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Thomas Avina; Rosalie Avina; B.F.A., A Minor; B.S.A., A Minor v. United States of America

June 12, 2012

THOMAS AVINA; ROSALIE AVINA; B.F.A., A MINOR; B.S.A., A MINOR, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding D.C. No. 3:08-cv-01302-W-WMC

The opinion of the court was delivered by: Pregerson, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

May 9, 2012-Pasadena, California

Before: Harry Pregerson, Susan P. Graber, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

OPINION

In 2008, Thomas Avina and Rosalie Avina and their two minor daughters, B.F.A. and B.S.A., filed a complaint in federal district court against the United States government, alleging 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 distress 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 reasonable 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 reasonable. 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 warrant 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 drug trafficker Luis Alvarez was registered at the Avina residence. After executing the search warrant on January 20, 2007, the agents discovered they had inadvertently written ...


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