presented
a “clear-cut question of fact” whether the officers’ actions were unreasonably
destructive. The officers here could reasonably have understood that clearly
established Ninth Circuit law permitted their relatively minor destruction of
property in executing the search warrant.
See United States v. Becker
, 929 F.2d
442, 446–47 (9th Cir. 1991) (holding reasonable officers’ use of a jackhammer to
search underneath a concrete slab on suspects’ property where “the agents had
*5
ample reason to believe that the concrete slab was being utilized to hide the very
evidence they were legally on the premises to find”);
United States v. Offices
Known as 50 State Distributing Co.
,
B
Appellants similarly contend that the reasonableness of Vartanian’s detention was an issue of fact the court should have submitted to a jury. We disagree. In light of the existing law in 2009, a reasonable officer would not have known it was unlawful to deny a business detainee’s single bathroom request or two requests for water over the course of four hours. See Ganwich v. Knapp , 319 *6 F.3d 1115, 1120 (9th Cir. 2003) (holding that officers’ detention of a business’s employees in a waiting room for as long as four hours and forty-five minutes while they executed a search warrant was “lawful under the Fourth Amendment,” where doing so “ensured that employees were on the premises to assist officers in case they needed (for example) a door or cabinet unlocked”). The district court therefore did not err as a matter of law.
C
Appellants maintain that the officers displayed unreasonable force by
arriving at Pacific Marine in SWAT gear and carrying shotguns or rifles. “The
‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor
,
III
Appellants appear to contend that the district court’s grant of summary
judgment on their claims for unreasonable detention, destruction of property, and
display of force deprived them of the right to introduce evidence of those claims at
trial to establish that Officer Essegian subjected Vartanian to excessive force
during the search. The record shows that Appellants never made an offer of proof
before the district court at trial regarding the admissibility of such evidence, aside
from their attempt to “reraise” their unreasonable-detention claim just before trial.
At trial, however, Appellants successfully elicited testimony, without objection,
regarding Vartanian’s detention, the officers’ attire, and the damaged surveillance
system. To the extent Appellants contend the jury should have heard additional
evidence of these theories of defense, they forfeited that issue on appeal by failing
to make an offer of proof at trial and raise this issue in their opening brief on
appeal.
See Cruz v. Int’l Collection Corp.
,
AFFIRMED.
Notes
[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).