Parish v. Lansdale

          ORDER

          Honorable Jennifer G. Zipps, United States District Judge

         Plaintiff Miles Parish brings this civil rights action against Tucson Police Department (TPD) Officers Troy Lansdale and Bradley Kush, the City of Tucson, and TPD Chief of Police. ^[1] Parish alleges that while Officers Lansdale and Kush were investigating a complaint about a loud party, they illegally entered his home and pulled him outside, taking him to the ground, where Officer Lansdale struck him.

         Currently pending before the Court are three motions for summary judgment. Parish seeks summary judgment on Officers Lansdale and Kush's affirmative defenses of qualified immunity and state law defenses, and seeks partial summary judgment on his state law claims. (Doc. 63.) Officers Lansdale and Kush seek summary judgment on Plaintiff's civil rights and state law claims. (Doc. 64.) The City of Tucson and Chief of Police request summary judgment asserting that the City did not maintain policies condoning unconstitutional police conduct. (Doc. 66.) The motions were heard on August 20, 2019.

         For the following reasons, the Court will grant parts of and deny parts of the motions.

         I. Factual Background^[2]

         On December 13, 2015, at around 12:40 a. m., Officer Lansdale and other officers responded to a report of a loud party with yelling and screaming in Parish's neighborhood near the University of Arizona. (Doc. 42, ¶ 14; Doc. 52, p. 4, ¶ 14; Doc. 53, p. 4, ¶ 14; Doc. 65 at ¶ 1; Doc. 66, p. 2 n. 2.) Upon arriving in the area, Officer Lansdale was able to identify Parish's residence as the source. Lansdale described the music as overwhelming. (Doc. 65, ¶ 2.)

         Officer Lansdale rang the doorbell and knocked on Parish's front door. (Id. ) He could hear people inside yelling “Oh shit, the cops are here. Turn the music off. Just be quiet. ” (Doc. 65-1, Ex. 1, p. 4.) He used his flashlight to look through a window where he saw “people begin to scatter and run into different rooms of the house . . . . ” (Id. at pp. 3- 4.) The music was turned off after Officer Lansdale had been knocking for 30 seconds to a minute. (Doc. 42, ¶ 20; Doc. 52, p. 4, ¶ 20; Doc. 53, p. 5, ¶ 20.) Some minutes later, the house became dark inside other than the flashing DJ-style lighting. (Doc. 42, ¶ 17; Doc. 52, p. 4, ¶ 17; Doc. 53, p. 5, ¶ 17.)

         Officer Lansdale continued knocking and asking for a resident to open the door. ^[3] (Doc. 42 at ¶ 24; Doc. 52, p. 5, ¶ 24; Doc. 53, p. 5, ¶ 24.) After about four minutes, Parish opened the door just wide enough to lean out his head and part of one shoulder. (Doc. 42, ¶¶ 24, 28; Doc. 52, p. 5, ¶¶ 24, 28; Doc. 53, 6, ¶¶ 24, 28; Doc. 65, ¶2.) At some point, Officer Kush arrived and joined Officer Lansdale on the front porch. (Doc. 42, ¶¶ 21, 23; Doc. 52, p. 4, ¶¶ 21, 23; Doc. 53, p. 5, ¶¶ 21, 23.) Officer Lansdale told Parish that the officers were there for a loud party complaint and advised him that if he could get everybody out of the party, he would not be given a red tag. (Doc. 42, ¶ 31; Doc. 52, p. 5, ¶ 31; Doc. 53 p. 7, ¶ 31.) According to Officer Lansdale, Parish was initially apprehensive and uncooperative, saying that he would only cooperate if he didn't get a red tag. (Doc. 65, ¶ 7.)

         Parish agreed to disperse the party but insisted on closing his front door. (Doc. 42 at ¶¶ 32, 33; Doc. 52, p. 5, ¶¶ 32, 33; Doc. 53 at 6-7, ¶¶ 32, 33.) While speaking to Parish, Officer Lansdale placed his foot on the threshold of the doorway to prevent Parish from closing the door. ^[4] (Doc. 42, ¶ 30; Doc. 52, p. 5, ¶ 30; Doc. 53, p. 6, ¶ 30; Doc. 65, ¶ 10.) Parish yelled at Officer Lansdale that he “was entering his f[]ing house without a warrant and that [Lansdale] needed to get the f[] out and the only reason [Lansdale] was coming in was because [Parish] was black. ”^[5] (Doc. 65, ¶ 10.) The parties dispute at what point Officer Lansdale placed his foot in the door. Officer Lansdale states he placed his foot when Parish became belligerent. (Doc. 53, p. 6, ¶ 30.) According to Parish, Officer Lansdale placed his foot on the threshold's doorstop immediately after Parish opened his front door, so Parish could not close his door. (Doc. 42, ¶ 30.)

         It is undisputed that Parish made numerous requests, characterized by Officer Lansdale as screaming and yelling, that the officers get out, and when Officer Lansdale acknowledged that he did not have a warrant, Parish attempted to shut the door. ^[6] (Doc. 42, ¶¶ 34, 36; Doc. 52, p. 4, ¶¶ 34, 36; Doc. 53, pp. 7-8, ¶¶ 34, 36; Doc. 65, ¶ 10.) Officer Lansdale refused to remove his boot from the threshold, advising Parish that “we were going to keep it open” for officer safety reasons. (Doc. 42, ¶¶ 34, 38; Doc. 52, p. 5, ¶¶ 34, 38; Doc. 53, pp. 7-8, ¶¶ 34, 38; Doc. 65, ¶ 12.) Officer Lansdale characterized Plaintiff as belligerent and Officer Lansdale was not going to allow the door to be closed because “the totality of the circumstances reflected that people were yelling and screaming, people were scattering within the home, Plaintiff was expressing belligerent behavior and attitude, and it was unknown what was actually occurring in the home. ” (Doc. 53, p. 6, ¶ 30.) Officer Lansdale was concerned about an officer safety issue and a public safety issue. ^[7] (Id. ; Doc. 65, ¶ 7.) Officer Kush said that although Parish was adamant that he was going to close the door, Officer Kush similarly advised Parish that for officer safety reasons the door needed to stay open-to enable the Officers to “see if anyone was walking in or out, as well as to see if there was anybody else in there for a check welfare. ” (Doc. 52, p. 5, ¶ 33; Doc. 53, p. 7, ¶ 33.) Kush explained that he didn't know the intoxication level or ages of anyone in the house. (Doc. 52, p. 5, ¶ 33; Doc. 53, p. 7, ¶ 33.)

         A male occupant of the house tried to pull Parish back into the house and told him he would deal with the police, but Parish continued to scream at Officer Lansdale to get out, and to push the door shut, which he was unable to do because of Officer Lansdale's foot. (Doc. 65, ¶ 12.) At some point Officer Lansdale yelled, “Ouch, you're hurting my foot. You're smashing my foot, you need to stop, ” but Parish began to scream and yell again that the Officers were entering his house and he pushed the door harder. (Doc. 65, ¶ 13.) Officer Lansdale kept his foot on the threshold, and contends it was ultimately trapped in the door. (Doc. 42, ¶ 43; Doc. 52, p. 6, ¶ 43; Doc. 53, p. 9, ¶ 43.)

         As Parish was trying to close the door, Officer Kush heard Officer Lansdale say, “[O]w, you're now hurting my foot[]” and saw “that the door was covering . . . a quarter of the right part of Officer Lansdale's boot, and his foot appeared to be stuck. ”^[8] (Doc. 42, ¶ 44; Doc. 52, p. 6, ¶ 44; Doc. 53, p. 9, ¶ 44.) Officer Kush testified that he was concerned for officer safety and “impact pushed^[9] the door with two hands, ” putting a lot momentum into it to release Officer Lansdale's foot. (Doc. 42, ¶ 45; Doc. 52, p. 6, ¶ 45; Doc. 52, p. 2, ¶ 3; Doc. 53, p. 10, ¶ 45.) The momentum of pushing the door carried Officer Kush about a step and a half or so inside the door, and put him between the door and the door frame. (Doc. 52, p. 2, ¶ 5.) Parish continued to try to shut the door, which, according to Officer Kush, pinned Kush between the door and the door frame. (Doc. 65, ¶ 15.) Officer Kush “impact pushed” the door open a second time. (Doc. 52, p. 2, ¶ 7.) The second push knocked Parish back into the home and allowed Officer Lansdale and Officer Kush to grab onto Parish's jacket and right arm. (Doc. 52 p. 2, ¶¶ 7, 8.)

         Officers Lansdale and Kush pulled Parish from his house despite efforts from people inside the house to pull Parish back into the house, and Parish and the Officers all ended up on the ground. ^[10] (Doc. 65, ¶ 17.) Parish asserts that the Officers “reached into . . . [his] home, pulled . . . [him] from inside, and threw him onto his home's concrete front porch. ” (Doc. 42, ¶ 49.) According to the Officers, Parish's assaultive conduct against Lansdale and Kush justified their attempt to pull him from the house. (Doc. 52, p. 6, ¶ 49; Doc. 53, pp. 10-11, ¶ 49.) The Officers reasoned that Plaintiff had repeatedly struck Officer Kush with the door, several times, with force, and had resisted his extraction from the house. (Id. )

         After being pulled from his house, Parish lay on the ground, on his stomach, with his head against the concrete porch. (Doc. 42, ¶ 50; Doc. 52, p. 6, ¶ 50; Doc. 53, p. 6, ¶ 50.) The Officers assert that Parish continued to resist and, as they attempted to handcuff him, Plaintiff lay on his stomach and resisted the Officers' efforts to bring his hands from underneath his chest so he could be handcuffed. (Doc. 65, ¶ 18; Doc. 52, p. 6, ¶ 51; Doc. 53, p. 11, ¶ 51.) Officer Lansdale warned Parish that if he did not comply, the officer would strike him, (Doc. 65, ¶ 18; Doc. 42-3, p. 21), and upon concluding that Parish was not complying, Officer Lansdale struck Parish in the head four times with a closed fist while Parish lay on his stomach on the concrete. (Doc. 42, ¶¶ 53, 54; Doc. 52 p. 6 ¶¶ 53, 54; Doc. 53 p. 11, ¶¶ 53, 54; Doc. 65, ¶ 18.) Parish testified that he did not resist the officers: “I landed on my hand on my chest, and I couldn't get my arm out. And I was wearing a jacket, and my arm was stuck, and I couldn't get it out, and then they were hitting me to, like, pull it out. ” (Doc. 42-5, p. 124.) After striking Parish, the Officers were then able to handcuff Parish and they pulled him up to his feet. (Doc. 65, ¶ 18.)

         Parish claims that he suffered a concussion (and other injuries) as a result of the Officers' actions (Doc. 42, ¶¶ 56, 60), and he testified that when officers brought him to a standing position, he felt dizzy and disoriented. (Doc. 42-5, pp. 129-31.) The Officers state that Parish resisted their efforts to escort him to the patrol car by stomping his feet and attempting to pull back toward his house. ^[11] (Doc. 65, ¶ 19.) Consequently, the Officers put Parish back on the ground and used a TARP restraint to secure his legs together and then carry him to the patrol car. (Doc. 42, ¶¶ 67, 68; Doc. 52, p. 7, ¶¶ 67, 68; Doc. 53, p. ¶¶ 67, 68; Doc. 65, ¶ 19.) Although the use of force involved in putting Parish back onto the ground and employing a TARP restraint is not included in specific statements of fact, the record exhibits include Parish's testimony that as five or six officers were walking him toward the patrol car, the Officers pulled on him, screamed at him to stop resisting, and “they started punching me all over and they took me back to the ground. ” (Doc. 42-5, pp. 129-132.) Parish was handcuffed behind his back when the take down occurred. (Id. at 131.) Officer Lansdale stated that he and another officer used a “leg sweep” maneuver to bring Parish to the ground. (Doc. 42-3, p. 16.) He denied that Parish was struck when brought to the ground. (Doc. 42-2, p. 108.) Parish was taken to the jail.

         Officer Lansdale cited Parish for violating Tucson's unruly gathering (red tag) ordinance, a civil infraction. (Doc. 42, ¶ 69; Doc. 52, p. 7, ¶ 69; Doc. 53, p. 13, ¶ 69.) Parish was subsequently found responsible and that finding was upheld on appeal. (Doc. 52 at 7, ¶¶69, 69B.)

         Parish was charged criminally with obstruction of government operations and resisting arrest, class 1 misdemeanors. (Doc. 42, ¶ 71; Doc. 52, p. 7, ¶ 71; Doc. 53, p. 13, ¶ 71.) Officer Reese issued the criminal citation. (Doc. 52, pp. 7-8, ¶ 70.) Parish asserts that Officer Lansdale consulted with supervisors in deciding what charges to bring. (Doc. 42, ¶¶ 70-71.) Officer Lansdale could not recall specifically which supervisor made the determination. (Id. ; Doc. 53, p. 13, ¶¶ 70-71.) The criminal charges were subsequently dismissed. (Doc. 42, ¶ 72; Doc. 52, p. 8, ¶ 72; Doc. 53 p. 13, ¶ 72.)

         During the subsequent internal affairs investigation of the incident, Officer Lansdale stated that he was “taught that if you can articulate a safety reason at a party, as long as you're not entering the home, your foot can be in the threshold of the door. ” (Doc. 42-3, p. 26.) He stated that based on his training, he could put his foot on the threshold even if it prevented the door from closing because “the threshold is not considered part of the premises . . . . And that's a common consensus between the officers I work with and the officers in this division that I've worked with. ” (Id. at p. 27.) Officer Lansdale also stated that “I'm a field trainer myself, this is something that is routinely taught to individuals and it goes as far as when officers don't put their foot in the door at loud parties, they've actually been docked for officer safety issues. So, this is a reoccurring . . . trend in the department that has been established that this is a reasonable and expected thing to be done. ” (Id. at p. 42.)

         Sergeant Faulk, one of Officer Lansdale's supervisors, confirmed during the internal affairs investigation that officers “had been trained . . . ” to put a foot in the doorway “for a very long time . . . ” and that such action “has been . . . a common place, uh, practice due, uh, due to the officer safety concerns and keeping the contact . . . . ” (Doc. 67, ¶ 1; Doc. 75, ¶¶ 1, 2.) Sergeant Faulk defined “threshold” as “the area . . . in between . . . the outside of the house, and the interior of the house. Meaning the threshold . . . is normally defined as-or I would say as the, uh, kind of that doorframe area to . . . where you are. So you're not breaking inside of the . . . scope of the residence. ” (Doc. 67-2, p. 2.) According to Sergeant Faulk, “you have the area to where the door is going to close and, uh, so the placement of the foot is not necessarily inside of the house . . . to just make sure that the officers keep a visual on what's going on inside . . . and just keep that contact. ” (Id. at p. 3) He opined that an officer's foot could be caught in the door without having crossed the threshold “because where the door closes, and you look at the actual door jamb, uh, if your foot is there and it can still get stuck between the door because you have an angle of []foot or boot size between doorframe and door closing. ” (Id.) Sergeant Faulk “would have issues and concerns . . . ” if an officer stuck “the lower half of [his] leg inside of the residence . . . ” or “put his foot inside of that door. ” (Id. at pp. 3, 4.)

         In March 2016, TPD Investigator Lieutenant Doggert prepared an Internal Affairs Report. Lieutenant Doggert “did not find fault or a violation with Officer Lansdale initially putting his foot in the door when it was opened[. ]” (Doc. 75, Ex. 1, p. 3.) Lieutenant Doggert did find there was “‘no legal justification for Officer Lansdale using his boot to keep the incident location's door open after being asked to remove it. Although this tactic can be used in certain circumstances, there were no reported exceptions to the warrant requirement” in this case. (Doc. 75, ¶ 5.) Lieutenant Doggert concluded:

Officer Lansdale was acting in good faith when he placed his boot into the door threshold and although I disagree with his action, I believe he was trying to work in a safe and effective manner. He did not knowingly misuse his authority. Additionally, Sgt. Faulk confirmed that this practice was common amongst some officers and that in his opinion the actions were appropriate.

(Doc. 67, ¶ 2 (emphasis omitted).)

         Lieutenant Doggert also found that that Officer Lansdale violated several TPD General Orders. ^[12] (Doc 75, ¶ 4.) He recommended that Officer Lansdale receive a written reprimand. (Doc. 75, Ex. 1, p. 7.) In concurring in Lieutenant Doggert's recommendation, one Chain of Command officer further recommended training on “‘threshold' related” matters, and another Chain of Command officer recommended training on Fourth Amendment issues. (Doc. 67, ¶ 4; Doc. 75, ¶ 6. )

         On December 11, 2016, Parish filed suit. Parish alleges his Fourth Amendment rights were violated when (1) Officers Lansdale and Kush illegally entered his home, seized him, and maliciously prosecuted him (Count VIII); (2) Officer Lansdale used excessive force (Count VIII); and (3) Officer Kush failed to intervene to prevent Officer Lansdale's unlawful entry and use of excessive force (Count VIII). (Doc. 1-3.) Parish asserts state law claims against Officer Lansdale for assault and battery, negligence, aggravated negligence, abuse of process, and false imprisonment (Counts I, III, IV, V, VI); and state law claims against Officer Kush for aiding and abetting an assault and battery, negligence, and false imprisonment. (Counts II, III, VI). Finally, Parish brings a § 1983 claim against the City of Tucson and TPD Chief of Police alleging that they maintained a policy condoning Officer Lansdale's unlawful entry into his residence and used Internal Affairs to minimize or “cover up” unconstitutional police activity (Count VII).

         II. Summary Judgment Standard

         Currently pending before the Court are three motions for summary judgment or partial summary judgment. Parish seeks summary judgment as to the applicability of certain affirmative defenses, including qualified immunity, and liability on the state law claims. (Doc. 63.) As to the civil rights claims, Officers Lansdale and Kush argue they are immune from suit and their conduct was objectively reasonable. As to the state law claims, the Officers argue that Parish cannot establish facts to support the necessary elements of those claims. (Doc. 64.) The City and the Chief move for summary judgment, arguing that there is no evidence that Officer Lansdale violated Parish's constitutional rights and no evidence that the City or Chief had a policy or practice permitting officers to place a foot inside a residence or refusing to remove their foot when asked to do so, or using Internal Affairs to cover up unconstitutional police activity.

         In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(a). Material facts are those “that might affect the outcome of the suit under the governing law. ” Anderson, 477 U.S. at 248. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the non-moving party. ” Id. A party moving for summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Where the nonmoving party bears the burden of proof, the burden of the moving party may be discharged by showing that there is an absence of evidence supporting its opponent's claim. Id.; see also Fed. R. Civ. P. 56(c). If a moving party has made this showing, the non-moving party may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; see also Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

         III. Qualified Immunity

         A. Applicable Law

         “In § 1983 actions, the doctrine of qualified immunity protects city officials from personal liability in their individual capacities for their official conduct so long as that conduct is objectively reasonable and does not violate clearly-established federal rights. ” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 964 (9th Cir. 2010) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A state official is entitled to qualified immunity unless the plaintiff can show “(1) the facts ‘[t]aken in the light most favorable to [plaintiff] . . . show [that] the [defendants'] conduct violated a constitutional right' and (2) the right was clearly established at the time of the alleged violation. ” Sandoval v. Las Vegas Metro. Police Dep't, 756 F.3d 1154, 1160 (9th Cir. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), rev'd on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009)). “Both prongs entail questions of law that [the court] . . . may answer in either order. ” Bonivert v. City of Clarkston, 883 F.3d 865, 872 (9th Cir. 2018).

         As to the second prong, “[a] Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would [have understood] that what he is doing violates that right. '” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (changes in original). “Importantly, . . . it is not necessary that the alleged acts have been previously held unconstitutional' in order to determine that a right was clearly established, ‘as long as the unlawfulness [of defendant's actions] was apparent in light of pre-existing law. ” Bonivert, 883 F.3d at 872 (internal quotation marks and citation omitted). Therefore, “in some circumstances, ‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful. '” Id. (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). “To evaluate whether a particular question is beyond debate, a court looks for ‘cases of controlling authority in [the plaintiff's] jurisdiction at the time' or ‘a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful. '” Kramer v. Cullinan, 878 F.3d 1156, 1163-64 (9th Cir. 2018) (citing 1164 Wilson v. Layne, 526 U.S. 603, 617 (1999)). At bottom, “[t]he relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted. ” Saucier, 533 U.S. at 202. The plaintiff bears the burden of showing that the right at issue was clearly established. Kramer, 878 F.3d at 1164.

         When resolving a motion for summary judgment on the issue of qualified immunity, the court must “adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party. ” Tolan v. Cotton, 572 U.S. 650, 657 (2014). If “genuine issue[s] of material fact exist that prevent a determination of qualified immunity at summary judgment, the case must proceed to trial. ” Sandoval, 756 F.3d at 1160 (internal quotation and citation omitted); cf. Pierce v. Multnomah Cty., 76 F.3d 1032, 1038-39 (9th Cir. 1996) (holding, in context of a directed verdict, that when foundational facts regarding a qualified immunity defense are disputed they must be decided by the jury before the issue of qualified immunity can be resolved).

         B. Officer Lansdale's Warrantless Entry Into Parish's House^[13]

         The Officers assert they are entitled to qualified immunity because Parish fails to present clearly established law “that would have apprised an Arizona police officer that a foot on the threshold under these specific facts and circumstances was unconstitutional. ” (Doc. 78 at 6.) The Officers initially argued in their motion for summary judgment that Lansdale's placement of his foot on Parish's threshold was not an entry into the house. ^[14]

         They also argued that therefore no constitutional violation occurred. At oral argument, however, counsel conceded that a foot on the threshold is an entry into the structure. And, given the undisputed facts that the door would not close due to Officer Lansdale's placement of his foot, and that Officer Lansdale intended to prevent the door from closing, the Court concludes, as a matter of law, that Officer Lansdale entered Parish's home.

         1. Clearly Established Right

         In December 2015, Parish's right to be free from Officer Lansdale's warrantless entry into his house was clearly established. “At the [Fourth] Amendment's ‘very core' stands ‘the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. '” Florida v. Jardines, 569 U.S. 1, 7 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). “As a matter of clearly established law, ‘the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. '” Bonivert, 883 F.3d at 874 (quoting Payton v. New York, 445 U.S. 573, 590 (1980)); see also Welsh v. Wisconsin, 466 U.S. 740 (1984) (discussing necessity of exigent circumstances “[b]efore agents may invade the sanctity of the home . . . . ”). The Supreme Court has “made clear that any physical invasion of the structure of the home by even a fraction of an inch [is] too much [for Fourth Amendment standards], and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. ” Kyllo v. United States, 533 U.S. 27, 40 (2001); Further, the Supreme Court has recognized that the Fourth Amendment's protections “would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity; the right to retreat [into one's home] would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window. ” Jardines, 569 U.S. at 7. Even when an occupant “chooses to open the door and speak with the officers [who do not have a warrant], the occupant need not allow the officers to enter the premises . . . ” without probable cause and exigent circumstances or other exception to the warrant requirement. Kentucky v. King, 563 U.S. 452, 470 (2011).

         Courts have consistently relied on the Payton, Kyllo, and Welsh line of cases in factual scenarios similar to this case to conclude that an officer's warrantless entry into a residence violates the Fourth Amendment absent consent, probable cause and exigent circumstances, or an exception to the warrant requirement. See e. g., Mitchell v. Shearrer, 729 F.3d 1070 (8th Cir. 2013) (denying qualified immunity where officer investigating violation of ordinance regarding leaf debris, put her foot in the doorway to prevent resident from shutting it; “a reasonable officer would have known that at the time Mitchell tried to close the door, he stood within his home and thus could not be pulled therefrom and placed under arrest in the absence of exigent circumstances”); Dalcour v. City of Lakewood, 492 F.3d. Appx. 924, 928, 932-34 (10th Cir. 2012) (denying qualified immunity where agent “put her foot in the doorway to keep [plaintiff] from shutting the door” because “the facts presented did not establish an objectively reasonable basis for believing anyone in the home needed immediate aid or that there was any other exigent circumstance which would justify a warrantless entry”: “Physical entry of a home, even if only with one foot on the threshold, is an entry of the home for constitutional purposes. ”); Cummings v. City of Akron, 418 F.3d 676, 685 (6th Cir. 2005) (warrantless entry unsupported by consent or exigent circumstances was unlawful when the resident attempted to close the door on officers, but one of the officers wedged his foot in the doorway, forced the door open, and went inside); Siedentop v. State, 337 P.3d 1, 3 n. 5 (Alaska Ct. App. 2014) (officer acted unlawfully when he stuck his foot across the threshold to prevent the person inside from closing the door); Hanie v. City of Woodstock, No. 1:06-CV-889-RWS, 2008 WL 476123 at *7 (N. D. Ga. Feb. 19, 2008) (officer investigating noise complaint “was on fair notice that she could not place her foot even a fraction of an inch into the structure of the [plaintiffs'] home. ”); State v Maland, 103 P.3d 430, 434 (Idaho 2004) (finding constitutional violation where, in absence of warrant or probable cause for a felony and exigent circumstances, an officer “insert[ed] her foot into the threshold far enough to prevent [defendant] from closing the door. ”); State v. Larson, 668 N.W.2d 338, 342, 345-46 (Wis. Ct. App. 2003) (absent a warrant, consent or probable cause and exigent circumstances, officer's intrusion into apartment was illegal; “even if the officer's incursion only extends from the tips of his toes to the balls of his feet, this incursion is the fixed ‘first footing' against which the United States Supreme Court . . . [has] previously warned. ”).

         The “emergency aid exception” to the warrant requirement “authorizes a warrantless home entry where officers ha[ve] an objectively reasonable basis for concluding that there [i]s an immediate need to protect others or themselves from serious harm; and [that] the search's scope and manner [a]re reasonable to meet the need. ” Rodriguez v. City of San Jose, 930 F.3d at 1123, 1137 (9th Cir. 2019) (internal quotation marks and citation omitted); see also Sandoval, 756 F.3d at 1163-64 (discussing Ryburn v. Huff, 565 U.S. 469 (2014) (per curiam), and Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)). In Sandoval, the Ninth Circuit explained that the aid exception permits law enforcement officers to enter a home without a warrant to give emergency assistance to an injured occupant or to protect an occupant from imminent injury. 756 F.3d at 1163. Moreover, an officer may enter without a warrant if he has a reasonable basis for concluding there is an imminent threat of violence or threat to the officers' safety and the safety of others. Id. at 1164.

         As with all exceptions to the warrant requirement, the emergency aid exception is “narrow and [its] boundaries are rigorously guarded. ” Id. at 1161 (citations and internal quotation marks omitted). Officers bear the burden of demonstrating “specific and articulable facts” to justify the finding of either exigent circumstances or emergency. Id. (internal quotation marks and citation omitted). The officers must also show that they could not have obtained a warrant in time. Id. Because the officers' actions must be assessed objectively, their subjective motivation is irrelevant. Brigham City, 547 U.S. at 404. However, when determining whether an officer is entitled to qualified immunity, the Court considers the facts that were knowable to the defendant officers. White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam).

         2. Violation of a constitutional right

          In their motion, Defendants argue that a reasonable officer in the field would have believed that the “foot in the door” technique was reasonable and proper “under the circumstances” for the safety of the occupants and the safety of the officers. (Doc. 64 at 9.) Defendants state that the danger the officers feared, based on their experience, was that it was a college party, and that there could be underage drinking and other crimes occurring. Further, a neighbor had called because of loud music and screaming and the neighbor had to go to work the next day. Defendants assert that two grounds permitted the Officers to maintain their warrantless entry: the need (1) to ensure everyone in the house was safe and leaves the premises, and (2) to protect themselves and the neighborhood.

         Viewing the evidence in the light most favorable to the Defendants, ^[15] under clearly established law, no reasonable officer could have concluded that any exigency, including the emergency aid exception, justified a warrantless entry. There was no indication of any crime that was occurring within the home. Rather, Officers were responding to a complaint of a loud party in a university neighborhood- a potential civil infraction. Officer Lansdale contends that based on the yelling and screaming he heard inside the house, the Officers did not “know if people were fighting, we don't know if someone is passed out. . . . ” (Doc. 65-1, Ex. 4, p. 68.) He asserts that “party calls are very dynamic. We've responded to party calls and had shootings, stabbings, homicides, females sexually assaulted and forcibly raped. The dynamic is we don't know what's going on. ” (Id. )

         “Simply invoking the unknown . . . ” is insufficient to justify warrantless entry. Sandoval, 756 F.3d at 1164; see also Bonivert, 883 F.3d at 877-78 (rejecting emergency exception where officer's “only mention of an actual threat was in terms so general that they could apply to any interaction involving a criminal suspect in a home. ”); LaLonde v. Cty. of Riverside, 204 F.3d 947, 957 (9th Cir. 2000) (burden of establishing exigent circumstances based on officer safety “is not satisfied by leading a court to speculate about what may or might have been the circumstances. ”) And here, there is no evidence from which a reasonable juror could conclude that the occupants or the officers were in any danger, or that any crime was occurring. Officer Lansdale admitted as much when he testified that he did not have probable cause to believe that any crime was occurring inside. ^[16] His statement that “reasonable suspicion is there to the extent of the unknown” is insufficient. ^[17] (Doc. 42, ¶ 42.) Similarly, Officer Kush conceded that there was no probable cause to believe any emergency was occurring or that anyone's safety was issue. When asked whether he believed that criminal activity was occurring inside of the house, he responded no, “but there's a potential for one. ” (Id. ) On the undisputed facts, the Officers lacked an “objectively reasonable basis for concluding that there [wa]s an immediate need [for officers] to protect others or themselves from serious harm. ” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). Therefore, Court will deny Officer Lansdale's request for summary judgment on qualified immunity concerning Parish's illegal entry claim. ^[18]

         C. Officer Kush's entry and Parish's seizure by both Officers

          Officer Kush entered Parish's home during his attempt to extract Officer Lansdale's foot from the doorway. Parish claims his constitutional rights were violated when Officer Kush forced his door open, entered his home, and the Officers pulled him from his home. Officer Kush argues that whether illegal entry into a home occurs “when an officer is trying to prevent an assault on another officer, and the momentum of pushing a door open carries his foot into a doorway . . . ” was not clearly established at the time of the incident. (Doc. 50, p. 6) He also argues no constitutional violation occurred because his conduct was reasonable. (Id. ) The Officers contend that when they pulled Parish out of his home, they had probable cause to believe he had committed ...