United States v. 2012-06-12 | 11-55004 | THOMAS AVINA V. USA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 THOMAS AVINA; ROSALIE AVINA; No. 11-55004
B.F.A., a minor; B.S.A., a minor, D.C. No. Plaintiffs-Appellants, 3:08-cv-01302- v. W-WMC
UNITED STATES OF AMERICA, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted
May 9, 2012—Pasadena, California
Filed June 12, 2012
Before: Harry Pregerson, Susan P. Graber, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
6647

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COUNSEL
Raymond Buendia, Law Office of Raymond Buendia, San
Diego, California, for the plaintiffs-appellants.
Lindsey Powell, Department of Justice Civil Division, Wash-
ington, D.C., for the defendant-appellee.
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OPINION
PREGERSON, Circuit Judge:
In 2008, Thomas Avina and Rosalie Avina and their two
minor daughters, B.F.A. and B.S.A., filed a complaint in fed-
eral district court against the United States government, alleg-
ing causes of action under the Federal Tort Claims Act
(“FTCA”), see 28 U.S.C. §§ 2671-2680. Specifically, the
Avinas alleged that agents from the United States Drug
Enforcement Administration (“DEA”) committed the torts of
assault and battery and intentional infliction of emotional dis-
tress when they executed a search warrant at the Avinas’
mobile home. The district court granted summary judgment in
favor of the United States, holding that DEA Agents used rea-
sonable force when they executed the search warrant. The
Avina family appeals the district court’s adverse summary
judgment ruling.
As discussed below, we agree with the district court that
there is no genuine issue of material fact regarding whether
DEA Agents’ use of force against the adult members of the
Avina family (Thomas Avina and Rosalie Avina) was reason-
able. But we disagree with the district court’s conclusion that
there is no genuine issue of material fact regarding whether
DEA Agents used reasonable force against eleven-year-old
B.S.A. and fourteen-year-old B.F.A. Accordingly, we affirm
in part, reverse in part, and remand for further proceedings.
BACKGROUND
A. DEA Agents Obtain a Search Warrant for the Avina
Home
On January 19, 2007, DEA Agents obtained a search war-
rant for the mobile home located at 1601 Drew Road, space
#14, in Seeley, California. At the time the warrant was issued,
DEA Agents believed that a vehicle belonging to suspected
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drug trafficker Luis Alvarez was registered at the Avina resi-
dence. After executing the search warrant on January 20,
2007, the agents discovered they had inadvertently written
down a license number of a vehicle belonging to Thomas
Avina instead of a vehicle belonging to Luis Alvarez.
B. The January 20, 2007 Search of the Avina Home
Because this case comes to us on summary judgment in
favor of the United States, we must view the record in the
light most favorable to the Avinas, who are the non-moving
parties. Brown v. City of Los Angeles, 521 F.3d 1238, 1240
(9th Cir. 2008) (per curiam). Many of the key facts that we
will recite here are disputed, including the specific nature of
the officers’ actions toward the minor plaintiffs.
On the morning of January 20, 2007, Plaintiffs Thomas and
Rosalie Avina and their daughters were asleep in their mobile
home. At approximately 7:00 a.m., DEA Agents approached
the front door of the home. The agents banged loudly on the
front door and yelled “police.” They waited briefly and then
used a battering ram to break through the front door. The
agents then entered the Avinas’ home with their guns drawn.
Upon entering the Avina home, the agents first encountered
Thomas and Rosalie Avina. Thomas was standing in an area
between the living room and his bedroom, and Rosalie was
lying on a couch in the living room. One of the agents
approached Thomas and told Thomas to “get down on the
[fuck]ing ground.” Thomas told the agent that he was “mak-
ing a mistake.” After hearing Thomas’s response, another
agent “forcefully pushed” Thomas to the ground, pointed his
gun at Thomas’s face, and told Thomas, “Don’t you [fuck]ing
move.” Both Thomas and Rosalie were placed in handcuffs.
When Rosalie noticed agents approach the rooms of her
daughters, Rosalie screamed at the agents, “Don’t hurt my
babies. Don’t hurt my babies.”
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1. The Search of Fourteen-Year-Old B.F.A.’s Room
At the time of the search, fourteen-year-old B.F.A. was
lying on her bed in her room. She heard a loud bang on the
front door of the mobile home followed by shouts of “police,
open up. Open up.” B.F.A. then heard agents enter her home
and shout at her father to “[g]et down on the ground.” B.F.A.
also heard the agents use profanity towards her father. Agents
then entered fourteen-year-old B.F.A.’s room with their guns
drawn.1 The agents told B.F.A. to “[g]et down on the
f[uck]ing ground.” In response to the agents’ commands,
B.F.A. rolled off her bed. The agents then handcuffed B.F.A.
2. The Search of Eleven-Year-Old B.S.A.’s Room
At the time of the search, eleven-year-old B.S.A. was
asleep in her room. Agents entered B.S.A.’s room with their
guns drawn. The agents yelled at B.S.A. to “[g]et down on the
f[uck]ing ground.” B.S.A. initially refused to get down on the
ground because she was “frozen in fear.” The agents then
pulled eleven-year-old B.S.A. to the ground and handcuffed
her. After the agents handcuffed B.S.A., the agents pointed
their guns at eleven-year-old B.S.A.’s head “like they were
going to shoot [her].” The agents then picked up B.S.A. and
moved her to B.F.A.’s room.
Once the agents transported B.S.A. to B.F.A.’s room, the
agents forced eleven-year-old B.S.A. and fourteen-year-old
B.F.A. to lie facedown on the ground with their hands cuffed
behind their backs. B.S.A. and B.F.A. were forced to lie face-
down with their hands cuffed behind their backs for “a
while.”
Sometime later, agents moved B.S.A. and B.F.A. into the
1One of the agents testified in his deposition that when he first encoun-
tered one of the girls, presumably B.F.A., she looked like she was “12 [or]
13 years old.”
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living room, with their hands still cuffed behind their backs.
At this point, eleven-year-old B.S.A. began to cry because she
could not find her father. At some point, B.S.A. noticed her
father lying on the floor. According to B.S.A., the agents un-
handcuffed her about thirty minutes after they first entered her
bedroom.
3. Agents Leave the Avina Home
The agents searched the Avina home for approximately two
hours. At approximately 9:00 a.m., agents left the Avina
home.
STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment. FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir.
2009). A party is entitled to summary judgment if “the plead-
ings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any mate-
rial fact and that the movant is entitled to judgment as a mat-
ter of law.” Fed. R. Civ. P. 56(c) (2010).
In cases involving the reasonableness of force by law
enforcement officers, “the reasonableness of force used is
ordinarily a question of fact for the jury.” Liston v. Cnty. of
Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997). “Because
the excessive force inquiry nearly always requires a jury to
sift through disputed factual contentions, and to draw infer-
ences therefrom, we have held on many occasions that sum-
mary judgment or judgment as a matter of law in excessive
force cases should be granted sparingly.” Glenn v. Washing-
ton Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (brackets and
internal quotation marks omitted). With these principles in
mind, we turn to the facts of this case.
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DISCUSSION
I. The Federal Tort Claims Act and California Law
The Avinas’ complaint contains two tort claims against the
United States Government under the FTCA. The Avinas
allege claims for: (1) assault and battery; and (2) intentional
infliction of emotional distress. Because the Avinas’ tort
claims are brought under the FTCA, and the events at issue
occurred in California, we apply California tort law. See Rich-
ards v. United States, 369 U.S. 1, 7 (1962).
Under California law, to prevail on the tort of assault, the
plaintiff must establish that: (1) the defendant threatened to
touch the plaintiff in a harmful or offensive manner; (2) it rea-
sonably appeared to the plaintiff that the defendant was about
to carry out the threat; (3) the plaintiff did not consent to the
defendant’s conduct; (4) the plaintiff was harmed; and (5) the
defendant’s conduct was a substantial factor in causing the
plaintiff’s harm. Judicial Council of Cal., Civil Jury Instruc-
tions No. 1301 (“Assault”) (2012); Tekle v. United States, 511
F.3d 839, 855 (9th Cir. 2007) (defining civil assault under
California law).2
To prevail on a claim of battery under California law, a
plaintiff must establish that: (1) the defendant touched the
plaintiff or caused the plaintiff to be touched with the intent
to harm or offend the plaintiff; (2) the plaintiff did not consent
to the touching; (3) the plaintiff was harmed or offended by
defendant’s conduct; and (4) a reasonable person in plaintiff’s
situation would have been offended by the touching. Judicial
Council of Cal., Civil Jury Instructions No. 1300 (“Battery”)
2An assault also can occur under California law when a defendant “at-
tempts” a battery. See Judicial Council of Cal., Civil Jury Instructions No.
1301 (“Assault”) (2012); 5 B.E. Witkin, Summary of Cal. Law, Torts
§ 381, p. 598 (10th ed. 2005)
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(2012); Ashcraft v. King, 278 Cal. Rptr. 900, 903-04 (Ct. App.
1991) (defining civil battery under California law).3
To prevail on a claim of intentional infliction of emotional
distress under California law, a plaintiff must establish: “(1)
extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability
of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and prox-
imate causation of the emotional distress by the defendant’s
outrageous conduct.” Hughes v. Pair, 209 P.3d 963, 976 (Cal.
2009) (internal quotation marks omitted).
In addition, because the Avinas’ claims concern the con-
duct of peace officers acting in their official capacities, the
Avinas must also establish, for each cause of action, that the
officers used “unreasonable force.” Munoz v. City of Union
City, 16 Cal. Rptr. 3d 521, 539 (Ct. App. 2004). In California,
“[c]laims that police officers used excessive force in the
course of an arrest, investigatory stop or other seizure of a
free citizen are analyzed under the reasonableness standard of
the Fourth Amendment to the United States Constitution.” Id.
(internal quotation marks omitted). It is this last element —
the “unreasonable force” element — that the parties dispute.
II. Assault and Battery
In granting summary judgment in favor of the United States
on the Avinas’ assault and battery claim, the district court
concluded that there was no genuine issue of material fact
regarding whether agents used excessive force. In reaching
this conclusion, the district court relied extensively on the
Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93
(2005).
3“In an action for civil battery the element of intent is satisfied if the
evidence shows [the] defendant acted with a willful disregard of the plain-
tiff’s rights.” Ashcraft, 278 Cal. Rptr. at 904 (internal quotation marks
omitted).
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In Mena, police officers executed a search warrant for
weapons at the home of a suspected gang member. Id. at 95-
96. The officers detained plaintiff Iris Mena in handcuffs dur-
ing the course of the search. Id. at 96. Mena brought suit
under 42 U.S.C. § 1983 against the officers who executed the
search warrant. Id. at 95. Specifically, Mena claimed that she
was “detained for an unreasonable time and in an unreason-
able manner in violation of the Fourth Amendment” because
officers placed her in handcuffs during the course of the
search. Id. at 96, 100 (internal quotation marks omitted). The
Supreme Court rejected Mena’s argument. Id. at 102. The
Court concluded that “[t]he officers’ use of force in the form
of handcuffs to effectuate Mena’s detention . . . was reason-
able because the governmental interests outweigh[ed] the
marginal intrusion.” Id. at 99. The Court explained that,
because the search for weapons at the home made the search
“inherently dangerous,” the use of handcuffs was reasonable
because it “minimize[d] the risk of harm to both officers and
occupants.” Id. at 100.
[1] Under Mena, the agents’ use of force against Thomas
and Rosalie was reasonable. The agents were executing a
search warrant at the residence of a suspected drug trafficker.
Because this scenario presented an “inherently dangerous” sit-
uation for the agents, the use of handcuffs on the adult mem-
bers of the Avina family was reasonable as it “minimize[d]
the risk of harm to both officers and occupants.” Id. at 100.
[2] The agents also did not act unreasonably when they
“forcefully pushed” Thomas Avina to the ground during the
initial minutes of the search. At the time of the forceful push,
Thomas was refusing to follow the agents’ commands to get
down on the ground. This refusal occurred during the agents’
initial entry into the home, at a time when the agents had no
way of knowing whether Thomas was associated with, or
even was, suspected drug trafficker Luis Alvarez. Given the
circumstances confronting the agents at the time — an adult
man who was refusing to follow the agents’ instructions dur-
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ing the initial minutes of the execution of an “inherently dan-
gerous” warrant — we cannot say that the agents acted
unreasonably. See, e.g., Michigan v. Summers, 452 U.S. 692,
702 (1981) (noting that “the execution of a warrant to search
for narcotics is the kind of transaction that may give rise to
sudden violence or frantic efforts to conceal or destroy evi-
dence”).4
[3] The same, however, cannot be said for the agents’
actions toward the minor children, when the record is viewed
4The Avinas argue in passing that the agents used unreasonable force
because they went to the “wrong house.” Specifically, the Avinas note
that, although the warrant authorized a search of 1601 Drew Road, space
#14, this was not the residence where the vehicle of suspected drug traf-
ficker Luis Alvarez was registered. This argument fails. Because we must
look to Fourth Amendment case law when conducting the “unreasonable
force” inquiry, see Munoz, 16 Cal. Rptr. 3d at 539, we apply the well-
established Fourth Amendment “good faith” rule from United States v.
Leon, 468 U.S. 897 (1984). Under Leon’s “good faith” rule, the agents
who entered the Avina home were entitled to rely on the search warrant
unless: (1) “the magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or would have
known was false except for his reckless disregard for the truth”; (2) “the
issuing magistrate wholly abandoned his judicial role”; (3) the warrant
was “based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable”; or (4) the
warrant failed to “particularize the place to be searched or the things to be
seized.” 468 U.S. at 923 (internal quotation marks omitted); see also
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (applying
Leon’s “good faith” rule in civil rights lawsuit against police officers).
Here, there is no basis for finding any of the exceptions to Leon’s good
faith rule. There is no basis for concluding that the warrant was based on
a false affidavit or an affidavit “lacking in indicia of probable cause”
because the affidavit supporting the warrant is not in the record. The
Avinas’ failure to include the warrant affidavit in the record is fatal to any
argument that the agents made false statements in the warrant affidavit or
that the affidavit was lacking in indicia of probable cause. See Messersch-
midt, 132 S. Ct. at 1245 n.2. There is likewise no basis for finding that
“the issuing magistrate wholly abandoned his judicial role” or that the
warrant failed to “particularize the place to be searched or the things to be
seized.” Leon, 468 U.S. at 923 (internal quotation marks omitted)
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in the light most favorable to them. Mena involved the use of
force against an adult. Here, by contrast, a jury could find that
the agents pointed their guns at the head of an eleven-year-old
girl, “like they were going to shoot [her],” while she lay on
the floor in handcuffs, and that it was excessive for them to
do so.5 Similarly, a jury could find that the agents’ decision
to force the two girls to lie face down on the floor with their
hands cuffed behind their backs was unreasonable.6 Under our
case law, an issue of material fact exists as to whether the
actions of the agents were excessive in light of the ages of
B.S.A. (age eleven) and B.F.A. (age fourteen) and the limited
threat they posed. See Tekle, 511 F.3d 839 (holding that offi-
cers were not entitled to summary judgment on excessive
force claim where officers pointed guns at an eleven-year-old
boy’s head during the arrest of the boy’s father); Motley v.
Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc) (holding
that officer’s act of pointing a gun at an infant during the
search of a gang member’s house was objectively unreason-
able); see also McDonald ex rel. McDonald v. Haskins, 966
F.2d 292, 294-95 (7th Cir. 1992) (holding that officer’s act of
pointing his gun at a nine-year-old’s head during the search
of home was excessive use of force). Accordingly, we reverse
the district court’s grant of summary judgment in favor of the
United States on B.F.A.’s and B.S.A.’s claims for assault and
battery.
5“The pointing of a gun at another in a threatening manner” can consti-
tute an assault under California law. Lowry v. Standard Oil Co. of Cal.,
146 P.2d 57, 60 (Cal. Ct. App. 1944).
6Although there is evidence that the agents released the girls from their
handcuffs once they realized how young they were, there is also evidence
that the agents knew, prior to entering the girls’ bedrooms, that the girls
were children. Rosalie testified that, as the agents were heading towards
the girls’ rooms, she screamed at the agents several times, “Don’t hurt my
babies.” Moreover, one of the agents testified at his deposition that, when
he first saw one of the girls (presumably the older of the two girls), she
appeared to be “12 [or] 13 years old.”
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III. Intentional Infliction of Emotional Distress
In granting summary judgment in favor of the United States
on the Avinas’ claims for intentional infliction of emotional
distress, the district court concluded that, because the agents
used “reasonable” force, the Avinas were unable to establish
that DEA Agents engaged in “extreme or outrageous” con-
duct. We disagree.
[4] Viewing the evidence in the light most favorable to the
Avinas, a rational trier of fact could find that agents engaged
in “extreme or outrageous” conduct when the agents: (1)
pointed their guns at the head of eleven-year-old B.S.A. “like
they were going to shoot [her]” while B.S.A. was lying on the
floor in handcuffs; (2) forced eleven-year-old B.S.A. and
fourteen-year-old B.F.A. to lie face down on the floor with
their hands cuffed behind their backs; (3) left B.S.A. and
B.F.A. in handcuffs for half an hour; and (4) yelled at eleven-
year-old B.S.A. and fourteen-year-old B.F.A. to “[g]et down
on the f[uck]ing ground.” See Tekle, 511 F.3d at 856 (holding
that officers were not entitled to summary judgment on claim
for intentional infliction of emotional distress where officers
pointed guns at eleven-year old’s head during the arrest of the
eleven-year-old’s father); see also id. at 859 (Fisher, J., con-
curring). Accordingly, we reverse the district court’s grant of
summary judgment in favor of the United States on B.F.A.’s
and B.S.A.’s claims for intentional infliction of emotional dis-
tress.7
7As previously discussed, we agree with the district court that there is
no genuine issue of material fact regarding whether agents used excessive
force against the adult members of the Avina family (Thomas and Rosa-
lie). Accordingly, the district court did not err in granting summary judg-
ment in favor of the United States on Thomas’s and Rosalie’s claims for
intentional infliction of emotional distress.
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CONCLUSION
The district court’s grant of summary judgment in favor of
the United States on the claims of Thomas Avina and Rosalie
Avina is AFFIRMED. The district court’s grant of summary
judgment in favor of the United States on the claims of B.S.A.
and B.F.A. is REVERSED. We REMAND this case to the
district court for proceedings consistent with this opinion. The
parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
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