The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants City of Placerville (the "City") and Christian Beyer's ("Beyer") (collectively, "defendants") supplemental motion for summary judgment. By minute order of November 3, 2008, the court granted defendants permission to file the instant motion in order to address a potentially dispositive legal issue.*fn1 (Docket #38.)
At the time of the final pretrial conference, defendants raised the argument that Beyer was entitled to qualified immunity as to plaintiff's remaining claim for unlawful search and seizure of her residence in violation of the Fourth Amendment, and that Beyer was also entitled to immunity under state law as to plaintiff's related claim for trespass to real property.*fn2
Defendants asked the court to rule on these issues in the context of the preparation of the final pretrial conference order. Because such consideration of dispositive legal issues is only properly raised via a noticed motion, the court continued the final pretrial conference and allowed defendants to file the instant motion.*fn3 (Docket #38.)
For the reasons set forth below, the court DENIES defendants' supplemental motion for summary judgment. Defendants have not shown that Beyer is entitled to immunity under either federal or state law.
On this motion, the parties do not rely on new evidence pertinent to the issues at hand. Therefore, the court restates verbatim below the facts as set forth in its September 9 Order, granting in part and denying in part defendants' original motion for summary judgment:*fn4
On May 13, 2006, the Placerville Police Department ("PPD") received a "CLETS" document*fn5 from the Amador County Sheriff's Department, which consisted of an Abstract of Warrant regarding a suspect named, Gary Joseph Masse. (RUF ¶ 12.) The Abstract of Warrant indicated Masse was not in custody. (RUF ¶ 14.)
Based on prior contact with Masse,*fn6 PPD officers believed Masse was plaintiff's boyfriend and resided with her at plaintiff's residence located at 2335 Greenwing Lane, Placerville, California. (RUF ¶s 5, 8, 17, 58.) As a condition of his parole, Masse had also previously given that address to law enforcement as his legal residence. (RUF ¶ 4.) Masse, however, did not own the residence, which was owned solely by plaintiff. (Pl.'s Add'l Disputed Facts ["ADF"], ¶ 69.)*fn7 The officers were also aware that Masse was a parolee and had waived his rights with regard to searches and seizures of his person, property and residence. (RUF ¶ 57.) The officers additionally knew that Masse had attempted to evade arrest on a prior occasion at the 2335 Greenwing Lane residence. (RUF ¶ 18.)
PPD Sergeant Cannon ("Cannon") confirmed that the warrant was a valid, active arrest warrant. (RUF ¶ 16.) No one at the PPD contacted Masse's parole officer to request any information about Masse. (ADF ¶ 64.) Thereafter, Cannon and PPD officers Christopher Hefner ("Hefner"), Jason Alger ("Alger"), Beyer and police canine, Rico, traveled to plaintiff's residence intending to arrest Masse. (RUF ¶ 19.) The officers did not have a search warrant for the premises. (ADF ¶ 70.) Upon arrival at the residence, Cannon and Hefner went to the front door. (RUF ¶ 21.) Alger and Beyer went to the right of the residence intending to gain entry to the backyard in order to secure the rear of the residence should Masse attempt to flee as he had done in the past. (RUF ¶ 21.)
To ascertain whether a dog was on the premises, Alger, who had police canine Rico with him, made sounds to elicit a response from a dog. (RUF ¶ 27.)*fn8 There was no response. (RUF ¶ 27.) Alger looked over the fence and did not see a dog in the backyard. (RUF ¶ 26.) He then cracked open the gate to the backyard. (RUF ¶ 29.) The head of a Rottweiler immediately pushed through the gate and attacked Alger and canine Rico. (RUF ¶s 30, 31.) The Rottweiler was plaintiff's dog, Harley. (RUF ¶ 30.) Beyer used pepper spray on both dogs but there was no reaction. (RUF ¶ 33.) Beyer then shot Harley twice but there was no response. (RUF ¶ 34.) He then shot Harley a third time, at which point the dog walked away. (RUF ¶ 35.) The incident occurred in less than one minute and it took place on the street side of the fence. (RUF ¶s 36, 37.)*fn9 The officers then entered the backyard to secure the rear of the premises, believing their position had been jeopardized. (RUF ¶ 38.)
Plaintiff arrived at the residence minutes after the shooting took place. (RUF ¶s 22, 41.) She was advised by the officers that Harley had been shot. (RUF ¶ 43.) Plaintiff told the officers that Masse was incarcerated in a correctional facility in Tracy, California. (RUF ¶ 42.) No officer searched plaintiff. (RUF ¶ 51.)
After briefly speaking with plaintiff, Cannon radioed dispatch requesting that they locate an emergency veterinarian's office in the area. (RUF ¶ 44.) Alger assisted plaintiff in getting Harley into the back of a police vehicle. (RUF ¶ 45.) Cannon then drove plaintiff and Harley to a veterinarian's office in Shingle Springs, California. (RUF ¶ 46.) Cannon left plaintiff and Harley at the office, after confirming that ...