Jim Maxwell v. County of San Diego

ten-year period Leung, Angeles City Todd Los Attor- before the long BIA, Office, CA, ney’s Angeles, Los we conclude for Defen- lapsed. Like years spend dant-Appellee. ten out- required she was returning. States before side the United so, satisfy does not Having failed to do she ORDER 1182(a)(9)(C)(ii) exception § to inad-

missibility.6 KOZINSKI, Judge: Chief Upon majority the vote of a of nonre- CONCLUSION judges, cused active it is ordered this un- de Palacios is inadmissible Carrillo pursuant case reheard en banc to Fed- 1182(a)(9)(C)(i)(II), § der 8 U.S.C. 35(a) eral Rule of Appellate Procedure 1182(a)(9)(C)(ii) § qualify does not for The three-judge panel Circuit Rule 35-3. inadmissibility. The BIA cor- exception to opinion precedent by shall be cited as rectly determined that Carrillo de Palacios or to court of the Ninth Circuit. adjustment of status eligible is not for 1255(i). under

PETITION DENIED. MAXWELL, individually

Jim and as guardian of Trevor Allen Bruce and Naranjibhai PATEL; Ramilaben Bruce; Kay Maxwell, Kelton Tanner Patel, Plaintiffs-Appellants, individually guardian and as of Trevor Allen Bruce and Kelton Tanner Maxwell, Bruce; Jim as executor of ANGELES, municipal CITY OF LOS the Estate of Kristin Marie Maxwell- Defendant-Appellee. corporation, Bruce, Plaintiffs-Appellants, No. 08-56567. Appeals, United States Court of

Ninth Circuit. DIEGO; Alpine OF Fire COUNTY SAN District; Viejas Fire De- Protection Feb. Bryan partment; Lowell “Sam” Bruce, Bradley Avi; Jeremy Weiser, Deputy; Esquire, Indepen- Alan Frank Felber; Reynolds; Anthony Counsel, Gregory Law of Frank A. dent Offices Salazar; Knobbe; Jeffrey Jackson; Weiser, CA, Angeles, for Plaintiffs- M. Los Kneeshaw; Voth; Gary Wil- Appellants. Warren agency years may, pre-existing under we that Carrillo de Palac- ten 6. Because conclude satisfy statutory requirement ios failed to pro permission to practice, obtain nunc tunc country ten that she wait outside the having reapply after returned to the United years, deciding we refrain from whether an States. country waited alien who has outside Reilly; Rodriguez; Brian L. liam Ross; Howell; Colby Chip

Boggeln; Mead; Does, Defendants-Ap

Michael

pellees. Maxwell, individually guard and as

Jim Bruce and Kelton

ian of Trevor Allen Kay Maxwell, Bruce; individ

Tanner

ually guardian of Trevor Allen and as Bruce; Jim and Kelton Tanner

Bruce

Maxwell, executor of the Estate of as Maxwell-Bruce, Plain Marie

Kristin

tiffs-Appellees,

County Diego; Alpine Fire Pro of San District; Viejas Depart Fire

tection Bruce,

ment; Bryan Lowell “Sam” Bradley Avi; Jeremy Felber;

Deputy; Colby Ross; Chip Boggeln;

Brian Does,

Howell; Mead; Michael Defen

dants, Reynolds; Anthony Salazar;

Gregory M.

Knobbe; Jeffrey Jackson; Warren Gary Kneeshaw;

Voth; Reil William

ly; Rodriguez, Defendants-Appel L.

lants. 10-56671,

Nos. 10-56706. Appeals,

United States Court

Ninth Circuit. March 2012.

Argued and Submitted

Filed Feb. Benjamin, Spahr

Daniel M. Ballard Thibodo, LLP, CA, Diego, San and Todd Encino, CA, Thibodo, Law Offices of Todd Plaintiffs-Appellees/Plaintiffs-Appel- for lants. Hill, San Die- Deputy,

Morris G. Senior CA, Counsel, County for go Diego, San Reynolds, Defendants-Appellants Gregory Knobbe, Salazar, Jeffrey Michael Anthony Kneeshaw, Jackson, Voth, Gary Warren Reilly, Rodriguez. William and Leonard Morris, Samouris, John M. Phillip C. Fuller, Higgs, E. Fletcher & and Victoria LLP, CA, Defen- Diego, Mack San for dants-Appellees Viejas Department, Fire Avi, Bradley Jeremy Felber. FARRIS, by or to this court or district court of Before: JEROME CLIFTON, the Ninth R. and SANDRA Circuit. RICHARD IKUTA, Judges. S. Circuit

FARRIS, Judge: Circuit FARRIS; by Judge by Dissent Opinion OPINION

Judge IKUTA. appeals These associated concern the ORDER aftermath the shooting of Kristin Marie husband, Maxwell-Bruce her Lowell panel deny petition has voted to Bruce. 10-56671; rehearing for in case number deny and Ikuta vote to

Judges Clifton I banc, en petition rehearing Judge Farris so recommends. Around 10:50 PM on December Lowell, a deny Diego County San Sheriffs De-

Judges Farris and Clifton vote to partment deputy, jaw shot Kristin in the petition rehearing in case number 10-56706; with pistol his Glock .40 caliber service in Judge deny Clifton votes to the banc, time, couple’s bedroom.1 At the petition rehearing Judge for en and Lo- well in Judge Ikuta votes and Kristin lived the home of Kris- Farris so recommends. Maxwell, parents, Kay tin’s Jim and grant petition rehearing along for and the with Lowell and Kristin’s children petition rehearing for en banc. and father, Kay’s Fred Stevens. Kristin was The full court has been advised of the help. able to call 911 for Lowell also petitions rehearing for en banc and no dispatcher called and told requested a vote on whether to judge has he had shot Kristin. rehear the matters en banc. Fed. R.App. Deputy Jeffrey Jackson of the Sheriffs P. 35. Department dispatched was to the scene petitions panel rehearing for and Jackson, PM. and arrived about 10:53 petitions rehearing en banc are Davis, with Bill a along neighbor hap- who DENIED. pens Diego to be a San Police Department sergeant apparently and who was notified ORDER Jim, shooting telephone by of the via went Opinion Septem- and Dissent filed into the Maxwell house. Jackson knew slip opinion ber number before he went into the house that appearing suspect deputy and at 697 F.3d is with- was a fellow sheriff. When arrived, in may precedent sitting drawn. It not be cited as Jackson he saw Kristin a reviewing proce- subject jurisdiction. in matter 1. These cases come to us different dismissal, postures require and may generally dural thus us to consider a "we consider such parts different of the record. Case 10-56706 only allegations pleadings, contained in the summary judgment. We follows the denial of complaint, exhibits attached to the and mat- light "deposi- review that decision in properly subject judicial ters notice.” Col- tions, documents, electronically stored infor- Carson, ony Props., City Cove LLC v. mation, declarations, stipulations or affidavits (9th Cir.2011) (internal quota- (including purposes those made for omitted). We recite the cases’ tion marks admissions, only), interrogatory motion an- backgrounds together shared for the reader's swers, or other materials” in the record. analysis limit our of each convenience but 56(c)(1)(A). Fed.R.Civ.P. Case 10-56671 fol- appropriate parts of the record. claim to the grant a lack lows the of motion to dismiss for PM, from an ambulance Around 11:08 dispatcher. the 911 chair, talking to still Kumeyaay Indians Viejas Kristin and deter- Band of past walked Jackson not a threat. Jack- arrived. The Vie- Department that Lowell was Fire mined Tribal told the 911 phone ambulance, and para- son took Lowell’s carried jas Fire which department. fire Felber, to send the dispatcher Bradley Jeremy Avi and medics Lowell to Jackson’s then escorted Jackson landing transport Kristin to could Lowell Jackson did not frisk patrol car. zone. handcuff him. weapons time, signs vital were At Kristin’s Gibbs, neighbor a of the Maxwells Rani The ambulance within normal limits. still nurse, the house at about entered and Rather, at immediately. leave did not sitting Kristin PM. Gibbs found 10:58 engine point, the ambulance’s some conscious, chair, and oriented. At alert and between 11:10 turned off. Sometime PM, Alpine an Fire Protection about 11:00 PM, saw Kristin sit- 11:15 Fred Stevens arrived, carrying Cap- District fire truck room, holding a dining in the ting alone Ross, firefighter Colby Boggeln, tain Brian jaw. towel to her technicians Mi- emergency medical and brought Eventually, Avi and Felber Howell II. Their chael Mead and Gerald gurney. help With their backboard gurney. have for a space fire truck did not Mead, they placed from Ross and Kristin Deputies William Department Sheriffs taped place. on the her into backboard Voth, Reilly, Rodriguez, Leonard Warren The four men then carried Kristin to Gary Kneeshaw also arrived at the Viejas Fire ambulance. ar- When PM. Voth and Kneesh- scene around 11:00 ambulance, began at the Kristin ex- rived they needed initially aw were told were not distress, blood hibiting signs expelling to leave. Jackson ordered prepared and The four men tilted the from her mouth. patrol the former’s Rodriguez stay near drain, and backboard to allow blood the house with car and went back into They the blood. made oth- Ross suctioned they gun. retrieved Lowell’s Reilly, where success. er efforts to assist her without responders entered the Alpine The Meanwhile, Knobbe Sergeant Michael later, left a few minutes and Gibbs house PM. at the scene at 11:16 had arrived Mead also shortly thereafter. Ross and charge. Knobbe believed himself to be began came in and a medical examination by Captain Greg- in fact outranked He was Alpine responders The deter- of Kristin. ory Reynolds Anthony Lieutenant Sa- and signs vital and motor

mined that Kristin’s lazar, arrived around the same time who responses were normal and that she Nonetheless, Reynolds and as Knobbe. They diagnosed also able to communicate. stayed near the end of the drive- Salazar airway Boggeln an obstruction. her with interfere with Knobbe way and did not placed c-spine collar on Kristin. and Ross of the crime scene. taking control concluded that Alpine responders The ordered Voth and Kneeshaw Knobbe quick- to a trauma center go Kristin had to stay at the crime scene. He also ordered ambulance, an air ly. They requested evacuated and sealed and the the house the fastest mode they which believed Fred, Kay, separated. Maxwells and transport, were informed it would in a motor home on placed children were zone 10 landing arrive in 25 minutes at a pace driveway. Jim was allowed to had ad- away. The air ambulance miles driveway. Jim and around the front of capabilities dealing vanced medical stay to be allowed to Kay repeatedly asked patients. with trauma together and follow to the hospital. investigators Kristin finished interviewing Kay They also told the Kay around 5:00 AM. and the other family anything involving not seen or heard the members did not learn about Kristin’s Nonetheless, shooting. they were told until death then. stay separately had to and wait The Maxwells sued several parties after investigators to interview them. the night’s events. interlocutory These estimates, Alpine’s Based on Kristin was appeals concern two sets of claims. In the placed Viejas in the Fire ambulance be- first, the Maxwells allege various constitu- tween Sergeant 11:18 and 11:25 PM. Jackson, tional violations Reilly, Rodri- Knobbe, however, refused to let the ambu- Voth, Kneeshaw, Knobbe, guez, Reynolds, immediately lance leave because he viewed (the officers”) and Salazar “Sheriffs pur- the area as a crime scene thought § second, suant to U.S.C. Kristin had to be interviewed. aAs result the Maxwells seek tort damages under delay, the ambulance did not leave law against Viejas California Fire De- until PM. By point, 11:30 the air partment and its paramedics, Avi and Fel- already gotten ambulance had to the land- (the “Viejas defendants”), ber pursuant to

ing zone. 1367(a). 28 U.S.C. Viejas Fire ambulance took 11 min- discovery, After the Sheriffs officers get to landing utes to zone. Kristin moved under Federal Rule of Civil Proce- died en route. The cause of death was dure summary 56 for judgment on the blood loss from her gunshot wound. Ac- qualified immunity. basis of Viejas cording to the Diego County San medical defendants moved under Federal Rule of examiner, injuries Kristin’s were repaira- 12(b)(1) Civil Procedure to dismiss for lack ble. subject jurisdiction, matter arguing they AM, At about 12:45 Knobbe Jim— told enjoyed sovereign tribal immunity. The who pacing was still on his driveway—that district court denied the former motion AM, Kristin had died. At around 1:00 granted the latter. assigned Knobbe Deputy Kneeshaw to monitor Jim. Jim told Kneeshaw that he II going was to Kay tell about Kristin’s death. Kneeshaw told Jim that he had to We review de novo district stay put at the end of driveway, on ruling summary judgment court’s on which responded, Jim “You are gonna have qualified immunity. the basis of Rosen me, going my shoot I’m to see wife!” 1071, v. Cnty., baum Washoe 663 F.3d Jim started to walk toward the mobile (9th Cir.2011). jurisdiction 1075 “Our in home. Kneeshaw Jim stop told generally these matters ques is limited to path. tried to block his When Jim tried to tions of law and does not extend to claims walking, continue sprayed Kneeshaw him in qualified which the determination of im three times with pepper spray, struck him munity depends on disputed issues of ma baton, leg on the with his and handcuffed exist, terial fact.... disputed Where facts him with help. Knobbe’s Salazar and however, we can determine whether the Reynolds were still at the end of the drive- qualified immunity denial of appropri was way and did not intervene. by assuming ate the version of the

Jim by was released from his handcuffs material facts non-moving asserted Gomez, about half an hour kept party later. He was still is correct.” v. 267 Jeffers (9th Cir.2001). separate 895, from family the rest of his until F.3d 903 We also 1082 officers could not Normally, the Sheriffs court’s determi- de novo the district

review injury for an jurisdic- held liable under 1983 subject matter nation that it lacks Grubbs, v. sovereign immunity. by party. a third L.W. of tribal inflicted tion because Cir.1992). (9th 119, There Cmty., 276 River Indian 974 F.2d Linneen v. Gila Cir.2002). (9th are, however, exceptions “two this 489, [to F.3d (1) excep- ‘special relationship’

rule]: (2) tion; Ill ‘danger excep- creation’ that ei- tion.” Id. The Maxwells contend court’s begin with the district We apply. exceptions ther or both summary judgment to the Sher denial of qualified ground officers on the iffs cre agree danger We immunity protects immunity. Qualified of December exception applies. ation As liability for civil “from government officers 2006, it was well-established in this circuit their conduct does damages insofar as applies creation danger exception that the statutory or con clearly violate established “affirmatively government where officers a reasonable rights of which stitutional position danger.” in a placed [victim] v. Harlow person would have known.” Ostrander, 589-90 v. 879 F.2d Wood 800, 818, 102 Fitzgerald, 457 Cir.1989) (internal quotation marks To deter L.Ed.2d 396 omitted). affirmatively place a Officers qual mine whether an officer is entitled by her “in a person danger leaving ask, in the we immunity, we order ified dangerous more than [is] situation (1) choose, alleged misconduct whether the v. Munger one in which found h[er].” (2) right a whether right violated Glasgow Dep’t, Police City of time of the clearly established at the (9th Cir.2000). Impeding ac Callahan, alleged misconduct. Pearson leaving care amounts to cess to medical See dangerous victim a more situation. (2009). “For a constitutional L.Ed.2d 565 Park, 115 City Huntington Penilla v. established, clearly its contours right to be (9th Cir.1997). that a sufficiently must be clear reasonable Kristin fac- The Sheriffs officers found that what he is official would understand gunshot her ing preexisting danger from Pelzer, doing right.” Hope violates that they affirma- wound. There is evidence 739, 122 S.Ct. tively danger preventing increased that (2002) (internal quotation L.Ed.2d argu- leaving. her ambulance from This omitted). marks ably left Kristin worse off than if the am- bring had been allowed to her to bulance A medi- an air ambulance that had advanced alleges claim The Maxwells’ first ready fly to her to capabilities cal delay that the ambulance vio Kristin’s a trauma center. the Fourteenth Amendment’s due lated argue that process The due clause The Sheriffs officers process clause. “bodily security.” danger distinguish our creation cases are guarantees right involve first they 439 F.3d able because did not Kennedy City Ridgefield, (9th Cir.2006). 1055, securing a crime scene. But responders 1061 The Maxwells notice that their officers violated “officials can still be on contend that the Sheriffs security delay law even in right bodily by Kristin’s conduct violates established Hope, 536 her novel factual circumstances.” ing ensuring her ambulance and thus 741, 2508. The existence death. U.S. our change remaining question of a crime scene does not The is wheth er, delay of analysis. pre-December It was irrelevant to the under our prece dent, the detention the ambulance. The ambulance contained was reasonable. Un facts, der the apart they no witnesses or evidence from the Maxwells’version of the were solely victim herself and her wounds. Lowell seized for over five hours be custody. they confessed and was in cause were witnesses to a crime. reasonable, gun deciding used in whether Sheriffs officers had found this was we gravity crime. The crime scene was sealed. look to “the of the public concerns seizure, by degree served to which argue they The Sheriffs officers also interest, the seizure advances the public lacked the mens rea to be held liable un- severity and the of the interference with 1983, claiming der the record does not Texas, liberty.” individual Brown v. ... show “deliberate indifference to known 47, 51, U.S. 99 S.Ct. 61 L.Ed.2d 357 dangers.” or obvious Nicholas v. Wallen- (1979). (9th Cir.2001). stein, 266 F.3d reject the It argument. We was obvious We note there are few cases discussing delaying bleeding gun shot victim’s reasonability of detaining witnesses of death. ambulance increased risk solely investigative purposes. for In most cases, on-point the lack of precedent would Finally, appear the Sheriffs officers compel grant qualified immunity. us to To that the argue Maxwells must show that apply legal right high at “a level of “purpose acted with a to harm” Kris- generality plaintiffs would allow ‘to convert tin since this case involved a medical emer- qualified immunity the rule of ... into a gency calling split-second decisions. virtually unqualified liability rule of Osborn, simply See Porter v. by (9th Cir.2008). alleging extremely violation of abstract This contradicts their ear- ” Ramirez, rights.’ Groh recognition appropriate lier that the stan- 124 S.Ct. 157 L.Ed.2d 1068 is one deliberate It dard indifference. (2004) (Thomas, J., dissenting) (quoting nonsensically suggests also that a medical 635, 639, Creighton, Anderson v. emergency parties justified faced third (1987)) 107 S.Ct. prevent parties the decision to those from (alteration in original). responding emergency. to that Nevertheless, case, “in an obvious B [general] ‘clearly standards can establish’ The Maxwells next that their mul- allege answer, body even without a of rele separation ti-hour detention and violated Haugen, vant case law.” Brosseau v. the Fourth Amendment’s ban on unreason 160 L.Ed.2d accept purpose able seizures. We This is an ease. Al obvious appeal allegation of this the Maxwells’ though detention of witnesses for investi subject seizure. Sher were can be reasonable in cer gative purposes challenge allega iffs officers did not this circumstances, tain such detentions must in their opening tion the district court or minimally intrusive. appeal. They brief on therefore waived Ward, argument reply in their brief In v. 488 F.2d 162 raised United States (9th Cir.1973) (en banc), Taniguchi that there was no seizure. See we held that FBI (9th Schultz, 950, v. agents’ person 303 F.3d 958-59 Cir. detention of a without “a 2002); Anaheim, activity” criminal City suspicion Eberle v. 901 founded of was of Cir.1990). 814, (9th F.2d 818 unconstitutional. Id. at 169. There was

1084 inqui- Amendment reasonableness had been Fourth the defendant suspicion that no Rather, the detentions were ry Id. and determined crime. particular in a involved important! The rea- ]” reasonable. pre-existing “[m]ost to a pursuant -was stop son, inter- stops was that “the explained, made for it and was investigation criminal minimally liberty with of the only fered the defendant questioning of purpose pro- Amendment seeks to sort the Fourth Id. person. about a third The 124 885. tect.” Id. S.Ct. prohibit involun has been read Ward very “a few minutes at delay overall to a crime. of witnesses tary detention most,” only police with the “lasted contact Orem, City v. See Walker of seconds,” the contact “consisted a few Cir.2006). (10th read it We do not a for information and simply request of ca broadly. contained two quite so Ward 427-28, flyer.” Id. at distribution of a investigato open that left the door veats focusing stop’s the traffic By on S.Ct. First, it noted that ry witness detentions. liberty, Lid- personal minimal intrusion on “emergen not involve an the detention did jus- that the state interests ster confirmed Second, at 169. it cy situation.” 488 F.2d are tifying investigative witness detentions agents— federal distinguished between justifying detention of lower than those only statutes —and who can enforce federal suspected criminals. enforcement officers—who have local law authority general to detain as broader the Sheriffs of We conclude that “guardians peace.” Id. on notice that could not ficers were detain, Nonetheless, interrogate the Max- clearly separate, restricts in- Ward hours. The Sheriffs officers by showing detentions wells for vestigative witness probable never claimed hierarchy in the of state interests have detention, the Maxwells or reasonable the interest in detain- cause to arrest justifying temporary Terry for a detention. ing suspicion for information is of relative- witnesses solved, if The crime was and even it had ly began analysis by value. its low Ward been, principle a to the it is “settled comparing challenged detention police right request while the have the type investigative stop authorized Ohio, voluntarily questions 20 citizens to answer Terry v. S.Ct. (1968). they have no concerning that Ter- unsolved crimes L.Ed.2d 889 Ward noted them to answer.” Davis v. ry activity right compel that criminal is “suspicion made 721, 727 n. Mississippi, for a lawful deten- prerequisite afoot” (1969). 1394, 22 L.Ed.2d 676 Even By using Terry tion. 488 at 169. as S.Ct. Terry stop in the context—which involves starting point, a Ward made clear that activity ac- a of criminal that is ab suspicion suspicion detention without of criminal never Supreme than sent here —the Court has tivity involved a lesser state interest longer a than 90 min suspicion. on endorsed detention detention based such Place, v. utes. See United States U.S. Supreme authorizing Court decision 696, 709-10, 103 77 L.Ed.2d S.Ct. solely for the obtain- purpose detentions ing information confirms this common Lidster, reliance on Walker In The Sheriffs officers’ sense rule. Illinois Orem, (2004), 451 F.3d 1139 Cir. City Walker, 2006), unavailing. police a traffic offi Supreme Court considered family then forced his cers shot a man and checkpoint up police set so could ask for interrogated them for run incident. into their house and information about a hit and 451 F.3d at 1145. The Tenth normal 90 minutes. Supreme applied Court its Circuit held the detention was unconstitu- trator in custody was and the crime scene granted qualified immunity tional but be- was sealed. The Maxwells followed orders Moreover, there no clear precedent cause was circuit leave their house. the Sher- prohibiting a detention. iffs officers arguably such Id. 1151. could have protected the integrity of the crime right This decision does not show the was scene without detaining Walker, in witnesses uncertain this case. Walker held a de- there. See 451 F.3d at 1149. tention like the one here unconstitutional six months before December 2006. Walk- Last, the Sheriffs point officers to their clearly er also noted that our circuit has need to secure the crime scene. But there established case on investigative law wit- is evidence they perceive did not such a strongly suggested ness detentions and it need at the time. The Sheriffs officers differently would have ruled if our holding were on the scene for over 20 minutes Further, governed. Ward Id. at 1148. before Knobbe ordered the house evacuat- question Walker noted that the events in time, By ed. Lowell had confessed Thus, predated Lidster. unlike the Sher- voluntarily gone custody. into Jack- officers, iffs officers Walker were son took Lowell custody into without hand- necessarily on notice that witness de- cuffing him or frisking him for weapons. subject tention was to the Fourth Amend- again We note weighing this evidence ment reasonableness test. See 451 F.3d at beyond jurisdiction. Mattos, is our F.3d at 439 n. 2. reject We also the argument that vari C exigencies ous made the detention reason The Maxwells also claim that able aas matter of law. The Sheriffs Jim’s treatment when he rejoin tried to his Mena, officers cite Muehler v. family violated the Fourth Amendment. (2005), When Jim rejoin tried to his family, he which held that authority officer’s “[a]n was pepper-sprayed, baton, struck with a detain incident to a search categorical.” is and handcuffed. The Maxwells allege that Id. at 125 S.Ct. 1465. Muehler (1) these acts constituted an arrest without inapposite. The Maxwells’ detention was (2) probable cause and with excessive not incident to a search. The Sheriffs type Either of arrest is an unrea force. officers did not obtain a search warrant sonable seizure. v. City Caballero Con until more than four hours after the deten cord, Cir.1992); 956 F.2d began. tion The Maxwells were not “oecu- Cnty., White v. Pierce 797 F.2d pant[s] of [their at the time house] (9th Cir.1986). accept pur We for the 98, 125 search.” Id. at S.Ct. 1465. poses appeal of this allega Maxwells’ The Sheriffs officers also cite Illinois v. Thus, tion that Jim was arrested. McArthur, whether, questions are under pre-De our (2001), L.Ed.2d 838 which allows warrant- precedent, cember 2006 probable cause ex less prevent seizures to the destruction of degree isted or the of force was excessive. evidence while law enforcement obtains We conclude that there no probable is, however, search warrant. There ample cause and the force was excessive. threat, evidence that there was no such jurisdiction and we have no in this interloc- Probable cause exists if the ar utory appeal to weigh sufficiency of the resting knowledge officers “had and rea evidence. Mattos v. Agarano, sonably trustworthy information of facts (2011) (en banc). 439 n. 2 perpe- pru- circumstances sufficient to lead a person

dent to believe that ate because a jury [the arrestee] could find reasonably committing committed or was a Reynolds and Salazar liable as the ranking D., crime.” States v. Ricardo United present. agree. officers A supervisor We (9th Cir.1990). only § is liable under 1983 for a subordinate’s by crime identified the Sheriffs officers is supervisor constitutional violations “if the obey Deputy Jim’s refusal to Kneeshaw’s participated violations, in or directed the rejoin They order not to his family. argue or knew the violations and failed to act of this was a violation of California Penal prevent List, to Taylor them.” 880 F.2d 148(a), which Code it a crime to makes (9th Cir.1989). Reynolds ], “willfully delay[], or resist[ obstruct[] Salazar that they testified were ob- mere 148(a) any ... peace officer.” Section stayed servers who the end of the Max- crime, however, does not make it a driveway. wells’ But based on the Max- resist unlawful orders. v. City Smith facts, wells’ version of the which we must Hemet, (9th Cir.2005) 394 F.3d accept as true in appeal, this we draw (en banc). inference that Reynolds and tacitly Salazar endorsed the other Sheriffs ac- officers’ The test for whether force was tions by failing to intervene. It is undis- “objective excessive is reasonableness.” puted Reynolds and Salazar were Connor, Graham v. aware of the Maxwells’ detention and wit- Gra part nessed at least of Jim’s arrest and ham sets out a non-exhaustive list of fac beating. Reynolds testified that he heard (1) for evaluating reasonability: tors yelling “stop, Kneeshaw stop, stop” right (2) severity issue, of the crime at whether before latter pepper-sprayed suspect posed an threat immediate struck Jim. Salazar testified that he heard (3) safety others, of the officers or a “commotion” at that time. ap- On this the suspect actively whether resisted ar peal we weigh do not the evidence de- rest or attempted to escape. Id. at termine Reynolds whether and Salazar’s 109 S.Ct. 1865. Because inquiry this stated reasons for not are intervening fact-sensitive, summary judgment should Mattos, plausible. 661 F.3d at 439 2.n. granted sparingly. Gates, Santos v. (9th Cir.2002). 287 F.3d IV

This case is not an exception. If Jim did not resist arrest —and the Sheriffs officers We next consider whether point to no evidence that did—the he use Viejas defendants are immune suit from pepper spray alone could constitute ex- because of tribal sovereign immunity. cessive force. See Headwaters Forest De- “Tribal sovereign immunity protects Indi- Humboldt, v. Cnty. 276 F.3d fense an tribes from suit absent express authori- (9th Cir.2002). 1129-30 by zation Congress or clear waiver tribe.” Cook v. AVI Casino Enterprises, D Inc., Cir.2008). It We must decide whether protects also tribal employees certain grant summary judgment to Captain circumstances. See id. at 727. Reynolds and Lieutenant alone. Salazar Reynolds and Salazar did not directly par A ticipate of the allegedly unlawful acts. The Maxwells contend that sum argue Maxwells Viejas first mary judgment is inappropri- nonetheless lack tribal sovereign immunity defendants

1087 Viejas because the Band waived it. The reject We argument. the Waivers rely Maxwells on California Health and of tribal sovereign immunity must be ex 13863(b), § provides: Code which Safety plicit and unequivocal. See Burlington N. & Ry. Santa Fe Vaughn, Co. v. 509 protection] A ... F.3d may [fire district enter (9th Cir.2007). agree Each into agreements mutual aid with fed- [a] ment by the identified Maxwells explicitly erally recognized Indian tribe that main- Viejas retains the Band’s sovereign tains a full-time fire immun department. The ity.2 tribe, ... federally recognized Indian or

any of employees, its shall have the cite authority Maxwells no ig for immunity same from liability civil noring the clear content of these agree damages on account personal injury ments in statutory favor state language any person death of ... resulting to which Viejas Band never agreed. from acts or omissions of its depart- fire cite, each they case the Indian tribe personnel ment in the performance of explicitly subjected itself to the authority provisions agree- mutual aid See, of another sovereign’s e.g., courts. C provided as ment law dis- Enters., & L Inc. v. Citizen Band Potawa employees, except trict and its when the Okla., tomi Indian Tribe act or omission occurs on property un- 422, L.Ed.2d 623 der the control of the ... federally rec- (2001); Auth., Marcean Hous. Blackfeet ognized Indian tribe. (9th Cir.2006). 455 F.3d We will The Maxwells attached to Viejas their com- not infer that the Band intended the plaint showing Viejas documents exact opposite Fire of what it said simply be paramedics came to the Maxwells’ house cause it in the acted shadow of another pursuant an agreement between the sovereign’s law.

Viejas Alpine Band and the Fire Protec- They tion argue agree- District. these B ments should construed as mutual aid In addition to their waiver argu agreements 13863(b). by § authorized ment, the claim that Maxwells the Viejas They further argue by entering into paramedics Fire lack tribal sovereign im agreements, Viejas mutual aid Band (1) munity because have been sued as agreed that department its fire and fire (2) individuals for acts that did not involve department employees would have “have policy or discretionary function. We immunity” same as their California agree with the Maxwells’ conclusion but counterparts for performed acts in Califor- for a different reason. We conclude that nia. Cal. Health & Safety Code Viejas paramedics Fire enjoy do not 13863(b). § firefighters California are not tribal immunity sovereign because reme gross immune for negligence. Health Cal. dy operate against them, would not the Safety 1799.106, §§ & Code 1799.107. States, tribe. See Shermoen v. United Thus, conclude, the Maxwells Viejas 1312, 1320 Cir.1992). Band sovereign immunity waived for the Viejas defendants to the extent the Max- Tribal sovereign immunity derives from wells alleged gross negligence. have the same immunity common law principles do Viejas We not address the defendants’ how California or tribal law defines these argument agreement predating that each agreements De- satisfy because do not falling 2006 cannot be cember construed as federal standard for waivers of tribal sover- 13863(b). eign under We need not determine immunity. enjoy Viejas paramedics Fire sovereign suggests im and federal shape state Cook, for ex- sovereign immunity. v. Mar tribal Clara Pueblo

munity. See Santa low-ranking employees tribal tinez, ample, held Cook, they per- from claims that (1978); at 727. were immune L.Ed.2d grossly neg- in their tribal duties brought formed like this Normally, a suit one— way.3 Id. ligent in their individu officers against individual implicate sovereign capacities al —does Cook, however, the is consistent with Kitzhaber, B. v. immunity. See Miranda remedy-focused analysis discussed above. Cir.2003). (9th The 1190 F.3d 328 Cook, the plaintiff In had sued individ- damages “not from money plaintiff seeks in capacities in their official ual defendants treasury but from the officerfs] the state liability establish vicarious order to Maine, v. Alden personally.” Thus, 548 F.3d at 727. when Cook tribe. 706, 757, 144 L.Ed.2d 636 119 S.Ct. authority” principle, of “scope invoked the (1999). nature and Due to “the essential “real, was the it was because the tribe sovereign sought, effect” of the relief in party interest.” Id. substantial real, party in inter not “the substantial “circumvent tribal im- plaintiff could not ” Dep’t Treasury est.” Ford Motor Co. of ‘a mere device.’ munity through pleading Ind., 89 65 S.Ct. of Dep’t v. Mich. State (quoting Id. Will of L.Ed. 389 58, 70-71, Police, (1989)). short, In analysis cat- Cook remedy-focused is less Our authority” and “scope conflated the of proposed than the Maxwells’ rule. egorical they “remedy sought” principles because against low- capacity While individual suits capacity in operate will not are coextensive official suits. ranking typically officers sovereign, say we cannot this against change the rule that indi This does not always the case. suit will related to an officer’s capacity vidual suits officers, we must be sensitive against tribal generally permissible. official duties are judgment sought whether “the would “The explained: As the Tenth Circuit has treasury or expend public itself on the against official-capacity claims general bar domain, admin- public or interfere with the ... not mean that tribal officials are does istration, judgment if the effect of the individual-capacity suits immunized from [sovereign] from would be to restrain actions took in their arising out of ” Shermoen, compel it to act.” acting, or Am. Dis capacities.... official Native (internal F.2d at 1320 citations and Co., Seneca-Cayuga Tobacco trib. v. omitted). quotation marks (10th Cir.2008) (emphasis “Rather, it that tribal language original). in means Viejas point defendants brought are immunized from suits stating that officials many “[t]ribal in of our cases their official ca against offi- them because sovereign immunity ‘extends to tribal of is, capacity pacities powers because acting when in their official cials —that ” in enable them to authority.’ possess capacities their those scope and within the of Linneen, Cook, relief on behalf of the (quoting grant plaintiffs at 727 548 F.3d 492). (emphasis original). tribe.” Id. Facially, language this 276 F.3d Cir.1989). (9th argument The Maxwells waived reject that the 3. We the Maxwells’ argument by suing paramedics for state their Viejas paramedics Fire acted outside only. the Max- taking law We have reviewed authority by part in the unconstitution- torts allegations sup- complaint and find no medical care. wells' al interference with Kristin’s liability paramedics. porting § 1983 for the McKay, 1348 n. 9 See Evans v. 869 F.2d of our cases have to the Several referred word suggests plaintiff “officials” “scope authority” principle of in individual high-ranking sued tribal council members against suits tribal capacity voting eject officers. But him. Holding the de context, “scope authority’ fendants for their legislative liable func refers to the language principle that alle- tions would therefore have attacked “the gations of acts outside an authori- very officer’s core of sovereignty.” tribal Baugus ty Brunson, (E.D.Cal. are definition individual capacity F.Supp. 1995). claims. See Chemehuevi Indian Tribe v. Equalization,

Cal. State Bd. Evans v. McKay, 869 F.2d 1341 (9th Cir.1985) (overruled on Cir.1989), also does not affect our analysis. other grounds by Cal. State Bd. Equali- sovereign Evans immunity denied to indi- Tribe, zation v. Chemehuevi Indian 474 vidual tribal defendants sued under 1983 (1985)). S.Ct. L.Ed.2d 9 alleged and to have in acted concert with This not mean “scope does of state officers accused of constitutional vio- authority’ “remedy sought” and principles footnote, lations. Id. at 1348. In a Evans are in coextensive individual capacity suggested displaced that Hardin the “rem- claims. Such a conclusion would be a ma- edy sought” principle by citing “scope its jor departure from the common law immu- authority’ language. Id. at 1348 n. 9. If nity doctrine that shapes sovereign tribal Evans took the broadest possible reading immunity. Hardin, it was mistaken for the reasons Viejas

The defendants’ on Har reliance discussed That reading above. would also Tribe, din v. Apache White Mountain 779 be dicta. The same footnote acknowl- (1985), Hardin, F.2d 476 is misplaced. edged In plainly over suits unlawful acts a tribal council police ordered tribal to are capacity suits by individual definition eject plaintiff from tribal land. Id. at and could rested on that ground. have See tribe, 478. plaintiff The sued the several id. institutions, tribal and various officials in short, In sovereign immunity tribal our their capacities individual declaratory for question cases do not the general rule that injunctive relief damages. Id. We individual officers are liable when sued in concluded the alleged actions within were their capacities. individual see no We rea the scope powers of the tribe’s and that give son to tribal officers broader sover

the tribe and its institutions were thus eign immunity protections than or state covered sovereign Id. at immunity. given federal that tribal sovereign officers 478-79. We then affirmed of the dismissal immunity is coextensive with other com against officials, claims noting tribal immunity mon law principles. See Santa simply in their rep “act[ed] Pueblo, Clara 436 U.S. at capacity resentative and within the scope 1670. We sovereign therefore hold that authority.” of their Id. at 479. immunity against not bar the suit does Hardin did not mention “remedy Viejas Fire paramedics as individuals. sought” principle when it granted Viejas sover- The Band is not the real in party eign immunity, but it did not to do need so. interest. Maxwells have sued the Vie- reality Hardin was in an capacity jas paramedics official Fire in their individual ca (1) suit. identify pacities money Hardin did not which for damages. Any dam officials were sued in their individual ca- ages pockets, will come from their own (2) pacities Alden, or the exact treasury. nature of the the tribal See atU.S. 757, 119 against claims them. But the use S.Ct. did not “violate cured the crime scene Viejas defendants argument,

At oral Viejas clearly statutory or constitu- why the Band established two reasons gave person which a reasonable rights in interest this tional party could be the real known,” First, Viejas Fitzgerald, that the v. they suggested would have Harlow suit. para have indemnified S.Ct. might Band (1982), pay by delaying have to the ambu- medics and would thus L.Ed.2d 396 minutes, if at liability. departure But even if an indemnification lance’s for a few exists, all, “a purely it would be the Maxwells while agreement detaining between a sover warrant arrangement” intramural obtained and executed search eign Demery Kupper Accordingly, its officers. the Maxwells’ home. Cir.1984) man, depu- all the qualified immunity protects omitted). (internal damages. marks from suit for civil See id. quotation ties a government unilateral decision to insure conclusion, the opposite reaching liability does not make the against officer analogies cases majority draws strained liability. officer immune from that See id. roughly compa not “even whose facts are Second, liability they suggested that would case,” Ry present rable to those this ability hire impact Viejas Band’s Huff,-U.S. -, bum alleg this paramedics. But case concerns (2012), and fails to 181 L.Ed.2d edly committed grossly negligent acts out instruction “not Supreme heed the Court’s agreement an pursuant side tribal land clearly high law at a to define established context, entity. In with a non-tribal this al-Kidd, of generality,” level Ashcroft immunity to indi denying sovereign tribal - -, 2074, 2084, 179 will employees vidual sued as individuals join I therefore Part L.Ed.2d effect, any, have a minimal if on the tribe’s majority opinion but dissent with IV of hiring ability. respect to Part III. V I court’s We therefore affirm the district deputies the Sheriffs holding summary judgment of on the denial immunity qualified were not entitled to ground qualified immunity of to the Sher- due allegedly violating process Kristin’s regards iffs officers with to the Maxwells’ right bodily security, majority mis- process Fourteenth due claim Amendment chronology construes both the of events Fourth search and sei- Amendment case law. applicable and the claims, zure court’s reverse district granting Viejas of the defendants’ motion A matter subject juris-

to dismiss for lack of sovereign immunity, diction due to tribal Kristin was shot inside her house short- proceedings. and remand for further ly PM on December before 10:50 plaintiffs-appellants. are Costs awarded time, At Kristin was able to call part, AFFIRMED REVERSED house, upright, to move about the to sit part, and REMANDED. effectively. At 10:53 and to communicate PM, Jackson first arrived Deputy Sheriff

IKUTA, Judge, dissenting: Circuit PM, At a nurse who on the scene. 10:58 found that Kris- undeniably nearby The facts of case are lived arrived and this alert, oriented, to answer tragic. sequence But tin was and able despite the ill-fated events, deputies questions appropriately. of who se- Sheriffs PM, 11:41, At around 11:00 the first ambulance approximately eleven minutes after 11:03, paramedics arrived. At the air ambulance had arrived. Kristin paramedics determined that Kristin’s vital pronounced was dead at 11:42PM. signs were within normal limits. Rather Construing these facts in the light most than transport hospital Kristin to the im- Maxwells, favorable to the as we must on mediately, paramedics decided to call see, summary judgment, e.g., Nelson v. ambulance, an air which would arrive in Davis, City Cir. of twenty-five minutes at a landing ten site 2009), things First, are two clear. there is minutes from the Maxwells’residence. no evidence that deputies Sheriffs 11:08, At the second ambulance arrived. were urgency aware of Kristin’s PM, paramedics At 11:11 again determined situation when they allegedly delayed signs Kristin’s vital were within nor- shot, ambulance. After Kristin was she mal limits. conscious, was communicating effectively, 11:16, Sergeant

At Michael ar- Knobbe and her signs vital were normal. The began rived and the process securing County Medical Examiner testified that the crime part scene. As of that process, injury Kristin’s repar “survivable and deputies two Sheriffs Kay took Jim and able.” deputies knew that para Maxwell, Stevens, Kay’s father Fred and medics tending who were to her decided to house, Kristin’s two out children of the and wait the 25 minutes it would take for an air Kay, left Fred and the children in the ambulance arrive. multiple Based on family motor in the home Maxwells’ drive- contemporaneous assessments Kristin’s way. Jim was to remain in the told drive- condition in the aftermath shooting, way outside the motor home. According the Sheriffs reasonably could Maxwell, to Jim he way while was on his conclude her that condition was stable and family’s the motor home he deputy heard a that delay a of a few minutes would not declare, “Nobody leaving. is This is a put peril. her in statement, crime scene.” This and state- Second, any delay by caused the depu- ment by made subsequently dur- Jackson ties could not have longer lasted than sev- ing a deposition that Knobbe was “so con- en minutes. The Maxwells’ evidence cerned with the crime scene didn’t [he] shows the ambulance was not even leave,” want to let the ambulance is the ready to depart until PM 11:23 at the only evidence the sup- Maxwells offer earliest, placed when Kristin was inside port their claim that the deputies caused the ambulance a second The time. ambu- delay. PM, lance left at 11:30 at most seven min- It was not paramedics the until first utes later. placed gurney Kristin on a in the of back Viejas the Fire ambulance between 11:18 B PM and 11:25 PM that she began exhibit- ing signs distress, of expelling blood from facts, Under these the deputies are enti her mouth. Knobbe testified that he saw qualified tled to immunity. “Qualified im paramedics take Kristin back out munity government shields officials from ambulance place and her in a posi- sitting liability civil damages unless the official tion at some time between 11:23 PM a statutory violated right constitutional PM. 11:26 clearly established at the time of departed ambulance at around 11:30 the challenged conduct.” Reichle v. How —ards, PM and arrived at landing U.S. -, site 132 S.Ct. government A paramedics, celled a 911 call to dragged conduct clearly official’s does violate the man porch from his into his empty unless, house, door, established law at the time of the locked the him left there conduct, challenged alone, Penilla, right contours of a where he died. 115 F.3d at “sufficiently were ‘that every clear reason- 708. The court found that the officers able official would have understood that “took affirmative significantly actions that ” doing right.’ what he violates increased facing Id. the risk Penilla” added) (alterations omitted) (emphasis “ma[king] impossible anyone it pro- (quoting Creighton, Anderson vide emergency care medical to [him].” 97 L.Ed.2d 523 Id. (1987)). Penilla, it should have been clear to right at issue here was Kristin’s any reasonable officer that the victim process right due bodily security. The would die without immediate medical assis- majority deputies claims that should tance. But there was no such evidence have understood were violating this this case. On contrary, Kristin’s vital right they delayed because signs the ambulance were within normal limits and her leaving, from thus putting her in danger. appeared condition to be stable until short- Maj. op. law, at 13. But under our ly case before her putting death. Instead of government officials cannot be held beyond liable the victim the reach of help, as affirmatively placing Penilla, the plaintiff in a at most delayed position danger unless acted with departure ambulance’s for a few min- “deliberate indifference to known or paramedics [a] utes once already begun danger.” obvious Kennedy v. City administering care. Finally, medical even (9th Ridgefield, (at most) if the Cir. delay seven-minute before 2006) Grubbs, (quoting L.W. the ambulance the property left could have Cir.1996)). This placed means that in danger, Kristin there is no evi- plaintiffs present must evidence that dence that the deputies actually recognized government “recognize[d] officials that risk. unreasonable risk actually intend[ed] This case is far more similar to Estate of expose to the [victim] such risks with ex Amos rel. Amos v. City Page, Ari- regard out to the consequences to the [vic zona, (9th Cir.2001), 257 F.3d 1086 where Grubbs, tim].” 92 F.3d at 899 (quoting we held that deputies were not liable even Harder, Uhlrig 573 n. 8 though they interfered with party third (10th Cir.1995)). rescue efforts. Id. at 1089. In Estate of Amos, There is no such evidence here. the police And prevented civilian efforts there is no basis the majority’s conclu to search accident, for the victim of a car sion only otherwise. The case from this who had wandered off into the desert. circuit holding deputies state liable police for The called off their own search ef- person a receiving from emer forts later that when their preventing night flashlights gency medical care not remotely power. later, close to lost Id. Months the victim g this case. See Penilla v. City was discovered at dead the bottom aof of Huntin Park, (9th Cir.1997). ton 115 canyon. rejected Id. We plaintiffs the Penilla, the police argument Ninth Circuit held that the officers were liable be- officers liable for process due a violation “they cause greatly increased [the victim’s] where, after grave a man “in finding danger risk of they need called off when civilian care,” they medical inexplicably can- search efforts at the accident site and did II adequate replacement protec- provide not Although plaintiffs the tion.” Id. at majority holding likewise errs in bungled police “a and ineffectual described that the Sheriffs deputies were not enti- search,” the we held that facts did qualified immunity tled to with respect to the officers “were police demonstrate that they claim Maxwells’ that were unrea- significant risk of aware of a known and sonably in seized violation of the Fourth ‘yet consciously chose a course death ” Amendment, deputies, and that one of the ignored that the risk.’ Id. at 1092 action Kneeshaw, Sergeant used excessive force States, 910 F.2d (quoting Ross v. United against Jim he attempted Maxwell when Cir.1990)). As Estate of before, majority’s see his wife. As Amos, have described the the Maxwells conclusion is based on a misconstruction of deputies’ emergency response “bungled as both the facts and the law. ineffectual,” but have not estab- and indifference. Id. lished deliberate law, A citing

Instead of relevant case majority unsupported and con- makes began process After Knobbe of se- clusory statement that “it was obvious” scene, curing Kay the crime and Fred violated Kristin’s due deputies Maxwell the two were and children told process right bodily security. Maj. op. family’s remain in the motor home. The only retrospect But is it “obvi 1083-84. equipped motor home was with a bath- delay may that the brief have raised ous” room, water, heat, running electricity, her the risk that Kristin would die from bed, Kay although a TV. testified term, Supreme injuries. very This first, get she could not the heat to work at reprimanded the Ninth Circuit for Court deputy enough was “nice to crawl under- officers’ con judging the reasonableness of pro- the motor home to turn the neath” hindsight” duct “with the vision of 20/20 Kay on. the children in pane put bed perspective than “from the of a rather Kay’s eventually turned father on TV. Rybum, reasonable officer on the scene.” asleep fell in a chair. (quoting 132 S.Ct. at 992 Graham Con nor, 396-97, Jim Maxwell remained outside the mo- (1989)). The Court reaf home; deputies tor wanted to restrict firmed that calculus of reasonable “[t]he (the Kay two witnesses of the Jim and embody allowance for the fact ness must crime) communicating from with each oth- are often forced to police officers interviewed so that er before were circum split-second judgments make —in untainted infor- could “obtain tense, uncertain, rap are stances that dep- mation related to the homicide.” The Graham, idly (quoting Id. evolving.” Kay they told Jim and that could uties also 1865). 396-97, Contrary at 109 S.Ct. U.S. in the ambulance. daughter not follow their direction, majority’s the to the Court’s facts, undisputed at According to eyes here are on the rearview focused AM, Kneeshaw told some time after 1:00 mirror. Given that Kristin’s medical con Al- that Kristin had died. Jim Maxwell initially and that appeared dition stable wife, wanted to tell his though Jim actively tending were to her at paramedics stay in the told him he had to Kneeshaw alleged delay, danger the time of the stated, will have to driveway. Jim “You not so obvious that a decision to brief wife,” me, my I to see and going shoot am ly delay the ambulance shows deliberate walking to the motor home. continued indifference. residence, restricted from communi- and and in front of Jim stepped Kneeshaw cating with each other.” attempted Jim stop, but again told him point, At that walking. to continue B pepper spray with Jim sprayed Kneeshaw Ninth de- leg Supreme with his baton. No Court or Circuit him on the and struck deputies’ con- cision establishes and Knobbe then handcuffed Kneeshaw ques- and detaining, separating, duct They re- behind his back. Jim’s hands they Maxwells while obtained tioning the shortly thereafter. moved handcuffs a warrant and executed search him deputy that a then asked Jim testified Rath- home was unreasonable. Maxwells’ him to okay he was and allowed whether er, point in the other precedents all the at the end eyes his out at the faucet rinse direction. that the street. Jim also testified of the any pain him spray did not cause pepper First, a it is well established that search discomfort, it was not the or with it the limited author warrant “carries stop, him spray or baton that made pepper premises ity occupants to detain the who handcuffed only deputies but the two search is conducted.” proper while after apologized him. He Summers, Michigan v.

the altercation. (1981); see 101 S.Ct. 69 L.Ed.2d 93, 98, 125 Mena, 544 also Muehler v. U.S. later, AM, a two hours at 3:35 Around In S.Ct. war- homicide detective obtained a search deed, authority to detain officer’s “[a]n home; the Maxwells’ the search rant for categorical; is it does incident to search Meanwhile, two began roughly at 3:50 AM. ‘quantum proof justi on depend Maxwell began interviewing detectives Jim intru fying detention or the extent of the at regarding investigation the murder 3:26 ” imposed by be the seizure.’ sion to Kay Max- AM. The detectives interviewed (em Mena, 544 U.S. at 125 S.Ct. AM, they at fin- beginning well 4:50 added) Summers, phasis (quoting questioning her at 5:55 AM. The ished 2587). It is irrele at 705 n. ongoing during search of the house was vant whether the detained individual these interviews. activity criminal because suspected of “ occupant of an to [a] connection ‘[t]he unlawful- The Maxwells claim were ‘justifies a of that home’ alone detention detained, ly in violation of their Fourth ” 2,n. occupant.’ Id. at 99 S.Ct. hours, rights, Amendment for over six Summers, 703-04, (quoting from 11:16PM until the detectives finished 2587). Therefore, deputies’ au interviewing Kay at 5:55 AM. The detec- during the thority to detain the Maxwells (and tives testified the Maxwells did not roughly two and a half hours after Max- dispute) did not order Jim warrant issued did not violate their search Kay being well Maxwell to submit to rights. Fourth Amendment against will. Neither interviewed their Kay during fact, nor asked to leave their Jim deten- aggressive prolonged interviews, cooperative. and both were tions of a house can residents that Sergeant Musgrove executing Edward testified in with a justified connection warrant, Kay Jim and Maxwell were interviewed even when the search does search in the immediate aftermath of a being “at the same time the residence was not occur Mena, Thus, the time in the Court searched” in order to violent crime. “reduce[ ] for “plainly permissible” the held that it was that the witnesses were excluded from warrant, a executing officers search which a search warrant on probable based cause probable based on was cause to believe believe that a just violent crime had oc that a in gang target member lived the curred inside the Maxwells’ house. The house, to enter the bedroom aof woman Supreme Court has made clear that a suspected gang activity not while she always search warrant is not necessary to bed, asleep place was in her in handcuffs justify detention of occupants the of a tar and her gunpoint, (along at detain with Thus, geted home. in upholding the de individuals) three other in garage the for tention of an individual while officers exe to three hours while the pro- two search home, cuted search warrant for his 95-96, 98, Id. ceeded. at 125 S.Ct. 1465. Summers noted that the holding did not Putting a non-suspect in handcuffs for two “preclude the possibility that comparable to three hours was an not unreasonable police may conduct be justified by exigent because “[i]nherent seizure Summers’ circumstances in the absence of a war to detain an occupant authorization Summers, rant.” 452 U.S. at 703 n. to be place authority searched is the to use Summers, 101 S.Ct. 2587. As suggested by reasonable force to effectuate the deten- the Court later held exigent circum 98-99, Id. at tion.” S.Ct. 1465. Simi- justified stances in detaining officers larly, Seattle, City Dawson v. man outside his for roughly home two (9th Cir.2006), F.3d 1054 we held that offi- hours while obtained a search war cers could detain reasonably boarding- rant the home. See Illinois v. McAr house residents for two hours while exe- thur, cuting inspection for evidence of warrants L.Ed.2d 838 explained McArthur infestation, though rodent even the officers four factors made the warrantless de weapons drew their and screamed at the (1) tention reasonable: the officers “had residents, forced one resident outside with- probable cause to believe that ... [the] shoes; her out refused to allow the detain- home contained evidence of a crime and coffee, to drink cigarettes, ees smoke goor (2) contraband,” the good officers “had escort; to the bathroom an without that, restrained, reason to fear unless [the questioned the detainees about whether destroy would defendant] evidence before they had drugs or in their weapons rooms. (3) warrant,” could return with a that, at Id. 1058-60. We emphasized if not officers “made reasonable efforts to recon detained, fled, “might residents have cile their law enforcement needs with the rendering themselves unavailable to an- of personal privacy” by demands questions search,” pertinent swer to the or searching the home arresting the resi mistakenly “impaired the search rather (4) warrant, obtaining dent before than assisted it.” Id. at 1066-67. The the detention longer was “no than reason interrogation officers’ the detainees did ably necessary for police, acting with not alter the analysis Fourth Amendment diligence, to obtain warrant.” Id. there no because evidence that 331-33, 121 S.Ct. 946. questioning prolonged the detention or police that “the conditioned Plaintiffs’ re- fully These cases support conclusion lease from willing- detention on Plaintiffs’ exigencies present in this case interrogation.” ness submit to an Id. at it deputies made reasonable 1068-69. seeking detain Maxwells while a search Second, both Supreme Court and Ninth warrant. The arrived minutes support occurred, cases the deputies’ Circuit deci- after a violent crime it to detain seeking sion the Maxwells while responsibility was their to assist the victim They scene.

and secure realized seizure of a building, crime half of which oc- home Maxwells’ contained evi- during curred the period between 10:00 dence necessary prosecute perpetra- PM and 10:00 AM the following day, was McArthur, tor. See 531 U.S. at circumstances). reasonable under They 946. good S.Ct. also had reason to factors, Based on these the deputies’ deci- allowing believe that the Maxwells back in sion, deficient, “even if constitutionally compromise house could the evidence. reasonably misapprehend[ed] gov- the law Dawson, 1067; See 435 F.3d at see also erning the circumstances.” Brosseau v. McArthur, 326, 332, S.Ct. 194, 198, Haugen, 543 U.S. 125 S.Ct. example, 946. For Jim Maxwell admitted 160 L.Ed.2d 583 in the immediate aftermath of the majority’s reliance on United States shooting, picked gun he up Bruce used Ward, (9th Cir.1973) (en 488 F.2d 162 to shoot in a misguided attempt Kristin banc), Lidster, and Illinois v. 540 U.S. assist the deputies by bringing the weapon (2004), 124 S.Ct. 157 L.Ed.2d 843 to them. Finally, they get needed to puzzling, because these cases are far afield witnesses, statements of reason- from the issues before us. Both decisions ably believed that if separate did not consider when the Fourth Amendment al- Kay, Jim and might two of them influ- police lows stop cars on the road in recollections, ence one another’s making order to investigate crimes committed their statements vulnerable to in challenge Lidster, parties. third In the Court held court jeopardizing the prosecution. that the Fourth Amendment police allowed Moreover, the deputies detained the to stop motorists at a highway checkpoint fact, Maxwells a reasonable In manner. to ask them whether they any infor- the Maxwells were far treated more hu- mation about a recent hit-and-run accident. manely than were the detainees Mena Lidster, 426-28, 540 U.S. at 885. S.Ct. Dawson, who also suspected were not Ward, we held that FBI agents violated of any crime. The deputies Kay, allowed right a driver’s to travel the public roads father, her and the children to wait in the when they pulled him over to interview privacy of their family motor home for the him regarding a months-old investigation duration pre-warrant period. Depu- Ward, of a third-party fugitive. ty Kneeshaw’s brief against use of force Dawson, at 169. Unlike Mena these Jim, which Jim himself testified did not provide cases guidance no as to when a cause him pain memorable or discom- police officer reasonably acts in securing a fort, fully justified in order “to effec- crime scene and detaining occupants and Mena, tuate the detention.” 544 U.S. at witnesses. “Because test of reason- ‘[t]he S.Ct. And the four-hour ableness under the Fourth Amendment is period longer was no than reasonably nec- not capable precise essary definition or me- police for the to obtain the warrant. ” chanical application,’ All the evidence the Court has ex- in the record indicates plained, proper application that the “its diligently requires acted in obtain- ing the careful quickly warrant as attention to the possible as at a facts and circum- time Graham, “when it is stances of each particular reasonable to assume that case.” (internal judicial readily officers are not as 490 U.S. at quotation available marks omitted) (quoting consideration of warrant requests.” Wolfish, Bell v. States, Segura United 60 L.Ed.2d 447 812-13, (1979)). instance, For general prop- “[t]he (1984) (holding that a 19-hour warrantless ... osition that an unreasonable search or

1097 legal duty to plaintiff, seizure violates the Fourth Amendment is the see Starr v. Baca, (9th 1202, determining whether 652 help of little F.3d 1207-08 Cir. 2011); (2) particular duty violative nature of conduct is the breach was “the al-Kidd, clearly proximate plaintiffs established.” 131 S.Ct. at cause” of the constitu Brosseau, (3) 2084; injury, at tional at and super see also U.S. id. assessment of visor at (emphasizing that the clear- had least the same level of mens ly the Fourth rea in carrying superintendent established law in Amend- out his re sponsibilities ment undertaken in light required context “must be as would be for a case, direct specific plaintiffs context not as a violation of the constitu general 1949; tional proposition”) (quoting rights, Iqbal, broad Sau- 129 S.Ct. at see Katz, Starr, cier v. 121 S.Ct. also at 1207. U.S. (2001), 150 L.Ed.2d 272 overruled on Here the not allege Maxwells do that Callahan, grounds by other Pearson v. 555 Reynolds and Salazar took affirmative U.S. acts to allegedly set motion the uncon- (2009)). Because the facts and circum- subordinates, stitutional acts of their nor light stances of Lidster and Ward shed no do they present any Reyn- that evidence on separation whether the detention and of olds and Salazar about their knew subor- building occupants in immediate after- dinates’ in delaying conduct the ambulance reasonable, shooting math of a these detaining or separating and the Maxwells. support majority’s cases do not deter- Moreover, they dispute do not that neither clearly mination that there was established Reynolds yellow nor Salazar crossed the law prohibiting deputies’ conduct. tape driveway across the Maxwells’ that entry restricted to the crime scene. The

Ill allege merely Reynolds Maxwells that and (1) Finally, majority highest ranking even if the were cor- Salazar were the offi- (2) scene, rect cials deputies clearly that the violated es- at the could observe the law, (3) impossible driveway, tablished it is to conclude crime scene from the Reynolds at Captain Gregory yelling that and Lieu- heard Kneeshaw Jim Maxwell to Anthony “stop, stop” just using pepper spray tenant could be Salazar held lia- before they baton. merely standing striking ble because were Jim with his yellow tape behind at the crime scene. insufficient allegations These are to cre- may genuine We have that officers ate a issue of material fact that long held being Reynolds breached a “merely present legal held liable and Salazar Maxwells, duty the scene of an unlawful act” or to the that were the alleged a same being proximate member of the team as the cause of the Maxwells’ constitu- Williams, wrongdoers. injuries, tional or that acted with the Jones v. Cir.2002) First, requisite (emphasis 936-38 add- state of mind. Max- ed). recently, Iqbal, allege supervisors More 556 wells do not Ashcroft deputies delayed were even L.Ed.2d 868 aware that the (2009), respondeat departure, clarified that is no Kristin’s let alone that the su- there Rather, § indiffer- superior liability pervisors a acted with deliberate under infer, government may solely be held ence. Nor can based on only official liable we geographic proximity, Reynolds for the conduct. Id. at official’s own 675- bring reasonably To knew should have S.Ct. 1937. 1983 Salazar the other Sheriffs against supervisor, plaintiff action known (1) supervisor forcibly must detained the Maxwells and show: breached a prevented them from seeing daugh munity their for their actions. I therefore re- other, ter and each and that there were no spectfully dissent.

exigent justify circumstances to the deten especially

tion. This is true given that

Reynolds and Salazar never entered the

crime scene. Nor there is evidence specific policy

“of implemented specific

Defendants or a event or events

instigated by the Defendants that led to

these purportedly unconstitutional” seizures. Hyd Hunter, v. rick GUTIERREZ, Carlos Antonio (9th Cir.2012). As in Hydride, “the Petitioner, allegations

factual in Plaintiffs’ complaint resemble ‘conclusory’ the ‘bald’ and allega v. in Iqbal, tions instead the detailed factu HOLDER, Jr., Attorney Eric H. allegations al in Starr.” Id. 941. It is General, Respondent.

therefore Reynolds clear that and Salazar cannot No. 10-73260. be held liable for alleged consti tutional violations of deputies other on the United States Appeals, Court of scene. Ninth Circuit. IV Feb.

It is a truism “tragic facts make Berke, Esquire, Robert G. Angeles, Los Levine, bad law.” Wyeth 555 U.S. CA, for Petitioner. (2009) 129 S.Ct. 173 L.Ed.2d 51 (Alito, J., Nevertheless, dissenting). we Ice, Chief Counsel Office of the Chief may not furnish a cause of action where Counsel, Department of Homeland Securi- the law does supply one. See Whit ty, Francisco, CA, Shieh, San Daniel Es- Arkansas, 149, 166, more v. 110 quire, Justice, Department Wash- (1990); see DC, ington, for Respondent. Marrero, 81, 87, also Gusman v. 45 L.Ed. deputies arriving at the Maxwells’ resi dence faced a chaotic scene: a woman had FERNANDEZ, Before: TASHIMA,

been jaw; shot perpetrator WARDLAW, Judges. Circuit house; still in the multiple ambulances and paramedics scene; were responding to the ORDER and frantic relatives were milling about.

From the On October perspective of the Board of Immi- deputies, it merely gration Appeals was more than reopened reasonable to take remanded steps to the proceedings secure the crime in this case sepa scene and to the immi- gration rate the duty. judge. Consequently, witnesses —it was their there no majority has not pointed to a final order of single currently case removal in effect clearly deputies’ jurisdiction establishes that the this court lacks over the actions here violated the petition Maxwells’ consti review. See 8 U.S.C. rights. law, tutional 1252(a)(1); existing Under case Lopez-Ruiz Ashcroft, (9th Cir.2002) are qualified (order). entitled to im- F.3d

Case Details

Case Name: Jim Maxwell v. County of San Diego

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 14, 2013

Citation: 708 F.3d 1075

Docket Number: 10-56671, 10-56706

Court Abbreviation: 9th Cir.