United States District Court, D. Arizona
Honorable Jennifer G. Zipps, United States District Judge
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.
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.
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.
following reasons, the Court will grant parts of and deny
parts of the motions.
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.)
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.)
Lansdale continued knocking and asking for a resident to open
the door.  (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.)
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.  (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
fing 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. ” (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.)
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.
(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.  (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.)
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.)
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. ” (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 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.)
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.  (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.
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.)
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.  (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
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,
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, ¶
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.)
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.)
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).)
Doggert also found that that Officer Lansdale violated
several TPD General Orders.  (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, ¶
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
Summary Judgment Standard
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.
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.
§ 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).
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.
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
Officer Lansdale's Warrantless Entry Into Parish's
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.
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.
Clearly Established Right
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).
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. ”).
“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.
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).
Violation of a constitutional right
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.
the evidence in the light most favorable to the Defendants,
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. )
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.  His statement
that “reasonable suspicion is there to the extent of
the unknown” is insufficient.  (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. 
Officer Kush's entry and Parish's seizure by both
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 ...