“We have not yet decided what precedents—other than our own— qualify as controlling authority for purposes of qualified immunity.”
How later courts described this case
- “We have not yet decided what precedents—other than our own— qualify as controlling authority for purposes of qualified immunity.”
- noting the Stanton panel’s reliance on a similar accompanying footnote in Johnson
- “Under § 1983, ‘a person is responsible for the natural consequences of his actions.’” (simplified)
- citing, inter alia, “Johnson, 256 F.3d at 908 (clearly established since 2001)”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GENOA JONES; CORNELL No. 24-3374
TINSLEY,
D.C. No.
2:21-cv-00241-
Plaintiffs - Appellants,
CDS-DJA
v.
ORDER AND
CITY OF NORTH LAS VEGAS; AMENDED
SCOTT SALKOFF; MICHAEL OPINION
ROSE,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Cristina D. Silva, District Judge, Presiding
Argued and Submitted May 22, 2025
San Francisco, California
Filed September 8, 2025
Amended March 6, 2026
Before: Michelle T. Friedland and Salvador Mendoza, Jr.,
Circuit Judges, and Robert S. Lasnik, District Judge. *
*
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
2 JONES V. CITY OF NORTH LAS VEGAS
Order;
Opinion by Judge Mendoza;
Dissent from Order by Judge Collins
SUMMARY **
Fourth and Fourteenth Amendments
The panel filed (1) an order amending the opinion filed
on September 8, 2025, and denying rehearing en banc; and
(2) an amended opinion affirming in part and reversing in
part the district court’s summary judgment in favor of the
City of North Las Vegas and two police officers in plaintiffs’
action alleging that defendants violated their Fourth and
Fourteenth Amendment rights when the officers physically
intruded into plaintiffs’ backyard without permission while
searching for a suspect, and one of the officers shot and
killed two of plaintiffs’ dogs after the dogs attacked the
police K-9.
The panel reversed the district court’s grant of qualified
immunity and summary judgment to the individual police
officers with respect to their search of plaintiffs’
backyard. Relying on United States v. Johnson, 256 F.3d
895 (9th Cir. 2001) (en banc) (per curiam), the panel held
that defendants could not avail themselves of the “hot
pursuit” exception to the Fourth Amendment’s warrant
requirement, which only applies when officers are in
“immediate” and “continuous” pursuit of a suspect from the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JONES V. CITY OF NORTH LAS VEGAS 3
scene of the crime. Here, the continuity of the pursuit was
broken when defendants lost track of the suspect’s
whereabouts for at least eighteen minutes. Because
defendants lacked an exigent circumstance to search
plaintiffs’ yard under clearly established law at the time of
the incident, they were not entitled to qualified immunity.
The panel reversed the district court’s dismissal of
plaintiffs’ state law claim because the district court declined
to exercise supplemental jurisdiction over the claim solely
based on its grant of summary judgment to defendants on all
of plaintiffs’ federal claims.
The panel affirmed the district court’s summary
judgment for Lieutenant Salkoff, holding that he was entitled
to qualified immunity with respect to his use of force against
plaintiffs’ dogs because, given the spontaneous
confrontation, the panel could not say that he violated clearly
established law.
The panel affirmed the district court’s summary
judgment on plaintiffs’ Monell claims pertaining to both the
warrantless search and use-of-force claims. Plaintiffs
offered no evidence of a pattern of warrantless search
violations or other evidence establishing that the City was
deliberately indifferent to plaintiffs’ Fourth Amendment
rights or that its conduct had become a traditional method for
carrying out policy.
The panel remanded for further proceedings.
Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Callahan, Bennett, R. Nelson, Lee,
Bress, Bumatay, and Tung, wrote that by holding that
Johnson clearly established the relevant law, the panel relied
on an overbroad reading of precedent and thereby
4 JONES V. CITY OF NORTH LAS VEGAS
disregarded the Supreme Court’s repeated admonition that
courts must not define clearly established law at a high level
of generality. Judge Collins also wrote that the new footnote
added to the panel’s amended opinion introduced further
error by explicitly reaffirming Johnson’s overbroad
comment that a fleeing suspect’s commission of a
“misdemeanor” “weighs heavily against” a finding of
exigent circumstances because that sweeping comment did
not survive the Supreme Court’s decision in Lange v.
California, 594 U.S. 295 (2021), and also cannot be squared
with Stanton v. Sims, 571 U.S. 3 (2013).
COUNSEL
Margaret A. McLetchie (argued) and Leo S. Wolpert,
McLetchie Law, Las Vegas, Nevada; Jennifer L. Braster,
Naylor & Braster, Las Vegas, Nevada; for Plaintiffs-
Appellants.
Rhiann J. Denman (argued), Chief Deputy City Attorney;
Noel E. Eidsmore, Assistant City Attorney; Micaela R.
Moore, Former City Attorney; Andrew D. Moore, City
Attorney; North Las Vegas Office of the City Attorney,
North Las Vegas, Nevada; for Defendants-Appellees.
JONES V. CITY OF NORTH LAS VEGAS 5
ORDER
The opinion filed September 8, 2025, is hereby amended.
The amended opinion will be filed concurrently with this
order.
Judges Friedland and Mendoza voted to deny the petition
for rehearing en banc, and Judge Lasnik so recommended.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 40.
The petition for rehearing en banc (Dkt. No. 46) is
DENIED, and no further petitions for rehearing will be
entertained.
OPINION
MENDOZA, Circuit Judge:
When does a hot pursuit turn cold? Today we conclude
that a pursuit was at best lukewarm, and certainly no longer
hot pursuit, when officers lost a suspect’s trail in a residential
neighborhood for at least eighteen minutes.
A police officer saw a suspect flee from the back of a
house into a neighboring backyard. Instead of directly
following the suspect, the officer hurried to his car, called
for backup, and drove two blocks south to establish a
perimeter around the area. At least eighteen minutes passed
before a K-9 unit alerted in the direction of Plaintiffs’
backyard, several houses away from where the suspect had
6 JONES V. CITY OF NORTH LAS VEGAS
disappeared. An officer with a K-9 searched the yard,
rousing Plaintiffs’ three dogs. Two of the dogs attacked the
police K-9 and were shot and killed by an officer.
Plaintiffs Genoa Jones and Cornell Tinsley sued under
42 U.S.C. § 1983, claiming the officers and the City of North
Las Vegas violated their Fourth Amendment right to be free
from unwarranted searches and seizures. The district court
granted summary judgment for the officers, reasoning that
the officers’ intrusion was permitted by the hot pursuit
exception to the warrant requirement and that the use of
force was reasonable under the circumstances. The district
court also granted summary judgment for the city, finding no
support for Plaintiffs’ failure-to-train theory.
We reverse, in part, holding that there was no hot pursuit
where officers lost track of a suspect for at least eighteen
minutes. We affirm with respect to the K-9 handler’s use of
force and the claims against the city. We remand for further
proceedings.
I.
On February 15, 2019, at 3:47 p.m., North Las Vegas
Police Department (“NLVPD”) Officers Joseph Minelli
(“Officer Minelli”) and Michael Rose (“Officer Rose”)
responded to a possible domestic battery at a house on a
residential cul-de-sac. While Officer Minelli spoke with a
woman at the door, Officer Rose moved to the side of the
house, where he witnessed a person flee over the back wall
to the south into a neighboring yard. Officer Rose ran to his
patrol car to request assistance. He drove two streets south
hoping to cut off whomever had fled but did not catch sight
of the person again. Several units quickly responded and
helped Officer Rose establish a multiple-block perimeter
around the area.
JONES V. CITY OF NORTH LAS VEGAS 7
Meanwhile, Officer Minelli stayed at the home to
investigate the domestic battery allegation. The woman who
answered the door denied that there was any domestic
violence, but Officer Minelli observed injuries on her face,
including several injuries around her eyes and a long cut
across her chin that had been stitched. The woman told
Officer Minelli that police were not welcome at her house
and that her boyfriend—whom officers suspected had
battered the woman and whom they believed to be the person
who fled—would be back that evening and police would
need a warrant to apprehend him at the home. Officer
Minelli remained at the address in case the suspect returned.
With a perimeter in place, officers believed nobody
could leave the area without crossing their line of sight. A
sergeant on scene decided to call for a K-9 unit to search for
the suspect. NLVPD Lieutenant Scott Salkoff (“Lieutenant
Salkoff”) and his police K-9 Storm (“Storm”) responded to
the scene around 4:05 p.m., approximately eighteen minutes
after Officer Rose saw the suspect flee.
Lieutenant Salkoff used Storm—who is trained to detect
the odor of apocrine, a hormone some people release when
they are afraid—to search within the perimeter. Lieutenant
Salkoff informed residents of the searches using his patrol
car’s public address system. He also sent NLVPD Officer
Lee Young (“Officer Young”) ahead to seek consent from
residents to search their yards.
Lieutenant Salkoff was searching a backyard four houses
east and one house south of where the suspect vanished when
8 JONES V. CITY OF NORTH LAS VEGAS
Storm alerted to an odor coming from a distant, elevated
position in the direction of Plaintiffs’ walled-in backyard. 1
Lieutenant Salkoff decided to search Plaintiffs’
backyard. He had Officer Young check the gate, which was
locked and posted with a “Beware of Dog” sign. Officer
Young knocked on Plaintiffs’ door to request their consent
to search the yard but received no response because they
were not home. To gain a vantage, Lieutenant Salkoff
jumped onto the six-foot cinderblock wall that enclosed
Plaintiffs’ yard. He observed trash cans, where he thought
the suspect might be hiding, and a fenced-in kennel area with
an open gate and three dog houses and bowls but did not see
any dogs.
With neither a warrant nor Plaintiffs’ consent, Lieutenant
Salkoff hopped down from the wall into their backyard.
Officer Rose then passed Storm over the wall. Plaintiffs’
three dogs were stirred from their doghouses, emerging to
investigate the unwelcome strangers in their yard.
Lieutenant Salkoff attempted to keep the dogs at bay,
kicking them and placing trash cans between them and
Storm. His efforts deterred one dog, but the other two—
Shadow and Whitewall—attacked Storm. Lieutenant
Salkoff drew his service weapon and killed both Shadow and
Whitewall.
1
We know Storm’s alert came at least eighteen minutes after officers
had last seen the person they were looking for—and, on the record before
us, it may have been much later. Officer Rose saw someone flee at
around 3:47 p.m. and Lieutenant Salkoff responded to the scene with
Storm at approximately 4:05 p.m. Lieutenant Salkoff does not recall
precisely when or where he started his search and says he may have
searched one yard or more than a dozen yards before Storm smelled fear
in the air. Officer Rose recalls that the search lasted for more than an
hour and possibly for two or three hours.
JONES V. CITY OF NORTH LAS VEGAS 9
Despite officers scouring the neighborhood, they never
found the person they were looking for.
Plaintiffs sued Lieutenant Salkoff, Officer Rose, and the
City of North Las Vegas (“the City”), asserting several
claims under 42 U.S.C. § 1983: Lieutenant Salkoff violated
the Fourth and Fourteenth Amendments when, without a
warrant, he entered Plaintiffs’ backyard, and Officer Rose
violated the same when he passed Storm into the yard;
Lieutenant Salkoff violated the Fourth and Fourteenth
Amendments when he unreasonably seized their dogs by
shooting them dead; and the City was deliberately indifferent
to the risk of these violations. Plaintiffs also brought a state
law claim that Lieutenant Salkoff and the City violated
Nevada Revised Statutes § 41.130.
The district court granted Defendants’ motion for
summary judgment on the constitutional claims, declined to
exercise supplemental jurisdiction over the remaining state
law claim, and entered judgment for Defendants. Plaintiffs
timely appeal.
II.
We review a district court’s grant of summary judgment
de novo, Spencer v. Pew, 117 F.4th 1130, 1137 (9th Cir.
2024), including officers’ entitlement to qualified immunity,
Sanderlin v. Dwyer, 116 F.4th 905, 910 (9th Cir. 2024). In
conducting this review, we take “the facts in the light most
favorable to the nonmoving party and draw all inferences in
that party’s favor.” Nehad v. Browder, 929 F.3d 1125, 1132
(9th Cir. 2019); Fed. R. Civ. P. 56(e).
Qualified immunity protects government officials from
liability under § 1983 “unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of
10 JONES V. CITY OF NORTH LAS VEGAS
their conduct was clearly established at the time.” Waid v.
County of Lyon, 87 F.4th 383, 387 (9th Cir. 2023) (quoting
District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018)).
“Either prong can be adjudicated on appeal by taking the
facts as most favorable to the plaintiffs and applying the
pertinent legal standards to those facts.” Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th Cir.
2017). Defendants are entitled to qualified immunity where
we find “a negative answer at either step.” Sabbe v. Wash.
Cnty. Bd. of Comm’rs, 84 F.4th 807, 819 (9th Cir. 2023).
III.
“When a law enforcement officer physically intrudes on
the curtilage” of a home, like a walled-in backyard, “a search
within the meaning of the Fourth Amendment has occurred.”
Collins v. Virginia, 584 U.S. 586, 593 (2018). “[A] small,
enclosed yard adjacent to a home in a residential
neighborhood . . . is ‘curtilage’ subject to Fourth
Amendment protection.” United States v. Struckman, 603
F.3d 731, 739 (9th Cir. 2010) (quoting United States v.
Romero-Bustamente, 337 F.3d 1104, 1108 (9th Cir. 2003)).
Such searches are “presumptively unreasonable absent a
warrant.” Collins, 584 U.S. at 593.
But the Fourth Amendment’s warrant requirement “is
subject to certain exceptions.” Brigham City v. Stuart, 547
U.S. 398, 403 (2006). An “exigent circumstance” such as
“the hot pursuit of a fleeing suspect,” “the need to prevent
the imminent destruction of relevant evidence,” and “the
need to prevent the escape of a suspect” may constitute such
an exception. Struckman, 603 F.3d at 743. To rely on the
exigent circumstances exception, the government “must
satisfy two requirements: first, the government must prove
that the officer had probable cause to search,” and “second,
JONES V. CITY OF NORTH LAS VEGAS 11
the government must prove that exigent circumstances
justified the warrantless intrusion.” United States v.
Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc) (per
curiam). Probable cause exists where “the ‘facts and
circumstances’ before the officer are sufficient to warrant a
person of reasonable caution to believe” that a suspect would
be found in a place. Id. (quoting Brinegar v. United States,
338 U.S. 160, 175 (1949)); see also Newman v. Underhill,
134 F.4th 1025, 1031 (9th Cir. 2025).
Lieutenant Salkoff and Officer Rose do not dispute that
they physically intruded into Plaintiffs’ walled-in
backyard—Lieutenant Salkoff by entering the yard and
Officer Rose by passing Storm over the wall. Such a
warrantless search is presumptively unreasonable. See
Collins, 584 U.S. at 593. The district court assumed, without
explanation, that Lieutenant Salkoff and Officer Rose
conducted this warrantless search while in hot pursuit of a
fleeing suspect. We disagree.
Hot pursuit fundamentally “means some sort of a chase.”
United States v. Santana, 427 U.S. 38, 43 (1976). To qualify
as hot pursuit, a chase “need not be reminiscent of the
opening scene of a James Bond film.” Lange v. California,
594 U.S. 295, 329 (2021) (Roberts, C.J., concurring). “The
hot pursuit exception to the warrant requirement only applies
when officers are in ‘immediate’ and ‘continuous’ pursuit of
a suspect from the scene of the crime.” Johnson, 256 F.3d
at 907 (quoting Welsh v. Wisconsin, 466 U.S. 740, 753
(1984)). As to immediacy, officers act with sufficient speed
to qualify as hot pursuit when they act immediately, making
a “split-second decision” to pursue a suspect. Stanton v.
Sims, 571 U.S. 3, 10 (2013) (per curiam).
12 JONES V. CITY OF NORTH LAS VEGAS
But there is no hot pursuit where “the continuity of the
chase [has been] terminated” definitively. Johnson, 256
F.3d at 908. In Johnson, a suspect “ran into a wooded area
where he was free to run for over a half hour” rather than
“into a confined area where [the police] could monitor his
movements.” Id. On that basis, we determined that “the
continuity of the chase was clearly broken and a warrant was
required.” Id. We further noted that, “[a]lthough this
requirement may be inconvenient to law enforcement, any
other outcome renders the concept of ‘hot pursuit’
meaningless and allows the police to conduct warrantless
searches while investigating a suspect’s whereabouts.” Id.
We recently observed in Newman that whether a
pursuit’s continuity has been definitively broken is a
function of “two interrelated considerations.” 134 F.4th at
1033. First, “whether, and to what degree, the officer[] lost
track of the suspect’s whereabouts.” Id. Second, whether,
after losing sight of a suspect, the officer “continued to act
with speed in attempting to apprehend the suspect.” Id.
Timing is relevant to both considerations. As seconds and
minutes tick by, the officer’s once-clear knowledge of a
suspect’s position fades till they are no longer chasing a
suspect but instead searching for him. “The more time
passes without the officer’s physically chasing after the
suspect . . . the more likely the continuity of the chase is to
break.” Id.
In Newman, officers followed a suspect’s truck down a
dead-end street where the suspect exited his vehicle and ran
directly toward the back of the plaintiff’s house. Id. at 1028–
29. Officers lost sight of the suspect for nine minutes but
had probable cause to believe he was in the plaintiff’s house,
given that the suspect had been headed in that direction, he
was not in the backyard, the terrain and fences would have
JONES V. CITY OF NORTH LAS VEGAS 13
hindered his flight to an adjacent property, the plaintiff’s
backdoor was unlocked, and the officer perceived someone
interacting with the backdoor at some point during the
pursuit. Id. at 1031. We held that the pursuit’s continuity
was unbroken because the officers “had a reasonably good
idea where [the suspect] was hiding” for the duration of the
nine minutes after they lost sight of him. Id. at 1033.
Comparatively, here, Officer Rose last saw the suspect
fleeing toward a different property—three houses west of
Plaintiffs’ home—rather than directly to the property that
was later searched. Officer Rose neither chased after the
person nor peered over the wall to monitor the person’s
movements, and instead unsuccessfully attempted to cut the
suspect off by patrol car. Officers had seen neither hide nor
hair of the suspect for at least eighteen minutes preceding
their search, in which time the suspect’s movements through
a suburban neighborhood were completely unknown. In
light of those circumstances, the continuity of the chase here
was broken, so the hot pursuit exception no longer applied.2
2
We note that exigent circumstances are less likely to exist when the
alleged offense is a misdemeanor and there is no risk of “imminent harm
to others.” Lange v. California, 594 U.S. 295, 308 (2021); see also id.
at 313 (“The flight of a suspected misdemeanant does not always justify
a warrantless entry into a home. An officer must consider all the
circumstances in a pursuit case to determine whether there is a law
enforcement emergency.”); Johnson, 256 F.3d at 908 (“[A]pplication of
the exigent circumstances exception in the context of a home entry
should rarely be sanctioned when there is probable cause to believe that
only a minor offense . . . has been committed.” (quoting Welsh v.
Wisconsin, 466 U.S. 740, 753 (1984))). In this case, the gravity of the
alleged offense and the lack of risk of imminent harm to others weigh
against applying the exigent circumstances exception. Johnson, 256
F.3d at 908 (explaining that the allegation that the suspect committed
only a misdemeanor “does not definitely preclude a finding of exigent
14 JONES V. CITY OF NORTH LAS VEGAS
Defendants suggest that they reasonably believed the
suspect was somewhere within the neighborhood, and
therefore, the continuity of their search was unbroken. If we
were to accept this argument, it would threaten to swallow
the warrant requirement whole. Officers may not riffle
through private spaces in an entire neighborhood merely
because police have lost track of someone who earlier fled
from them in the general vicinity. Lieutenant Salkoff and
Officer Rose had no “reasonably good” basis for knowing
where the suspect was—beyond that he was likely still in the
neighborhood. Id. at 1033. Therefore, Defendants may not
avail themselves of the hot pursuit exception to the Fourth
Amendment’s warrant requirement.
Defendants urge that Storm’s alert salvaged the hot
pursuit and gave them probable cause to search Plaintiffs’
yard. Not so. Even assuming the dog alert did give the
officers probable cause to believe the suspect was in
Plaintiffs’ yard, by that time, “the continuity of the chase was
terminated” so there was no hot pursuit to salvage. Johnson,
256 F.3d at 908.
Our case law was clear when these unfortunate events
unfolded in February 2019 that a pursuit’s continuity is
broken when officers completely lose a suspect’s trail for
more than a short time, as happened here. We note that
Newman, decided this year, is not only distinguishable but
circumstances, it weighs heavily against it”). Defendants conceded that
the suspect was alleged to have committed a misdemeanor, domestic
battery. Although the Supreme Court has recognized that domestic
violence is a serious misdemeanor, Lange, 594 U.S. at 308, the danger
involved is generally to co-habitants. Here, one officer remained at the
victim’s address in case the suspect returned, thereby ensuring that
neither she nor any other member of the household was at risk of
imminent harm.
JONES V. CITY OF NORTH LAS VEGAS 15
also does not bear on what was clearly established law in
2019. See Sanderlin, 116 F.4th at 916 (noting that “neither
favorable nor damning subsequent legal developments can
be used to demonstrate what law was or was not clearly
established at the time of an officer’s challenged conduct”).
But Johnson, decided in 2001, made it clear to officers in
2019 that they may not sweep through an area and search the
properties within it simply because they believe a suspect is
somewhere therein. 256 F.3d at 907–08. Allowing such
searches would turn back the clock to the age of English
general warrants, which our founders firmly rejected with
the inclusion of the Fourth Amendment. See Payton v. New
York, 445 U.S. 573, 583 (1980).
Because Defendants lacked an exigent circumstance to
search Plaintiffs’ yard under clearly established law at the
time of the incident, they are not entitled to qualified
immunity and summary judgment was improper.
IV.
We turn now to the fate of Shadow and Whitewall.
“Reasonableness is the touchstone of any seizure under the
Fourth Amendment.” San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th
Cir. 2005). “To determine whether the shooting of the dogs
was reasonable, we balance ‘the nature and quality of the
intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.’”
Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
We must judge the reasonableness of a particular use of force
“from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396.
16 JONES V. CITY OF NORTH LAS VEGAS
When we evaluate an officer’s use of force following a
warrantless intrusion into private space, we must not
conflate the unreasonable seizure claim with the
unreasonable search claim challenging the entry. County of
Los Angeles v. Mendez, 581 U.S. 420, 428 (2017) (“[T]he
objective reasonableness analysis must be conducted
separately for each search or seizure that is alleged to be
unconstitutional.”). Even where officers have violated
clearly established law with a warrantless search, we cannot
rely on that warrantless search to say that an officer’s
otherwise reasonable subsequent use of force was
excessive. See id. at 428–29.
Plaintiffs argue that Lieutenant Salkoff violated rights
that were clearly established under Hells Angels when he
shot their dogs. In Hells Angels, recognizing “that dogs are
more than just a personal effect,” we found that killing dogs
is a “severe” intrusion on Fourth Amendment protections.
402 F.3d at 975. But, in that case, officers had a week to
plan the execution of the warrants, were aware guard dogs
resided at the premises to be searched, and devised only to
use a shotgun to handle any encounters with the dogs rather
than employing less-intrusive means. Id. at 976. We
emphasized in our decision that it was not a case “where the
officer was reacting to a sudden unexpected situation” or
needed to make a split-second judgment. Id. at 978.
By contrast, in this case, officers had minutes—not
days—to discover and plan for handling any dogs in
Plaintiffs’ backyard. Lieutenant Salkoff attempted to stir
any dogs that might have been home before he entered the
yard but saw no indications that dogs were present. Officers
were unaware that the resident dogs were pit bulls, as
opposed to a breed that may have been less sensitive to the
intrusion or more readily controllable by Lieutenant Salkoff.
JONES V. CITY OF NORTH LAS VEGAS 17
For these reasons, the facts in this case are sufficiently
distinguishable from those in Hells Angels that we cannot
say Lieutenant Salkoff’s actions in this more spontaneous
confrontation violated clearly established law.
Because Plaintiffs do not offer, and we cannot find, any
cases clearly establishing that Lieutenant Salkoff’s actions
were unreasonable, he is entitled to qualified immunity and
summary judgment with respect to his use of force against
Plaintiffs’ dogs.
We note, however, that Lieutenant Salkoff and Officer
Rose may still be liable to Plaintiffs for the deaths of their
dogs as a natural consequence of the warrantless search of
their yard. Tatum v. Moody, 768 F.3d 806, 817 (9th Cir.
2014) (“Under § 1983, ‘a person is responsible for the
natural consequences of his actions.’” (simplified)) (quoting
Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part
on other grounds by Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978)); Mendez, 581 U.S. at 431 (stating that, even
where plaintiffs “cannot recover on their excessive force
claim, that will not foreclose recovery for injuries
proximately caused by the warrantless entry”).
V.
Cities may be held liable under § 1983 for constitutional
violations committed by their officers. See Monell, 436 U.S.
at 694. To establish such liability, Plaintiffs must prove
“(1) [they were] deprived of a constitutional right; (2) the
municipality had a policy; (3) the policy amounted to
deliberate indifference to [their] constitutional right; and
(4) the policy was the moving force behind the constitutional
violation.” Lockett v. County of Los Angeles, 977 F.3d 737,
741 (9th Cir. 2020). A municipal policy can be, among other
18 JONES V. CITY OF NORTH LAS VEGAS
things, “a failure to train [or] supervise.” Horton by Horton
v. City of Santa Maria, 915 F.3d 592, 603 (9th Cir. 2019).
Plaintiffs contend that the City failed to provide officers
with adequate training and supervision regarding
warrantless searches and the lawful use of a service weapon
on pet dogs. To establish municipal liability under such a
theory, the failure to train must “amount to ‘deliberate
indifference to the rights of persons with whom the
[untrained employees] come into contact.’” Connick v.
Thompson, 563 U.S. 51, 61 (2011) (alteration in original)
(quoting City of Canton v. Harris, 489 U.S. 378, 388
(1989)). Because the municipality must have had “actual or
constructive notice [of] a particular omission in their training
program” to demonstrate deliberate indifference, a plaintiff
must typically provide evidence of “[a] pattern of similar
constitutional violations by untrained employees.” Id. at 61–
62.
Plaintiffs’ Monell claim on warrantless searches fails
because Plaintiffs have not offered any evidence of a pattern
of warrantless search violations or other evidence of
constructive notice such that the City was deliberately
indifferent to Plaintiffs’ Fourth Amendment rights. As for
the use-of-force claim, Plaintiffs note that the City settled
three prior suits involving dog-shootings, each with different
facts than those presented here, during a five-year period.
Even if those settlements suggest that the police may have
acted wrongfully in those cases, evidence of “sporadic” or
“isolated” wrongdoing is generally insufficient to establish
“that the conduct has become a traditional method of
carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th
Cir. 1996); see also Connick, 563 U.S. at 62–63. Therefore,
JONES V. CITY OF NORTH LAS VEGAS 19
the City is entitled to summary judgment on Plaintiffs’
Monell claims. 3
VI.
We reverse the district court’s grant of qualified
immunity and summary judgment to Lieutenant Salkoff and
Officer Rose with respect to their search of Plaintiffs’
backyard. Because the district court declined to exercise
supplemental jurisdiction over Plaintiffs’ state law claim
solely based on its grant of summary judgment to
Defendants on all of Plaintiffs’ federal claims, its dismissal
of that claim is also reversed. See Brodheim v. Cry, 584 F.3d
1262, 1273 (9th Cir. 2009). We affirm the district court’s
grant of summary judgment in all other respects. We remand
for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.
3
Plaintiffs also do not argue that the consequences of a failure to train
on warrantless searches are so “patently obvious” that the City could be
liable “without proof of a pre-existing pattern of violations.” Connick,
563 U.S. at 64.
20 JONES V. CITY OF NORTH LAS VEGAS
COLLINS, Circuit Judge, with whom CALLAHAN,
BENNETT, R. NELSON, LEE, BRESS, BUMATAY, and
TUNG, Circuit Judges, join, dissenting from the denial of
rehearing en banc:
This case is another in a long—and seemingly
unending—string of cases in which our court continues to
ignore controlling Supreme Court precedent concerning
qualified immunity in actions brought under 42 U.S.C.
§ 1983. As the Court has reiterated, “officers are entitled to
qualified immunity under § 1983 unless (1) they violated a
federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was clearly established at the
time.” District of Columbia v. Wesby, 583 U.S. 48, 62–63
(2018) (emphasis added) (simplified). “A right is clearly
established when it is sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5
(2021) (simplified). Time and again, however, we have
evaded this demanding standard for defeating qualified
immunity by defining “clearly established” law in broad and
general terms that disregard the legal and factual nuances of
the particular situation that the officers faced. We have done
so despite the Supreme Court’s having “repeatedly told
courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality.” Kisela
v. Hughes, 584 U.S. 100, 104 (2018) (simplified). The
panel’s decision in this case is a particularly egregious
example of our stubborn adherence to this oft-condemned
practice.
The underlying Fourth Amendment claim in this case
presents the important and interesting question whether the
“hot pursuit” of a suspect will justify a warrantless entry into
JONES V. CITY OF NORTH LAS VEGAS 21
a property if the pursuing police officers temporarily lose the
suspect’s trail but then believe that they have recovered it.
Specifically, the panel held that where police officers are
engaged in continuous efforts to pursue a fleeing dangerous
suspect but then “lose [the] suspect’s trail,” the continuity of
any “hot pursuit” is irretrievably broken for purposes of the
warrant exception for the “exigent circumstance” of a
pursuit, and that the continuity remains broken even if the
trail is only temporarily lost and is promptly recovered (here,
within about 18 minutes). Jones v. City of North Las Vegas,
150 F.4th 1030, 1037 (9th Cir. 2025); see also Jones,
Amended Opin. at 14. Despite the fact that, at the time of
the Defendant Officers’ entry into Plaintiffs’ property in this
case, no Supreme Court or Ninth Circuit decision had ever
squarely addressed this sort of recovery-of-a-hot-pursuit
scenario, the panel summarily announced that its (dubious)
answer to that novel question had actually been the clearly
established law of this court for nearly a quarter of a century.
The panel did so by improperly over-generalizing the
principles established in a “materially distinguishable” 2001
Ninth Circuit decision that “does not govern the facts of this
case” and that did not put the Defendant Officers “on notice
that [their] specific conduct was unlawful.” Rivas-Villegas,
595 U.S. at 6. Indeed, that sole 2001 decision invoked by
the panel here—United States v. Johnson, 256 F.3d 895 (9th
Cir. 2001) (en banc)—did not even address, much less
resolve, whether a trail that is temporarily lost can promptly
be recovered. It should go without saying that a precedent
cannot “clearly establish” the answer to a question that was
not even presented or considered in that case.
We should have granted rehearing en banc to address the
panel’s troubling disregard of Supreme Court precedent
22 JONES V. CITY OF NORTH LAS VEGAS
concerning the application of qualified immunity. I
respectfully dissent from our failure to do so.
I
A
Around 3:47 p.m. on February 15, 2019, two officers
from the North Las Vegas Police Department (“NLVPD”),
Officer Minelli and Officer Rose, responded to a welfare
check request regarding a possible domestic battery incident
at a specific address, which was a house on a residential cul-
de-sac. The person making the report had received texts of
photographs from her sister showing various injuries to her
face. The person reporting told the dispatch that her sister’s
boyfriend, Demario Shapiro, had battered her sister before
and that “she was scared for her sister’s safety.” Upon
arriving at the residence to conduct a welfare check, Officer
Minelli recalled that he had personally responded to the very
same house in the past for a domestic-related incident.
The officers rang the doorbell, and in response, the front
door opened slightly and then was immediately closed.
Officer Minelli attempted to open the door, but it was locked.
He knocked on the door shouting “Police,” and a few
moments later, a woman responded. Officer Minelli thought
that she was stalling, but she finally stepped outside after he
asked her several times to come out.
Meanwhile, Officer Rose positioned himself so that he
could view the side of the house in case anyone fled the
scene. Officer Rose then witnessed a man—who the officers
suspected was Shapiro—fleeing from the back of the house,
running southbound, and jumping over the wall into the
neighboring yard. In response, Officer Rose quickly got in
his patrol car and drove two streets to the south in an
JONES V. CITY OF NORTH LAS VEGAS 23
unsuccessful attempt to cut off the fleeing suspect.
Believing that the suspect was hiding out in the immediate
vicinity, Officer Rose promptly requested assistance, and
several nearby units responded and “very quickly”
established a multi-block perimeter to contain the suspect.
The officers took up spots around the perimeter such that
they believed the suspect would not be able to get out
without crossing their line of sight. Believing that the
suspect was a “dangerous offender” who not only put the
alleged victim at risk but also “anybody else he comes in
contact with in the neighborhood,” the officers made
announcements over their public address systems that were
audible throughout the neighborhood, and they began
knocking on doors to make contact with the residents.
While the perimeter was being set up, Officer Minelli
stayed behind to talk with the woman regarding the domestic
battery allegations. He observed that she had several severe
injuries on her face, including a long, stitched cut across her
chin. Officer Minelli broadcasted this information over the
radio to the other responding officers. The woman, however,
was uncooperative and relayed inconsistent narratives
regarding Shapiro’s location and her injuries. She denied
any allegations of domestic violence and told Officer Minelli
that Shapiro would be back home later that evening, that the
police were not welcome at her house, and that they would
need to obtain a warrant to apprehend Shapiro.
Among those who responded and aided in the search for
the suspect was a K-9 unit consisting of NLVPD Lieutenant
Salkoff and his police dog, “Storm.” They arrived at the
scene around 4:05 PM, approximately 18 minutes after
Officers Minelli and Rose had arrived at the victim’s home.
Prior to deploying the police dog, Lieutenant Salkoff
conducted a records check of Shapiro, which revealed that
24 JONES V. CITY OF NORTH LAS VEGAS
Shapiro had an active domestic battery misdemeanor
warrant and an active traffic warrant, as well as an extensive
criminal history that included 11 prior arrests for domestic
battery with strangulation, obstruction, robbery, assault with
a deadly weapon, battery with substantial bodily harm,
carrying a concealed weapon, possession of a stolen vehicle,
and traffic charges.
After making announcements about the use of a police
dog from his vehicle’s public address system, Lieutenant
Salkoff took Storm and began to search for the suspect
within the perimeter. Lieutenant Salkoff searched a property
that was located about one house south and four houses east
of the victim’s home, when Storm—who was trained to
detect apocrine, an odor that humans release when they are
scared—gave an indication of “high alert” from the direction
of Plaintiffs’ walled-in backyard. NLVPD Officer Young,
who had been sent ahead by Lieutenant Salkoff to seek
consent from residents to search their yards, attempted to
make contact with someone in Plaintiffs’ home, but no one
responded. Officer Young went to check the gate, and it was
locked. He also noticed a “Beware of Dog” sign, and he
relayed that fact to Lieutenant Salkoff. Lieutenant Salkoff
also observed three doghouses enclosed by a chain-link
fence with an open gate. The officers whistled, shook the
locked gate, and slapped the wall to determine if any dogs
were in the yard, but they did not observe any signs of
movement or animals. Lieutenant Salkoff then decided to
jump the wall into Plaintiffs’ backyard, and Officer Rose
lifted Storm and handed him to Lieutenant Salkoff over the
wall. Lieutenant Salkoff and Storm began searching
Plaintiffs’ yard when Plaintiffs’ three pit bulls emerged from
their doghouses. Two of the dogs started to attack Storm,
and after failing to keep the dogs at bay through non-lethal
JONES V. CITY OF NORTH LAS VEGAS 25
means, Lieutenant Salkoff drew his department-issued
firearm and shot the two dogs, killing them. Despite the
search, the officers never found the suspect.
Plaintiffs sued Lieutenant Salkoff, Officer Rose, and the
City of North Las Vegas (collectively “Defendants”).
Invoking 42 U.S.C. § 1983, Plaintiffs asserted two Fourth
Amendment claims against Lieutenant Salkoff and Officer
Rose (“Defendant Officers”), one for unreasonable search of
their property and one for unreasonable seizure of their dogs.
Plaintiffs also asserted a Monell claim against the City of
North Las Vegas (“City”) based on the theory that the City
had failed to adequately train and supervise its officers.
Plaintiffs also asserted a state law claim under Nevada law.
The district court granted the Defendant Officers
qualified immunity, granted summary judgment in favor of
Defendants on all federal claims, and declined to exercise
supplemental jurisdiction over the remaining state law claim.
Plaintiffs timely appealed.
B
As relevant here, the panel reversed the grant of
summary to the Defendant Officers with respect to
Plaintiffs’ claim that they had violated the Fourth
Amendment by entering and searching Plaintiffs’ backyard.
Jones, Amended Opin. at 6. 1 As the panel acknowledged,
see id. at 9–10, the qualified immunity inquiry involves “a
two-pronged inquiry”: (1) the first prong asks whether “the
1
The panel affirmed the district court’s grant of qualified immunity to
the Defendant Officers with respect to Plaintiffs’ separate Fourth
Amendment claim concerning the seizure of the two dogs, as well as the
district court’s grant of summary judgment to the City as to Plaintiffs’
Monell claim. Jones, Amended Opin. at 15–19. I do not question either
of those rulings.
26 JONES V. CITY OF NORTH LAS VEGAS
officer’s conduct violated a federal right,” and (2) the
“second prong . . . asks whether the right in question was
clearly established at the time of the violation,” Tolan v.
Cotton, 572 U.S. 650, 655–56 (2014) (simplified). The
panel held that Plaintiffs had established both prongs,
thereby defeating qualified immunity. Jones, Amended
Opin. at 14–15.
As to the first prong, the panel acknowledged that the
warrantless entry into Plaintiffs’ backyard would be
reasonable if (1) it was supported by probable cause, and
(2) “exigent circumstances justified the warrantless
intrusion.” Jones, Amended Opin. at 10–11 (citation
omitted). The panel assumed, without deciding, that Storm’s
alert “did give the officers probable cause to believe the
suspect was in Plaintiffs’ yard.” Id. at 14 (emphasis added).
But the panel held that the search was nonetheless invalid
because there were no “exigent circumstances” to justify the
warrantless intrusion. Id. at 11–14. Specifically, the panel
rejected the Defendant Officers’ contention that exigent
circumstances were present in that they were “in hot pursuit
of a fleeing suspect.” Id. at 11.
The panel held that, under the en banc decision in United
States v. Johnson, 256 F.3d 895 (9th Cir. 2001), “[t]he hot
pursuit exception to the warrant requirement only applies
when officers are in ‘immediate’ and ‘continuous’ pursuit of
a suspect from the scene of the crime.” Jones, Amended
Opin. at 11 (quoting Johnson, 256 F.3d at 907). The panel
held that the Defendant Officers responded to the suspect’s
flight from the victim’s home with sufficient alacrity to
count as acting “immediately.” Id. But the panel concluded
that the “continuity” requirement was not met because, in its
view, the Defendant “Officers had seen neither hide nor hair
of the suspect for at least eighteen minutes preceding their
JONES V. CITY OF NORTH LAS VEGAS 27
search [of Plaintiffs’ backyard], in which time the suspect’s
movements through a suburban neighborhood were
completely unknown.” Id. at 13. The panel held that the fact
that the Defendant Officers knew that the suspect was
“somewhere within the neighborhood” was not enough,
because that information was too non-specific and would
justify searching “through private spaces in an entire
neighborhood.” Id. at 14. In response to the Defendants
Officers’ argument that “Storm’s alert salvaged the hot
pursuit and gave them probable cause to search Plaintiffs’
yard,” the panel held that there was no exigent circumstance
to justify the warrantless entry because “‘the continuity of
the chase was terminated’ so there was no hot pursuit to
salvage.” Id. (quoting Johnson, 256 F.3d at 908).
Turning to the second prong of the qualified immunity
inquiry, the panel held that “[o]ur case law was clear when
these unfortunate events unfolded in February 2019 that a
pursuit’s continuity is broken when officers completely lose
a suspect’s trail for more than a short time, as happened
here.” Jones, Amended Opin. at 14. In support of this
conclusion, the panel stated that “Johnson, decided in 2001,
made it clear to officers in 2019 that they may not sweep
through an area and search the properties within it simply
because they believe a suspect is somewhere therein.” Id. at
15.
II
Even assuming arguendo the panel’s dubious premise
that the Defendant Officers violated the Fourth Amendment
when they entered Plaintiffs’ yard without a warrant, the
panel’s further holding that the Defendant Officers violated
clearly established law plainly contravenes controlling
Supreme Court precedent concerning qualified immunity.
28 JONES V. CITY OF NORTH LAS VEGAS
A
“Although ‘th[e] [Supreme] Court’s caselaw does not
require a case directly on point for a right to be clearly
established, existing precedent must have placed the
statutory or constitutional question beyond debate.’” Kisela
v. Hughes, 584 U.S. 100, 104 (2018) (citation omitted).
“Specificity is especially important in the Fourth
Amendment context, where the Court has recognized that it
is sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation
the officer confronts.” Id. (simplified) (noting that, in that
case, the relevant Fourth Amendment doctrine at issue was
“excessive force,” which “is an area of the law ‘in which the
result depends very much on the facts of each case’” (citation
omitted)). “An officer ‘cannot be said to have violated a
clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was
violating it.’” Id. at 105 (citation omitted). Consequently,
in the absence of an “obvious case,” the party seeking to
defeat qualified immunity—here, Plaintiffs—“must identify
a case that put [the officers] on notice that [their] specific
conduct was unlawful.” Rivas-Villegas v. Cortesluna, 595
U.S. 1, 6 (2021). But if a precedent is “materially
distinguishable” from the instant case, then it cannot be said
to “govern the facts of this case” for purposes of qualified
immunity. Id. (emphasis added).
Under these standards, the Defendant Officers are clearly
entitled to qualified immunity. Given the distinctive and
difficult Fourth Amendment question presented here—
namely, whether the prompt recovery of a temporarily lost
hot pursuit of a dangerous suspect justifies a warrantless
entry into a specific property—this is not an “obvious case”
JONES V. CITY OF NORTH LAS VEGAS 29
in which the general Fourth Amendment standards will
supply a clear answer “even without a body of relevant case
law.” Rivas-Villegas, 595 U.S. at 6 (citation omitted). Nor
did the panel contend that it was. Consequently, “to show a
violation of clearly established law,” Plaintiffs had to
“identify a case that put [the Defendant Officers] on notice
that [their] specific conduct was unlawful.” Id. In holding
that Plaintiffs had carried that burden, the panel relied solely
on this court’s 2001 decision in United States v. Johnson,
256 F.3d 895 (9th Cir. 2001) (en banc). See Jones, Amended
Opin. at 14–15. But Johnson is “materially distinguishable
and thus does not govern the facts of this case.” Rivas-
Villegas, 595 U.S. at 6. 2
In Johnson, an officer attempted to arrest a misdemeanor
suspect (Smith) who was wanted on “five outstanding arrest
warrants for misdemeanor offenses,” including DUI and
resisting arrest. 256 F.3d at 899 & n.1. Smith, however,
broke free and ran away. Id. at 899. The officer got in his
vehicle and attempted to follow Smith but lost sight of him
when Smith went off the road into the “thick brush” of the
woods. Id. at 899. The rural area was “sparsely populated,”
and each property, including defendant Johnson’s adjacent
property, spanned multiple acres. Id. at 906. The officer
“radioed for backup and requested a canine unit.” Id. at 899.
2
The Supreme Court has yet to clarify whether even an on-point circuit
precedent can qualify as controlling authority for purposes of qualified
immunity, see District of Columbia. v. Wesby, 583 U.S. 48, 66 n.8 (2018)
(“We have not yet decided what precedents—other than our own—
qualify as controlling authority for purposes of qualified immunity.”);
Reichle v. Howards, 566 U.S. 658, 665–66 (2012) (reserving the
question whether court of appeals decisions can be “a dispositive source
of clearly established law”); see also Rivas-Villegas, 595 U.S. at 5
(same).
30 JONES V. CITY OF NORTH LAS VEGAS
While waiting for backup to arrive, the officer followed a
nearby driveway and arrived at Johnson’s gated property,
which was locked. Id. The officer then left the trail
completely and returned to the scene of his initial
confrontation with the suspect to grab a pepper spray
cannister that he had dropped earlier. Id. He returned to the
locked gate and waited for an additional 15 minutes for
backup to arrive. Id. at 899–900. Finally, over 30 minutes
since the officer last saw the suspect disappear into the
woods, the officers broke into Johnson’s yard based on a
“gut feeling” that the suspect would be there. Id. at 898, 905.
While searching Johnson’s property, the officers detected
the clear smell of marijuana coming from a shed. Id. at 900.
However, they did not find Smith. Id. After obtaining a
warrant to search the shed, the officers found 553 marijuana
plants, and Johnson was later indicted. Id.
Johnson moved to suppress the evidence, but the district
court denied the motion, stating that the warrantless search
was justified under the hot pursuit exception. Johnson, 256
F.3d at 900. A panel of this court affirmed, but after en banc
rehearing was granted, the en banc court reversed and
remanded. The en banc court remanded as to whether the
area of the shed was within the “curtilage” of Johnson’s
home that is protected by the Fourth Amendment against
warrantless searches, but the court held that, if it was, then
the warrantless search was not justified. Id. at 897–98. The
court held that the officers did not have probable cause to
believe that Smith was on Johnson’s property, because once
Smith entered the woods, “Smith’s options were unlimited”
and his choices for “hiding places [were] potentially
endless,” and the officers had nothing more than a “gut
feeling” that he might be on Johnson’s property. Id. at 906–
07. The court also held that the warrantless nature of the
JONES V. CITY OF NORTH LAS VEGAS 31
entry was not justified by the “hot pursuit exception to the
warrant requirement.” Id. at 907. The officers had lost sight
of Smith, and for the ensuing 30 minutes they “received no
new information about where Smith had gone.” Id. at 908.
Meanwhile, Smith had “not run into a confined area,” but
had instead run “into a wooded area where he was free to run
for over a half hour.” Id. Under these circumstances, the
court held, “the continuity of the chase was terminated
permanently.” Id. (emphasis added). The court also held
that Smith’s flight from the misdemeanor offense of resisting
arrest “weighs heavily” against a “finding of exigent
circumstances.” Id.
Johnson is materially distinguishable in multiple
respects from this case. Most importantly, the pursuit here
was not “terminated permanently,” Johnson, 256 F.3d at
908, because the Defendant Officers’ continued
investigation led them to develop probable cause that the
suspect was in Plaintiffs’ yard. This is thus not a case, like
Johnson, in which the officers, during the period after losing
sight of the suspect, “no longer had any idea where [the
suspect] was.” Id. Unlike Johnson, the suspect here did not
run into a vast woods that afforded “unlimited” options to
escape, id. at 906; on the contrary, the officers reasonably
believed that he had “run into a confined area,” namely, the
limited perimeter the officers had established before
developing probable cause as to which specific yard he
might be in, id. at 908. (The fact that Shapiro ultimately
turned out not to be in Plaintiff’s yard or within the perimeter
makes no difference; the ex ante authority to conduct a
search does not turn on the ex post result.) And, in contrast
to the officer in Johnson, who made no efforts to pursue
Smith for 30 minutes while he waited for backup, the
officers here were continuously working to establish a
32 JONES V. CITY OF NORTH LAS VEGAS
perimeter and then to find the suspect. Most importantly,
because the officers in Johnson never developed any
subsequent information to establish probable cause that they
had recovered a temporarily lost trail, Johnson simply
cannot be viewed as having clearly established the answer
to the question whether a temporarily lost trail can be
promptly recovered. Finally, in contrast to the minor
misdemeanors at issue in Johnson, the suspect here was
suspected of a violent domestic battery misdemeanor. See
Lange v. California, 594 U.S. 295, 305 (2021) (noting that,
because “many perpetrators of domestic violence are
charged with misdemeanors, despite the harmfulness of their
conduct,” “a felon is not always more dangerous than a
misdemeanant” (simplified)). The panel was thus flatly
wrong in concluding that Johnson clearly established that the
officers’ conduct here was unlawful.
The panel’s amended opinion only makes things worse
and underscores that qualified immunity was wrongly
denied here. In its amended opinion, the panel attempts to
make Johnson look like a better fit to the facts of this case
by improperly altering its prior quotation from Johnson’s
key holding. The panel’s original opinion accurately quoted
Johnson’s holding that “there is no hot pursuit where ‘the
continuity of the chase was terminated permanently.’”
Jones, 150 F.4th at 1036 (quoting Johnson, 256 F.3d at 908).
But this case does not fit that rule because, as I have
explained, the continuity of the chase here was not
“terminated permanently” given that the trail was promptly
recovered. Rather than acknowledge that Johnson is thus
materially distinguishable and does not govern this case, the
panel instead now doctors its quotation from Johnson so as
to reframe that decision’s holding in a broader way that will
better fit this case. Specifically, the above-quoted phrase has
JONES V. CITY OF NORTH LAS VEGAS 33
been changed to now say that “there is no hot pursuit where
‘the continuity of the chase [has been] terminated’
definitively.” See Jones, Amended Opin. at 12 (alterations
in original) (emphasis added); see also id. at 14 (adding this
same quote in a truncated form that deletes the word
“permanently”). This alteration is significant, because it
attempts to recast Johnson’s holding so that it would extend,
not merely to a pursuit whose continuity was terminated
“permanently” (and therefore never recovered), but also to
one that was in some sense “terminated definitively” (such
that it would not count that the trail was promptly
recovered). But qualified immunity turns on what the
relevant precedents actually say and not how they might be
misquoted by future panels. See Estate of Hernandez v. City
of Los Angeles, 139 F.4th 790, 827 (9th Cir. 2025) (en banc)
(Collins, J., concurring in part and dissenting in part) (stating
that, under a proper understanding of qualified immunity
doctrine, officers must be able to “rely on what our opinions
actually say” and should not have to “consider that future
panels may take considerable liberties with selectively
quoting the opinion’s language”).
For all of these reasons, Johnson does not “squarely
govern[]” this case and does not place its outcome “beyond
debate.” Kisela, 584 U.S. at 104 (citations omitted). By
holding that Johnson did clearly establish the relevant law
here, the panel once again relied on an overbroad reading of
precedent and thereby disregarded the Supreme Court’s
repeated admonition that we must not “define clearly
established law at a high level of generality.” Id.
(simplified). The Defendant Officers here were entitled to
qualified immunity.
34 JONES V. CITY OF NORTH LAS VEGAS
B
In addition to its erroneous reliance on Johnson as
having clearly established the relevant law, there are several
additional respects in which the panel’s decision here
conflicts with relevant Supreme Court authority.
The panel’s original opinion held that it is “clearly
established” law that the loss of a suspect’s trail for as few
as 18 minutes means any hot pursuit has been definitively
terminated and cannot be recovered, and it remarkably
reached this conclusion without giving any consideration to
the nature of the underlying crime at issue or the
dangerousness of the suspect in this case. See Jones, 150
F.4th at 1036–38. In its amended opinion, the panel has now
belatedly added a footnote minimizing the dangerousness of
the suspect here, but the amendment only makes things
worse because the new footnote squarely conflicts with
Supreme Court precedent. See Jones, Amended Opin. at 13
n.2.
The panel’s new footnote introduces a further error by
explicitly reaffirming Johnson’s overbroad comment that a
fleeing suspect’s commission of a “misdemeanor” “weighs
heavily against” a finding of exigent circumstances. See
Jones, Amended Opin. at 13 n.2 (quoting Johnson, 256 F.3d
at 908). That sweeping comment did not survive the
Supreme Court’s decision in Lange, which emphasized the
importance of dangerousness to the hot pursuit inquiry and
expressly noted—citing “domestic violence” offenses in
particular—that “a felon is not always more dangerous than
a misdemeanant.” 594 U.S. at 305 (simplified). The panel’s
new footnote, and its reliance on Johnson’s dismissal of
misdemeanors, also cannot be squared with Stanton v. Sims,
571 U.S. 3 (2013), in which the Supreme Court summarily
JONES V. CITY OF NORTH LAS VEGAS 35
and unanimously reversed this court for denying qualified
immunity based on a similar overreading of Johnson’s
discounting of the seriousness of misdemeanors. Citing the
very same discussion in Johnson, this court denied qualified
immunity in Stanton, holding that “[i]t should have been
clear to Stanton, however, from Supreme Court and Ninth
Circuit decisions that law enforcement actions involving a
misdemeanor offense will rarely, if ever, justify a warrantless
entry.” Sims v. Stanton, 706 F.3d 954, 964 (9th Cir. 2013)
(citing, inter alia, “Johnson, 256 F.3d at 908 (clearly
established since 2001)”). The Supreme Court reversed,
holding that this court had read such statements in Johnson
“far too broadly.” Stanton, 571 U.S. at 9 (noting the Stanton
panel’s reliance on a similar accompanying footnote in
Johnson). The Court instead held that the law governing the
hot pursuit of misdemeanants, including the role of
dangerousness in that analysis, was not clearly established,
given the post-Johnson conflicting precedent within the
Ninth Circuit itself and given that “the federal and state
courts of last resort around the Nation were sharply divided.”
Id. at 10. The panel’s resuscitation of this discredited aspect
of Johnson is plainly wrong, and it shows that we have
learned nothing from the unanimous reversal we suffered in
Stanton. 3
3
The panel’s downplaying of the suspect’s dangerousness here is also
factually inaccurate. The panel’s suggestion that any danger here was
mitigated by the fact that an officer stayed with the victim during the
pursuit makes no sense: the whole point of the pursuit was to detain the
dangerous suspect whose flight required the officer to temporarily guard
the victim during the pursuit. To the extent that the panel’s amended
opinion now suggests that the pursuit could perhaps have been
maintained if the officers had left the victim unguarded, that strikes me
as perversely illogical. Moreover, a fleeing suspect with a known history
of domestic violence who leaps into a neighbor’s backyard would
36 JONES V. CITY OF NORTH LAS VEGAS
Stanton underscores the panel’s error in this case in a
further respect. Here, just as in Stanton, a variety of federal
and state court decisions that have addressed the specific
question presented here have reached results contrary to the
panel’s claim that that question has actually been long settled
by general principles from a decades-old case. See Stanton,
571 U.S. at 9–10 (citing two state intermediate appellate
decisions and two federal district court opinions). Here,
several post-Johnson cases have upheld, as falling within the
hot pursuit exception, pursuits in which the officers briefly
lost track of the suspect but then, through quick and
continuous efforts, promptly regained the trail. See, e.g.,
Prado v. Police Dep’t of East Palo Alto, 2018 WL 4103175,
at *1, 4 (Cal. Ct. App. Aug. 29, 2018) (finding hot pursuit
where an officer lost sight of the suspect disappearing into
private property at a dead-end street and fleeing to the west,
and other officers created a perimeter while the chasing
officer, making use of information developed during the
pursuit, made warrantless entries into two separate yards near
the residence where the suspect disappeared and ultimately
shot the plaintiff’s pit bull in one of the yards); United States
reasonably be considered to be a danger to the community generally and
not only, as the panel would have it, to “co-habitants.” See Jones,
Amended Opin. at 13 n.2. Indeed, it is surprising to see the panel make
such a point in this case, given that the canine officer’s report stated that
he conducted a records check of the fleeing suspect before he deployed
his police dog and that he thereby learned that the suspect “had an
extensive criminal history, which included several violent offenses such
as domestic [violence] with strangulation, assault with a deadly weapon,
carrying a concealed weapon and robbery.” Based on what they knew
about Shapiro, the officers concluded that he was a danger to “anybody
else he comes in contact with in the neighborhood.” The panel is
therefore quite wrong to suggest that this violent suspect did not present
any danger to the neighbors whose yards he was suspected of jumping
into.
JONES V. CITY OF NORTH LAS VEGAS 37
v. Fuller, 572 F. App’x 819, 819–21 (11th Cir. 2014) (holding
that the passing of 12 minutes between the suspects’ fleeing
from the stolen car and a detective’s entry into defendant’s
property after another detective driving nearby announced
that there were suspicious people in defendant’s backyard did
not render the hot pursuit “cold” because the detectives were
“engaged in a single pursuit that was continuous”); United
States v. Red Bird, 2020 WL 7209760, at *1, 6–7 (D.S.D. Aug.
20, 2020) (finding hot pursuit where officer, seeing a suspect
flee, drove one street down to unsuccessfully cut him off but
recovered trail using footprints in snow); United States v.
White, 185 F. Supp. 3d 1295, 1299–1301, 1304–10 (D. Utah
2016) (finding hot pursuit exception applied to a warrantless
entry where, after losing track of a suspected felon when he
entered into a multi-building complex, the officers recovered
the trail by using the information developed during the pursuit
to narrow down to one apartment unit on the top floor). This
conflicting caselaw further “bolster[s]” the conclusion that
qualified immunity should have been granted here. Stanton,
571 U.S. at 10.
* * *
For the foregoing reasons, the panel’s decision is flatly
contrary to controlling Supreme Court authority, and we
should have reheard this case en banc. I respectfully dissent
from our denial of rehearing en banc.