Ryan J. Bonivert v. City of Clarkston

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R YAN J. BONIVERT,
Plaintiff-Appellant,
v.
C ITY OF C LARKSTON ; C OUNTY OF
ASOTIN, W ASHINGTON ; GARY
S NYDER ; J OSEPH S NYDER ; J ENNIFER
L. S NYDER ; S HAWN R UDY , Deputy;
GRIMM, Deputy; P AUL P URCELL;
TERESA R. P URCELL; D ANIEL
C OMBS ; C LAUDIA A. C OMBS ,
Defendants-Appellees.
No. 15-35292
D.C. No.
2:14-cv-00056-
TOR
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Argued and Submitted August 28, 2017
Seattle, Washington
Filed February 26, 2018

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2 BONIVERT V. C ITY OF C LARKSTON
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Barbara Jacobs Rothstein,*
District Judge.
Opinion by Judge McKeown
SUMMARY**
Civil Rights
The panel reversed the district court’s grant of summary
judgment on qualified immunity grounds and remanded in a
42 U.S.C. § 1983 action in which plaintiff alleged that police
officers violated his Fourth Amendment rights when they
forced their way into his home without a warrant, threw him
to the ground and then tasered and arrested him.
The panel held that the scenario in this case closely
paralleled Georgia v. Randolph, 547 U.S. 103 (2006), where
the Supreme Court held that a warrantless search was
unreasonable as to a defendant who is physically present and
expressly refuses consent to entry. Following the Court’s
reasoning, the panel concluded that the warrantless entry
into plaintiff’s home violated the Fourth Amendment as
none of the lawful exceptions to the warrant requirement
applied. The panel further held that the evidence did not
justify the district court’s conclusion that “no reasonable jury
could find the use of force within the home excessive.” The
* The Honorable Barbara Jacobs Rothstein, United States District
Judge for the Western District of Washington, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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BONIVERT V . C ITY OF C LARKSTON 3
panel concluded that genuine issues of fact prevented a
determination of qualified immunity at summary judgment
such that the case must proceed to trial.
COUNSEL
James E. Lobsenz (argued), Carney Badley Spellman P.S.,
Seattle, Washington, for Plaintiff-Appellant.
Christopher Joseph Kerley (argued), Evans Craven & Lackie
P.S., Spokane, Washington, for Defendant-Appellee City of
Clarkston.
Ann Elizabeth Trivett (argued) and Thomas P. Miller,
Christie Law Group PLLC, Seattle, Washington, for
Defendants-Appellees County of Asotin, Gary Snyder,
Joseph Snyder, Jennifer L. Snyder, Shawn Rudy, Deputy
Grimm, Paul Purcell, Teresa R. Purcell, Daniel Combs, and
Claudia A. Combs.

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4 BONIVERT V. C ITY OF C LARKSTON
OPINION
McKEOWN, Circuit Judge:
“An open door says, ‘Come in,’” the poet Carl Sandburg
once wrote. “If a door is open and you want it open, why
shut it?”1 The corollary, of course, is that a locked door says,
“stay out,” and a shut door certainly does not say, “come in.”
This appeal arises out of a domestic dispute call to the
police from the home of Ryan Bonivert. During an evening
gathering with friends, Bonivert reportedly argued with his
girlfriend, Jessie Ausman, when she attempted to leave with
the couple’s nine-month old daughter. By the time police
arrived, the disturbance was over: Ausman, the baby, and the
guests had safely departed the home, leaving Bonivert alone
inside. At that point, there was no indication that Bonivert
had a weapon or posed a danger to himself or others. Nor
does the record suggest that Ausman intended to reenter the
house or otherwise asked police to accompany her inside.
When Bonivert failed to respond to repeated requests to
come to the door, the officers decided they needed to enter
the house. No attempt was made to obtain a search warrant.
Though Bonivert locked the door to his house and refused
police entreaties to talk with them, the police broke a
window to unlock and partially enter the back door. Even
then, Bonivert tried to shut the door, albeit unsuccessfully.
Although Ausman consented to the officers entering the
house, Bonivert’s actions were express—stay out.
Nevertheless, the officers forced their way in, throwing
1 T HE SANDBURG R ANGE 119 (1957).

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BONIVERT V . C ITY OF C LARKSTON 5
Bonivert to the ground, and then drive-stunned him with a
taser several times,2 handcuffed him, and arrested him.
The scenario here closely parallels Georgia v. Randolph,
547 U.S. 103 (2006), where the Supreme Court held that a
warrantless search was unreasonable as to a defendant who
is physically present and expressly refuses consent to entry.
Id. at 106. Following the Court’s reasoning, we conclude
that the warrantless entry into Bonivert’s home violated the
Fourth Amendment as none of the lawful exceptions to the
warrant requirement applied. The officers are not entitled to
qualified immunity.
B ACKGROUND
In the early morning hours of January 8, 2012, Sergeant
Danny Combs and Officer Paul Purcell of the City of
Clarkston, Washington (the “City”) Police Department
received a “physical domestic” dispatch to the home of Ryan
Bonivert. The dispatcher relayed to the officers that an
argument between a man and a woman had become
“physical at one point,” and that the dispatcher had been
“advised the male,” Bonivert, “was inside the house being
restrained by other males,” and “the female,” Bonivert’s
girlfriend Jessie Ausman, was “outside in a car with a child.”
When Purcell and Combs arrived, they encountered five
people standing in front of Bonivert’s house: Ausman;
Ausman’s sister, Tasha; Ausman’s mother, Ann McCann;
2 “When a taser is used in drive[-]stun mode, the operator removes
the dart cartridge and pushes two electrode contacts located on the front
of the taser directly against the victim. In this mode, the taser delivers
an electric shock to the victim, but it does not cause an override of the
victim’s central nervous system as it does in dart-mode.” Mattos v.
Agarano, 661 F.3d 433, 443 (9th Cir. 2011).

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6 BONIVERT V. C ITY OF C LARKSTON
James Gray; and Brad Miller. Purcell spoke to the three
women, who reported that the entire group, including
Bonivert, had been at a social gathering in the house.
Bonivert and Ausman, who had a nine-month old daughter
and had been living together in Bonivert’s home for the past
two years, began arguing about their relationship when
Ausman announced that she was leaving with the baby.
Bonivert reportedly became angry. According to the
women, Bonivert grabbed Ausman and threw her to the
ground. Ausman further told the officers that all of the adults
in the residence had been drinking that evening.
Combs, meanwhile, interviewed Gray and Miller. Both
men told Combs that in the middle of an argument, Ausman
had told Bonivert that she was leaving with the baby.
According to Gray and Miller, Bonivert warned Ausman she
was not leaving with the child and attempted to “rush[]” her,
but Miller tackled Bonivert before he could make contact,
enabling Ausman to safely exit the house with the baby. The
only difference in Gray and Miller’s version of events and
that of the women was that neither saw “anything physical”
occur between Bonivert and Ausman. Bonivert later stated
that after Ausman and his guests had departed, he decided to
go to bed. Bonivert remained inside the house during the
entirety of the officers’ conversations with the witnesses.
The officers exchanged narratives and, after discussing
the discrepancies between the men and women’s stories,
decided to speak to Bonivert. The officers initially
approached the front door of the residence, knocked,
identified themselves as police, and instructed Bonivert to
come to the door. Combs testified that he believed—but was
uncertain whether—Bonivert heard the initial knock-and-
announce. Bonivert testified that he heard yelling and loud

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BONIVERT V . C ITY OF C LARKSTON 7
banging on the front door, but did not know who was there
or what was being said.
Receiving no response from Bonivert, Combs knocked
on other doors and windows of the house, peering into the
windows using his flashlight. The officers found that both
the front door and the back door were locked. As Combs
approached the side door, Bonivert realized it was unlocked
and locked the deadbolt from inside. Combs, upon hearing
the door lock, believed that Bonivert did not want to speak
or have any contact with him. After Bonivert locked the side
door, he heard someone outside announce that they were
police and ask him to come outside. Purcell testified that at
some point, Combs yelled loudly, “Come out or we are
coming in,” or words to that effect. Bonivert, however,
made no attempt to speak to the officers.
The officers went back to the front of the house to
question the witnesses again. In response to an inquiry
whether Bonivert was a danger to himself, Ausman informed
Combs that there were no weapons in the home. Ausman
also told police that she did not believe Bonivert was a
danger to himself. When the officers inquired how Bonivert
would respond to having his home broken into, Ausman
warned Combs that Bonivert had a problem with authority
and recounted Bonivert’s angry—but not violent—behavior
towards officers during a recent drunk driving arrest.
At this point, Combs decided he needed to assess
Bonivert’s condition. Combs claims he wanted to “find out
what was going on, to assess [Bonivert]” and “see what his
state of mind were [sic].” According to Combs, he was
concerned by the fact that Bonivert was “not talking to” the
officers. Ausman, who had been living in Bonivert’s home
for approximately two years, gave Sergeant Combs
permission to enter the house. The parties dispute whether

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8 BONIVERT V. C ITY OF C LARKSTON
Ausman also gave permission for Combs to break a door or
window to gain entry. Nothing in the record suggests,
however, that Ausman intended to reenter the home or asked
Combs for his assistance to do so.
Combs and Purcell requested assistance from the Asotin
County Sheriff’s Office (the “County”).3 The officers also
radioed a “Code 4” message to the County, which meant that
“there are no problems” with “the police and the people they
are with,” and that everyone is “safe” and nobody is “being
injured.”
Upon arrival, Asotin County Deputies Gary Snyder and
Joseph Snyder spoke with Combs, who told them that
Bonivert was locked inside the residence and refused to
come out after a physical encounter with his wife. Combs
requested their assistance to enter the house. The County
deputies were aware that the City officers did not have a
warrant to enter the home or arrest Bonivert. They did not
obtain information about who owned the residence, who
lived at the residence, whether there were outstanding
arrests, or what basis the City officers had for entering the
home. Instead, the County deputies deferred to Combs, the
highest ranking City officer on the scene.
The officers collectively developed a plan of entry.
Purcell remained stationed at the front door, on the east side
of the residence, while Combs and the County deputies went
around to the north side of the residence. Combs again
knocked on the side and back doors, identified himself as the
police, and advised Bonivert to open the door. Combs and
3 Because the City of Clarkston is located within Asotin County,
County officers will respond to requests for assistance from the City
when the incident is within the City of Clarkston.

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BONIVERT V . C ITY OF C LARKSTON 9
Gary Snyder directed their flashlights through the windows
and saw Bonivert retreat into the back of the house. On at
least one occasion when a flashlight beam hit Bonivert, he
ducked out of sight. Combs then approached the back door,
with Joseph Snyder directly behind him and Gary Snyder
standing farther back to maintain visibility of the front door.
Combs used his flashlight to shatter a window pane on
the back door and reached through the opening to unlock it.
At that point, Bonivert opened the door and began shouting
that the officers were going to pay for the damage to his
window. Combs stated that he ordered Bonivert to stay
back, calm down, and get on the ground. Joseph Snyder
similarly ordered Bonivert to get on the ground and show his
hands. Bonivert disputed that he was given these commands
and stated that there were flashlights pointed at him, which
caused him to lower his hands to shield his eyes, and that he
was unable to understand what the officers were saying. The
parties dispute whether Bonivert advanced upon the officers,
or remained at the door. The video footage from the taser is
inconclusive: it appears to show Bonivert at the threshold of
the door.
Without warning, Combs and Gary Synder then
deployed their tasers at Bonivert in dart mode. In response,
Bonivert brushed off the darts, cursed at the officers, and
attempted to close the door. Before Bonivert could
completely close the door on the officers, however, Combs
shoved the door open with enough force to throw Bonivert
to the other side of the room, and the officers entered the
home.
Once inside the house, the parties dispute whether
Bonivert swung his fists and attacked Combs. In any event,
Joseph Snyder tackled Bonivert to the ground while Combs
drive-stunned Bonivert multiple times in his upper right

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10 BONIVERT V. C ITY OF C LARKSTON
shoulder. Eventually, all three officers held Bonivert to the
ground. Bonivert can be heard in the taser video—in
response to an officer’s repeated commands to “give me
your hands” and “hold still”—screaming “no,” “why,” and
“why are you in my house?,” and sobbing. Combs deployed
his taser in drive-stun mode once more after Bonivert was
handcuffed. Comb’s taser report shows his taser was
activated in drive-stun mode four times within
approximately one minute. Bonivert was placed under arrest
for assaulting an officer, resisting arrest, and domestic
violence assault in the fourth degree.
Bonivert brought claims under 42 U.S.C. § 1983 against
the City, the County, Combs, Purcell, Gary Synder, and
Joseph Synder, alleging warrantless entry and excessive
force in violation of Bonivert’s constitutional rights. The
district court granted summary judgment in favor of the
defendants on the basis of qualified immunity.
ANALYSIS
I. FRAMEWORK FOR Q UALIFIED I MMUNITY
ANALYSIS
Our de novo review of a grant of summary judgment
based on qualified immunity involves two distinct steps:
government officials are not entitled to qualified immunity
if (1) the facts “[t]aken in the light most favorable to the
party asserting the injury . . . show [that] the [defendants’]
conduct violated a constitutional right” and (2) “the right
was clearly established” at the time of the alleged violation.
Saucier v. Katz, 533 U.S. 194, 201 (2001), rev’d on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009); see
also Saucier, 533 U.S. at 202 (“The relevant, dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his

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BONIVERT V . C ITY OF C LARKSTON 11
conduct was unlawful in the situation he confronted.”). Both
prongs entail questions of law that we may answer in either
order. Pearson, 555 U.S. at 236. If a “genuine issue of
material fact exists that prevents a determination of qualified
immunity at summary judgment, the case must proceed to
trial.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.
2003).
Since the Fourth Amendment guarantees the right to be
free from “unreasonable searches and seizures,” U.S. Const.
amend. IV, the first question—whether the officer violated a
constitutional right—will typically turn on the
“reasonableness” of the officer’s actions. See Mattos,
661 F.3d at 442. But notably, the reasonableness standard
governing violations of a Fourth Amendment right is distinct
from the reasonableness standard governing whether the
right was “clearly established.” Saucier, 533 U.S. at 204–
05. The former protects an officer who reasonably, but
mistakenly, perceives facts that would have made his actions
lawful had they been true. See id. at 206 (“Officers can have
reasonable, but mistaken, beliefs as to the facts establishing
the existence of probable cause or exigent circumstances, for
example, and in those situations courts will not hold that they
have violated the Constitution.”). The latter, by contrast,
goes further by acknowledging “that reasonable mistakes
can be made as to the legal constraints on particular police
conduct.” Id. at 205. Thus, even an officer who correctly
perceives the facts establishing that his conduct was
“unreasonable” under the Fourth Amendment is entitled to
immunity if he was mistaken “as to what the law require[d]”
under the circumstances, so long as the mistake was
“reasonable.” Id.
Importantly, though, “it is not necessary that the alleged
acts have been previously held unconstitutional” in order to

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determine that a right was clearly established, “as long as the
unlawfulness [of defendant’s actions] was apparent in light
of pre-existing law.” San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 977 (9th
Cir. 2005) (alterations in original) (internal quotation marks
omitted). 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.’” United States v. Lanier, 520 U.S. 259, 271
(1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
These parameters counsel that officials may “still be on
notice that their conduct violates established law even in
novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730,
741 (2002). We are particularly mindful of this principle in
the Fourth Amendment context, where the constitutional
standard—reasonableness—is inevitably a fact-intensive
inquiry. After all, “[i]f qualified immunity provided a shield
in all novel factual circumstances, officials would rarely, if
ever, be held accountable for their unreasonable violations
of the Fourth Amendment.” Mattos, 661 F.3d at 442. Such
a result would not further the purpose of qualified immunity
to balance the competing “need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson, 555 U.S. at 231.
II. FOURTH AMENDMENT U NLAWFUL E NTRY CLAIM
The officers’ entry into Bonivert’s house—his
“castle”—requires us to invoke bedrock Fourth Amendment
principles. The Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses, papers, and

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BONIVERT V . C ITY OF C LARKSTON 13
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. It has long been recognized that the
“physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.” Payton
v. New York, 445 U.S. 573, 585–86 (1980) (quoting United
States v. U.S. Dist. Court for E. Dist. of Mich., 407 U.S. 297,
313 (1972)). This “special protection” of the home “as the
center of the private lives of our people” reflects an ardent
belief in “‘the ancient adage that a man’s house is his castle
to the point that the poorest man may in his cottage bid
defiance to all the forces of the Crown.’” Randolph,
547 U.S. at 115 (quoting Minnesota v. Carter, 525 U.S. 83,
99 (1998); Miller v. United States, 357 U.S. 301, 307 (1958)
(internal alterations omitted)). For that reason, “[i]t is a
‘basic principle of Fourth Amendment law’” that warrantless
searches of the home or the curtilage surrounding the home
“are presumptively unreasonable.” Payton, 445 U.S. at 586
(quoting Coolidge v. New Hampshire, 403 U.S. 443, 477
(1971)).
Among constitutional rules, few are as well established,
frequently applied, and familiar to police officers as the
warrant requirement and its exceptions. Because there is no
dispute that the officers failed to obtain a warrant before
entering Bonivert’s home, the entry was presumptively
unreasonable. The officers argue that their entry was
nevertheless justified by the three exceptions to the warrant
requirement: consent, emergency aid, and exigent
circumstances. Alternatively, the officers claim they are
entitled to qualified immunity because it was not clearly

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established law that these exceptions did not justify a
warrantless entry under the circumstances.4
This is not a case involving “such an undeveloped state
of the law” that qualified immunity is necessary to protect
the officers from the special unfairness that results when
they are “expected to predict the future course of
constitutional law.” Wilson v. Layne, 526 U.S. 603, 617–18
(1999) (quoting Procunier v. Navarette, 434 U.S. 555, 562
(1978) (internal quotation marks omitted)). Rather, it is one
demanding “knowledge of . . . basic, unquestioned
constitutional rights.” Wood v. Strickland, 420 U.S. 308,
322 (1975). To the extent the officers were mistaken “as to
what the law require[d]” to justify a warrantless entry that
evening, we conclude their mistake was not “reasonable.”
Saucier, 533 U.S. at 205.
Taken in the light most favorable to Bonivert, Saucier,
533 U.S. at 201, the facts demonstrate that the officers
violated Bonivert’s constitutional right because no exception
to the Fourth Amendment’s warrant requirement justified
the officers’ entry into Bonivert’s home. Additionally, the
unlawfulness of the officers’ entry under each exception was
clearly established because it “was apparent in light of pre-
existing law.” San Jose Charter, 402 F.3d at 977 (internal
quotation mark omitted). We explain our holding with
respect to each exception below.
4 Because the district court concluded that the officers were entitled
to qualified immunity based on both the consent exception and the
emergency exception, it did not reach the issue of whether the exigency
exception, including “hot pursuit,” applied. The parties briefed those
issues at the summary judgment stage and on appeal. We address the
exigent circumstances exception, including “hot pursuit,” on de novo
review.

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A. WARRANTLESS E NTRY : CONSENT E XCEPTION
Although the consent exception ordinarily permits
warrantless entry where officers have obtained consent to
enter from a third party who has common authority over the
premises, Georgia v. Randolph held that an occupant’s
consent to a warrantless search of a residence is
unreasonable as to a co-occupant who is physically present
and objects to the search. 547 U.S. at 106. Such is the
situation here.
By way of background, the Court in Randolph noted that
the “constant element in assessing Fourth Amendment
reasonableness in . . . consent cases” has been “the great
significance given to widely shared social expectations.” Id.
at 111. The Court went on to explain that “[s]ince the co-
tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over
a present and objecting co-tenant, his disputed invitation,
without more, gives a police officer no better claim to
reasonableness in entering than the officer would have in the
absence of any consent at all.” Id. at 114. For that reason,
the Court held that “a physically present inhabitant’s express
refusal of consent to a police search is dispositive as to him,
regardless of the consent of a fellow occupant.” Id. at 122–
23. Randolph stands in contrast to a situation in which a co-
occupant grants access to enter a shared dwelling but the co-
occupant is absent. See United States v. Matlock, 415 U.S.
164, 170–71 (1974).
Although Randolph was decided in the context of an
evidentiary search, there is no talismanic distinction, for
Fourth Amendment purposes, between a warrantless “entry”
and a warrantless “search.” “The two intrusions share this
fundamental characteristic: the breach of the entrance to an

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individual’s home.” See Payton, 445 U.S. at 589.5 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.” Id. at 590.
Indeed, Randolph called out an important exigent
circumstance related to domestic violence, explicitly
acknowledging that a co-occupant’s refusal is vitiated where
there is a threat to the victim: “No question has been raised,
or reasonably could be, about the authority of the police to
enter a dwelling to protect a resident from domestic
violence.” 547 U.S. at 118 (emphasis added); see also id. at
119 (citing cases involving the emergency aid and exigent
circumstances exceptions to support that “there is no danger
that the fearful occupant will be kept behind the closed door
of the house simply because the abusive tenant refuses to
consent to a search”). Later in the opinion, we specifically
discuss that neither the exigent circumstances nor
emergency aid exception is applicable. Here, it is important
to underscore that neither Ausman nor the baby were in
danger because they were safely outside the house when
police entered.
Applying Randolph, we hold that the consent exception
to the warrant requirement did not justify the officers’ entry
into Bonivert’s home. Even though the officers secured
Ausman’s consent, Bonivert was physically present inside
5 Before Bonivert’s arrest, other courts had already applied
Randolph to police entries and searches generally. See, e.g., United
States v. Uscanga-Ramirez, 475 F.3d 1024, 1027–28 (8th Cir. 2007);
Richardson v. City of Antioch, 722 F. Supp. 2d 1133, 1140 (N.D. Cal.
2010).

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BONIVERT V . C ITY OF C LARKSTON 17
and expressly refused to permit the officers to enter on two
different occasions.
As the district court recognized, Bonivert expressly
refused entry when he locked the side door to his house.
During the initial “knock and talk,” Combs and Purcell
knocked and attempted to open the front and back doors to
the house, but found them to be locked. As the officers
circled the house to approach the side door, Bonivert realized
it was unlocked and locked it as Combs was approaching.
Combs heard the door lock and informed Purcell.
Bonivert also expressly refused entry when he attempted
to close the back door on the officers after Combs broke in.6
Once the officers decided to enter the home by force, Combs
used his flashlight to shatter a window pane in the back door,
reached through the opening, and unlocked the door. At that
point, Bonivert partially opened the door and confronted the
officers, which prompted the officers to fire their tasers in
dart mode. All parties agree that after the darts failed to
make contact, Bonivert tried to shut the door, placing it
between himself and the officers, but ultimately was
prevented from doing so when Combs rushed through with
such force that he threw Bonivert to the other side of the
room.
The City and County dispute that Bonivert’s conduct at
the side and back doors constituted “express refusal” of
consent within the meaning of Randolph. According to the
County, “express refusal means verbal refusal.” We
6 The parties dispute whether Ausman gave the officers permission
to break into the house, rather than enter it. Ausman testified that the
officers “said, he’s not opening or answering any of the doors. He said,
do I have permission to enter your home? And I said, yes.” Ausman
also stated that she “didn’t know that they were going to break the door.”

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disagree, as this interpretation finds no support in either
common sense or the case law. For example, a few years
before Randolph, the Sixth Circuit held a warrantless entry
unlawful under the Fourth Amendment when the inhabitant
of a residence attempted to close the door on police officers,
but one of the officers wedged his foot in the doorframe,
forced the door open, and proceeded inside. See Cummings
v. City of Akron, 418 F.3d 676, 679, 685 (6th Cir. 2005). The
Sixth Circuit explained that the inhabitant’s “attempt to close
the door constituted a termination of the consensual
encounter, and communicated his lack of consent to any
further intrusion by the officers.” Id. at 685 (emphasis
added) (citation and internal quotation marks omitted); see
also Vinson v. Vermilion Cty., 776 F.3d 924, 930 (7th Cir.
2015) (“In fact, upon first seeing the men approach the
house, [the defendant’s daughter] ran inside and locked the
door, hardly the actions of a person consenting to a search of
the home.”).
Not long after Randolph, the Eighth Circuit held that a
co-occupant’s consent to search “was no longer valid once
[the defendant],” who was physically present and shared
common authority over that room, “slammed the door and
put the dead bolt on.” United States v. Williams, 521 F.3d
902, 907 (8th Cir. 2008) (emphasis added) (citing Randolph,
547 U.S. at 121; United States v. Sanders, 424 F.3d 768, 775
(8th Cir. 2005)).7 Applying the law clearly established in
both Randolph and Williams, Ausman’s consent “was no
longer valid once” Bonivert expressly refused entry by
“put[ting] the dead bolt on” and attempting to “slam[] the
door” on the officers. See id. A reasonable officer would
7 The Eighth Circuit ultimately upheld the lawfulness of the search
under the exigency exception to the warrant requirement. See 521 F.3d
at 908–09.

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BONIVERT V . C ITY OF C LARKSTON 19
have understood this to be the case. And although Randolph
is an objective test, we emphasize that this was, in fact,
Combs’ subjective conclusion: when Combs heard the side
door lock, he specifically formed the opinion that Bonivert
“didn’t want to talk to [him]” and “didn’t want contact with
[him].” While not dispositive, Combs’ testimony leaves no
doubt that Bonivert’s refusal of consent was “express.”8
Based on the foregoing, we hold that the officers are not
entitled to qualified immunity under the consent exception
to the Fourth Amendment’s warrant requirement. Simply
put, a reasonable officer would have understood that no
means no.9
8 The City’s reliance on United States v. McKerrell, 491 F.3d 1221
(10th Cir. 2007), is misplaced. The police had outstanding warrants to
arrest McKerrell. When they showed up to do so, McKerrell barricaded
himself in the house, which the court concluded “related solely to his
desire to avoid arrest.” Id. at 1224. After McKerrell peacefully
surrendered, his wife gave consent to search the house. The factual
findings, warrants, peaceful surrender, and timing of the wife’s consent
place this case far beyond the teachings of Randolph or Bonivert’s
situation.
9 Although it does not bear on our qualified immunity analysis
because it was decided after the events giving rise to this appeal took
place, we note that our decision in United States v. Moore, 770 F.3d 809
(9th Cir. 2014), is entirely consistent with the preceding analysis. In
Moore, we upheld a warrantless entry and search as valid where the
defendant’s fiancée consented to the search of their joint residence and
Moore, the defendant, failed to respond to the officers entirely. Key to
our decision was the distinction we made between the “express refusal”
in Randolph and Moore’s inaction. Id. at 813–14. We termed such
behavior “[a]cquiesence” to Jones’s consent and concluded that Moore’s
refusal of entry was at best “implicit” because, unlike the defendant in
Williams, Moore failed to “engage in any affirmative conduct to
physically prevent the police officers from coming inside the house.” Id.

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B. WARRANTLESS E NTRY : E MERGENCY
E XCEPTION
The emergency aid exception permits law enforcement
officers to “enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” Brigham City v. Stuart,
547 U.S. 398, 403 (2006). An entry pursuant to the
emergency aid exception “is ‘reasonable’ under the Fourth
Amendment, regardless of the individual officer’s state of
mind, ‘as long as the circumstances, viewed objectively,
justify [the] action.’” Id. at 404 (quoting Scott v. United
States, 436 U.S. 128, 138 (1978)) (alteration in original).
However, “the police bear a heavy burden when attempting
to demonstrate an urgent need that might justify warrantless
searches or arrests,” Welsh v. Wisconsin, 466 U.S. 740, 749–
50 (1984), because the emergency exception is “narrow” and
“rigorously guarded,” see, e.g., United States v. Stafford,
416 F.3d 1068, 1073 (9th Cir. 2005).
Viewing the facts in the light most favorable to Bonivert,
there were simply no circumstances pointing to an actual or
imminent injury inside the home. By the time the officers
arrived, both Ausman and the child were safely outside,
surrounded by four other adults intent on protecting them
from harm. During the entire time that the officers spoke to
the witnesses, circled and attempted to enter the home from
various points, and called on Deputies Gary and Joseph
Snyder for backup, the house was silent. Ausman further
assured the officers that there were no weapons in the house
(emphasis added). Here, of course, it is undisputed that Bonivert
engaged in affirmative conduct to prevent the police from entering his
home both when he locked the side door and when he attempted to close
the back door on the approaching officers.

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BONIVERT V . C ITY OF C LARKSTON 21
and that Bonivert did not pose a danger to himself.
Ausman’s statements were all but confirmed by Combs on
at least two separate occasions, when Combs peered into
different windows and “observed [Bonivert] inside” with no
visible injuries or weapons on his person. Most tellingly,
though, Combs and Purcell acknowledged that they sent a
“Code 4” message to the deputies, indicating that “the police
and the people they are with . . . [are] not being injured,”
before the deputies had even arrived. Purcell later confirmed
that a “Code 4” message means that “there is no immediate
danger of death or significant harm.”
The officers contend that within the unique “context of a
police domestic violence response,” Bonivert’s behavior led
them to believe it was necessary to enter the home in order
to prevent him from hurting “himself or others, including
[the] officers.” Combs explained that “domestic violence
calls, by their nature, are volatile, emotionally charged, and
unpredictable.” We agree, and we recognize the especially
volatile nature of domestic disputes, where “violence may be
lurking and explode with little warning.” United States v.
Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (quoting
Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir. 1999)).
Nevertheless, we have refused to hold that “domestic abuse
cases create a per se” emergency justifying warrantless
entry. United States v. Brooks, 367 F.3d 1128, 1136 (9th
Cir. 2004).
Indeed, all of our decisions involving a police response
to reports of domestic violence have required an objectively
reasonable basis for believing that an actual or imminent
injury was unfolding in the place to be entered. See, e.g.,
United States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2007);
Brooks, 367 F.3d at 1135; Martinez, 406 F.3d at 1162, 1165.
In Randolph, the Supreme Court reinforced that “domestic

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abuse is a serious problem in the United States.” 547 U.S.
at 117. But the Court went on to say that Randolph “has no
bearing on the capacity of the police to protect domestic
victims.” Id. at 118.
Combs offered no objectively reasonable basis to
suggest that Bonivert could harm a third party, as Bonivert
was alone in the residence. Nor did Combs offer an
objective reason that Bonivert was a harm to himself, other
than that “[Bonivert] was . . . hiding” from officers inside the
house. Any belief about Bonivert’s past volatility was belied
by Ausman’s statement that Bonivert was not a danger to
himself or others.
Combs’ 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. Combs stated that he did not
credit Ausman’s “statement about there being no weapons in
the residence” because he “always assume[s] there are
weapons in a residence, including clubs and knives.” But
construing such testimony as justifying entry would
eviscerate the warrant requirement and support warrantless
entry in response to every reported domestic dispute where
the suspect remains inside the home. We refuse to extend
the emergency aid exception to such an inflexible
assumption, as opposed to a reasonable belief.
Ultimately, the record in this case stands in stark contrast
to any other case in which we have held, under the
emergency aid exception, that officers responding to reports
of a domestic dispute had “an objectively reasonable basis
for concluding that there was an immediate need to protect
others or themselves from serious harm.” See United States
v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). The facts matter,
and here, there are at least triable issues of fact as to whether
“violence was imminent,” and whether warrantless entry

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was justified under the emergency aid exception. Ryburn v.
Huff, 565 U.S. 469, 477 (2012) (per curiam). The officers
are not entitled to qualified immunity under the emergency
aid exception.
C. WARRANTLESS E NTRY : E XIGENCY E XCEPTION
The exigency exception permits warrantless entry where
officers “have both probable cause to believe that a crime
has been or is being committed and a reasonable belief that
their entry is necessary to prevent . . . the destruction of
relevant evidence, the escape of the suspect, or some other
consequence improperly frustrating legitimate law
enforcement efforts.” Hopkins v. Bonvicino, 573 F.3d 752,
763 (9th Cir. 2009) (citation and internal quotation marks
omitted). Not one of these circumstances is present here, as
counsel for the City candidly acknowledged at oral
argument: “I would agree with Mr. Bonivert that the cases
indicate that if the . . . alleged victim of the domestic
violence is not in the house and is instead standing outside
and in no apparent jeopardy, as long as there’s . . . nothing
else going on inside the house, exigent circumstances
doesn’t really fit.” Bonivert, who was inside his home when
the alleged domestic assault occurred and remained there
even after the officers broke into his back door, was never a
“fleeing suspect.” See Kentucky v. King, 563 U.S. 452, 460
(2011). The officers never articulated any other “legitimate”
law enforcement justification for entry under the exigency
exception.
Our decision in Martinez, which reads like a template for
this case, squarely forecloses application of the exigency
exception. In Martinez, we explained:
[T]he exigency doctrine is inapplicable
because the officer did not believe that

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evidence of a crime would be found inside the
house. When the domestic violence victim is
still in the home, circumstances may justify
an entry pursuant to the exigency doctrine. In
Brooks, we applied the exigency doctrine to
allow entry when loud fighting had been
heard, the officers saw the room in disarray,
and the victim was still on the premises but
not visible to the officers. As we noted in that
case, the officers had probable cause to
suspect evidence of crime and had an exigent
need to enter the premises to make sure that
the victim was safe. Here, in contrast, the
victim had left the premises and the officer
did not have probable cause to believe there
was contraband or evidence of a crime in the
house.
406 F.3d at 1164 (internal citations omitted). As in
Martinez, the alleged victim of the domestic assault,
Ausman, was safely outside the home before the officers
even arrived. Because the officers, like those in Martinez,
indisputably had no “probable cause to believe that [there
was] contraband or evidence of a crime [in Bonivert’s
house],” the exigency doctrine did not justify their entry. Id.
We recognize that police officers responding to reports
of domestic violence are “not conducting a trial, but” rather
are “required to make . . . on-the-spot decision[s].” Black,
482 F.3d at 1040. In this case, however, the facts of the
situation did not entitle officers to “disregard the overriding
respect for the sanctity of the home that has been embedded
in our traditions since the origins of the Republic.” Payton,
445 U.S. at 601. The officers are not entitled to qualified
immunity on Bonivert’s warrantless entry claim because it

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BONIVERT V . C ITY OF C LARKSTON 25
was clearly established law, as of 2012, that neither consent,
the emergency aid exception, nor the exigency exception
justified the officers’ warrantless entry.
D. I NTEGRAL PARTICIPATION
The final issue we address with respect to Bonivert’s
unlawful entry claim is whether the County Deputies Gary
and Joseph Snyder are liable for Combs’ decision to enter
Bonivert’s home without a warrant.
An officer can be held liable for a constitutional violation
only when there is a showing of “integral participation” or
“personal involvement” in the unlawful conduct, as opposed
to mere presence at the scene. Jones v. Williams, 297 F.3d
930, 935–36 (9th Cir. 2002). As we held in Boyd v. Benton
County, 374 F.3d 773 (9th Cir. 2004), “integral participation
does not require that each officer’s actions themselves rise
to the level of a constitutional violation.” Id. at 780. Rather,
we have recognized that officers who provide armed backup,
stand at the door with a gun while other officers conduct a
search inside an apartment, and participate in the search
operation are integral participants. See id.; Melear v. Spears,
862 F.2d 1177, 1186 (5th Cir. 1989) (holding that an officer
who was a “full, active participant in the [unconstitutional]
search, not a mere bystander,” was liable for Fourth
Amendment violation).
The County points to no basis for its suggestion that the
deputies’ knowledge of the senior officer’s investigation,
rather than their own actions, dictates whether they were
integral participants. Here, the deputies developed a plan of
entry with Combs and Purcell, provided armed backup to
Combs as he broke into Bonivert’s back door, and entered
the home on Combs’ heels. Viewing the facts in the light
most favorable to Bonivert, the deputies were not bystanders

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but integral participants in the unlawful entry and are not
entitled to qualified immunity.
III. FOURTH AMENDMENT E XCESSIVE FORCE
CLAIM
We next consider whether the officers were entitled to
qualified immunity on Bonivert’s excessive force claim.
A. CLEARLY E STABLISHED RIGHT
Excessive use of force in effectuating a seizure violates
the Fourth Amendment. Graham v. Connor, 490 U.S. 386,
388 (1989). As with the unlawful entry claim, we judge the
reasonableness of the use of force from the perspective of a
reasonable officer at the scene, rather than in hindsight.
Ryburn, 565 U.S. at 477.
The instance of force at issue on appeal is Combs’ use of
his taser in “drive-stun” mode inside Bonivert’s home.10 In
Mattos, we recognized that use of a taser in drive-stun mode
on a person who “actively resisted arrest,” but posed no
“immediate threat to the safety of the officers or others,”
constituted excessive force. 661 F.3d at 445–46. The events
of this case took place in 2012, the year after we decided
Mattos. The constitutional right was clearly established for
qualified immunity purposes.
B. VIOLATION OF CONSTITUTIONAL RIGHT
Whether an officer used excessive force is analyzed
under an “objective reasonableness” standard, which
10 Bonivert does not appear to argue that Combs’ initial deployment
of his taser in dart mode—which was ultimately ineffective—constituted
excessive force.

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requires balancing the “nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham,
490 U.S. at 395–96 (citation and internal quotation marks
omitted).
The district court found that Bonivert stated a claim for
excessive use of force, but that governmental interests in
officer safety, investigating a possible crime, and controlling
an interaction with a potential domestic abuser outweighed
the intrusion upon Bonivert’s rights. In reaching this
conclusion, the court improperly “weigh[ed] conflicting
evidence with respect to . . . disputed material fact[s].” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987); see also Saucier, 533 U.S. at 201.
The Supreme Court has cautioned that attempting to decide
excessive force cases at summary judgment requires courts
to “slosh our way through the factbound morass of
‘reasonableness,’” with predictably messy results. See Scott
v. Harris, 550 U.S. 372, 383 (2007). That is precisely what
happened when the district court granted summary
judgment. Once the officers broke the windowpane and
unlocked the back door, a chaotic and confusing scene
unfolded, generating equally confusing and chaotic
evidence.
To begin, based on the taser video, the district court
concluded that Bonivert appeared to move beyond the
threshold of the door towards the officers in a manner that
caused them to reasonably view Bonivert as a threat, which
in turn justified deployment of the tasers in dart mode and
the officers’ forced entry into the home. The two seconds of
video that depict Bonivert’s retreat are inconclusive,
especially since the shaky footage comes from a taser. But
the video starts with Bonivert standing at what appears to be

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the threshold of the door and moving backwards. The
footage does not show whether prior to the start of the video,
Bonivert had been advancing towards the officers, or
whether Bonivert had opened the door and stood at its
threshold without making further movements in the officers’
direction. Additionally, Combs testified that at the time he
deployed his taser, Bonivert was not outside his house.
Bonivert said that he was standing on the threshold of the
door, with “the majority of [his] body” in the house.
Bonivert repeatedly denied that he advanced upon the
officers at any point after he opened the door, stating: “I had
just separated myself from a hostile environment [and] I was
trying to avoid another one.”
The district court decided that the officers’ tackling of
Bonivert and the repeated use of tasers in drive-stun mode
was warranted based on the following disputed facts:
Bonivert attacked Combs; Bonivert screamed at the officers
and yelled profanities; and Bonivert continued to struggle
and failed to obey the officers’ commands.
Each of these conclusions was based on conflicting
testimony, and drew upon the officers’ version of events
rather than Bonivert’s testimony. In the taser video, both
Bonivert and the officers can be heard yelling amidst the
sound of taser deployments, and Bonivert can be heard
sobbing near the end of the video. But the video does not
show what happened following Combs’ forcible entry and
whether Bonivert was physically resisting arrest. Bonivert
testified that after Combs threw him to the back of the room,
he stood up, but did not attempt to fight the officers. When
asked if he resisted arrest, Bonivert stated that he “tried
distancing [him]self” but that “the entire time being Tased
for prolonged periods of time,” he had “no muscle
movements” and “[h]ardly an ability to speak.” Bonivert

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BONIVERT V . C ITY OF C LARKSTON 29
denies resisting arrest, while the officers deny that Bonivert
posed no immediate threat to their safety.
Taken in the light most favorable to Bonivert, the
evidence reflects that Bonivert remained inside the home at
all times; that Bonivert did not threaten or advance toward
the officers; that Bonivert posed no immediate threat to the
officers; that Combs threw Bonivert across the back room;
that Bonivert did not resist arrest; and that Combs tasered
Bonivert several times in drive-stun mode notwithstanding
Bonivert’s compliance. The evidence does not justify the
district court’s conclusion that “no reasonable jury could
find the use of force within the home excessive.”
To be sure, the reasonableness inquiry in the context of
excessive force balances “intrusion[s] on the individual’s
Fourth Amendment interests” against the government’s
interests. Graham, 490 U.S. at 396 (citation and internal
quotation marks omitted). But in weighing the evidence in
favor of the officers, rather than Bonivert, the district court
unfairly tipped that inquiry in the officers’ favor. See Act
Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)
(“[T]he determination of what conduct underlies the alleged
violation—what the officer and claimant did or failed to
do—is a determination of fact.”). Thus, genuine issues of
fact “prevent[] a determination of qualified immunity at
summary judgment [such] that the case must proceed to
trial.” See id.
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment on qualified immunity
grounds on the Fourth Amendment claims for unlawful entry
and excessive force, and REMAND for proceedings
consistent with this opinion.
REVERSED AND REMANDED.

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