*4 PAEZ, Circuit Judge:
This case arises out of a decision by Sonora City Police Department officers to handcuff and remove from school grounds an 11-year-old child with attention-deficit and hyperactivity disorder (“ADHD”) who was doing nothing more than sitting quietly and resolutely in the school playground. After a seven-day trial, a jury found that the City of Sonora, Sonora Chief of Police Mace McIntosh, and Officer Harold Prock (collectively “Defendants”) were liable for violating C.B.’s Fourth Amendment rights and for tortious acts. The district court subsequently entered judgment on the verdict, and Defendants appeal.
We must decide two central issues. First, we must decide whether the district court’s supplemental jury instructions were proper. To resolve this question, we also must determine whether litigants may object to civil jury instructions for the first time on appeal and, if so, what standard of review governs such challenges. Second, we must decide whether the district court erred in denying the individual officers qualified immunity on C.B.’s *5 6 C.B. V . C ITY OF S ONORA constitutional claims. Additionally, Defendants raise several evidentiary and post-judgment arguments, which we also address. After setting forth the factual and procedural background of the case, we turn to the district court’s supplemental instructions.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.
On September 28, 2009, sixth-grader C.B. was having a “rough” day at school. C.B. had been diagnosed with ADHD and took prescribed medications to manage his symptoms, but that morning, he had forgotten to take his medications. As a result, he experienced periods of unresponsiveness throughout the day; C.B., his parents, and school officials described this as C.B. “shutting down.” The school was aware of C.B.’s ADHD and had an accommodation plan under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in place for him. The accommodation plan designated Coach Karen Sinclair’s office as a safe space where C.B. could go if he was experiencing a “shut down,” to calm himself and refocus until he was ready to return to class.
Unfortunately, that day, things did not unfold according to plan. When C.B. experienced a “shut down” during recess, Coach Sinclair tried to convince him to go to her office, but C.B. remained unresponsive and refused to leave the playground. According to Coach Sinclair, during this exchange, C.B. “reared up” on three different occasions from the bench where he was sitting. Coach Sinclair then advised C.B. that if he did not come inside, she would call the police. To this, C.B. allegedly responded by saying, “call them.” C.B., however, testified that he never moved from the bench or said anything to Coach Sinclair during this interaction.
Coach Sinclair testified that she made the decision to call the police because she was concerned about C.B.’s safety. She explained that her concern was based on an incident two years earlier, during which C.B. had stated that “he was tired of feeling the way he felt and he wanted to go out into traffic *6 and kill himself.” Coach Sinclair was particularly concerned because the street outside the schoolyard was a busy thoroughfare. Coach Sinclair admitted, however, that C.B. had never previously attempted to run from her.
At Coach Sinclair’s behest, police were called. The police dispatcher broadcast notice to the officers of “an out of control juvenile.” When Chief McIntosh arrived at the playground, Coach Sinclair whispered to him, “[r]unner[,] [n]o medicine,” and made corresponding hand signals. Chief McIntosh testified that he then sat down next to C.B. and attempted to engage him in conversation, but C.B. was unresponsive. He further testified that Coach Sinclair then “started telling [him] that [C.B.] was out of control, had not taken his medications, was yelling and cussing.” She also advised Chief McIntosh that she no longer wanted C.B. on the school grounds. Chief McIntosh did not ask any follow- up questions about C.B.’s medications or behavior. C.B. remained completely quiet and unresponsive throughout the time Chief McIntosh was with him.
Coach Sinclair’s testimony contradicted much of Chief McIntosh’s account. She did not remember Chief McIntosh ever making any effort to engage C.B. in conversation. Beyond her initial statement that C.B. was a “runner” who had not taken his medication, she could not recall conveying any other information to the police until she was subsequently asked whether she wanted C.B. removed from the school grounds, to which she said yes. Specifically, she testified that she did not inform the police why she thought C.B. might run, what medications he was on, C.B.’s history, or what had transpired earlier that day. C.B. recalled Coach Sinclair telling Chief McIntosh only that he was a “runner.”
Within a few minutes of Chief McIntosh’s arrival, Officer Prock arrived. He testified that when he arrived, C.B. was sitting quietly, looking at the ground. Coach Sinclair also advised him that C.B. was a “runner,” but Officer Prock did not learn that C.B. had not taken his medication until much later. Officer Prock tried to engage C.B. in conversation, but he remained unresponsive.
About three and a half minutes after Officer Prock arrived, Chief McIntosh signaled that Officer Prock should handcuff C.B. Officer Prock ordered C.B. to stand up, which he did immediately. He then instructed C.B. to put his hands behind his back—which C.B. again did immediately—and *7 handcuffed him. Notwithstanding the fact that C.B. had not disobeyed a single police order, the officers did not explore alternative options for handling the situation before handcuffing him. When Officer Prock handcuffed C.B., C.B. began to cry, believing that he was being taken to jail.
Once C.B. was handcuffed, the officers and Coach Sinclair escorted him off the playground. Officer Prock then pulled his police vehicle around and directed C.B.—still in handcuffs—into the back seat. C.B. complied immediately. During this entire time, no one spoke to C.B. or explained to him why he had been handcuffed, that he was not under arrest, or where the police were taking him. Officer Prock then transported C.B. to his uncle’s business. [1] Although Officer Prock’s vehicle was equipped with safety locks, making it impossible for C.B. to escape, C.B. remained handcuffed during the approximately thirty-minute ride to his uncle’s place of business. C.B. testified that the handcuffs caused him pain and left red marks.
Coach Sinclair, who was also the school disciplinarian, testified that in the three years before this incident, she had summoned police to Sonora Elementary School about fifty times. Of those fifty times, police used handcuffs about twenty times, even though about thirteen of those twenty instances did not involve any known or suspected criminal activity. When Officer Prock was handcuffing C.B., Coach Sinclair asked whether the handcuffs were “really necessary,” to which one of the officers replied that it was “procedure.” [2] She further testified that she knew this was the police department’s procedure because, in her experience, “any time that the police have to take a child off of campus, whether it be medical, drugs, fight, the child is handcuffed.” Officer Prock also testified that he understood the police department’s policy to permit officers to handcuff any individual they were transporting in the back of a police vehicle.
[1] According to Officer Prock, when he called the business number on C.B.’s emergency contact list, C.B.’s uncle advised him that C.B.’s parents were out of town and unreachable and that he was currently taking care of C.B. At trial, Chief McIntosh and Officer Prock did not recall this exchange.
10 C.B. V . C ITY OF S ONORA
Following this incident, C.B. experienced a host of psychological and emotional problems, including difficulty sleeping, low self-esteem, anger, irritability, and depression.
B.
C.B. filed this action against the Sonora School District, Coach Sinclair, the City of Sonora, Sonora Chief of Police McIntosh, and Officer Prock, alleging violations of his Fourth Amendment rights, the Americans with Disabilities Act, the Rehabilitation Act, and a number of state law tort claims. C.B. settled his claims against the Sonora School District and Coach Sinclair. After the district court denied Defendants’ motion for summary judgment on the basis of, inter alia qualified immunity, the case proceeded to trial against the City of Sonora, Chief McIntosh, and Officer Prock on the following claims: unlawful seizure and excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983 and false arrest and intentional infliction of emotional distress (“IIED”) under state law.
On the sixth day of trial, the jury returned its first verdict, determining that: (1) Defendants were not liable for either § 1983 claim; (2) C.B. had proved that Chief McIntosh’s and Officer Prock’s conduct intentionally caused him emotional distress, and C.B. suffered harm as a result; (3) Chief McIntosh and Officer Prock had established privilege, an affirmative defense to the IIED claim; and (4) C.B. was entitled to damages on the IIED claim. The verdict form also left unanswered the verdict on the false arrest claim. Realizing that the verdict on the IIED claim was internally inconsistent, the district court proposed resubmitting the case to the jury with clarifying instructions. Specifically, the court recommended explaining to the jury that: (1) if it were to *9 find the affirmative defense of privilege, it could not award damages for IIED; (2) Question 11C, rather than Question 11D, corresponded to the IIED damages; and (3) it must answer the question about false arrest. Counsel for both sides agreed.
The court next addressed the jury, explaining that the verdict contained “an inconsistency” and instructing the jury that “[i]f you don’t find the [affirmative defense of] privilege, then you can award damages, but you can’t award damages if you find that the conduct is privileged.” The court also noted a typographical error on page 9 of the verdict form regarding where the jury was to record damages, if any, for IIED, and directed the jury that it needed to respond to the question about false arrest. [3] After this instruction, the jury again began deliberating.
Not long thereafter, the jury sent the judge the following written question:
Clarify question 8
if we said yes to all on page 23 of Jury Instruction #20 doesn’t that mean we answer yes to page 9 in verdicts of trial jury?
Jury Instruction 20 set out the elements of the affirmative defense of privilege to the IIED claim, and Question 8 on page 9 on the verdict form asked for the jury’s verdict on whether the officers’ conduct was privileged. At a Although the court said that it would provide corrected verdict forms, the final verdict form still referenced the wrong damages question in relation to the IIED claim.
conference with counsel, the court proposed answering the question in the affirmative. Counsel for Defendants requested that the court also explain again that if the jury were to find privilege, it must move on to the next claim and not award damages for IIED, which the court agreed to do.
When the jury returned to the courtroom, the court described the framework for IIED claims. The court first explained C.B.’s case-in-chief. Then, it discussed the three elements of the affirmative defense of privilege, as set out in Jury Instruction 20, stating that “if you find yes as to all of those three things, in light of the elements of the intentional *10 infliction of emotional distress, that is called a complete defense and it eliminates liability for damages.” Turning specifically to the jury’s question, the court further explained, “so your inquiry here on question number . . . 8, which is the affirmative defense[,] is have the defendants proved the things that are required to be proved on page 23, which is jury instruction 20, the privilege defense.” Having clarified that Question 8 on the verdict form corresponded to Jury Instruction 20, the court again discussed the relationship between a finding of privilege and damages. Finally, the court reminded the jury that it needed to answer the question about false arrest, and indicated that it would provide a new page 11 of the verdict form because of a second typographical error. [4]
Question 10, on page 11 of the verdict form, concerned probable cause, the affirmative defense for the false arrest claim. Earlier, C.B.’s counsel had advised the court that the verdict form incorrectly directed the jury to answer Question 11D, the damages question for false arrest, if it found that Defendants had proved probable cause. The court agreed that the instruction should have read: “‘If you answer yes as to any defendant’ – then it should be do not answer 11D. If you answer the question no as to – it should be either defendant, answer question 11D.” Consequently,
The jury then asked a follow-up question while it was still in the courtroom.
JUROR SEAT NUMBER EIGHT: Okay. So the fact that we answered affirmative yes to questions 6 and 7.
THE COURT: Yes.
JUROR SEAT NUMBER EIGHT: I guess our question is how does that affect our response to number 8? Is it conflicting? Questions 6 and 7 asked whether C.B. had met his burden of proof on the elements of IIED. The jury was essentially asking whether it could find that C.B. proved his case-in- chief and still find that Defendants proved their affirmative defense.
The court responded by again explaining the framework for IIED claims. Noting that the jury had effectively found that C.B. met his burden of proving liability, the court explained that “then the question becomes is there an award of damages.” The court went on: “However, under the law, the defendants are entitled to assert what is called an *11 affirmative defense. And an affirmative defense has the legal effect of negating the finding of liability.” While not the most direct response, this statement informed the jury that it could, in fact, answer yes to Questions 6 and 7 and still find privilege. The court again set out the elements of privilege, after responding to the jury’s question, the court advised the jury of this error and indicated it would provide a corrected page 11. The final verdict form does, in fact, reflect the correct instruction on page 11. concluding by telling the jury that “[i]f you find those things, then that negates, if you will, the intentional infliction of the emotional distress.”
Juror Number 8, apparently still confused, asked, “[a]nd that is not a conflict?” To this, the court responded:
It’s not a conflict because it’s an affirmative defense. It’s potentially a conflict depending on what you think of the conduct and the states of mind. But that’s for you to determine. In other words, you have to decide what -- what was being thought, what was observed and what was being done under the totality of the circumstances, recognizing what the law is that tells the officers what they can and can’t do in dealing with the plaintiff. Remember, this is measured objectively by what a reasonable officer in the position of the two defendants would do knowing everything that they knew on the scene with what was happening there. It’s an objective standard.
And this, particularly, examines their conduct in light of the law, in light of what they knew and what they, in good faith, believed and what they did. And so, there is a potential inconsistency, but that depends on what you find the intentions, the states of mind are and the conduct is in light of the law. And you’re the only people who can make those decisions. We cannot tell you how to do *12 C.B. V . C ITY OF S ONORA 15
it. The attorneys have told you how to do it in their arguments, but it’s for you to make the ultimate decisions.
Again, the court’s explanation, although somewhat long- winded, made clear that a finding of privilege was consistent with a finding of IIED if the facts sustained Defendants’ assertions. Shortly after asking another question about privilege, the jury went home for the evening.
The following morning, at a conference outside the jury’s presence, Defendants’ counsel urged the court to instruct the jury to resume their deliberations with Question 9. The court rejected the requested instruction. Instead, it proposed to instruct the jury “simply to re-deliberate on the questions that are still open.” Once the jury entered the courtroom, the court stated that it “wanted to review briefly where we are so that hopefully you understand and are clear.” The court instructed the jury as follows:
[O]ur suggestion to you is that you consider the findings that you’ve made to the prior questions, you consider the evidence in light of the instruction that you’re being asked to answer when you are on the verdict form. And that is you have questions 6 and you have questions 7, which you’ve already answered. You’ve answered question 8. And then you have correct instructions on question number 8 as to which questions you should be answering in question 11. You then have a claim that you’ve not decided, and that is the
false arrest claim. And that’s question 9A and B. And you have a revised instruction on that. The court then discussed in greater detail some changes that *13 were made to the instruction regarding false arrest. Following this supplemental instruction, the jury requested to receive the prior day’s instructions on privilege again, indicating “that’s where we’re really fighting right now.”
At a sidebar with counsel, the court advised the parties that it would make “an overarching statement” to “consider[] the elements affirmatively and defensively on each side.” The court began by summarizing all of the claims, stating:
You have four claims that are brought by the plaintiff. You have two civil rights claims. One for the use of excessive force and one for the use -- or the unlawful seizure in the taking into temporary custody and the length of the detention and all the circumstances of the detention that the temporary custody involved.
Those are federal claims. After this brief mention of the federal claims, the court focused on the state law claims and affirmative defenses. With respect to IIED, the court stated:
And so, in looking at the two state claims, you have the intentional infliction of emotional distress. And then, in jury instruction number 20, you have the defense
of privilege and the elements that have to be proved by a preponderance of the evidence. So when you are considering that defense, you consider the totality of the circumstances. You consider what went in to the claims that you analyzed, the elements of those claims and all the evidence that bears on that. Then you analyze the elements of the defense, all the evidence that bears on that.
And there should be consistency -- and that was your concern -- between those findings. The consistency is a function of how you find the facts, which evidence you believe, how much weight you give to the evidence.
Then, the court went on to address false arrest.
The jury deliberated for about four more hours before returning a verdict for C.B. on all claims. The district court denied Defendants’ motions for judgment as a matter of law, a new trial, and remittitur and entered judgment in favor of C.B.
Defendants appeal, arguing: (1) the district court’s
supplemental jury instructions were so coercive and
confusing as to warrant a new trial; (2) the individual officers
are entitled to qualified immunity with respect to C.B.’s
§ 1983 Fourth Amendment claims; (3) several of the district
court’s evidentiary rulings were erroneous and warrant
reversal; and (4) the district court erred in denying an offset
against the overall damages award by the amount of C.B.’s
settlement with the Sonora School District. Without
specifying the standard of review it applied, a three-judge
panel of this court unanimously held that the district judge’s
supplemental jury instructions and colloquy were sufficiently
misleading as to require a new trial.
C.B. v. City of Sonora
730 F.3d 816, 823–24 (9th Cir. 2013);
see also id.
at 827
(McKeown, J., dissenting) (agreeing with the majority on this
point). In a split decision, a majority of the panel also held
that the individual officers were entitled to qualified
immunity.
Id.
at 824–27 (Maj. Opin.);
see also id.
at 827–31
(McKeown, J., dissenting). Upon a majority vote of eligible
judges, the court granted rehearing en banc.
C.B. v. City of
Sonora
,
II. DISCUSSION A.
*15
1.
We must first decide the standard of review that governs
Defendants’ challenge to the district court’s jury instructions.
Historically, we have refused to review jury instructions in a
civil case in the absence of a timely objection under Federal
Rule of Civil Procedure 51(c).
See Voohries-Larson v.
Cessna Aircraft Co.
,
indicated, in dictum, that this amendment abrogated our prior
case law,
see Hunter v. Cnty. of Sacramento
,
Federal Rule of Civil Procedure 51(d)(2) states that “[a]
court may consider a plain error in the instructions that has
not been preserved as required by Rule 51(d)(1) if the error
affects substantial rights.” The advisory committee’s note
explains that subsection (d)(2) was adopted to capture the
existing rule in many of our sister circuits that errors in jury
instructions not preserved under Rule 51(d) “may be
reviewed in exceptional circumstances.” Fed. R. Civ. P. 51
advisory committee’s note. Although the precise rule varied
somewhat from circuit to circuit, most of our sister circuits at
the time applied a standard of review that resembled the plain
Although we have previously refused to review jury instructions in the
absence of a timely objection at trial, we have reviewed for plain error
evidentiary, closing argument, and attorney misconduct challenges that
were not contemporaneously raised at trial.
See, e.g.
,
Settlegoode v.
Portland Pub. Sch.
,
20
C.B. V . C ITY OF S ONORA
error standard in criminal cases.
[7]
Moreover, “[t]he language
adopted to capture these decisions in subdivision (d)(2) is
borrowed from [Federal] Rule [of Criminal Procedure] 52.”
Fed. R. Civ. P. 51 advisory committee’s note;
see also
Fed.
R. Crim. P. 52(b). Finally, the advisory committee’s note
suggests that the plain error standard of review in the criminal
context should inform our inquiry.
See
Fed. R. Civ. P. 51
Compare United States v. Olano
,
advisory committee’s note (setting forth the plain error
standard of review in criminal cases and citing
Johnson v.
United States
,
Yet, the advisory committee’s note accompanying the
amended Rule 51 also cautions that “the context of civil
litigation often differs from the context of criminal
prosecution” and instructs that “actual application of the
*17
plain-error standard takes account of the differences.”
Id.
After setting out the plain error standard under Federal Rule
of Criminal Procedure 52, the advisory committee’s note
highlights four factors to consider in applying plain error
review in the civil context: (1) the obviousness of the
mistake; (2) the importance of the error; (3) the costs of
correcting an error; and (4) “[i]n a case that seems close to
the fundamental error line, . . . the impact a verdict may have
on nonparties.”
Id.
While the first two factors roughly
correspond to the plain error standard of review governing
criminal cases, the latter two factors are not part of the
standard plain error inquiry.
See Puckett v. United States
,
556 U.S. 129, 135 (2009);
Johnson
, 520 U.S. at 466–67;
Olano
,
Following the 2003 amendments, several circuits have
reaffirmed that plain error review in the civil context is
similar to the plain error standard governing criminal cases.
[8]
See, e.g.
,
Bauer v. Curators of Univ. of Mo.
,
But we also recognize that the stakes are lower in the civil
context and, consequently, plain errors should “encompass[]
only those errors that reach the pinnacle of fault envisioned
by the standard set forth above.”
Hemmings
, 285 F.3d at
public reputation of judicial proceedings.” (internal quotation marks
omitted));
Higbee v. Sentry Ins. Co.
,
Finally, we also hold that the decision whether to correct
a plain error under Federal Rule of Civil Procedure 51(d)(2)
is discretionary. This conclusion flows from the permissive
text in Federal Rule of Civil Procedure 51(d)(2). Fed. R. Civ.
P. 51(d)(2) (“A court
may
consider a plain error . . . .”
(emphasis added));
see also Conlon v. United States
, 474 F.3d
616, 624–25 (9th Cir. 2007) (explaining that use of the word
“may” in Federal Rule of Civil Procedure 36(b) suggests that
the district court has discretion in ruling on Rule 36 motions).
Moreover, the permissive text of Federal Rule of Civil
Procedure 51 parallels Federal Rule of Criminal Procedure
52(b).
See
Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights
may
be considered . . . .” (emphasis added)).
It is well-established that a court of appeals has discretion to
correct a forfeited error under Federal Rule of Criminal
Procedure 52(b), and should do so only if the error
“‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’”
Olano
,
2.
With these principles in mind, we turn to the particulars
of this case.
[11]
Defendants argue that the judgment on the
[10]
See Jimenez v. Wood Cnty.
,
because (1) they lacked the opportunity to object to the district court’s extemporaneous instructions, (2) their request that the district court direct the jury to begin re-deliberating with the question regarding false arrest served as adequate notice to the court of the nature of their objection, and (3) C.B. waived any argument that Defendants did not preserve their objections to the jury instructions by failing to raise it before the district court.
We reject these arguments. First, Defendants are correct that C.B. failed to argue, in opposition to Defendants’ Motion for a New Trial, that *20 verdict should be reversed because the supplemental jury instructions were confusing and coerced the jury to reverse its initial verdict. C.B. contends that the district court’s supplemental instructions were accurate and that nothing the court said misled or influenced the jury to revise its findings as to the other claims. We conclude that the district court’s supplemental jury instructions fall far short of plain error.
Defendants identify four errors in the district court’s supplemental instructions. First, they contend that the court confused the jury by referring to the initial verdict as “inconsistent” without explaining what it meant by that term. The record belies this argument. In the course of telling the jury that the verdict contained “an inconsistency,” the court explained that “[i]f you don’t find . . . privilege, then you can award damages, but you can’t award damages if you find that the conduct is privileged.”
Defendants did not preserve their objections to the district court’s
supplemental jury instructions. However, we may consider C.B.’s
argument nonetheless because it raises a purely legal question and
Defendants have offered no reason why C.B.’s failure to raise this
argument in his post-trial briefs has prejudiced them.
See Zhang v. Am.
Gem Seafoods, Inc.
, 339 F.3d 1020, 1035 (9th Cir. 2003). Second,
Federal Rule of Civil Procedure 51(c)(2) provides that an objection to a
jury instruction is timely if a party was not informed of an instruction in
advance, and the party objects promptly after the instruction has been
given. Defendants therefore could have objected to the supplemental
instructions after they were given, but they failed to do so. Finally,
Defendants’ request that the jury be instructed to begin deliberating with
the question on false arrest, falls far short of Rule 51(c)(1)’s requirement
that a litigant “stat[e] distinctly the matter objected to and the grounds for
the objection.” Fed. R. Civ. P. 51(c)(1);
see also Hunter
,
Second, Defendants argue that the district court’s response to the jury’s request for clarification was confusing and coercive because it fell “far outside the scope of the jury’s” question. The jury initially asked whether it should answer yes to Question 8 on the verdict form, the question about privilege, if it found that all of the elements of privilege as set out in Jury Instruction 20, were present. This question could have been answered with a simple “yes.” Defendants, however, asked the court to provide a more complete explanation of the relationship between a finding of privilege and an award of damages. At Defendants’ own request then, the court responded to the jury’s question with an overview *21 of the IIED claim. Moreover, in giving this instruction, the court answered the jury’s specific question, stating, “[a]nd so your inquiry here on question number . . . 8, which is the affirmative defense[,] is have the defendants proved the things that are required to be proved on page 23, which is jury instruction 20, the privilege defense.” A district court has “wide discretion” in responding to jury questions, Arizona v. Johnson , 351 F.3d 988, 994 (9th Cir. 2003), and the explanation here was well within the court’s discretion. Although Defendants complain that the court “went on for an additional 8 pages of transcript,” the only other statements that the court volunteered were a reminder that the jury also had to answer the question about false arrest and that the jury would be given a corrected verdict form. All other instructions were in response to follow-up questions posed by the jury.
Third, Defendants argue that the supplemental instructions given in response to the follow-up questions were confusing because they told the jury to consider the “totality of the circumstances”—a phrase that appears in the court’s instruction on probable cause—in determining whether the individual officers’ conduct was privileged. We find no error in this statement. This instruction did nothing more than admonish the jury to consider all of the facts that bear on the question of privilege. The court’s use of the phrase “totality of the circumstances” was tailored to the supplemental instructions and was not a veiled suggestion to revisit the Fourth Amendment claims.
Finally, Defendants argue that the court’s instruction that certain findings should be consistent erroneously implied that the jury must return a verdict uniformly in favor of one party. We conclude that the court’s instructions did no such thing; the court’s comment about “consistency” was clearly tethered to its discussion of the state IIED claim. On the final day of deliberations, the court provided the jury with a brief overview of the “two civil rights claims,” but concluded its discussion of those claims by stating:
Those are federal claims.
Then you have two claims, the third and the fourth claims. One is for intentional infliction of emotional distress and the other is for false arrest. . . .
And so as to the two state law claims, the defendants assert what are called affirmative defenses.
After providing this framework for the state law claims, the court directed the jury’s attention to the IIED claim, explaining:
And so, in looking at the two state claims, you have the intentional infliction of emotional distress. And then, in jury instruction number 20, you have the defense of privilege and the elements that have to be proved by a preponderance of the evidence. So when you are considering that defense, you consider the totality of the circumstances. You consider what went in to the claims that you analyzed, the elements of those claims and all the evidence that bears on that. Then you analyze the elements of the defense, all the evidence that bears on that.
And there should be consistency -- and that was your concern -- between those findings. The consistency is a function of how you find the facts, which evidence you believe, how much weight you give to the evidence.
In this context, the court’s reference to “consistency” could mean only that the jury’s factual findings had to be internally consistent and reconcilable with its ultimate conclusion as to the IIED claim and the privilege defense. The court’s statement may not be a model of clarity, but we are confident that no reasonable jury could have understood it as a direction to return a verdict wholly in favor of one party.
In sum, Defendants have not identified any error in the district court’s supplemental jury instructions, let alone a plain error.
C.B. V . C ITY OF S ONORA 29
B.
Defendants also challenge several of the district court’s
evidentiary rulings. We review a district court’s evidentiary
rulings for abuse of discretion.
Gribben v. United Parcel
Serv., Inc.
,
It is undisputed that Coach Sinclair did not, at any point,
tell the officers that she thought C.B. might be suicidal, nor
did the officers otherwise learn that information. The district
court correctly reasoned that testimony that Coach Sinclair
thought C.B. might be suicidal was irrelevant; information
that the officers did not know could not justify their decision
to seize C.B.
See Moreno v. Baca
,
The district court also did not abuse its discretion in
allowing Coach Sinclair to testify about past incidents of
handcuffing at Sonora Elementary School. To prove his
Fourth Amendment claim against the City of Sonora, C.B.
had to prove that the city maintained an unlawful custom or
practice that was a cause of his constitutional injury.
See
Fairley v. Luman
, 281 F.3d 913, 916 (9th Cir. 2002) (per
curiam) (citing
Monell v. Dep’t of Soc. Servs.
,
C.
Next we turn to Chief McIntosh’s and Officer Prock’s
qualified immunity arguments. We review de novo a district
court’s qualified immunity order denying judgment as a
matter of law.
LaLonde v. Cnty. of Riverside
,
C.B. argues that Chief McIntosh and Officer Prock waived their
Federal Rule of Civil Procedure 50(b) qualified immunity argument
because they failed to make a timely Rule 50(a) motion. Because C.B.
failed to raise this argument below, it is waived.
See Graves v. City of
Coeur D’Alene
,
32
1.
a.
C.B. argues that his seizure violated the Fourth
Amendment because the officers lacked probable cause to
arrest him. The Fourth Amendment provides: “The right of
the people to be secure in their persons . . . against
unreasonable searches and seizures[] shall not be violated
. . . .” As a general principle, “Fourth Amendment seizures
are reasonable only if based on probable cause to believe that
the individual has committed a crime.”
Bailey v. United
States
, 133 S. Ct. 1031, 1037 (2013) (internal quotation
marks omitted). The Supreme Court has recognized a narrow
exception to the Fourth Amendment’s probable cause
requirement “when special needs, beyond the normal need for
law enforcement, make the . . . requirement impracticable.”
Vernonia Sch. Dist. 47J v. Acton
,
In
New Jersey v. T.L.O.
, the Court first recognized that
“[t]he school setting . . . requires some modification of the
level of suspicion of illicit activity needed to justify a search.”
Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the . . . action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Id.
at 341–42 (internal quotation marks, citations, and
footnotes omitted). We, and several of our sister circuits,
have extended
T.L.O.
to seizures of students by school
officials.
Doe ex rel. Doe v. Haw. Dep’t of Educ.
, 334 F.3d
906, 909 (9th Cir. 2003);
see also Wallace ex rel. Wallace v.
Batavia Sch. Dist. 101
, 68 F.3d 1010, 1012–14 (7th Cir.
1995);
Hassan ex rel. Hassan v. Lubbock Indep. Sch. Dist.
55 F.3d 1075, 1079–80 (5th Cir. 1995);
Edwards ex rel.
Edwards v. Rees
,
T.L.O.
is distinguishable from this case in a critical
respect:
T.L.O.
involved
the conduct of school
administrators, not law enforcement officers. 469 U.S. at
*27
34
C.B. V . C ITY OF S ONORA
328. We have not yet decided whether
T.L.O.
’s
reasonableness standard or, instead, traditional Fourth
Amendment rules apply to law enforcement searches and
seizures in school settings, and there is no need to do so
today.
[14]
At the time of the incident, at least two of our sister
circuits had held that
T.L.O.
’s reasonableness standard
governs law enforcement conduct concerning school-related
incidents in school settings.
See Gray ex rel. Alexander v.
Bostic
, 458 F.3d 1295, 1304 (11th Cir. 2006) (applying
T.L.O.
in analyzing an unlawful seizure claim against deputy
at an elementary school);
Shade v. City of Farmington
Nonetheless, applying
T.L.O.
’s reasonableness standard
does not aid Chief McIntosh and Officer Prock. Taking the
facts in the light most favorable to C.B.,
see Harper
, 533 F.3d
As to law enforcement searches and seizures that pursue law
enforcement objectives, we held in
Greene v. Camreta
that the “special
needs” doctrine did not apply to seizures on school grounds in which “law
enforcement personnel and purposes were . . . deeply involved.” 588 F.3d
1011, 1026–27 (9th Cir. 2009). The Supreme Court vacated that holding
as moot, but did not disapprove our reasoning.
Camreta v. Greene
, 131
S. Ct. 2020, 2026–27 (2011);
see also Jones v. Hunt
,
at 1021, the officers knew only the following when they decided to handcuff C.B. and remove him from school grounds: (1) the school had reported an “out of control” juvenile; (2) C.B. was a “runner”—whatever that may mean—who had not taken some unknown medication; (3) C.B. sat quietly looking at the ground and never made any movements the whole time police were present; (4) C.B. was *28 unresponsive in the three and a half minutes during which Officer Prock tried to engage with him; and (5) Coach Sinclair wanted C.B. removed from the school grounds.
The officers acted reasonably at the outset by seeking to
engage with C.B. to investigate the dispatch that they had
received about an “out of control” minor. What they found,
though, was a quiet but nonresponsive child. During the
entire time police were present, the child did nothing
threatening or disobedient. Although Coach Sinclair
mentioned that C.B. was a “runner” who had not taken his
medication, the officers did not ask a single follow-up
question to learn what Coach Sinclair meant and never
inquired what had prompted the dispatch. Nor did they
consider any less intrusive solutions, such as ordering C.B. to
return inside the school building, or asking a guardian to pick
up the child.
[15]
See T.L.O.
,
circumstances, the officers’ decision to seize C.B. and remove him from school grounds was not reasonable.
Judge Gould contends that this approach overlooks
T.L.O.
’s instruction that a school official’s judgment about
the rules necessary to maintain school order is entitled to
deference. Gould Concurrence at 64–65. No one seriously
questions that principle. Coach Sinclair and other school
officials set the rules that govern student behavior, and they
may require students to obey their instructions, to take their
prescribed medications, to not run away, and so on. The
adoption of such rules “presumably reflects a judgment on the
part of school officials that such conduct is destructive of
school order or of a proper educational environment.”
T.L.O.
That detail notwithstanding, at issue here is the reasonableness of the response to a purported violation of a school rule, not the reasonableness of the rule. Judge Gould would defer to Coach Sinclair’s determination that C.B. [16] This does not mean that police officers cannot rely on school officials’ statements. School officials undoubtedly possess valuable information that would assist police in determining the proper course of action in many cases. But where the school official offers only cursory and ambiguous statements that do not explain what happened and the officers do not observe any behavior that might shed light on what happened, it is unreasonable for the officers to simply presume a safety threat warranting seizure and removal from school grounds.
should be removed from campus. Gould Concurrence at
65–66. But
T.L.O.
does not mandate any deference to a
school official’s judgment about
the appropriate response
to
a rule violation.
[17]
Instead,
T.L.O.
requires assessing the
reasonableness of the school official’s search or seizure in
response to a rule violation by asking whether it was justified
at its inception and whether it was reasonably related in scope
to the circumstances that justified the initial intervention.
Judge Gould also suggests that the need to act quickly prevented the officers from learning more. Gould Concurrence at 65–66. Certainly, in some circumstances, the need to respond swiftly trumps the need to obtain more information. But here, C.B. was calm, surrounded by multiple adults, and, by Chief McIntosh’s own characterization, “[n]ot likely” to run away. Nothing about the situation demanded an immediate response. Under these circumstances, the officers could have, and should have, asked some simple follow-up questions that would have enabled them to determine an appropriate response.
Nor does this position require police officers to engage in
an “uncabined investigation” before responding to unfolding
events, as the majority intimates. M. Smith Opin. at 57. This
approach only requires police officers to act reasonably under
the circumstances. The standard is a familiar one,
see Terry
v. Ohio
,
remove a child from school grounds “facially reasonable,” what must
transpire before a request would be labeled facially unreasonable?
T.L.O.
’s standard is based on
Terry
’s reasonable suspicion standard.
See T.L.O.
,
C.B. V . C ITY OF S ONORA 39
In sum, taking the evidence in the light most favorable to C.B., a reasonable jury could conclude that Chief McIntosh and Officer Prock violated C.B.’s Fourth Amendment rights when they seized him and took him into custody.
b.
We next consider whether it was clearly established on
September 28, 2009, that removing C.B. from school grounds
was a violation of the Fourth Amendment. “For a
constitutional right to be clearly established, its contours must
be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Hope v.
Pelzer
,
At the time of C.B.’s seizure, the law was clearly
established that, at a minimum, police seizures at the behest
of school officials had to be reasonable in light of the
circumstances and not excessively intrusive.
See, e.g.
,
T.L.O.
, 469 U.S. at 341–42;
Doe
, 334 F.3d at 909;
Gray
,
This is such a case. The removal from school grounds of a compliant and calm 11-year-old child—a decision that was made sans any police investigation, without any knowledge of disobedience, and after only minutes on the scene—is an obvious violation of the constitutional principle that the nature of the seizure of a schoolchild must be justified by the circumstances. Even without on-point case law, it is beyond dispute that police officers cannot seize a schoolchild who they do not know to have committed any wrongdoing, who does not appear to pose any threat to himself or others, and who engages in no act of resistance the entire time the officers are present. [20]
[20]
The Supreme Court’s holding in
Safford
that a school official’s
decision to strip search a middle school child suspected of bringing drugs
to school, without any suspicion that the child was hiding the drugs in her
underwear, was not an obvious violation of clearly established law,
see
Chief McIntosh and Officer Prock do not argue that
T.L.O.
justified seizing C.B. In fact, they argue that they are
entitled to qualified immunity only because they reasonably,
even if mistakenly, believed they had “reasonable cause” to
take C.B. into custody pursuant to California Welfare &
Institutions Code sections 601(a) and 625(a). An officer who
reasonably but mistakenly believes that his actions are
warranted under state law may be entitled to qualified
immunity.
Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty.
Sheriff Dep’t
, 533 F.3d 780, 791–93 (9th Cir. 2008);
Grossman v. City of Portland
,
Any person under the age of 18 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian, or who is beyond the control of that person . . . is within the jurisdiction of the juvenile court which may adjudge the minor to be a ward of the court.
*33 not pose a threat to anyone was “well beyond the hazy border that sometimes separates lawful conduct from unlawful conduct” (internal quotation marks omitted)). Rather, this case involves a scenario where, on the facts known to the officers, there was simply no basis for any kind of seizure. At the very least, T.L.O. makes obvious that there must be some basis for a search or seizure of any scope. Defendants expend a great deal of energy arguing about the
difference between “reasonable cause” as used in the California Welfare & Institutions Code and the traditional concept of “probable cause.” If there is a difference between the standards, this case does not turn on it. Section 625(a) provides that “[a] peace officer may, without a warrant, take into temporary custody a minor . . . [w]ho is under the age of 18 years when such officer has reasonable cause for believing that such minor is a person described in Section 601.”
Chief McIntosh and Officer Prock contend that they
reasonably thought that C.B. was “beyond the control” of the
relevant school officials, who they understood to be the
custodians of C.B. during school hours. However, taking the
facts in the light most favorable to the nonmoving party, no
reasonable officer could have thought that C.B. was “beyond
the control” of anyone. California case law makes clear that
“
by itself
, a single act in violation of parental authority is
ordinarily insufficient to establish that the minor is beyond
parental control.”
McIsaac v. Bettye K. (In re Bettye K.)
,
C.B. V . C ITY OF S ONORA
43
40 miles from home but who was actually found about 600
miles away from home attempting to cross the border into
Mexico was beyond the control of his parents);
see also In re
Bettye K.
,
Here, when viewed in the light most favorable to C.B., the
officers did not know of even a single instance of
disobedience, much less one serious enough to trigger
sections 601(a) and 625(a). C.B. did not take his medicine,
but the officers had no basis to conclude that he had refused
to do so and did not know what kind of medication it was.
C.B. was purportedly a “runner,” but the officers had no
information that he had actually attempted to run from
anyone that day. During the brief period before the officers
decided to handcuff him, C.B. did not disobey any of their
orders. And, as soon as they initiated the process of
handcuffing and removing him from the school grounds, C.B.
complied with all of their instructions. In sum, the officers
knew of no defiant act by C.B.; any belief that C.B. was
beyond the school’s control was not reasonable because it
lacked any basis in fact. Moreover, even assuming it was
reasonable to believe that C.B. had earlier defied a school
official by refusing medicine and running, it was apparent
that C.B. had not run off school grounds and was, instead,
sitting calmly in the school playground. Such a singular
instance of disobedience does not even come close to
satisfying the statutory requirement that the minor be
“beyond the control” of his custodian.
See In re Bettye K.
declaring the [statute] or the officer’s particular conduct
unconstitutional.”
Grossman
,
Chief McIntosh and Officer Prock argue that their belief
that sections 601(a) and 625(a) applied in this instance was
reasonable because Coach Sinclair allegedly told Chief
McIntosh that C.B. was “out of control,” “would run off
campus,” and was “yelling and cussing.”
[23]
Whatever the
merits of the argument that a reasonable officer might have
believed that sections 601(a) and 625(a) justified taking a
child into custody in light of these additional facts, that is not
the scenario presented here. Neither Coach Sinclair nor
C.B.—the other witnesses present during this purported
exchange—recalls Coach Sinclair making these statements.
Although it is possible that C.B.’s and Coach Sinclair’s
recollections are incomplete, when taking the facts in the
light most favorable to C.B.,
see Harper
,
Based on the foregoing, Chief McIntosh and Officer Prock are not, in my view, entitled to qualified immunity with respect to C.B.’s unlawful seizure claim.
[22] Because C.B.’s conduct could not possibly satisfy the “beyond the control” prong of the statute, there is no need to consider whether the term “custodian” as used in section 601(a) includes school authorities. [23] Notably, neither the officers nor Coach Sinclair ever testified that Coach Sinclair told Chief McIntosh that C.B. would “run off campus.” Accordingly, there is no need to decide whether, under the version of events most favorable to the officers, Chief McIntosh and Officer Prock were justified in seizing C.B. pursuant to sections 601(a) and 625(a), although that is a dubious proposition.
2.
a.
C.B. also argues that the officers used excessive force in
violation of the Fourth Amendment when, upon removing
him from school grounds, they handcuffed C.B. for twenty-
five to thirty minutes. The Fourth Amendment guarantees the
right to be free from an arrest effectuated through excessive
force.
Graham v. Connor
, 490 U.S. 386, 394–95 (1989);
Wall v. Cnty. of Orange
,
We have previously applied
T.L.O.
’s reasonableness
standard to evaluate whether a school official was entitled to
qualified immunity from an excessive force claim.
See
Preschooler II v. Clark Cnty. Sch. Bd. of Trs.
,
Ultimately, in our view, whether T.L.O. or Graham governed Chief McIntosh’s and Officer Prock’s actions at any given moment is of little consequence. Chief McIntosh’s and Officer Prock’s use of handcuffs on a calm, compliant, but nonresponsive 11-year-old child was unreasonable under either standard. Other than an assertion that they were told C.B. might run away, Chief McIntosh and Officer Prock offer no justification for their decision to use handcuffs on C.B. During the entire incident, C.B. never did anything that suggested he might run away or that he otherwise posed a safety threat. He weighed about 80 pounds and was approximately 4’8’’ tall—by no means a large child. Moreover, he was surrounded by four or five adults at all times. The police department’s own policy manual cautions against using handcuffs on children under the age of 14 unless the child has committed “a dangerous felony or when they are of a state of mind which suggests a reasonable probability of their desire to escape, injure themselves, the officer, or to destroy property.” Even Chief McIntosh admitted that it was “[n]ot likely” that C.B. could run away. In these circumstances, we conclude that the decision to use handcuffs on C.B. was unreasonable, notwithstanding Coach *37 Sinclair’s unexplained statement that C.B. was a “runner.” The further decision to leave C.B. in handcuffs for the duration of the half-hour commute to his uncle’s business—a commute that took place in a vehicle equipped with safety locks that made escape impossible—was clearly unreasonable.
Judge Smith counters that the use of handcuffs was justified because C.B. might have attempted to run at various points during their interaction, risking serious harm to himself. M. Smith Opin. at 59–60. But there is no evidence that C.B. was likely to run; even Chief McIntosh himself thought it unlikely that C.B. would be able to flee. See Tolan v. Cotton , 134 S. Ct. 1861, 1863 (2014) (per curiam) (overturning grant of qualified immunity because the lower court did not view the evidence in favor of the nonmoving party). “Anything is possible” is not a sufficient basis to handcuff a child who poses no likely threat of any kind.
b.
At the time of the incident, the law was also clearly
established that, at a minimum, police use of force in
response to school-related incidents had to be reasonable in
light of the circumstances and not excessively intrusive.
See
T.L.O.
, 469 U.S. at 341–42;
Preschooler II
, 479 F.3d at
1179–81. And the law was clearly established that, as a
general matter, police use of force must be carefully
calibrated to respond to the particulars of a case, including the
wrongdoing at issue, the safety threat posed by the suspect,
and the risk of flight.
See Graham
, 490 U.S. at 396.
Although these general standards “cannot always, alone,
provide fair notice to every reasonable law enforcement
officer that his or her conduct is unconstitutional,”
Mattos
661 F.3d at 442, “in an obvious case, these standards can
‘clearly establish’ the answer, even without a body of relevant
case law.”
Brosseau v. Haugen
,
48 C.B. V . C ITY OF S ONORA
Applying handcuffs to C.B., and keeping him handcuffed for the approximately thirty minutes it took to drive to his uncle’s business, was an obvious violation of these standards. It is beyond dispute that handcuffing a small, calm child who is surrounded by numerous adults, who complies with all of the officers’ instructions, and who is, by an officer’s own account, unlikely to flee, was completely unnecessary and excessively intrusive. Moreover, none of the Graham factors even remotely justified keeping C.B. handcuffed for approximately thirty minutes in the back seat of a safety- locked vehicle.
Chief McIntosh and Officer Prock argue that because they were reasonable in taking C.B. into custody pursuant to the California Welfare & Institutions Code sections 601(a) and 625(a), their use of handcuffs was also reasonable because California Penal Code section 835 provides that an individual under arrest “may be subjected to such restraint as is reasonable for his arrest and detention.” Even if California law permitted the level of force used here ¯ which it does not ¯ that would have no bearing on whether the officers violated clearly established federal law. See Ramirez v. City of Buena Park , 560 F.3d 1012, 1024–25 (9th Cir. 2009). California Penal Code section 835 cannot shield the officers from liability for a clear constitutional violation.
In sum, we hold that Chief McIntosh and Officer Prock are not entitled to qualified immunity for handcuffing C.B.
D.
Finally, we turn to Defendants’ argument that they are
entitled to an offset against damages because of C.B.’s
settlement with the Sonora School District. Defendants argue
that they are entitled to an offset under California Code of
Civil Procedure section 877. Section 877 provides that,
when a plaintiff enters into a settlement with one or more
joint tortfeasors, “it shall reduce the claims against the other[]
[tortfeasors] in the amount stipulated by the [settlement].”
“Whether individuals are joint tortfeasors under [section] 877
depends upon whether they caused ‘one indivisible injury’ or
*39
‘the same wrong.’”
Decker v. Tramiel (In re JTS Corp.)
,
California Civil Code section 1431.2(a) provides that liability for economic damages is joint and several, but liability for noneconomic damages is apportioned according [25] It is not clear that California law, as opposed to federal law, governs Defendants’ settlement offset claim in a case such as this one, which involves both federal and state law claims. See Corder v. Brown , 25 F.3d 833, 839–40 (9th Cir. 1994) (recognizing that courts are split as to whether state law or federal common law determines a defendant’s entitlement to an offset in suits involving federal claims but declining to resolve the split because the text of the particular federal statute at issue permitted an offset). Defendants argue only that they are entitled to an offset under California Code of Civil Procedure section 877. As we explain in text, even if section 877 applied here, Defendants would not be entitled to an offset. Accordingly, we need not decide whether state or federal law applies.
to the principles of comparative fault. California courts
have interpreted California Civil Code section 1431.2 as
limiting California Code of Civil Procedure section 877 to
economic damages only.
See Greathouse v. Amcord, Inc.
(1) For purposes of this section, the term “economic damages” means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.
(2) For the purposes of this section, the term
“non-economic damages” means subjective,
non-monetary losses including, but not limited to, pain,
suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of
consortium, injury to reputation and humiliation.
v. Ball Corp.
, 29 Cal. Rptr. 2d 441, 443 (Ct. App. 1994);
Espinoza
,
Here, Defendants initially did propose a jury instruction
that distinguished between economic and noneconomic
damages. However, when the court provided its proposed
jury instructions and verdict form, Defendants did not object
to the exclusion of their proposed allocation. The court
specifically asked Defendants if they had any objections to
either the proposed jury instructions or the verdict form, and
Defendants objected to unrelated portions of the jury
instructions, but not the omission of their proposed question
about damages on the verdict form. By failing to object to an
undifferentiated verdict form, Defendants have not met their
burden to show what portion of the jury’s award was for
economic damages.
See Conrad
,
III. Conclusion
We conclude that Defendants have not identified any plain error in the district court’s jury instructions, the district court’s evidentiary rulings were not an abuse of discretion, and Defendants have not shown they are entitled to a settlement offset. Furthermore, we hold that Chief McIntosh and Officer Prock are not entitled to qualified immunity because no officer could have reasonably believed that their use of handcuffs to remove C.B. from school grounds complied with the Fourth Amendment. However, as set forth in Judge M. Smith’s majority opinion, the district court’s ruling on Chief McIntosh’s and Officer Prock’s motion for judgment as a matter of law denying them qualified immunity on C.B.’s Fourth Amendment unlawful seizure claim is reversed.
The judgment of the district court is affirmed in part, reversed in part. The judgment against Chief Mace McIntosh is reduced by $15,000. The judgment against Officer Hal Prock is reduced by $5,000.
AFFIRMED IN PART AND REVERSED IN PART. C.B. shall recover his costs on appeal against the City of Sonora; no costs are awarded against Chief McIntosh and Officer Prock.
C.B. V . C ITY OF S ONORA 53 M. SMITH, Circuit Judge, concurring in part, and dissenting in part, with whom O’SCANNLAIN, TALLMAN, and BYBEE, Circuit Judges, join in full, and with whom KOZINSKI, Chief Judge, and GRABER and GOULD, Circuit Judges, join as to Part I, which is the opinion of the court:
A majority of the en banc court agrees that Chief McIntosh and Officer Prock (the officers) are entitled to qualified immunity with respect to C.B.’s unlawful seizure claim. A reasonable officer would not have known that taking a child in C.B.’s situation into temporary custody was unreasonable, and therefore unconstitutional. However, I respectfully dissent from the majority’s conclusion denying the officers qualified immunity with respect to C.B.’s excessive force claim. In my view, the officers are entitled to qualified immunity on both of C.B.’s Fourth Amendment claims because the constitutional rights at issue in this case were neither clearly established nor “obvious” at the time C.B. was taken into temporary custody.
To determine whether an officer is entitled to qualified
immunity, we consider (1) whether he violated a
constitutional right and (2) whether the constitutional right
was clearly established.
Pearson v. Callahan
,
Despite the Court’s clear instruction that we not “define
clearly established law at a high level of generality,” the
majority’s hurried discussion of the second prong of the
qualified immunity analysis does just that. Specifically, the
majority defines the relevant law as requiring the use of force
to be “carefully calibrated to respond to the particulars of a
case . . . .” But this very general statement clearly does not
provide “fair warning” to a reasonable officer that
*43
handcuffing C.B. to take him into temporary custody violates
his Fourth Amendment rights.
See Tolan
,
I
respectfully disagree with
the majority’s
characterization of these facts as an “obvious violation” of
C.B.’s constitutional rights, and with its conclusion that this
case is not therefore subject to the Court’s admonitions
against defining “clearly established law” in overly general
terms. I acknowledge that the Court has recognized that
general standards can create a “clearly establish[ed]” right in
an “obvious case,” even “without a body of relevant case
law.”
See Brosseau
,
I. Unlawful Seizure Claim
Assuming
New Jersey v. T.L.O.
’s reasonableness standard
applies, as my colleagues do, C.B. cannot show that a
reasonable officer would have understood that taking him into
temporary custody was unreasonable, and
therefore
unconstitutional.
See Hope v. Pelzer
, 536 U.S. 730, 739
(2002);
New Jersey v. T.L.O.
,
When analyzing whether an individual’s Fourth
Amendment rights were violated, we must determine whether
the seizure was reasonable under “all the circumstances.”
T.L.O.
,
Viewed in its entirety, the record reveals that the situation confronting the officers did not present an “obvious” violation of C.B.’s constitutional rights. The circumstances facing the officers when they decided to take C.B. into *44 temporary custody are as follows. First, officers knew that school officials had reported that C.B. was a “runner” and “out of control.” Second, although Judge Paez describes C.B. as “compliant,” C.B. himself admitted that he completely ignored Officer Prock’s questions for three and a half minutes. Third, the officers did not know exactly which medication C.B. had failed to take. But a reasonable officer would have evaluated Coach Sinclair’s statements in context, and would likely have believed that Coach Sinclair stated that C.B. did not take his medication because it was related to his behavior—the very reason why the officers were called to the school in the first place.
A reasonable officer in this situation, faced with a juvenile who (a) was reportedly a “runner,” (b) was “out of control,” (c) ignored the officer’s questions, and (d) had not taken his medication, would not have known that taking such a juvenile into temporary custody in order to transport him safely to his uncle was an “obvious” violation of his constitutional rights.
Judge Paez attempts to characterize this situation as an “obvious” violation of C.B.’s constitutional rights by emphasizing that C.B. was a “compliant and calm 11-year-old child,” and that the officers had “[no] knowledge of disobedience.” However, C.B. had resisted the officers by ignoring their questions and was reported by the school as out of control, regardless of how he appeared at the exact moment when the officers took him into temporary custody. And although a reasonable officer would have observed that C.B. was young, age alone does not impose a complete bar on taking an individual into temporary custody, or on believing a school official’s report.
Judge Paez also notes that the decision to take C.B. into temporary custody was made “sans any police investigation.” Respectfully, this characterization fails to address several important points. The facts show that the officers did investigate by obtaining information from Coach Sinclair and attempting to question C.B., who refused to respond. Additionally, taking C.B. into custody without any further investigation was not an obvious violation of his constitutional rights because clearly established law at the time of the seizure did not mandate any additional
C.B. V . C ITY OF S ONORA
57
investigation, nor did it preclude reasonable reliance on the
statements of school officials.
See T.L.O.
,
If we were to hold that the officers’ conduct was an “obvious violation,” we would effectively establish a new rule that police officers in a situation similar to this one must undertake an independent investigation whenever they observe behavior that appears in any way inconsistent with a school official’s report. Such a requirement would be unworkable in the real world of law enforcement and school administration. Does an officer who is told by a school official that a student is a runner and has not taken his medications, but who later encounters the student seated and quiet, need to undertake an investigation because the student is not running or “out of control” at that time? What would that investigation entail? Would it require reviewing the student’s record with school officials to determine what being a “runner” means in that particular student’s situation? Would it involve talking with school counselors, teachers, or physicians who have dealt with the student to better understand the severity of the student’s problems? By characterizing the officers’ conduct as an “obvious violation” of constitutional rights, the dissent would require an officer to undertake such an uncabined investigation prior to responding to these situations, or risk personal financial liability if he did not. It would disincentivize officers from responding to calls for help from school officials under similar circumstances.
But the officers’ conduct was not an “obvious violation”
of C.B.’s constitutional rights. Under “all the circumstances,”
T.L.O.
,
I respectfully disagree with the majority’s conclusion that
the scope of C.B.’s right to be free from excessive force was
Judge Berzon states that our case law requires police officers to have
some cause to take children into custody. She cites language from
Crowe
v. County of San Diego
, that a police officer was not entitled to qualified
immunity when he “failed to provide any justification” for a seizure.
In
Henderson v. Mohave County
, also cited by Judge Berzon, we
denied qualified immunity to officers who seized a child after ignoring her
mother’s court order showing that she had custody.
Relying on these cases, Judge Berzon concludes that no reasonable officer would have believed that there was cause to take C.B. into custody under section 601 of the Welfare and Institutions Code. Even assuming Crowe applies here, it does not require that a state law provide justification for the seizure. Rather, under the Fourth Amendment, the seizure need only be reasonable under all the circumstances. See T.L.O. 469 U.S. at 341. Unlike in Henderson , where the officers had no justification for their actions, here, a reasonable officer would have believed he was justified in taking C.B. into temporary custody based on the information available to him, including the school’s report that he was out of control and had not taken his medication.
clearly established. The majority gives inadequate weight to
the Court’s directive that “clearly established law” not be
defined at a high level of generality,
see al-Kidd
, 131 S. Ct.
at 2084, for it was far from “obvious” that handcuffing
C.B.—a known “runner” reported
to be “out of
control”—constituted excessive force. Rather, assuming
without deciding that
Graham v. Connor
,
The “reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Id.
at
*47
396 (internal quotation marks omitted). The force used by
officers must be objectively reasonable under
the
circumstances, and need not be the least intrusive means
available to them.
Id.
at 397, 399;
Luchtel v. Hagemann
623 F.3d 975, 982 (9th Cir. 2010). “The calculus of
reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.”
Graham
,
There is no clearly established law indicating that handcuffing C.B. to transport him safely from school grounds to his uncle’s business was not objectively reasonable under the circumstances. See id. at 399. The majority characterizes C.B. as a “small, calm child.” But when the officers encountered C.B., the school had reported that C.B. was “out of control,” and Coach Sinclair had stated that he was a “runner.” Particularly in light of C.B.’s refusal to answer the officers’ questions, a reasonable officer would have taken the school officials’ concerns seriously. The fact that C.B. was sitting at the time the officers encountered him does not contradict Coach Sinclair’s statement that he was a runner. A reasonable officer would not have known that encountering C.B. sitting down and not responding to questions would necessitate a detailed investigation into the veracity and meaning of Coach Sinclair’s statement before using handcuffs, especially in light of the fact that the reasonableness inquiry allows officers to make split-second judgments in uncertain situations. See id. at 397–98.
Finally, although the majority characterizes C.B.’s unresponsiveness to Officer Prock’s questioning as mere silent obedience, a reasonable officer could have viewed C.B.’s refusal to answer the questions as an act of defiance. Indeed, officers are trained that such unresponsive behavior may be a “cue[] to escalation,” indicating that the individual may be looking for an opportunity to flee. Because a busy roadway abuts C.B.’s schoolyard, the consequences of ignoring Coach Sinclair’s warning and C.B.’s unresponsive behavior, and spending time conducting an investigation, could have been serious, or even fatal.
In this situation, a reasonable officer, relying on the statement of Coach Sinclair that C.B. is a “runner,” see [3] C.B. admitted that he completely ignored Officer Prock’s questions for three and a half minutes. 61
T.L.O. , 469 U.S. at 346, could have determined that C.B. would pose a danger to himself if he ran into the roadway, and that he would be at risk of injury if he had to be apprehended while running. A reasonable officer, relying on precedent establishing that handcuffs may be appropriate to prevent flight, see id. ; Meredith v. Erath , 342 F.3d 1057, 1063 (9th Cir. 2003), would not have known that it was a constitutional violation to place C.B. in handcuffs to ensure his safety.
Additionally, it was not clearly established that keeping
a juvenile in C.B.’s situation handcuffed for approximately
thirty minutes while the officers transported him to his uncle
was unconstitutional. A reasonable officer could have
believed that it was permissible to keep C.B. handcuffed to
ensure his safety in light of the fact that C.B. could have hurt
himself in the car, or attempted to flee while the officer was
removing the handcuffs before placing C.B. in the car.
Moreover, handcuffing C.B. to prevent flight comports with
standard police procedure. Although the City of Sonora’s
policy recommends that handcuffs generally should not be
used for a juvenile under the age of 14, it also provides that
officers may in their discretion handcuff a juvenile if he is of
the state of mind that suggests a reasonable probability of his
Judge Paez notes that Chief McIntosh believed that it was not likely
that C.B. could run away from the officers. However, Chief McIntosh’s
subjective beliefs are not relevant as “[t]he Fourth Amendment inquiry is
one of objective reasonableness under the circumstances, and subjective
concepts . . . have no proper place in that inquiry.”
Graham
,
62
C.B. V . C ITY OF S ONORA
desire to escape or that he may injure himself. This policy is
fully consistent with Supreme Court precedent.
See Graham
Although handcuffing a juvenile is not a matter to be taken lightly, neither is the juvenile’s safety. Under the majority’s reasoning, officers’ legitimate concerns for a child’s safety are no longer sufficient to justify handcuffing, and officers are now potentially liable for monetary damages if they use handcuffs out of concern for a child’s safety. But had an officer in this situation not handcuffed C.B., and had C.B. run into the roadway and been killed or injured by a passing vehicle, the officer, knowing that C.B. was a runner, would surely have been liable due to his failure to ensure C.B.’s safety. Under the majority’s new rule, officers are now damned if they do, and damned if they don’t, when dealing with schoolchildren who are known runners.
Because this case is not an “obvious” one where general standards clearly establish C.B.’s rights, a reasonable officer would not have known that handcuffing C.B. to safely take him into temporary custody violated his constitutional rights.
The Supreme Court has taught that qualified immunity
protects “all but the plainly incompetent or those who
knowingly violate the law.”
al-Kidd
, 131 S. Ct. at 2085
(quoting
Malley v. Briggs
,
I join Parts I, II.A, II.B, II.C.2, and II.D of Judge Paez’s opinion, concerning the factual background, rejection of the challenges to jury instructions and to evidentiary rulings, and the conclusions that Chief McIntosh and Officer Prock used excessive force in violation of the Fourth Amendment when, in removing C.B. from school grounds, they handcuffed him for 25 to 30 minutes and that they are not entitled to qualified immunity for handcuffing C.B.
Ramirez
,
I join in Part I of Judge M. Smith’s opinion, concerning
the unlawful seizure claim, concluding that the officers are
entitled to qualified immunity as to the seizure of C.B.
On the issue of unlawful seizure:
T.L.O.
’s reasonableness
standard requires that a search be “justified at its inception”
and, “as actually conducted,” be “reasonably related in scope
to the circumstances which justified the interference in the
first place.”
New Jersey v. T.L.O.
,
The Court’s primary concern in T.L.O. was balancing the “privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools.” Id. at 341. The need for order in the school *51 setting permits searches when reasonable grounds exist to suspect violations not just of law, but of “the rules of the school.” Id. at 342. When a court examines the rules of a school, it “should, as a general matter, defer” to the school’s judgment that the rule is necessary to prevent “conduct [that] is destructive of school order or of a proper educational environment.” Id. at 343 n.9. In applying this standard to the facts of T.L.O.’s case, the Court approved of a school administrator’s use of “the sort of common-sense conclusio[ns] about human behavior upon which practical people—including government officials—are entitled to rely.” Id. at 346 (internal quotation marks omitted).
In concurrence, Justices Powell and O’Connor stressed the “special characteristics” of the school environment, noting that “teachers have a degree of familiarity with, and authority over, their students that is unparalleled except perhaps in the relationship between parent and child.” Id. at 348. Based on this relationship, the concurring Justices concluded that “[t]he primary duty of school officials and teachers . . . is the education and training of young people. A State has a compelling interest in assuring that the schools meet this responsibility. Without first establishing discipline and maintaining order, teachers cannot begin to educate their students.” Id. at 350 (Powell and O’Connor, JJ., concurring).
Reasonable officers could have believed that the Constitution allows them to remove a student from school grounds based on a facially reasonable request from school officials. This conclusion is reinforced by the facts. Coach Sinclair, the requesting official, was the school’s official disciplinarian, the person most responsible for maintaining order at Sonora Elementary. Coach Sinclair’s request was supported by contentions that C.B. was a runner and had not taken his medicine. The allegations supported the notion that C.B. was violating the rules of the school or impairing discipline and maintenance of order, prerequisites to educating students. See id. Finally, the police officers were on campus for less than five minutes before taking C.B. into custody. This brief visit to the school environment could not safely give them such information as would be necessary to overrule the considered judgment of a school official, particularly given the close relationship between teachers and students. See id. at 348.
In the modern world, delay in the school setting can pose grave dangers to many, an unfortunate fact that may at times *52 require police to act promptly upon arrival. In the context of dangers presented to students at schools, rather than require officers to make an independent investigation when they arrive at a school, a reasonable police officer could believe that the Constitution would allow him or her to rely on responsible school officials. Here, the officers could reasonably have believed that relying on Coach Sinclair over what they personally saw in their brief and isolated visit was the kind of “common-sense conclusion” that T.L.O. was intended to permit. Id. at 346 (majority opinion). When a school official makes a determination that it is necessary to remove a student from campus to maintain order, protect that student or others, or otherwise to prevent the destruction of the “proper educational environment,” id. at 343 n.9, in my view a reasonable officer could have believed that he or she was entitled to rely on that judgment.
On the issue of excessive force by handcuffing: Police
officers may reasonably believe that the Fourth Amendment
permits them to give deference to a school official’s request
that a student be removed from campus. But that reasonable
belief in deference does not extend to the level of force that
they may use to accomplish the removal.
See
,
e.g.
,
Acosta v.
City of Costa Mesa
,
C.B. V . C ITY OF S ONORA 67 officers in carrying out an otherwise reasonable request from school officials.
The Supreme Court was explicit in Graham v. Connor 490 U.S. 386, 396 (1989), that the application of Fourth Amendment reasonableness to excessive force claims “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” C.B. was not charged with or suspected of any crime. There is no evidence that C.B. posed an immediate safety risk to himself, to the officers, or to anyone else on the scene. And there was no testimony that C.B. tried to escape, nor did the officers believe that there was any reasonable possibility that he could or would attempt to do so. Finally, the officers’ unreasonable decision to use handcuffs was compounded by their decision to leave the handcuffs on during a 30-minute trip in which C.B. was secured in the back of a police cruiser with no possibility of escape or harm to himself or others.
The Supreme Court’s jurisprudence has firmly established that the force police officers apply must be reasonable. Under the totality of the circumstances, it was not reasonable to handcuff a small and docile 11-year-old child. The Supreme Court’s law requiring that a reasonable level of force be used against the citizenry is crystal clear and well established.
BERZON, Circuit Judge, with whom Judge THOMAS joins, concurring in part and dissenting in part:
I concur in Judge Paez’s opinion, with one exception: as to C.B.’s unlawful seizure claim, I concur in the result reached by Judge Paez but would reach that result via different reasoning.
As to the seizure issue, the reliance on
New Jersey v.
T.L.O
,
I.
We are reviewing a judgment entered after a jury trial. Over the course of that trial, the police officers repeatedly explained that they took C.B. into custody pursuant to the Welfare and Institutions Code. Officer Prock, for example, acknowledged that he “arrest[ed]” C.B. under section 601. So did Officer McIntosh. The officers’ expert witness testified as to whether the circumstances allowed them to take C.B. into temporary custody under section 601(a).
Furthermore, the testimony at trial established that at the time of C.B.’s seizure, the understanding of both the officers and the school was that he was being put in handcuffs and carried away for law enforcement or mental health reasons, not school discipline. C.B. thought he was going to jail; no one told him otherwise. Coach Sinclair testified that she “[a]bsolutely” believed the officers were taking C.B. to the hospital pursuant to Welfare and Institutions Code section 5150, which enables a “peace officer” to take a person into custody for seventy-two hours when there is probable cause to believe the person “is a danger to others, or to himself,” “as a result of a mental health disorder.” Officer Prock testified that the plan was to take C.B. to the probation department before releasing him to a family member. See Cal. Welf. & Inst. Code § 626(d). It was only after C.B. was seized that Officer Prock realized that he had a prior existing business relationship with C.B.’s uncle and so decided, with Chief McIntosh’s permission, to drive C.B. directly to the uncle’s home.
In closing argument, counsel for the officers pointed the jury to sections 625 and 601 of the Welfare and Institutions Code and described this statutory authority as their “primary defense” to C.B.’s constitutional claims. As to the unconstitutional seizure claim, counsel for the officers explained: “[W]e’re saying that the law authorizes us to take *55 the plaintiff into custody without a warrant because he’s beyond the control of his guardian.” Counsel for the officers went on to argue that the evidence showed C.B. was “beyond the control of the school,” and that the officers were for that reason “allowed to take him into temporary custody without [1] That such a seizure would have required probable cause was clearly established and beyond dispute by 2008. See Bias v. Moynihan , 508 F.3d 1212, 1220 (9th Cir. 2007).
a warrant . . . . under the Welfare [and] Institutions Code [sections] 625 and 601.”
The jury was instructed in accord with the proffered defense that “seizure . . . without an arrest warrant is reasonable if the officers . . . had probable cause to believe that the person was subject to temporary custody without a warrant,” and that “[w]hether the defendant officers had probable cause to conclude that [the] plaintiff was a juvenile who was subject to temporary custody under the Welfare [and] Institutions Code , as that law is described in these circumstances, should be determined by you under the totality of the circumstances.” [2] (Emphasis added.)
After the jury returned a verdict in favor of C.B., the officers moved for judgment as a matter of law on the ground that they were entitled to qualified immunity for C.B.’s unlawful seizure claim. Their argument was that “the officers were authorized to take [C.B.] into custody under [s]ection 625 and 601 of the California Welfare and Institutions Code.”
On appeal, the police officers continue to maintain that they took C.B. into “temporary custody under Welfare [and] Institutions Code sections 601 and 625.” They contend that they “arrested Plaintiff C.B.” pursuant to this statutory authority “based on reasonable cause to believe C.B. was beyond the control of the school.” And, although the three other opinions in this case cite T.L.O. as alternately barring or justifying C.B.’s seizure, the officers themselves in their appellate filings have never cited T.L.O. at all . In their response to the petition for rehearing en banc, the officers noted that the panel opinion “accurately identif[ied] Section The officers offered no objection to this instruction.
C.B. V . C ITY OF S ONORA 71 601(a) and 625(a) as the authority invoked and relied upon by the Officers[ ] in taking C.B. into temporary custody.”
Simply put, the police officers are defending against C.B.’s allegations on the ground that they behaved as law enforcement officers, not school administrators or officials, when they arrested C.B. pursuant to their asserted statutory authority to do so. The officers do not purport to have been enforcing school disciplinary policies as agents of the school. We should not be evaluating the officers’ seizure of C.B. by recourse to a justification that they neither offer as authority for their conduct nor endorse.
II.
The officers’ sole contention, then, is that they had cause to take C.B. into custody because he was “beyond the control of” his “custodian” under section 601(a). They had no such cause for two reasons: (1) the school is not C.B.’s custodian, and (2) he was not “beyond the control” of his parents, guardian, or custodian.
Subsections (a) and (b) of section 601 provide: (a) Any person under the age of 18 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian, or who is beyond the control of that person, or who is under the age of 18 years when he or she violated any ordinance of any city or county of this state establishing a curfew based solely on age is within the jurisdiction
of the juvenile court which may adjudge the minor to be a ward of the court.
(b) If a minor has four or more truancies within one school year as defined in Section 48260 of the Education Code or a school attendance review board or probation officer determines that the available public and private services are insufficient or inappropriate to correct the habitual truancy of the minor, or to correct the minor’s persistent or habitual refusal to obey the reasonable and proper orders or directions of school authorities, or if the minor fails to respond to directives of a school attendance review board or probation officer or to services provided, the minor is then within the jurisdiction of the juvenile court which may adjudge the minor to be a ward of the court. However, it is the intent of the Legislature that no minor who is adjudged a ward of the court pursuant solely to this subdivision shall be removed from the custody of the parent or guardian except during school hours.
As Judge McKeown concluded in her dissent to the
original panel opinion in this case: “On its face, the term
‘custodian’ does not apply to school officials.”
C.B. v. City
of Sonora
,
Of particular relevance to C.B.’s situation, subsection 601(b) specifies that a minor may come under the juvenile court’s jurisdiction “[i]f . . . a school attendance review board or probation officer determines that the available public and private services are insufficient or inappropriate . . . to correct the minor’s persistent or habitual refusal to obey the reasonable and proper orders or directions of school authorities.” Cal. Welf. & Inst. Code § 601(b). C.B.’s “refusal to obey the . . . orders or directions of school authorities” spurred his seizure. But there was no “determin[ation]” made by those statutorily empowered to do so that “available . . . services [were] insufficient” to correct C.B.’s disobedience. And there certainly was no determination made that C.B.’s disobedience was “persistent or habitual.” Accordingly, the provision of section 601 which *58 specifically applies to schools does not support C.B.’s seizure. The officers do not argue that it does.
The complete absence from subsection (b) of a provision allowing a juvenile court to assert jurisdiction over a minor who “is beyond the control” of school authorities without a proper determination being made by the appropriate persons is telling. As “judicial interpreter[s],” we are “call[ed] on . . . to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). When confronted with a general provision and a specific provision that cannot be reconciled, the specific provision prevails. Id. at 183. Here, even if school authorities are properly considered C.B.’s custodian’s during school hours, subsection (b) is the more specific provision, and so must govern. Otherwise, whenever a minor “persistently or habitually refuses to obey the reasonable and proper orders or directions” of school authorities, he could be within the juvenile court’s jurisdiction, leaving subsection (b)’s procedural requirement a nullity.
That subsection (a) does not include minors who are beyond the control of school authorities is confirmed by review of the statute’s legislative history. An earlier version of section 601 expressly applied to minors who were “beyond the control of” “school authorities.” That version of the statute read in full:
Any person under the age of 21 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his parents, guardian, custodian or school authorities , or who is beyond the control of such person, or any person who is a habitual truant from school within the meaning of any law of this State, or who from any cause is in danger of leading an idle, dissolute, lewd, or immoral life, is within the jurisdiction of the juvenile court which may adjudge such person to be a ward of the court.
1961 Cal. Stat. 3471 (emphasis added);
see also In re David
S.
,
At the same time, and as part of the same legislation that created school attendance review boards and that amended section 601, the legislature added section 601.1 to the Welfare and Institutions Code. 1974 Cal. Stat. 2629. That section specifically governed disobedience of school authorities, and required “persistent[] and habitual[] refus[al]” in order for a minor to be “beyond the control of such authorities”:
(a) Any person under the age of 18 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of school authorities, and is thus beyond the control of such authorities, or who is a habitual truant from school within the meaning of any law of this state, shall, prior to any referral to the juvenile court of the county, be referred to a school attendance review board pursuant to Section 12404 of the Education Code.
(b) If the school attendance review board determines that the available public and private services are insufficient or inappropriate to correct the insubordination or habitual truancy of the minor, or if the minor fails to respond to directives of the school attendance review board or to services provided, the minor is then within the jurisdiction of the juvenile court which may adjudge such person to be a ward of the court. *60 76 C.B. V . C ITY OF S ONORA Id. The legislature thus required that minors who disobey school authorities be referred to a school attendance review board before coming within the juvenile court’s jurisdiction.
In the context of this legislative scheme, it is clear that the deletion of “school authorities” and “habitual truan[cy]” from section 601 was a purposeful excision. The legislature’s considered judgment was that school discipline and attendance problems should go to the school attendance review boards before the child is referred to juvenile court, and that only “persistent[] or habitual[] refus[al] to obey . . . school authorities” would suffice. As already discussed, the present version of 601 embodies this same basic structure.
In sum, “custodian” and “school authorities” have long held separate meanings in this statute. The non-inclusion of minors who are beyond the control of school authorities from section 601(a) was no mistake.
There is still more evidence of the total implausibility of the officers’ interpretation of section 601. The current provision requires that minors adjudged a ward of the court under subsection (b) may only be removed from a parent or guardian during school hours. If “custodian” in subsection (a) includes school authorities, then a minor may be removed from his home if he is adjudged a ward of the court for “persistently or habitually refus[ing] to obey” school authorities or, as here, for being “beyond the control of” school authorities — a result plainly contrary to subsection (b)’s considered prohibition against such a practice. Thus, even if custodian is a general term that could, in some circumstances, encompass school officials, the context in which the term appears and the evolution of the statute indicate that it does not serve this role in section 601.
Moreover,
all
the cases applying 601(a) to minors who
disobey or are beyond the control of their
custodians
refer to
persons charged with overall custody of a minor, not school
officials.
See, e.g.
,
In re Ronnie P.
,
For example, Welfare and Institutions Code section 777 requires a noticed hearing before “changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend.” Cal. Welf. & Inst. Code § 777 (emphasis added). And section 601(a)’s grouping of custodian with “parents” and “guardian” is replicated in Ex parte Moilanen , which holds that “[p]arents, guardians or others in whose custody a minor child may be found, are entitled to notice of hearings in proceedings instituted for the purpose of separating children from custodian[s].” 104 Cal. App. 2d 835, 842 (Dist. Ct. App. 1951). School administrators and authorities generally do not have the type of liberty interest in their relationship with their students that carries due process protection.
Finally, a minor, even one identified as a “runner,” cannot
properly be deemed “beyond the control of” his custodian for
refusing to come inside after recess on a single occasion. As
Judge Paez recounts, examination of the cases interpreting
section 601(a) illustrates that this section mostly applies to
runaways — minors who are quite literally “beyond the
control” of their parents, guardians, or custodians, and for that
reason properly may be adjudged a ward of the state.
See,
e.g.
,
In re Bettye K.
,
In sum, section 601(a) has not been applied to include and does not include a single act of defiance of school officials. The officers simply had no cause to take C.B. into custody under this provision.
III.
Nor does qualified immunity insulate the officers from C.B.’s Fourth Amendment claims.
“A police officer, who violates another’s constitutional
right, will receive qualified immunity from suit under
42 U.S.C. § 1983 if the right the officer violated was not
protected by clearly established law at the time he acted.”
A.D. v. California Highway Patrol
,
“By defining the limits of qualified immunity essentially
in objective terms,” the aim is not to “license . . . lawless
conduct.”
Harlow v. Fitzgerald
,
The officers do not argue that, because he was a student,
C.B. had no Fourth Amendment protections. Nor could they:
Students do not “shed their constitutional rights . . . at the
schoolhouse gate.”
Tinker v. Des Moines Indep. Cmty. Sch.
Dist.
,
When law enforcement officials effect a seizure of a
person without a warrant, as the officers did here, the
reasonableness requirement generally is satisfied if probable
cause exists to believe the person is violating the law.
Skinner v. Railway Labor Executives’ Ass’n
,
That the Fourth Amendment guarantee is secured in
general terms does not assure the officers immunity:
“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.”
Hope
v. Pelzer
,
By 2008, the law was clearly established that the
constitution requires police officers to have
some
legal cause
to take children into custody.
Crowe v. County of San Diego
held that a police officer was not entitled to qualified
immunity for a claim that the 1998 detention of two children
after the murder of the children’s sister violated the children’s
Fourth Amendment rights, as the officer “failed to provide
any justification” for the children’s seizure,
C.B. V . C ITY OF S ONORA 81
Here, the officers acknowledged that their seizure of C.B. amounted to an arrest. In assessing the circumstances under which a law enforcement officer may take a child into temporary custody for being “beyond the control” of a parent, guardian, or custodian, the California legislature arrived at a reasonable cause standard. Cal. Welf. & Inst. Code § 625(a). Thus, when law enforcement officers have reasonable cause to believe a child falls within the ambit of section 601, they may hold the child in temporary detention. Id. As the officers explained during their testimony, this temporary custody could involve transferring custody to the probation department or to a private shelter. Cal. Welf. & Inst. Code § 626.
In my view, the police officers could not reasonably have believed that they had cause, reasonable or otherwise, to take C.B. into custody under section 601(a). I will therefore assume that the state statute’s adoption of a reasonable, rather than probable, cause standard, is consistent with the constitutional guarantee, and will further assume that “reasonable cause” is less than “probable cause,” which is not self-evident. Still, if the officers could not reasonably have believed some cause existed under section 601(a), qualified immunity offers them no protection.
No reasonable officer would have believed that he had any cause to take C.B. into custody pursuant to section 601. The officers were told that that day C.B. was “out of control,” a runner who had not taken his medication, and, in response to questioning, that he was not wanted on school grounds. But Sonora Elementary obviously was not C.B.’s parent, 82
guardian, or custodian: For the reason I have explained, there is just no sensible reading of the statute otherwise.
Moreover and separately, the officers’ account assuredly
did not provide reasonable cause to believe C.B. “
persistently
or
habitually
refuse[d] to obey . . . reasonable and proper
orders or directions.” Cal. Welf. & Inst. Code § 601(a). Nor
did it provide reasonable cause to believe that C.B. was
“beyond the control” of
anyone.
California law is clear that
a single act of defiance is generally insufficient to find that a
*65
minor is beyond the control of a parent, guardian, or
custodian absent some extraordinarily serious act of defiance.
See
Paez, J., Opin. at 43–44 (citing
In re David S.
, 12 Cal.
App. 3d at 1128 (holding that a minor who had told his
mother he would be spending the weekend with friends about
40 miles from home but who was actually found about 600
miles away from home attempting to cross the border into
Mexico was beyond the control of his parents) and
In re
Bettye K.
,
In short, there was no cause, probable, reasonable, or otherwise, to take C.B. into temporary custody under section 601, and no reasonable officer could have believed otherwise.
As the defense proffered by the officers in this case
confirms, law enforcement officers enforce the law, not run-
of-the-mill school discipline.
[4]
And law enforcement officers
[3]
While there was testimony from the defense expert witness that the
police officers were trained otherwise, flatly erroneous training does not
establish qualified immunity.
See Cal. Att’ys for Criminal Justice v. Butts
alone are authorized to take a child into temporary custody upon reasonable cause to believe the child is in violation of section 601(a). Cal. Welf. & Inst. Code § 625. Because there was no cause to believe C.B. could be detained under these Welfare Code provisions, and no reasonable officer could believe that there was, I would affirm the judgment for C.B. on these grounds. I would not manufacture a T.L.O.–based law-enforcement-officers-as-school-disciplinarians defense never argued to the jury, or us.