The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 26 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMARA TAYLOR, individually and on No. 23-15507
behalf of her minor child; N. B.,
D.C. No.
Plaintiffs-Appellees, 1:22-cv-00013-HG-KJM
v.
MEMORANDUM*
CHRISTINE NEVES, in an individual
capacity; et al.,
Defendants-Appellants,
and
CITY AND COUNTY OF HONOLULU; et
al.,
Defendants.
Appeal from the United States District Court
for the District of Hawaiʻi
Helen W. Gillmor, District Judge, Presiding
Argued and Submitted June 14, 2024
Honolulu, Hawaiʻi
Before: CALLAHAN, HURWITZ, and H.A. THOMAS, Circuit Judges.
Honolulu Police Department Officers Christine Neves, Corey Perez, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Warren Ford (“HPD Officers”) appeal the district court’s denial of their motion to
dismiss the operative complaint in this 42 U.S.C. § 1983 action based on their
claims of qualified immunity. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo, David v. Kaulukukui, 38 F.4th 792, 799 (9th Cir. 2022), we
affirm in part, reverse in part, and remand.1
1. We reverse the district court’s denial of qualified immunity to the HPD
Officers as to Plaintiffs’ false arrest claim. “To determine whether qualified
immunity applies in a given case, we must determine: (1) whether a public official
has violated a plaintiff’s constitutionally protected right; and (2) whether the
particular right that the official has violated was clearly established at the time of
the violation.” Shafer v. County of Santa Barbara, 868 F.3d 1110, 1115 (9th Cir.
2017). For a right to be clearly established, it must be “sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (citation and internal quotation
marks omitted). “When engaging in such review, we ‘accept[] as true all well-
pleaded allegations’ and ‘construe[] them in the light most favorable to the non-
moving party.’” Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (quoting
Hernandez v. City of San Jose, 897 F.3d 1125, 1132 (9th Cir. 2018)).
1
As the parties are familiar with the facts of this case as set forth in the operative
Second Amended Complaint, we do not recite them here, except as necessary.
2
Citing Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994), Plaintiffs claim
that the HPD Officers violated N.B.’s clearly established right to be free of an
arrest without probable cause. But Plaintiffs’ reliance on this general proposition is
insufficient. The Supreme Court has “repeatedly stressed that courts must not
‘define clearly established law at a high level of generality, since doing so avoids
the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.’” District of Columbia v. Wesby, 583 U.S. 48,
63–64 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). Under this
rule, a plaintiff “must identify a case where an officer acting under similar
circumstances as [defendants] was held to have violated the Fourth Amendment.”
Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (quoting White v.
Pauly, 580 U.S. 73, 79 (2017)) (internal quotation marks omitted).
Plaintiffs have failed to identify such a case. The cases on which they rely—
In re PP, 325 P.3d 647 (Haw. Ct. App. 2014), State v. Chung, 862 P.2d 1063
(Haw. 1993), and State v. Valdivia, 24 P.3d 661 (Haw. 2001)—involved factual
circumstances wholly different than those presented here. The HPD Officers are
therefore entitled to qualified immunity on Plaintiffs’ false arrest claim.
2. We affirm the district court’s denial of qualified immunity as to Plaintiffs’
excessive force claim. Whether the amount of force employed was excessive
depends on “the facts and circumstances of each particular case, including the
3
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.” Graham v. Connor, 490 U.S. 386, 396
(1989). “We must affirm the district court’s denial of qualified immunity if,
accepting all of Plaintiffs’ allegations as true, [the defendant’s] conduct ‘(1)
violated a constitutional right that (2) was clearly established at the time of the
violation.’” Polanco, 76 F.4th at 925 (quoting Ballou v. McElvain, 29 F.4th 413,
421 (9th Cir. 2022)).
In C.B. v. City of Sonora, we held that the “use of handcuffs on a calm,
compliant, but nonresponsive 11-year-old child was unreasonable.” 769 F.3d 1005,
1030 (9th Cir. 2014) (en banc). We also determined that the “decision to leave [the
child] in handcuffs for the duration of [a] 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.” Id. Following Sonora, no
reasonable official could have believed that the level of force employed against
ten-year-old N.B. as alleged in Plaintiffs’ Second Amended Complaint—namely,
placing her in adult handcuffs to transport her to the police station—was necessary.
Like the eleven-year-old child in Sonora, N.B. was calm and compliant, was
questioned in a secluded office surrounded by adults, and did not resist arrest or
attempt to flee.
4
Because at the time of N.B.’s arrest “[i]t [was] 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 . . . unlikely to flee, was
completely unnecessary and excessively intrusive,” id. at 1030–31, the HPD
Officers are not entitled to qualified immunity on Plaintiffs’ excessive force claim.
That, unlike the situation in Sonora, the HPD Officers may have had probable
cause for the arrest in this case does not mean that Sonora did not put them on
notice that the level of force used in effecting the arrest was nevertheless
excessive.2
AFFIRMED in part, REVERSED in part, and REMANDED.3
2
The HPD Officers also argue that they are entitled to qualified immunity because
the Second Amended Complaint fails to identify each officer’s unconstitutional
conduct. But that complaint does contain specific allegations about each individual
officer’s conduct. And collective allegations are permissible when they are “used
to describe the actions of multiple defendants who are alleged to have engaged in
precisely the same conduct.” United States ex rel. Silingo v. WellPoint, Inc., 904
F.3d 667, 677 (9th Cir. 2018).
3
At oral argument, the HPD Officers requested to file a high-resolution version of
the drawing at issue in this case with the names of minor children redacted from
the drawing. Because it is unclear whether this high-resolution version of the
drawing was before the district court at the time of the decision on appeal in this
case, the HPD Officers’ Motion to Redact Names of Minors, Dkt. No. 24, is
DENIED. To the extent that the HPD Officers wish to file the same version of the
drawing that is currently under seal with this court, with the indicated redactions,
they may renew their motion.
5