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Sharp v. County of Orange

United States Court of Appeals, Ninth Circuit

September 19, 2017

Merritt L. Sharp III; Carol Sharp, Plaintiffs-Appellees,
v.
County of Orange; Ryan Anderson; Jeremiah Prescott; Alexandra Flores; Justin Chevalier; Mark Van De Kreeke; Anton Pereyra, Defendants-Appellants.

          Argued and Submitted April 3, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District of California No. 8:14-cv-00331-AG-JPR, Andrew J. Guilford, District Judge, Presiding

          Michael J. Rossiter (argued), Zachary M. Schwartz, and William L. Haluck, Koeller Nebeker Carlson & Haluck LLP, Irvine, California, for Defendants-Appellants.

          Brenton Whitney Aitken Hands (argued) and Jerry L. Steering, Law Office of Jerry L. Steering, Newport Beach, California, for Plaintiffs-Appellees.

          Before: David M. Ebel, [*] Milan D. Smith, Jr., and N. Randy Smith, Circuit Judges.

         SUMMARY [**]

         Qualified Immunity / 42 U.S.C. § 1983

         The panel affirmed the district court's denial of qualified immunity to sheriff deputies as to plaintiff Merritt L. Sharp III's retaliation claim, as well as the denial of state-law immunities on plaintiffs' state claims; reversed the denial of qualified immunity on plaintiff Carol Sharp's retaliation claim and Sharp III's claims for the seizure of his person, the use of excessive force against him, and the search of his person, as well as plaintiffs' shared claim concerning the search of their home; and remanded for further proceedings.

         The case arose out of the execution of an arrest warrant for plaintiffs' son, Merritt L. Sharp IV, whom sheriff deputies thought was residing in his parents' home. The sheriffs mistakenly arrested, searched and detained Sharp III, and searched the entire house. Plaintiffs alleged violations of their constitutional rights under 42 U.S.C. § 1983, and several pendent California state law claims.

         First, the panel addressed Sharp III's claims that the deputies unlawfully seized him in violation of the Fourth Amendment. Concerning the initial mistaken arrest of Sharp III on the front lawn and initial transfer to the patrol vehicle, the panel held that this initial arrest based on mistaken identity was constitutionally unreasonable, and thus illegal, but it did not violate clearly established law, and thus qualified immunity was warranted. Concerning the subsequent detention of Sharp III inside the patrol vehicle after the deputies discovered that he was not the warrant subject, the panel held that the categorical detention rule in Michigan v. Summers, 452 U.S. 692 (1981), did not apply to arrest warrants at issue in this case. Because there were no particular circumstances justifying Sharp III's detention after learning he was not the arrest-warrant subject, the panel concluded that detention was unconstitutional. The panel, further held, however, that the detention did not violate clearly established law because of the legal ambiguity existing at the time of the arrest as to whether the categorical Summers exception applied to arrest warrants. The panel concluded that qualified immunity should have been granted.

         The panel next addressed Sharp III's claims that Deputy Anderson violated the Fourth Amendment by using excessive force when Sharp III was arrested. The panel held that while the degree of force here was significant, Deputy Anderson was entitled to qualified immunity because plaintiffs did not offer anything other than general legal propositions which cannot clearly establish that Deputy Anderson's particular conduct was unlawful.

          Concerning Sharp III's assertion of a Fourth Amendment violation based on the search of his person during the initial arrest, the panel held that since the arrest was not clearly proscribed by established law, neither was the subsequent search. Accordingly, qualified immunity should have been granted.

         The panel addressed the plaintiffs' assertion that the deputies' search of their residence violated the Fourth Amendment. The panel held that the officers reasonably believed that Sharp IV resided in plaintiffs' home. The panel further held that Sharp IV's probation condition requiring him to submit his property to suspicionless searches defeated plaintiffs' claims that the deputies exceeded the scope of the authorized search by looking in areas where Sharp IV would not be found. The panel also held that there was no established law clearly proscribing the deputies' reliance upon Sharp IV's probation condition for their search of the residence. For these two reasons, the panel concluded that qualified immunity was warranted on this claim.

         Concerning Sharp III's First Amendment claim based on the deputies' alleged retaliation against him for being argumentative, the panel held that Sharp III suffered unconstitutional retaliation that was clearly proscribed by established law. The panel concluded that qualified immunity was properly denied.

         The deputies asserted four immunities under California state law to plaintiffs' various state law claims. The panel held that two immunities - "discretionary" immunity under Cal. Gov. Code § 820.2 and "prosecutorial" immunity under Cal. Gov. Code § 821.6 - did not apply as a matter of law. The panel also held that the remaining two immunities - arrest-warrant immunity under Cal. Gov. Code § 43.55(a) and false-arrest immunity under Cal. Penal Code § 847(b) - did not apply as a consequence of the panel's determination that the deputies' actions here were unreasonable. The panel concluded that the district court properly denied these immunities.

         The panel held that the district court did not err in declining to award summary judgment to deputies not implicated in certain claims where the district court welcomed a motion to release specific defendants, but the deputies neglected to make one.

         Judge N.R. Smith dissented in part. Judge N.R. Smith agreed with the majority that the deputies violated the Constitution when the deputies seized Sharp III, when the deputies used force against him, and when the deputies searched his person. Judge N.R. Smith disagreed whether the rights were "clearly established" at the time of the violation. He wrote that the majority failed to view the facts in the light most favorable to Sharp III when analyzing the Fourth Amendment claims, and consequently the majority improperly granted the deputies qualified immunity for their initial arrest of Sharp III, their use of excessive force against Sharp III, their subsequent search of Sharp III, and their continued arrest of Sharp III. Judge N.R. Smith would hold that Sharp III's Fourth Amendment claims stemming from these violations should go to trial along with Sharp III's claim of First Amendment retaliation.

          OPINION

          EBEL, Circuit Judge:

         This case arises out of the execution of an arrest warrant gone wrong. Plaintiffs Merritt L. Sharp III (Sharp III) and Carol Sharp (Carol) were in their home when several sheriff deputies arrived. The deputies had an arrest warrant for Plaintiffs' son Merritt L. Sharp IV (Sharp IV), whom they believed was residing in his parents' home. During the pursuit of Sharp IV, however, the deputies mistakenly arrested his father Sharp III, believing him to be the subject of the warrant. In the course of that arrest, one of the deputies forcefully restrained Sharp III and searched his person. After they discovered their mistake, the deputies still kept Sharp III handcuffed and locked in a patrol car while several of them searched Plaintiffs' home for Sharp IV, the true subject of the arrest warrant. They also removed Carol from the house and forced her to wait during the home search. Meanwhile, Sharp III was kept detained in the patrol car after one of the deputies told him that he was being too argumentative to be let out of the car during the search of his home. Plaintiffs testified that when they returned to their house, they discovered that the deputies had not just searched for their son in the home, but also had searched through bedroom drawers and kitchen cabinets without a search warrant.

         Plaintiffs brought this lawsuit asserting violations of their constitutional rights under 42 U.S.C. § 1983, and also raised several pendent claims under California law. On motion for summary judgment, Defendants raised various immunities from suit, including qualified immunity from the § 1983 claims and a handful of state-law immunities from the state claims.[1] The district court denied all immunities. In its view, the deputies violated clearly established law, thereby precluding qualified immunity, and the district court further held that the asserted state-law immunities were inapplicable as a matter of law and fact.

         We AFFIRM in part and REVERSE in part. The district court properly denied qualified immunity on Sharp III's retaliation claim, and appropriately rejected all state-law immunities. However, the deputies are entitled to qualified immunity on Carol's retaliation claim and Sharp III's claims for the seizure of his person, the use of excessive force against him, and the search of his person, as well as Plaintiffs' shared claim concerning the search of their home. Although we conclude that much of this conduct was unconstitutional, we hold that qualified immunity was nevertheless warranted on these claims. Our conclusions are driven by recent Supreme Court pronouncements on qualified immunity and rest principally on the failure by Plaintiffs to identify sufficiently specific constitutional precedents to alert these deputies that some of their particular conduct was unlawful.

         I. BACKGROUND[2]

         In August 2013, Sharp IV was released from state prison subject to conditions of probation. The conditions required him to "[s]ubmit [his] person and property . . . to search and seizure at any time of the day or night by any law enforcement officer . . . with or without a warrant, probable cause or reasonable suspicion." ER at 121. With no place to stay after his release, his parents, Sharp III and Carol, agreed to let him live in their home at 408 Camino Bandera. Thus, upon his release, Sharp IV informed the probation office of this address as his place of residence. In mid-September 2013, however, Sharp IV's parents kicked him out of their house. Carol then called their son's probation and parole officers and informed them that Sharp IV "no longer lived in [their] home." SER 255.

         In September 2013, a California criminal court issued two arrest warrants for Sharp IV. The deputies decided to execute the warrants on the evening of October 2, 2013-a date on which Sharp IV, coincidentally, was present at the Camino Bandera residence to pick up some belongings.

         Before executing the warrants, Deputy Prescott reviewed Sharp IV's two active arrest warrants, which indicated that Sharp IV was male, white, fifty-one years old, 180 pounds, between 5'11" and 6' tall, and resided at 408 Camino Bandera. He also reviewed Sharp IV's DMV records and probation response form, which confirmed the same address of residence. Finally, he checked Sharp IV's criminal records and learned that Sharp IV had previously committed violent crimes, including kidnapping, assault with a deadly weapon, and felony domestic violence. After reviewing these materials, Deputy Prescott met Deputies Van De Kreeke and Chevalier in a parking lot near the Camino Bandera residence to formulate a plan. Deputy Prescott showed them a packet of documents which included a photograph of Sharp IV and the arrest warrant listing the Camino Bandera residence as Sharp IV's address of record.

         At around 11:00 p.m., October 2, 2013, the deputies arrived at the Camino Bandera residence. Deputy Chevalier made his way to the backyard while Deputies Prescott and Van De Kreeke went to the front door. At the front door, they placed a piece of tape over the peephole opening and knocked several times. Sharp III looked through the peephole but could not see anything, so he flashed the front-porch light and confirmed that something was covering the peephole. Around that time, Deputy Prescott reported that he saw a person in a black shirt peek through the blinds.

         Deputy Chevalier then radioed that the subject was fleeing out the backyard: "[H]e's running out the back. Foot pursuit . . . going to be heavily wooded bushes. Male[, ] white, 5'11", 180, wearing a black shirt, tan pants, white shoes." ER 20 (emphasis added). Deputies Prescott and Van De Kreeke rushed around the back of the residence to assist in the pursuit, but nobody could locate the subject. Working their way through dense brush to find Sharp IV, the deputies arrived at a nearby golf course and spread out to cover more ground. At 11:05 p.m., Deputy Prescott radioed to nearby officers to cover the Camino Bandera residence in case the subject doubled back to the house. Deputy Chevalier added a further warning shortly thereafter: "Be advised, he's prone to violence. Violent history towards law enforcement." ER 22. By this time Deputy Anderson, who was on patrol nearby and had heard these radio transmissions, began making his way to the Camino Bandera residence for backup support.

         Meanwhile, the deputies continued their search for Sharp IV on the golf course. While on the golf course, Deputy Prescott saw a man in the backyard of the Camino Bandera residence whom he believed may have been Sharp IV. Deputy Prescott reported that the man he saw was bald, wore a blue shirt, and had the same stature as Sharp III. According to Deputy Prescott, the man yelled something at the deputies, turned around, and re-entered the home through the backdoor.[3]

         Deputy Prescott then radioed the group that the "[s]uspect's gonna be back in the house, just went in the back door." ER 31. Then he directed Deputy Anderson specifically, "I need you to go to the front of the house." ER 32. Deputy Anderson responded that he was en route. Believing that Sharp IV had re-entered the house, Deputies Prescott, Chevalier, and Van De Kreeke began making their way back to the residence.

          At around 11:13 p.m. Deputy Anderson, accompanied by Deputy Flores, arrived at the house. They had not seen a photograph of the warrant subject, nor did they know the subject's name. Deputy Anderson did, however, recall from an earlier radio transmission that "the suspect fleeing the residence [was] described as a white male wearing a black shirt and tan pants."[4] SER 149 (emphasis added). The deputies also knew that the suspect was "last seen in the area of the house" and "may have r[u]n back into the house." SER 152.

         As Deputies Anderson and Flores arrived at the scene, Sharp III-the suspect's father-walked out of the front door wearing a light blue shirt and blue jeans. As Sharp III walked off the front porch, Deputy Anderson admitted there was enough light to be able to approximate Sharp III's age. Although Defendants dispute this, Sharp III claims he was not yelling or acting belligerent at the time, but rather walked calmly toward the deputies. Despite the mismatched clothing and an alleged demeanor inconsistent with that of a fleeing suspect, Deputies Anderson and Flores began shouting commands with their weapons drawn: "Get down on the ground!" and "put your hands up!" ER 32.[5]

          The deputies then placed Sharp III under arrest. In explaining their rationale for the arrest, Deputy Anderson stated: "I hadn't identified who he was and believed he may be the wanted person." ER 178. Deputy Flores, who was the supporting deputy on the scene rather than the deputy who physically conducted the arrest, further explained: "I didn't know who was coming out of the house, to be honest. . . . [I]t wasn't secured, so we were trying to just detain everybody[.]" SER 237. Nevertheless, despite their uncertainty, the deputies proceeded to arrest Sharp III.

         In doing so, Deputy Anderson grabbed Sharp III's left arm, put it behind his back, "shove[d] it" upward toward his neck, and handcuffed his left wrist. ER 187. Deputy Anderson then conducted a search of Sharp III's person, instructing him to empty out his pockets on the front lawn. Finally, Deputy Anderson handcuffed Sharp III's right wrist, thereby fully restraining his arm movement. According to Sharp III, the handcuffs were "so tight that [he] still ha[s] scars on [his] wrists to this very day." SER 273.

         At 11:15 p.m., Deputy Anderson placed Sharp III in the back of a patrol car. He asked for the arrestee's full name and birthday, to which Sharp III responded that his name was Merritt Llewellyn Sharp and that he was born on August 6, 1940-thereby making him seventy-three years old. For the next several minutes, Deputy Anderson attempted to match Sharp III's identity with outstanding warrants by running the information through a mobile computer, but this effort was delayed by low internet connectivity in the area.

         At 11:19 p.m., several deputies went back to search the house pursuant to Sharp IV's probationary search condition. At the front door, however, they confronted Sharp III's wife, Carol, who informed them that they had arrested the wrong man, and that her son Sharp IV did not live there anymore. Realizing their mistake, the deputies began to question Sharp III about his son's whereabouts. Sharp III was angry and still restrained in the back of the patrol car, but he answered their questions. He disclaimed any awareness of his son's location, but told the deputies that his son had been in the house twenty minutes earlier.

         At this time, the deputies did not release Sharp III. Instead, they kept him handcuffed and locked in the patrol car. Sharp III was furious and adamantly protested his detention, loudly swearing at the deputies and threatening to sue them. In response, Deputy Anderson told Sharp III: "If you weren't being so argumentative, I'd probably just put you on the curb." SER 280.

         The home search began at 11:28 p.m., during which time Carol was forced to wait on the front porch with Deputies Flores and Hudson. Plaintiffs claim that the search encompassed more than just a search for Sharp IV. Taking the facts as stated by Plaintiffs, Deputies Prescott, Chevalier, Van De Kreeke, and Pereyra entered the home and opened kitchen cabinet and pantry doors, removed the air-conditioning cover in the attic, and searched various drawers in Carol's own bedroom. When Carol was allowed back in the house, she discovered clothing flung on the floor in her bedroom closet. After the search concluded, Sharp III was released from the patrol car at 11:39 p.m. That means, even after the deputies discovered he was not the subject of the arrest warrant, Sharp III was detained for about twenty minutes in the patrol car.

         The morning after the incident, Plaintiffs went to an urgent care facility for treatment of Sharp III's shoulder, which had been causing him pain after Deputy Anderson yanked his left arm behind his back. Sharp III ultimately needed surgery to repair a torn rotator cuff.

         Plaintiffs now assert violations of their constitutional rights under 42 U.S.C. § 1983, and several pendent claims under California state law. As for the federal claims which we address on appeal from denial of qualified immunity, Sharp III asserts violations of the Fourth Amendment based on the seizure of his person (including the initial mistaken arrest and the continuing detention in the patrol car), the search of his person, and the use of excessive force against him. He also brings a First Amendment retaliation claim based on the deputies' refusal to release him on account of his "argumentative" demeanor. Carol brings a similar retaliation claim based on her verbal protests about the deputies' treatment of her husband. Finally, Plaintiffs together bring a shared Fourth Amendment claim for the search of their home. As for California state-law claims, they assert various statutory and common-law violations arising out of the same conduct that is the subject of the federal claims. The deputies moved for summary judgment on the grounds that they were entitled to qualified immunity against the federal claims, and state-law immunities against the state claims. The district court denied summary judgment, thereby prompting this interlocutory appeal.[6]

          II. DISCUSSION

         We review de novo a district court's order on summary judgment, and we evaluate the evidence in the light most favorable to Plaintiffs, the non-movants. See, e.g., Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). Qualified immunity is proper unless Plaintiffs establish that (1) the deputies committed a constitutional violation, and (2) the deputies' specific conduct violated "clearly established" federal law. E.g., Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir. 2016).

         A. Seizure of Sharp III

         Sharp III claims that the deputies unlawfully seized him in violation of the Fourth Amendment. There are two aspects to this seizure which we analyze separately: (1) the initial mistaken arrest of Sharp III in the front lawn and initial transfer to the patrol vehicle, and (2) his subsequent detention inside the patrol vehicle after the deputies discovered that he was not the warrant subject. These separate phases of Sharp III's allegedly unreasonable seizure require separate treatment because they implicate different Fourth Amendment principles.

         The legality of the initial mistaken arrest-when the deputies mistakenly believed they had correctly apprehended the subject of the warrant-turns on the objective reasonableness of their belief that the man they arrested was in fact the warrant subject. There is no categorical authority to commit such an unreasonable mistake, so we analyze only the specific facts that confronted the deputies during the arrest. However, after the deputies learned that Sharp III was not the true warrant subject, they returned to search for Sharp IV in the Camino Bandera residence. At that moment, a new Fourth Amendment principle was potentially implicated for the continued detention of Sharp III. Under Michigan v. Summers, irrespective of the exigencies of the particular circumstances, officers may categorically detain the occupant of a home while executing a search warrant in that home. 452 U.S. 692, 705 (1981). These deputies rely on Summers to assert that they could continue to detain Sharp III-even after they knew he was not the subject of the arrest warrant-while they searched his home for Sharp IV, for the purpose of executing the arrest warrant. The principal issue as to the validity of this claimed defense is whether Summers, which hinged critically on the distinct character of search warrants, applies also to arrest warrants.

         1. Initial Arrest of Sharp III Based on Mistaken Identity

         Sharp III encountered Deputies Anderson and Flores when he walked out of his front door. At gun point, the deputies ordered him to the ground and placed him under arrest because he "may" have been the subject of the warrant. ER 178. But the deputies were wrong-Sharp III was the suspect's father. We conclude that this initial arrest based on mistaken identity was constitutionally unreasonable, and thus illegal, but it did not violate clearly established law. Qualified immunity was therefore warranted.

         a. The Initial Arrest Was Unconstitutional

         In a case of mistaken identity, "the question is whether the arresting officers had a good faith, reasonable belief that the arrestee was the subject of the warrant." Rivera v. Cty. of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014); accord Hill v. California, 401 U.S. 797, 802 (1971) ("[W]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest." (internal quotation marks omitted)). The constitutionality of the arrest thus turns on the reasonableness of the deputies' mistake.

         In this case, the mistake of identity was unreasonable. At the outset, it is not clear that Deputies Anderson and Flores actually even formed a specific belief that Sharp III was the warrant subject. Deputy Anderson testified that he "hadn't identified who [Sharp III] was and believed [Sharp III] may be the wanted person." ER 178. Deputy Flores said that she "didn't know who was coming out of the house, . . . so we were trying to just detain everybody[.]" SER 237. However, both deputies should have known that Sharp III was not the subject they heard described on the radio transmissions. They had not been privy to all the information known by the other deputies who first encountered the fleeing suspect. All they knew was what they heard from the other deputies on the scene, who reported that the fleeing suspect (and reported subject of the arrest warrant) was wearing a black shirt and tan pants. But Sharp III was wearing completely different clothing-a light blue shirt and blue jeans. What is more, when they encountered Sharp III, he was walking toward them, rather than fleeing like the described suspect.

         Defendants counter that it was nighttime and the situation was dynamic and evolving, but that does not give officers the license to arrest anyone near the scene of a fleeing suspect. It was thus unreasonable for Deputies Anderson and Flores to conclude that Sharp III was the subject of the arrest warrant. The initial arrest of Sharp III therefore violated the Fourth Amendment.

         b. The Violation Was Not Clearly Established

         Although unconstitutional, the arrest was not clearly proscribed by established federal law. The Supreme Court has repeatedly instructed that we examine "whether the violative nature of particular conduct is clearly established" by controlling precedent, not whether the conduct violates a general principle of law. Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Therefore, while Hill v. California, 401 U.S. 797, 802 (1971), and Rivera v. County of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014), establish a general ...


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