C. B. v. City of Sonora

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. B., a minor, No. 11-17454

Plaintiff-Appellee,

D.C. No.

v. 1:09-cv-00285-

AWI-SMS

CITY OF SONORA; MACE MCINTOSH,

Chief of Police; HAL PROCK,

Officer, OPINION

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, Senior District Judge, Presiding

Argued and Submitted En Banc

March 17, 2014—San Francisco, California

Filed October 15, 2014

Before: Alex Kozinski, Chief Judge, and Diarmuid F.

O’Scannlain, Sidney R. Thomas, Barry G. Silverman,

Susan P. Graber, Ronald M. Gould, Richard A. Paez,

Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez as to all but Part II.C.1.;

Opinion by Judge M. Smith as to Part II.C.1;

Partial Concurrence and Partial Dissent by Judge M. Smith;

Concurrence by Judge Gould;

Partial Concurrence and Partial Dissent by Judge Berzon

2 C.B. V. CITY OF SONORA

SUMMARY*

Civil Rights

The en banc court affirmed in part and reversed in part the

district court’s judgment entered following a jury trial, in an

action arising out of a decision by Sonora City Police

Department officers to handcuff and remove from school

grounds C.B., an 11-year-old child with attention-deficit and

hyperactivity disorder who was sitting on a bench and refused

to leave the playground.

The en banc court held that the 2003 amendment to Fed.

R. Civ. P. 51 abrogated prior case law that denied review of

jury instructions in civil cases in the absence of a timely

objection. The en banc court held that the plain error

standard of review in the civil context is similar to, but

stricter than, the plain error standard of review applied in

criminal cases. When reviewing civil jury instructions for

plain error, a court must consider, as in the criminal context,

whether (1) there was an error; (2) the error was obvious; and

(3) the error affected substantial rights. The en banc court

held that it is appropriate to consider the costs of correcting

an error, and—in borderline cases—the effect that a verdict

may have on nonparties. Finally, the court also held that the

decision whether to correct a plain error under Federal Rule

of Civil Procedure 51(d)(2) is discretionary.

The en banc court concluded that defendants had not

identified any plain error in the district court’s jury

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

C.B. V. CITY OF SONORA 3

instructions, that the district court’s evidentiary rulings were

not an abuse of discretion, and that defendants had not shown

they were entitled to a settlement offset.

The en banc court further held that defendants Chief

McIntosh and Officer Prock were not entitled to qualified

immunity on C.B.’s Fourth Amendment excessive force

claim because no officer could have reasonably believed that

their use of handcuffs to remove C.B. from school grounds

complied with the Fourth Amendment.

The en banc court held that Chief McIntosh and Officer

Prock were entitled to qualified immunity with respect to

C.B.’s unlawful seizure claim because a reasonable officer

would not have known that taking a child in C.B.’s situation

into temporary custody was unreasonable, and therefore

unconstitutional.

Concurring in part and dissenting in part, Judge M. Smith,

was joined in full by Judges O’Scannlain, Tallman and

Bybee, and was joined as to Part I, which is the opinion of the

court, by Judges Kozinski, Graber and Gould. In Part I of his

opinion, Judge M. Smith stated that a majority of the court

agreed that Chief McIntosh and Officer Prock were entitled

to qualified immunity with respect to C.B.’s unlawful seizure

claim. In Part II of his opinion, Judge M. Smith dissented

from the majority’s conclusion that the scope of C.B.’s right

to be free from excessive force was clearly established. In

his view, the officers were entitled to qualified immunity on

the excessive force claim because a reasonable officer would

not have known that handcuffing C.B. to safely take him into

temporary custody violated his constitutional rights.

4 C.B. V. CITY OF SONORA

Concurring in part, Judge Gould, with whom Judges

Kozinski and Graber joined, agreed with Parts I, II.A, II.B,

II.C.2, and II.D of Judge Paez’s opinion, concerning the

factual background, rejection of the challenges to jury

instructions and to evidentiary rulings, and the conclusions

that Chief McIntosh and Officer Prock used excessive force

in violation of the Fourth Amendment when, in removing

C.B. from school grounds, they handcuffed him for 25 to 30

minutes and that they were not entitled to qualified immunity

for handcuffing C.B. Judge Gould joined in Part I of Judge

M. Smith’s opinion, concerning the unlawful seizure claim,

concluding that the officers were entitled to qualified

immunity as to the seizure of C.B.

Concurring in part and dissenting in part, Judge Berzon,

joined by Judge Thomas, agreed with Judge Paez’s opinion,

with one exception: As to C.B.’s unlawful seizure claim, she

concurred in the result reached by Judge Paez but would

reach that result via different reasoning. Because there was

no cause to believe C.B. could be detained under the relevant

California Welfare Code provisions, and no reasonable

officer could believe that there was, she would affirm the

judgment for C.B. on these grounds.

Dissenting in part, Judge Paez in Part II.C.1 of his

opinion, joined by Judge Silverman, disagreed that Chief

McIntosh and Officer Prock were entitled to qualified

immunity on C.B.’s Fourth Amendment seizure claim. Judge

Paez stated that the officers’ decision to seize C.B. and

remove him from school grounds was not reasonable and the

law was clearly established that, at a minimum, police

seizures at the behest of school officials had to be reasonable

in light of the circumstances and not excessively intrusive.

C.B. V. CITY OF SONORA 5

COUNSEL

Stephanie Y. Wu (argued) and Cornelius J. Callahan, Borton

Petrini LLP, Modesto, California, for Defendants-Appellants.

Julia Levitskaia (argued), John F. Martin, and Georgelle

Christina Heintel, Law Offices of John F. Martin, Walnut

Creek, California, for Plaintiff-Appellee.

OPINION

PAEZ, Circuit Judge:

This case arises out of a decision by Sonora City Police

Department officers to handcuff and remove from school

grounds an 11-year-old child with attention-deficit and

hyperactivity disorder (“ADHD”) who was doing nothing

more than sitting quietly and resolutely in the school

playground. After a seven-day trial, a jury found that the City

of Sonora, Sonora Chief of Police Mace McIntosh, and

Officer Harold Prock (collectively “Defendants”) were liable

for violating C.B.’s Fourth Amendment rights and for tortious

acts. The district court subsequently entered judgment on the

verdict, and Defendants appeal.

We must decide two central issues. First, we must decide

whether the district court’s supplemental jury instructions

were proper. To resolve this question, we also must

determine whether litigants may object to civil jury

instructions for the first time on appeal and, if so, what

standard of review governs such challenges. Second, we

must decide whether the district court erred in denying the

individual officers qualified immunity on C.B.’s

6 C.B. V. CITY OF SONORA

constitutional claims. Additionally, Defendants raise several

evidentiary and post-judgment arguments, which we also

address. After setting forth the factual and procedural

background of the case, we turn to the district court’s

supplemental instructions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

On September 28, 2009, sixth-grader C.B. was having a

“rough” day at school. C.B. had been diagnosed with ADHD

and took prescribed medications to manage his symptoms,

but that morning, he had forgotten to take his medications.

As a result, he experienced periods of unresponsiveness

throughout the day; C.B., his parents, and school officials

described this as C.B. “shutting down.” The school was

aware of C.B.’s ADHD and had an accommodation plan

under § 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, in place for him. The accommodation plan designated

Coach Karen Sinclair’s office as a safe space where C.B.

could go if he was experiencing a “shut down,” to calm

himself and refocus until he was ready to return to class.

Unfortunately, that day, things did not unfold according

to plan. When C.B. experienced a “shut down” during recess,

Coach Sinclair tried to convince him to go to her office, but

C.B. remained unresponsive and refused to leave the

playground. According to Coach Sinclair, during this

exchange, C.B. “reared up” on three different occasions from

the bench where he was sitting. Coach Sinclair then advised

C.B. that if he did not come inside, she would call the police.

To this, C.B. allegedly responded by saying, “call them.”

C.B. V. CITY OF SONORA 7

C.B., however, testified that he never moved from the bench

or said anything to Coach Sinclair during this interaction.

Coach Sinclair testified that she made the decision to call

the police because she was concerned about C.B.’s safety.

She explained that her concern was based on an incident two

years earlier, during which C.B. had stated that “he was tired

of feeling the way he felt and he wanted to go out into traffic

and kill himself.” Coach Sinclair was particularly concerned

because the street outside the schoolyard was a busy

thoroughfare. Coach Sinclair admitted, however, that C.B.

had never previously attempted to run from her.

At Coach Sinclair’s behest, police were called. The

police dispatcher broadcast notice to the officers of “an out of

control juvenile.” When Chief McIntosh arrived at the

playground, Coach Sinclair whispered to him, “[r]unner[,]

[n]o medicine,” and made corresponding hand signals. Chief

McIntosh testified that he then sat down next to C.B. and

attempted to engage him in conversation, but C.B. was

unresponsive. He further testified that Coach Sinclair then

“started telling [him] that [C.B.] was out of control, had not

taken his medications, was yelling and cussing.” She also

advised Chief McIntosh that she no longer wanted C.B. on

the school grounds. Chief McIntosh did not ask any follow-

up questions about C.B.’s medications or behavior. C.B.

remained completely quiet and unresponsive throughout the

time Chief McIntosh was with him.

Coach Sinclair’s testimony contradicted much of Chief

McIntosh’s account. She did not remember Chief McIntosh

ever making any effort to engage C.B. in conversation.

Beyond her initial statement that C.B. was a “runner” who

had not taken his medication, she could not recall conveying

8 C.B. V. CITY OF SONORA

any other information to the police until she was subsequently

asked whether she wanted C.B. removed from the school

grounds, to which she said yes. Specifically, she testified that

she did not inform the police why she thought C.B. might run,

what medications he was on, C.B.’s history, or what had

transpired earlier that day. C.B. recalled Coach Sinclair

telling Chief McIntosh only that he was a “runner.”

Within a few minutes of Chief McIntosh’s arrival, Officer

Prock arrived. He testified that when he arrived, C.B. was

sitting quietly, looking at the ground. Coach Sinclair also

advised him that C.B. was a “runner,” but Officer Prock did

not learn that C.B. had not taken his medication until much

later. Officer Prock tried to engage C.B. in conversation, but

he remained unresponsive.

About three and a half minutes after Officer Prock

arrived, Chief McIntosh signaled that Officer Prock should

handcuff C.B. Officer Prock ordered C.B. to stand up, which

he did immediately. He then instructed C.B. to put his hands

behind his back—which C.B. again did immediately—and

handcuffed him. Notwithstanding the fact that C.B. had not

disobeyed a single police order, the officers did not explore

alternative options for handling the situation before

handcuffing him. When Officer Prock handcuffed C.B., C.B.

began to cry, believing that he was being taken to jail.

Once C.B. was handcuffed, the officers and Coach

Sinclair escorted him off the playground. Officer Prock then

pulled his police vehicle around and directed C.B.—still in

handcuffs—into the back seat. C.B. complied immediately.

During this entire time, no one spoke to C.B. or explained to

him why he had been handcuffed, that he was not under

arrest, or where the police were taking him. Officer Prock

C.B. V. CITY OF SONORA 9

then transported C.B. to his uncle’s business.1 Although

Officer Prock’s vehicle was equipped with safety locks,

making it impossible for C.B. to escape, C.B. remained

handcuffed during the approximately thirty-minute ride to his

uncle’s place of business. C.B. testified that the handcuffs

caused him pain and left red marks.

Coach Sinclair, who was also the school disciplinarian,

testified that in the three years before this incident, she had

summoned police to Sonora Elementary School about fifty

times. Of those fifty times, police used handcuffs about

twenty times, even though about thirteen of those twenty

instances did not involve any known or suspected criminal

activity. When Officer Prock was handcuffing C.B., Coach

Sinclair asked whether the handcuffs were “really necessary,”

to which one of the officers replied that it was “procedure.”2

She further testified that she knew this was the police

department’s procedure because, in her experience, “any time

that the police have to take a child off of campus, whether it

be medical, drugs, fight, the child is handcuffed.” Officer

Prock also testified that he understood the police

department’s policy to permit officers to handcuff any

individual they were transporting in the back of a police

vehicle.

1

According to Officer Prock, when he called the business number on

C.B.’s emergency contact list, C.B.’s uncle advised him that C.B.’s

parents were out of town and unreachable and that he was currently taking

care of C.B.

2

At trial, Chief McIntosh and Officer Prock did not recall this exchange.

10 C.B. V. CITY OF SONORA

Following this incident, C.B. experienced a host of

psychological and emotional problems, including difficulty

sleeping, low self-esteem, anger, irritability, and depression.

B.

C.B. filed this action against the Sonora School District,

Coach Sinclair, the City of Sonora, Sonora Chief of Police

McIntosh, and Officer Prock, alleging violations of his Fourth

Amendment rights, the Americans with Disabilities Act, the

Rehabilitation Act, and a number of state law tort claims.

C.B. settled his claims against the Sonora School District and

Coach Sinclair. After the district court denied Defendants’

motion for summary judgment on the basis of, inter alia,

qualified immunity, the case proceeded to trial against the

City of Sonora, Chief McIntosh, and Officer Prock on the

following claims: unlawful seizure and excessive force in

violation of the Fourth Amendment under 42 U.S.C. § 1983

and false arrest and intentional infliction of emotional distress

(“IIED”) under state law.

On the sixth day of trial, the jury returned its first verdict,

determining that: (1) Defendants were not liable for either

§ 1983 claim; (2) C.B. had proved that Chief McIntosh’s and

Officer Prock’s conduct intentionally caused him emotional

distress, and C.B. suffered harm as a result; (3) Chief

McIntosh and Officer Prock had established privilege, an

affirmative defense to the IIED claim; and (4) C.B. was

entitled to damages on the IIED claim. The verdict form also

left unanswered the verdict on the false arrest claim.

Realizing that the verdict on the IIED claim was internally

inconsistent, the district court proposed resubmitting the case

to the jury with clarifying instructions. Specifically, the court

recommended explaining to the jury that: (1) if it were to

C.B. V. CITY OF SONORA 11

find the affirmative defense of privilege, it could not award

damages for IIED; (2) Question 11C, rather than Question

11D, corresponded to the IIED damages; and (3) it must

answer the question about false arrest. Counsel for both sides

agreed.

The court next addressed the jury, explaining that the

verdict contained “an inconsistency” and instructing the jury

that “[i]f you don’t find the [affirmative defense of] privilege,

then you can award damages, but you can’t award damages

if you find that the conduct is privileged.” The court also

noted a typographical error on page 9 of the verdict form

regarding where the jury was to record damages, if any, for

IIED, and directed the jury that it needed to respond to the

question about false arrest.3 After this instruction, the jury

again began deliberating.

Not long thereafter, the jury sent the judge the following

written question:

Clarify question 8

if we said yes to all on page 23 of Jury

Instruction #20 doesn’t that mean we answer

yes to page 9 in verdicts of trial jury?

Jury Instruction 20 set out the elements of the affirmative

defense of privilege to the IIED claim, and Question 8 on

page 9 on the verdict form asked for the jury’s verdict on

whether the officers’ conduct was privileged. At a

3

Although the court said that it would provide corrected verdict forms,

the final verdict form still referenced the wrong damages question in

relation to the IIED claim.

12 C.B. V. CITY OF SONORA

conference with counsel, the court proposed answering the

question in the affirmative. Counsel for Defendants

requested that the court also explain again that if the jury

were to find privilege, it must move on to the next claim and

not award damages for IIED, which the court agreed to do.

When the jury returned to the courtroom, the court

described the framework for IIED claims. The court first

explained C.B.’s case-in-chief. Then, it discussed the three

elements of the affirmative defense of privilege, as set out in

Jury Instruction 20, stating that “if you find yes as to all of

those three things, in light of the elements of the intentional

infliction of emotional distress, that is called a complete

defense and it eliminates liability for damages.” Turning

specifically to the jury’s question, the court further explained,

“so your inquiry here on question number . . . 8, which is the

affirmative defense[,] is have the defendants proved the

things that are required to be proved on page 23, which is jury

instruction 20, the privilege defense.” Having clarified that

Question 8 on the verdict form corresponded to Jury

Instruction 20, the court again discussed the relationship

between a finding of privilege and damages. Finally, the

court reminded the jury that it needed to answer the question

about false arrest, and indicated that it would provide a new

page 11 of the verdict form because of a second typographical

error.4

4

Question 10, on page 11 of the verdict form, concerned probable cause,

the affirmative defense for the false arrest claim. Earlier, C.B.’s counsel

had advised the court that the verdict form incorrectly directed the jury to

answer Question 11D, the damages question for false arrest, if it found

that Defendants had proved probable cause. The court agreed that the

instruction should have read: “‘If you answer yes as to any defendant’ –

then it should be do not answer 11D. If you answer the question no as to

– it should be either defendant, answer question 11D.” Consequently,

C.B. V. CITY OF SONORA 13

The jury then asked a follow-up question while it was still

in the courtroom.

JUROR SEAT NUMBER EIGHT: Okay. So

the fact that we answered affirmative yes to

questions 6 and 7.

THE COURT: Yes.

JUROR SEAT NUMBER EIGHT: I guess

our question is how does that affect our

response to number 8? Is it conflicting?

Questions 6 and 7 asked whether C.B. had met his burden of

proof on the elements of IIED. The jury was essentially

asking whether it could find that C.B. proved his case-in-

chief and still find that Defendants proved their affirmative

defense.

The court responded by again explaining the framework

for IIED claims. Noting that the jury had effectively found

that C.B. met his burden of proving liability, the court

explained that “then the question becomes is there an award

of damages.” The court went on: “However, under the law,

the defendants are entitled to assert what is called an

affirmative defense. And an affirmative defense has the legal

effect of negating the finding of liability.” While not the

most direct response, this statement informed the jury that it

could, in fact, answer yes to Questions 6 and 7 and still find

privilege. The court again set out the elements of privilege,

after responding to the jury’s question, the court advised the jury of this

error and indicated it would provide a corrected page 11. The final verdict

form does, in fact, reflect the correct instruction on page 11.

14 C.B. V. CITY OF SONORA

concluding by telling the jury that “[i]f you find those things,

then that negates, if you will, the intentional infliction of the

emotional distress.”

Juror Number 8, apparently still confused, asked, “[a]nd

that is not a conflict?” To this, the court responded:

It’s not a conflict because it’s an

affirmative defense. It’s potentially a conflict

depending on what you think of the conduct

and the states of mind. But that’s for you to

determine. In other words, you have to decide

what -- what was being thought, what was

observed and what was being done under the

totality of the circumstances, recognizing

what the law is that tells the officers what they

can and can’t do in dealing with the plaintiff.

Remember, this is measured objectively

by what a reasonable officer in the position of

the two defendants would do knowing

everything that they knew on the scene with

what was happening there. It’s an objective

standard.

And this, particularly, examines their

conduct in light of the law, in light of what

they knew and what they, in good faith,

believed and what they did. And so, there is

a potential inconsistency, but that depends on

what you find the intentions, the states of

mind are and the conduct is in light of the law.

And you’re the only people who can make

those decisions. We cannot tell you how to do

C.B. V. CITY OF SONORA 15

it. The attorneys have told you how to do it in

their arguments, but it’s for you to make the

ultimate decisions.

Again, the court’s explanation, although somewhat long-

winded, made clear that a finding of privilege was consistent

with a finding of IIED if the facts sustained Defendants’

assertions. Shortly after asking another question about

privilege, the jury went home for the evening.

The following morning, at a conference outside the jury’s

presence, Defendants’ counsel urged the court to instruct the

jury to resume their deliberations with Question 9. The court

rejected the requested instruction. Instead, it proposed to

instruct the jury “simply to re-deliberate on the questions that

are still open.” Once the jury entered the courtroom, the

court stated that it “wanted to review briefly where we are so

that hopefully you understand and are clear.” The court

instructed the jury as follows:

[O]ur suggestion to you is that you consider

the findings that you’ve made to the prior

questions, you consider the evidence in light

of the instruction that you’re being asked to

answer when you are on the verdict form.

And that is you have questions 6 and you

have questions 7, which you’ve already

answered. You’ve answered question 8. And

then you have correct instructions on question

number 8 as to which questions you should be

answering in question 11. You then have a

claim that you’ve not decided, and that is the

16 C.B. V. CITY OF SONORA

false arrest claim. And that’s question 9A and

B. And you have a revised instruction on that.

The court then discussed in greater detail some changes that

were made to the instruction regarding false arrest.

Following this supplemental instruction, the jury requested to

receive the prior day’s instructions on privilege again,

indicating “that’s where we’re really fighting right now.”

At a sidebar with counsel, the court advised the parties

that it would make “an overarching statement” to “consider[]

the elements affirmatively and defensively on each side.”

The court began by summarizing all of the claims, stating:

You have four claims that are brought by

the plaintiff. You have two civil rights

claims. One for the use of excessive force and

one for the use -- or the unlawful seizure in

the taking into temporary custody and the

length of the detention and all the

circumstances of the detention that the

temporary custody involved.

Those are federal claims.

After this brief mention of the federal claims, the court

focused on the state law claims and affirmative defenses.

With respect to IIED, the court stated:

And so, in looking at the two state claims,

you have the intentional infliction of

emotional distress. And then, in jury

instruction number 20, you have the defense

C.B. V. CITY OF SONORA 17

of privilege and the elements that have to be

proved by a preponderance of the evidence.

So when you are considering that defense,

you consider the totality of the circumstances.

You consider what went in to the claims that

you analyzed, the elements of those claims

and all the evidence that bears on that. Then

you analyze the elements of the defense, all

the evidence that bears on that.

And there should be consistency -- and

that was your concern -- between those

findings. The consistency is a function of

how you find the facts, which evidence you

believe, how much weight you give to the

evidence.

Then, the court went on to address false arrest.

The jury deliberated for about four more hours before

returning a verdict for C.B. on all claims. The district court

denied Defendants’ motions for judgment as a matter of law,

a new trial, and remittitur and entered judgment in favor of

C.B.

Defendants appeal, arguing: (1) the district court’s

supplemental jury instructions were so coercive and

confusing as to warrant a new trial; (2) the individual officers

are entitled to qualified immunity with respect to C.B.’s

§ 1983 Fourth Amendment claims; (3) several of the district

court’s evidentiary rulings were erroneous and warrant

reversal; and (4) the district court erred in denying an offset

against the overall damages award by the amount of C.B.’s

18 C.B. V. CITY OF SONORA

settlement with the Sonora School District. Without

specifying the standard of review it applied, a three-judge

panel of this court unanimously held that the district judge’s

supplemental jury instructions and colloquy were sufficiently

misleading as to require a new trial. C.B. v. City of Sonora,

730 F.3d 816, 823–24 (9th Cir. 2013); see also id. at 827

(McKeown, J., dissenting) (agreeing with the majority on this

point). In a split decision, a majority of the panel also held

that the individual officers were entitled to qualified

immunity. Id. at 824–27 (Maj. Opin.); see also id. at 827–31

(McKeown, J., dissenting).5 Upon a majority vote of eligible

judges, the court granted rehearing en banc. C.B. v. City of

Sonora, 755 F.3d 1043 (9th Cir. 2014).

II. DISCUSSION

A.

1.

We must first decide the standard of review that governs

Defendants’ challenge to the district court’s jury instructions.

Historically, we have refused to review jury instructions in a

civil case in the absence of a timely objection under Federal

Rule of Civil Procedure 51(c). See Voohries-Larson v.

Cessna Aircraft Co., 241 F.3d 707, 713–14 (9th Cir. 2001);

Larson v. Neimi, 9 F.3d 1397, 1399 (9th Cir. 1993). In 2003,

however, Rule 51 was amended to provide for plain error

review when a party fails to preserve an objection. Fed. R.

Civ. P. 51 advisory committee’s note. We have since

5

Because the three-judge panel opinion vacated and remanded for a new

trial, it did not reach the remainder of Defendants’ arguments. C.B.,

730 F.3d at 824 n.4.

C.B. V. CITY OF SONORA 19

indicated, in dictum, that this amendment abrogated our prior

case law, see Hunter v. Cnty. of Sacramento, 652 F.3d 1225,

1230 n.5 (9th Cir. 2011), and we now so hold. We also take

this opportunity to clarify the scope of plain error review

under Rule 51. We conclude that the plain error standard of

review in the civil context is similar to, but stricter than, the

plain error standard of review applied in criminal cases.6

Federal Rule of Civil Procedure 51(d)(2) states that “[a]

court may consider a plain error in the instructions that has

not been preserved as required by Rule 51(d)(1) if the error

affects substantial rights.” The advisory committee’s note

explains that subsection (d)(2) was adopted to capture the

existing rule in many of our sister circuits that errors in jury

instructions not preserved under Rule 51(d) “may be

reviewed in exceptional circumstances.” Fed. R. Civ. P. 51

advisory committee’s note. Although the precise rule varied

somewhat from circuit to circuit, most of our sister circuits at

the time applied a standard of review that resembled the plain

6

Although we have previously refused to review jury instructions in the

absence of a timely objection at trial, we have reviewed for plain error

evidentiary, closing argument, and attorney misconduct challenges that

were not contemporaneously raised at trial. See, e.g., Settlegoode v.

Portland Pub. Sch., 371 F.3d 503, 516–17 (9th Cir. 2004); Hemmings v.

Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002); Bird v. Glacier

Electric Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001); Beachy v. Boise

Cascade Corp., 191 F.3d 1010, 1016 (9th Cir. 1999); McClaran v. Plastic

Indus., Inc., 97 F.3d 347, 357 n.9 (9th Cir. 1996). The standard that we

adopt now for reviewing belated objections to civil jury instructions is

consistent with our standard for reviewing other untimely objections in

civil cases.

20 C.B. V. CITY OF SONORA

error standard in criminal cases.7 Moreover, “[t]he language

adopted to capture these decisions in subdivision (d)(2) is

borrowed from [Federal] Rule [of Criminal Procedure] 52.”

Fed. R. Civ. P. 51 advisory committee’s note; see also Fed.

R. Crim. P. 52(b). Finally, the advisory committee’s note

suggests that the plain error standard of review in the criminal

context should inform our inquiry. See Fed. R. Civ. P. 51

7

Compare United States v. Olano, 507 U.S. 725, 732 (1993) (explaining

that before a court will consider a forfeited objection in the criminal

context, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s]

substantial rights,’” and, even then, “the decision to correct the forfeited

error [is] within the sound discretion of the court of appeals, and the court

should not exercise that discretion unless the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings’” (some

alterations in original) (quoting United States v. Young, 470 U.S. 1, 15

(1985))), with Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc.,

314 F.3d 48, 61 (2d Cir. 2002) (explaining that in the civil context review

is limited to “fundamental error,” which is an error that is “so serious and

flagrant that it goes to the very integrity of the trial” (internal quotation

marks omitted)), Babcock v. Gen. Motors Corp., 299 F.3d 60, 64–65 (1st

Cir. 2002) (recognizing that reversal for plain error in the civil context

requires that “(1) there be error; (2) the error was ‘plain’ (i.e.[,] obvious

and clear under current law); (3) the error affected substantial rights; and

(4) the error threatened a miscarriage of justice”), Cozzo v. Tangipahoa

Parish Council–President Gov’t, 279 F.3d 273, 293–94 (5th Cir. 2002)

(stating that to reverse for plain error in civil jury instructions, the court

“must find an obviously incorrect statement of law that was probably

responsible for an incorrect verdict, leading to substantial injustice”),

Black v. M & W Gear Co., 269 F.3d 1220, 1232 (10th Cir. 2001) (“[T]his

court will not review instructions given to which no objections were

lodged before the jury retired for deliberation unless they are patently

plainly erroneous and prejudicial.” (internal quotation marks omitted)),

and Fashauer v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1289

(3d Cir. 1995) (“[W]e should notice the error only if it is fundamental and

highly prejudicial or if the instructions are such that the jury is without

adequate guidance on a fundamental question and our failure to consider

the error would result in a miscarriage of justice.” (internal quotation

marks and brackets omitted)).

C.B. V. CITY OF SONORA 21

advisory committee’s note (setting forth the plain error

standard of review in criminal cases and citing Johnson v.

United States, 520 U.S. 461, 466–67, 469–70 (1997)).

Yet, the advisory committee’s note accompanying the

amended Rule 51 also cautions that “the context of civil

litigation often differs from the context of criminal

prosecution” and instructs that “actual application of the

plain-error standard takes account of the differences.” Id.

After setting out the plain error standard under Federal Rule

of Criminal Procedure 52, the advisory committee’s note

highlights four factors to consider in applying plain error

review in the civil context: (1) the obviousness of the

mistake; (2) the importance of the error; (3) the costs of

correcting an error; and (4) “[i]n a case that seems close to

the fundamental error line, . . . the impact a verdict may have

on nonparties.” Id. While the first two factors roughly

correspond to the plain error standard of review governing

criminal cases, the latter two factors are not part of the

standard plain error inquiry. See Puckett v. United States,

556 U.S. 129, 135 (2009); Johnson, 520 U.S. at 466–67;

Olano, 507 U.S. at 732.

Following the 2003 amendments, several circuits have

reaffirmed that plain error review in the civil context is

similar to the plain error standard governing criminal cases.8

8

See, e.g., Bauer v. Curators of Univ. of Mo., 680 F.3d 1043, 1045 (8th

Cir. 2012) (relying on Olano for the plain error standard of review under

Rule 51); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006)

(“To succeed under the plain error standard, defendants must show that:

(1) an error was committed; (2) the error was plain (i.e.[,] obvious and

clear under current law); (3) the error was prejudicial (i.e.[,] affected

substantial rights); and (4) review is needed to prevent a miscarriage of

justice, meaning that the error seriously impaired the fairness, integrity, or

22 C.B. V. CITY OF SONORA

We now join our sister circuits and hold that, when reviewing

civil jury instructions for plain error, we must consider, as we

do in the criminal context, whether (1) there was an error;

(2) the error was obvious; and (3) the error affected

substantial rights. See Johnson, 520 U.S. at 466–67; Olano,

507 U.S. at 732. The text of Federal Rule of Civil Procedure

51(d)(2), which bears a significant resemblance to the text of

Federal Rule of Criminal Procedure 52(b), supports this

standard. Compare Fed. R. Civ. P. 51(d)(2) (“A court may

consider a plain error in the instructions that has not been

preserved as required by Rule 51(d)(1) if the error affects

substantial rights.”), with Fed. R. Crim. P. 52(b) (“A plain

error that affects substantial rights may be considered even

though it was not brought to the court’s attention.”).

Moreover, the advisory committee’s note also weighs in favor

of this standard. Fed. R. Civ. P. 51 advisory committee’s

note; see Schiavone v. Fortune, 477 U.S. 21, 31 (1986)

(recognizing that the advisory committee’s notes on the

Federal Rules of Civil Procedure are “of weight” (internal

quotation marks omitted)); United States v. Petri, 731 F.3d

833, 839 (9th Cir.) (consulting the advisory committee’s

notes accompanying an amendment to the Federal Rules of

Criminal Procedure in interpreting the amendment), cert.

denied, 134 S. Ct. 681 (2013).

But we also recognize that the stakes are lower in the civil

context and, consequently, plain errors should “encompass[]

only those errors that reach the pinnacle of fault envisioned

by the standard set forth above.” Hemmings, 285 F.3d at

public reputation of judicial proceedings.” (internal quotation marks

omitted)); Higbee v. Sentry Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006)

(“The Advisory Committee notes to the new Rule 51 make clear that we

should be guided by the principles of plain error in the criminal context.”).

C.B. V. CITY OF SONORA 23

1193 (internal quotation marks omitted).9 Accordingly, when

reviewing civil jury instructions for plain error, we find it

appropriate to consider the costs of correcting an error,

and—in borderline cases—the effect that a verdict may have

on nonparties. See Fed. R. Civ. P. 51 advisory committee’s

note; Schiavone, 477 U.S. at 31; Petri, 731 F.3d at 839.

Finally, we also hold that the decision whether to correct

a plain error under Federal Rule of Civil Procedure 51(d)(2)

is discretionary. This conclusion flows from the permissive

text in Federal Rule of Civil Procedure 51(d)(2). Fed. R. Civ.

P. 51(d)(2) (“A court may consider a plain error . . . .”

(emphasis added)); see also Conlon v. United States, 474 F.3d

616, 624–25 (9th Cir. 2007) (explaining that use of the word

“may” in Federal Rule of Civil Procedure 36(b) suggests that

the district court has discretion in ruling on Rule 36 motions).

Moreover, the permissive text of Federal Rule of Civil

Procedure 51 parallels Federal Rule of Criminal Procedure

52(b). See Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered . . . .” (emphasis added)).

It is well-established that a court of appeals has discretion to

correct a forfeited error under Federal Rule of Criminal

Procedure 52(b), and should do so only if the error

“‘seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.’” Olano, 507 U.S. at 732 (quoting

Young, 470 U.S. at 15); see also Johnson, 520 U.S. at

9

We are not alone in recognizing that Rule 51’s plain error standard is

stricter than its criminal counterpart. See, e.g., Quigley v. Winter,

598 F.3d 938, 950 (8th Cir. 2010) (“Plain error is a stringently limited

standard of review, especially in the civil context . . . .” (internal quotation

marks omitted)); SEC v. DiBella, 587 F.3d 553, 569 (2d Cir. 2009) (noting

that the standard of review in the civil context “is more stringent than the

plain error standard applicable to criminal appeals under Federal Rule of

Criminal Procedure 52(b)” (internal quotation marks omitted)).

24 C.B. V. CITY OF SONORA

466–67; United States v. Alferahin, 433 F.3d 1148, 1154 (9th

Cir. 2006). Furthermore, a number of our sister circuits agree

that the decision to correct a plain error under Federal Rule of

Civil Procedure 51(d)(2) is discretionary.10 We therefore

conclude that we should exercise our discretion to correct

errors under Rule 51(d)(2) only if “review is needed to

prevent a miscarriage of justice, meaning that the error

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings.” Diaz-Fonseca, 451 F.3d at 36

(internal quotation marks omitted); see also Olano, 507 U.S.

at 732.

2.

With these principles in mind, we turn to the particulars

of this case.11 Defendants argue that the judgment on the

10

See Jimenez v. Wood Cnty., 660 F.3d 841, 845 (5th Cir. 2011) (en

banc) (explaining that the court has discretion to correct an unpreserved

error if it meets the plain error standard); Higbee, 440 F.3d at 409

(recognizing that plain error review is discretionary); Franklin

Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 341 (3d Cir. 2005)

(“Plain error review is discretionary—it should be exercised sparingly and

should only be invoked with extreme caution in the civil context.”

(internal quotation marks omitted)).

11

Defendants contend that plain error review should not govern this case

because (1) they lacked the opportunity to object to the district court’s

extemporaneous instructions, (2) their request that the district court direct

the jury to begin re-deliberating with the question regarding false arrest

served as adequate notice to the court of the nature of their objection, and

(3) C.B. waived any argument that Defendants did not preserve their

objections to the jury instructions by failing to raise it before the district

court.

We reject these arguments. First, Defendants are correct that C.B.

failed to argue, in opposition to Defendants’ Motion for a New Trial, that

C.B. V. CITY OF SONORA 25

verdict should be reversed because the supplemental jury

instructions were confusing and coerced the jury to reverse its

initial verdict. C.B. contends that the district court’s

supplemental instructions were accurate and that nothing the

court said misled or influenced the jury to revise its findings

as to the other claims. We conclude that the district court’s

supplemental jury instructions fall far short of plain error.

Defendants identify four errors in the district court’s

supplemental instructions. First, they contend that the court

confused the jury by referring to the initial verdict as

“inconsistent” without explaining what it meant by that term.

The record belies this argument. In the course of telling the

jury that the verdict contained “an inconsistency,” the court

explained that “[i]f you don’t find . . . privilege, then you can

award damages, but you can’t award damages if you find that

the conduct is privileged.”

Defendants did not preserve their objections to the district court’s

supplemental jury instructions. However, we may consider C.B.’s

argument nonetheless because it raises a purely legal question and

Defendants have offered no reason why C.B.’s failure to raise this

argument in his post-trial briefs has prejudiced them. See Zhang v. Am.

Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Second,

Federal Rule of Civil Procedure 51(c)(2) provides that an objection to a

jury instruction is timely if a party was not informed of an instruction in

advance, and the party objects promptly after the instruction has been

given. Defendants therefore could have objected to the supplemental

instructions after they were given, but they failed to do so. Finally,

Defendants’ request that the jury be instructed to begin deliberating with

the question on false arrest, falls far short of Rule 51(c)(1)’s requirement

that a litigant “stat[e] distinctly the matter objected to and the grounds for

the objection.” Fed. R. Civ. P. 51(c)(1); see also Hunter, 652 F.3d at 1231

(recognizing that “‘objections to a charge must be sufficiently specific to

bring into focus the precise nature of the alleged error’” (quoting Palmer

v. Hoffman, 318 U.S. 109, 119 (1943))).

26 C.B. V. CITY OF SONORA

Second, Defendants argue that the district court’s

response to the jury’s request for clarification was confusing

and coercive because it fell “far outside the scope of the

jury’s” question. The jury initially asked whether it should

answer yes to Question 8 on the verdict form, the question

about privilege, if it found that all of the elements of privilege

as set out in Jury Instruction 20, were present. This question

could have been answered with a simple “yes.” Defendants,

however, asked the court to provide a more complete

explanation of the relationship between a finding of privilege

and an award of damages. At Defendants’ own request then,

the court responded to the jury’s question with an overview

of the IIED claim. Moreover, in giving this instruction, the

court answered the jury’s specific question, stating, “[a]nd so

your inquiry here on question number . . . 8, which is the

affirmative defense[,] is have the defendants proved the

things that are required to be proved on page 23, which is jury

instruction 20, the privilege defense.” A district court has

“wide discretion” in responding to jury questions, Arizona v.

Johnson, 351 F.3d 988, 994 (9th Cir. 2003), and the

explanation here was well within the court’s discretion.

Although Defendants complain that the court “went on for an

additional 8 pages of transcript,” the only other statements

that the court volunteered were a reminder that the jury also

had to answer the question about false arrest and that the jury

would be given a corrected verdict form. All other

instructions were in response to follow-up questions posed by

the jury.

Third, Defendants argue that the supplemental

instructions given in response to the follow-up questions were

confusing because they told the jury to consider the “totality

of the circumstances”—a phrase that appears in the court’s

instruction on probable cause—in determining whether the

C.B. V. CITY OF SONORA 27

individual officers’ conduct was privileged. We find no error

in this statement. This instruction did nothing more than

admonish the jury to consider all of the facts that bear on the

question of privilege. The court’s use of the phrase “totality

of the circumstances” was tailored to the supplemental

instructions and was not a veiled suggestion to revisit the

Fourth Amendment claims.

Finally, Defendants argue that the court’s instruction that

certain findings should be consistent erroneously implied that

the jury must return a verdict uniformly in favor of one party.

We conclude that the court’s instructions did no such thing;

the court’s comment about “consistency” was clearly tethered

to its discussion of the state IIED claim. On the final day of

deliberations, the court provided the jury with a brief

overview of the “two civil rights claims,” but concluded its

discussion of those claims by stating:

Those are federal claims.

Then you have two claims, the third and

the fourth claims. One is for intentional

infliction of emotional distress and the other

is for false arrest. . . .

And so as to the two state law claims, the

defendants assert what are called affirmative

defenses.

After providing this framework for the state law claims, the

court directed the jury’s attention to the IIED claim,

explaining:

28 C.B. V. CITY OF SONORA

And so, in looking at the two state claims,

you have the intentional infliction of

emotional distress. And then, in jury

instruction number 20, you have the defense

of privilege and the elements that have to be

proved by a preponderance of the evidence.

So when you are considering that defense,

you consider the totality of the circumstances.

You consider what went in to the claims that

you analyzed, the elements of those claims

and all the evidence that bears on that. Then

you analyze the elements of the defense, all

the evidence that bears on that.

And there should be consistency -- and

that was your concern -- between those

findings. The consistency is a function of

how you find the facts, which evidence you

believe, how much weight you give to the

evidence.

In this context, the court’s reference to “consistency” could

mean only that the jury’s factual findings had to be internally

consistent and reconcilable with its ultimate conclusion as to

the IIED claim and the privilege defense. The court’s

statement may not be a model of clarity, but we are confident

that no reasonable jury could have understood it as a direction

to return a verdict wholly in favor of one party.

In sum, Defendants have not identified any error in the

district court’s supplemental jury instructions, let alone a

plain error.

C.B. V. CITY OF SONORA 29

B.

Defendants also challenge several of the district court’s

evidentiary rulings. We review a district court’s evidentiary

rulings for abuse of discretion. Gribben v. United Parcel

Serv., Inc., 528 F.3d 1166, 1171 (9th Cir. 2008). We will

reverse on the basis of an erroneous evidentiary ruling only

if the error was prejudicial. Harper v. City of L.A., 533 F.3d

1010, 1030 (9th Cir. 2008); Tritchler v. Cnty. of Lake,

358 F.3d 1150, 1155 (9th Cir. 2004). Here, the district court

did not abuse its discretion in excluding testimony that Coach

Sinclair thought that C.B. might be suicidal and in allowing

testimony about past incidents in which police had used

handcuffs at Sonora Elementary School.

It is undisputed that Coach Sinclair did not, at any point,

tell the officers that she thought C.B. might be suicidal, nor

did the officers otherwise learn that information. The district

court correctly reasoned that testimony that Coach Sinclair

thought C.B. might be suicidal was irrelevant; information

that the officers did not know could not justify their decision

to seize C.B. See Moreno v. Baca, 431 F.3d 633, 640 (9th

Cir. 2005) (recognizing that an outstanding arrest warrant for

the plaintiff could not be used to justify his arrest where the

arresting officers had no knowledge of the warrant).

Moreover, the court stated that if Coach Sinclair’s motive for

calling the police was questioned, she would be able to testify

about the incident in which C.B. told her he wanted to run out

into traffic. The court, however, concluded that the

prejudicial effect of testimony characterizing C.B. as

“suicidal” outweighed any probative value such testimony

might have. Where “[t]he record reflects that the court

conscientiously weighed the probative value against the

prejudicial effect for each piece of evidence,” we will not

30 C.B. V. CITY OF SONORA

reverse. Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th

Cir. 2009).

The district court also did not abuse its discretion in

allowing Coach Sinclair to testify about past incidents of

handcuffing at Sonora Elementary School. To prove his

Fourth Amendment claim against the City of Sonora, C.B.

had to prove that the city maintained an unlawful custom or

practice that was a cause of his constitutional injury. See

Fairley v. Luman, 281 F.3d 913, 916 (9th Cir. 2002) (per

curiam) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

690–91 (1978)). Here, C.B. sought to do just that by

introducing testimony from Coach Sinclair that the Sonora

Police Department, as a matter of routine procedure,

employed handcuffs any time it removed an elementary

school child from school grounds. “We have long recognized

that a custom or practice can be inferred from widespread

practices or evidence of repeated constitutional violations for

which the errant municipal officers were not discharged or

reprimanded.” Hunter, 652 F.3d at 1233 (internal quotation

marks omitted)); see also Menotti v. City of Seattle, 409 F.3d

1113, 1147–48 (9th Cir. 2005) (holding that testimony from

individuals whom officers prohibited from wearing anti-WTO

buttons created a genuine issue of material fact as to whether

Seattle had an unconstitutional policy of restricting only anti-

WTO speech). The district court properly rejected

Defendants’ contention that Coach Sinclair’s testimony about

prior incidents of handcuffing at Sonora Elementary School

was irrelevant. Nor can Defendants protest that the evidence

was unduly prejudicial because it created an inference of an

unlawful municipal custom or policy; that was the very

C.B. V. CITY OF SONORA 31

purpose of the evidence. Because the district court’s

evidentiary rulings were not an abuse of discretion, we will

not reverse the judgment on this basis.

C.

Next we turn to Chief McIntosh’s and Officer Prock’s

qualified immunity arguments. We review de novo a district

court’s qualified immunity order denying judgment as a

matter of law. LaLonde v. Cnty. of Riverside, 204 F.3d 947,

958–59 (9th Cir. 2000); see also A.D. v. Cal. Highway Patrol,

712 F.3d 446, 453 (9th Cir.), cert. denied, 134 S. Ct. 531

(2013).12 In doing so, we “view all evidence in the light most

favorable to the nonmoving party, draw all reasonable

inferences in favor of the non-mover, and disregard all

evidence favorable to the moving party that the jury is not

required to believe.” Harper, 533 F.3d at 1021. To

determine whether an individual officer is entitled to

qualified immunity, we ask (1) whether the official violated

a constitutional right and (2) whether the constitutional right

was clearly established. Pearson v. Callahan, 555 U.S. 223,

232, 236 (2009); A.D., 712 F.3d at 453–54.

12

C.B. argues that Chief McIntosh and Officer Prock waived their

Federal Rule of Civil Procedure 50(b) qualified immunity argument

because they failed to make a timely Rule 50(a) motion. Because C.B.

failed to raise this argument below, it is waived. See Graves v. City of

Coeur D’Alene, 339 F.3d 828, 838–39 (9th Cir. 2003) (holding that when

a party does not raise its opponent’s failure to abide by Rule 50(a) in

district court, on appeal, the procedural flaw in the Rule 50(b) motion is

waived), abrogated on other grounds by Hiibel v. Sixth Judicial Dist.

Court, 542 U.S. 177 (2004).

32 C.B. V. CITY OF SONORA

1.13

a.

C.B. argues that his seizure violated the Fourth

Amendment because the officers lacked probable cause to

arrest him. The Fourth Amendment provides: “The right of

the people to be secure in their persons . . . against

unreasonable searches and seizures[] shall not be violated

. . . .” As a general principle, “Fourth Amendment seizures

are reasonable only if based on probable cause to believe that

the individual has committed a crime.” Bailey v. United

States, 133 S. Ct. 1031, 1037 (2013) (internal quotation

marks omitted). The Supreme Court has recognized a narrow

exception to the Fourth Amendment’s probable cause

requirement “when special needs, beyond the normal need for

law enforcement, make the . . . requirement impracticable.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)

(internal quotation marks omitted).

In New Jersey v. T.L.O., the Court first recognized that

“[t]he school setting . . . requires some modification of the

level of suspicion of illicit activity needed to justify a search.”

469 U.S. 325, 340 (1985). Acknowledging that the “privacy

interests of school children” must be balanced against the

“substantial need of teachers and administrators for freedom

to maintain order in the schools,” the Court held that, in the

school setting, a search by teachers or school officials need

only be reasonable under all the circumstances. Id. at 341.

It explained the reasonableness inquiry as follows:

13

Part II.C.1, in which Judge Silverman joins, is Judge Paez’s dissent

from the majority’s holding that Chief McIntosh and Officer Prock are

entitled to qualified immunity on C.B.’s Fourth Amendment seizure claim.

C.B. V. CITY OF SONORA 33

Determining the reasonableness of any search

involves a twofold inquiry: first, one must

consider whether the . . . action was justified

at its inception; second, one must determine

whether the search as actually conducted was

reasonably related in scope to the

circumstances which justified the interference

in the first place. Under ordinary

circumstances, a search of a student by a

teacher or other school official will be

justified at its inception when there are

reasonable grounds for suspecting that the

search will turn up evidence that the student

has violated or is violating either the law or

the rules of the school. Such a search will be

permissible in its scope when the measures

adopted are reasonably related to the

objectives of the search and not excessively

intrusive in light of the age and sex of the

student and the nature of the infraction.

Id. at 341–42 (internal quotation marks, citations, and

footnotes omitted). We, and several of our sister circuits,

have extended T.L.O. to seizures of students by school

officials. Doe ex rel. Doe v. Haw. Dep’t of Educ., 334 F.3d

906, 909 (9th Cir. 2003); see also Wallace ex rel. Wallace v.

Batavia Sch. Dist. 101, 68 F.3d 1010, 1012–14 (7th Cir.

1995); Hassan ex rel. Hassan v. Lubbock Indep. Sch. Dist.,

55 F.3d 1075, 1079–80 (5th Cir. 1995); Edwards ex rel.

Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989).

T.L.O. is distinguishable from this case in a critical

respect: T.L.O. involved the conduct of school

administrators, not law enforcement officers. 469 U.S. at

34 C.B. V. CITY OF SONORA

328. We have not yet decided whether T.L.O.’s

reasonableness standard or, instead, traditional Fourth

Amendment rules apply to law enforcement searches and

seizures in school settings, and there is no need to do so

today.14 At the time of the incident, at least two of our sister

circuits had held that T.L.O.’s reasonableness standard

governs law enforcement conduct concerning school-related

incidents in school settings. See Gray ex rel. Alexander v.

Bostic, 458 F.3d 1295, 1304 (11th Cir. 2006) (applying

T.L.O. in analyzing an unlawful seizure claim against deputy

at an elementary school); Shade v. City of Farmington,

309 F.3d 1054, 1060–61 (8th Cir. 2002) (applying T.L.O. to

evaluate the legality of a search conducted by law

enforcement officers in conjunction with school officials).

Consequently, at the time of this incident, an officer could

have reasonably believed that T.L.O. governed law

enforcement searches and seizures on school grounds for

school-related purposes.

Nonetheless, applying T.L.O.’s reasonableness standard

does not aid Chief McIntosh and Officer Prock. Taking the

facts in the light most favorable to C.B., see Harper, 533 F.3d

14

As to law enforcement searches and seizures that pursue law

enforcement objectives, we held in Greene v. Camreta that the “special

needs” doctrine did not apply to seizures on school grounds in which “law

enforcement personnel and purposes were . . . deeply involved.” 588 F.3d

1011, 1026–27 (9th Cir. 2009). The Supreme Court vacated that holding

as moot, but did not disapprove our reasoning. Camreta v. Greene, 131

S. Ct. 2020, 2026–27 (2011); see also Jones v. Hunt, 410 F.3d 1221, 1228

(10th Cir. 2005) (holding that because a seizure by a deputy sheriff on

school grounds “does not involve efforts by school administrators to

preserve order on school property, it does not implicate the policy

concerns addressed in T.L.O. and therefore does not merit application of

the T.L.O. standard,” but declining to specify which Fourth Amendment

standard does apply).

C.B. V. CITY OF SONORA 35

at 1021, the officers knew only the following when they

decided to handcuff C.B. and remove him from school

grounds: (1) the school had reported an “out of control”

juvenile; (2) C.B. was a “runner”—whatever that may

mean—who had not taken some unknown medication;

(3) C.B. sat quietly looking at the ground and never made any

movements the whole time police were present; (4) C.B. was

unresponsive in the three and a half minutes during which

Officer Prock tried to engage with him; and (5) Coach

Sinclair wanted C.B. removed from the school grounds.

The officers acted reasonably at the outset by seeking to

engage with C.B. to investigate the dispatch that they had

received about an “out of control” minor. What they found,

though, was a quiet but nonresponsive child. During the

entire time police were present, the child did nothing

threatening or disobedient. Although Coach Sinclair

mentioned that C.B. was a “runner” who had not taken his

medication, the officers did not ask a single follow-up

question to learn what Coach Sinclair meant and never

inquired what had prompted the dispatch. Nor did they

consider any less intrusive solutions, such as ordering C.B. to

return inside the school building, or asking a guardian to pick

up the child.15 See T.L.O., 469 U.S. at 342 (explaining that a

search must not be “excessively intrusive in light of . . . the

nature of the infraction”). When viewed in relation to these

15

In fact, C.B.’s uncle testified that Officer Prock reached him on the

telephone, and informed him that “the school had called the police

department out and [C.B.] could be picked up or needed to be transported

to our business.” C.B.’s uncle responded, “Well, I would normally pick

him up,” to which the officer replied, “Well, we’ve already got him in the

car and we’d like to bring him to you. We want to bring him to your place

of business.” C.B.’s uncle recalled “agree[ing] to that, wanting to comply

with the police department.”

36 C.B. V. CITY OF SONORA

circumstances, the officers’ decision to seize C.B. and

remove him from school grounds was not reasonable.

Judge Gould contends that this approach overlooks

T.L.O.’s instruction that a school official’s judgment about

the rules necessary to maintain school order is entitled to

deference. Gould Concurrence at 64–65. No one seriously

questions that principle. Coach Sinclair and other school

officials set the rules that govern student behavior, and they

may require students to obey their instructions, to take their

prescribed medications, to not run away, and so on. The

adoption of such rules “presumably reflects a judgment on the

part of school officials that such conduct is destructive of

school order or of a proper educational environment.” T.L.O.,

469 U.S. at 343 n.9. “Absent any suggestion that the rule

violates some substantive constitutional guarantee,” we will

defer to the school officials’ judgment that the rule furthers

school order. Id. Coach Sinclair’s statement—“[r]unner[,]

[n]o medicine”—was so vague, however, that it failed to

establish that C.B. was even suspected of violating any school

rule.16

That detail notwithstanding, at issue here is the

reasonableness of the response to a purported violation of a

school rule, not the reasonableness of the rule. Judge Gould

would defer to Coach Sinclair’s determination that C.B.

16

This does not mean that police officers cannot rely on school officials’

statements. School officials undoubtedly possess valuable information

that would assist police in determining the proper course of action in many

cases. But where the school official offers only cursory and ambiguous

statements that do not explain what happened and the officers do not

observe any behavior that might shed light on what happened, it is

unreasonable for the officers to simply presume a safety threat warranting

seizure and removal from school grounds.

C.B. V. CITY OF SONORA 37

should be removed from campus. Gould Concurrence at

65–66. But T.L.O. does not mandate any deference to a

school official’s judgment about the appropriate response to

a rule violation.17 Instead, T.L.O. requires assessing the

reasonableness of the school official’s search or seizure in

response to a rule violation by asking whether it was justified

at its inception and whether it was reasonably related in scope

to the circumstances that justified the initial intervention.

469 U.S. at 341. There is no question that if Coach Sinclair

had removed C.B. from school grounds, our decision would

not be based on any deference to her belief that such a seizure

was appropriate. If the scope of a school official’s search or

seizure is not entitled to any deference, then surely, the same

search or seizure carried out by a police officer at the behest

of that school official must, at minimum, be subject to the

same standards; that is, the scope of the ultimate search or

seizure must be justified by objective circumstances, not a

school official’s judgment about the proper course of action.

Just because Coach Sinclair wanted C.B. removed from

school grounds cannot ipso facto make such a seizure

reasonable.18 To suggest otherwise is to eviscerate T.L.O.’s

17

Deferring to a school official’s judgment that C.B. should be removed

from school grounds is not the kind of “‘common-sense conclusion’ that

T.L.O. was intended to permit.” Gould Concurrence at 66 (quoting T.L.O.,

469 U.S. at 346). T.L.O. was referring to the reasonable conclusion that

a suspected smoker might be stowing cigarettes in her purse. 469 U.S. at

346. No additional facts were necessary to justify searching the purse

because common sense suggested that the purse was a natural place to

check. The parallel between that scenario and this one is illusive at best.

18

Judge Gould characterizes Coach Sinclair’s request as “facially

reasonable.” Gould Concurrence at 65. Yet her request was

unaccompanied by any meaningful explanation of what C.B. had done to

prompt calling the police, and C.B. remained calm and quiet during the

entire time police were present. If these circumstances render a request to

38 C.B. V. CITY OF SONORA

requirement that a search or seizure be “reasonably related in

scope to the circumstances,” id., and effectively to insulate

searches and seizures sanctioned by school officials from any

review.

Judge Gould also suggests that the need to act quickly

prevented the officers from learning more. Gould

Concurrence at 65–66. Certainly, in some circumstances, the

need to respond swiftly trumps the need to obtain more

information. But here, C.B. was calm, surrounded by

multiple adults, and, by Chief McIntosh’s own

characterization, “[n]ot likely” to run away. Nothing about

the situation demanded an immediate response. Under these

circumstances, the officers could have, and should have,

asked some simple follow-up questions that would have

enabled them to determine an appropriate response.

Nor does this position require police officers to engage in

an “uncabined investigation” before responding to unfolding

events, as the majority intimates. M. Smith Opin. at 57. This

approach only requires police officers to act reasonably under

the circumstances. The standard is a familiar one, see Terry

v. Ohio, 392 U.S. 1, 21 (1968), and local police officers are

quite capable of applying it in the real world.19 There is

nothing remarkable about concluding that, in some

circumstances, reasonableness requires asking a follow-up

question to assess the circumstances before initiating a

seizure.

remove a child from school grounds “facially reasonable,” what must

transpire before a request would be labeled facially unreasonable?

19

T.L.O.’s standard is based on Terry’s reasonable suspicion standard.

See T.L.O., 469 U.S. at 341.

C.B. V. CITY OF SONORA 39

In sum, taking the evidence in the light most favorable to

C.B., a reasonable jury could conclude that Chief McIntosh

and Officer Prock violated C.B.’s Fourth Amendment rights

when they seized him and took him into custody.

b.

We next consider whether it was clearly established on

September 28, 2009, that removing C.B. from school grounds

was a violation of the Fourth Amendment. “For a

constitutional right to be clearly established, its contours must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks

omitted). “This is not to say that an official action is

protected by qualified immunity unless the very action in

question has previously been held unlawful,” Wilson v.

Layne, 526 U.S. 603, 615 (1999) (internal quotation marks

omitted); indeed, “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances,” Hope, 536 U.S. at 741. We should be

“particularly mindful of this principle in the context of Fourth

Amendment cases, where the constitutional standard—

reasonableness—is always a very fact-specific inquiry.”

Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (en

banc). However, where there is no case directly on point,

“existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011).

At the time of C.B.’s seizure, the law was clearly

established that, at a minimum, police seizures at the behest

of school officials had to be reasonable in light of the

circumstances and not excessively intrusive. See, e.g.,

40 C.B. V. CITY OF SONORA

T.L.O., 469 U.S. at 341–42; Doe, 334 F.3d at 909; Gray,

458 F.3d at 1304; Jones, 410 F.3d at 1228; Shade, 309 F.3d

at 1060–61. Although the application of this constitutional

principle may not be clear in certain circumstances, see

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364,

378–79 (2009), this “general constitutional rule . . . may

[still] apply with obvious clarity to the specific conduct in

question, even though ‘the very action in question has [not]

previously been held unlawful,’” United States v. Lanier,

520 U.S. 259, 271 (1997) (alteration in original) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

This is such a case. The removal from school grounds of

a compliant and calm 11-year-old child—a decision that was

made sans any police investigation, without any knowledge

of disobedience, and after only minutes on the scene—is an

obvious violation of the constitutional principle that the

nature of the seizure of a schoolchild must be justified by the

circumstances. Even without on-point case law, it is beyond

dispute that police officers cannot seize a schoolchild who

they do not know to have committed any wrongdoing, who

does not appear to pose any threat to himself or others, and

who engages in no act of resistance the entire time the

officers are present.20

20

The Supreme Court’s holding in Safford that a school official’s

decision to strip search a middle school child suspected of bringing drugs

to school, without any suspicion that the child was hiding the drugs in her

underwear, was not an obvious violation of clearly established law, see

557 U.S. at 377–79, does not warrant a contrary outcome. In Safford, the

Court indicated that, in novel circumstances, T.L.O.’s general standards

will rarely make obvious the boundaries of a constitutional search. See id.

But this is not a case that turns on the boundaries of a reasonable search

or seizure in light of the circumstances. See Gray, 458 F.3d at 1305, 1307

(explaining that handcuffing for at least five minutes a 9-year-old who did

C.B. V. CITY OF SONORA 41

Chief McIntosh and Officer Prock do not argue that

T.L.O. justified seizing C.B. In fact, they argue that they are

entitled to qualified immunity only because they reasonably,

even if mistakenly, believed they had “reasonable cause”21 to

take C.B. into custody pursuant to California Welfare &

Institutions Code sections 601(a) and 625(a). An officer who

reasonably but mistakenly believes that his actions are

warranted under state law may be entitled to qualified

immunity. Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty.

Sheriff Dep’t, 533 F.3d 780, 791–93 (9th Cir. 2008);

Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.

1994). California Welfare & Institutions Code section 601(a)

provides:

Any person under the age of 18 years who

persistently or habitually refuses to obey the

reasonable and proper orders or directions of

his or her parents, guardian, or custodian, or

who is beyond the control of that person . . . is

within the jurisdiction of the juvenile court

which may adjudge the minor to be a ward of

the court.

not pose a threat to anyone was “well beyond the hazy border that

sometimes separates lawful conduct from unlawful conduct” (internal

quotation marks omitted)). Rather, this case involves a scenario where,

on the facts known to the officers, there was simply no basis for any kind

of seizure. At the very least, T.L.O. makes obvious that there must be

some basis for a search or seizure of any scope.

21

Defendants expend a great deal of energy arguing about the

difference between “reasonable cause” as used in the California Welfare

& Institutions Code and the traditional concept of “probable cause.” If

there is a difference between the standards, this case does not turn on it.

42 C.B. V. CITY OF SONORA

Section 625(a) provides that “[a] peace officer may, without

a warrant, take into temporary custody a minor . . . [w]ho is

under the age of 18 years when such officer has reasonable

cause for believing that such minor is a person described in

Section 601.”

Chief McIntosh and Officer Prock contend that they

reasonably thought that C.B. was “beyond the control” of the

relevant school officials, who they understood to be the

custodians of C.B. during school hours. However, taking the

facts in the light most favorable to the nonmoving party, no

reasonable officer could have thought that C.B. was “beyond

the control” of anyone. California case law makes clear that

“by itself, a single act in violation of parental authority is

ordinarily insufficient to establish that the minor is beyond

parental control.” McIsaac v. Bettye K. (In re Bettye K.),

285 Cal. Rptr. 633, 636 (Ct. App. 1991). In In re Henry G.,

the California Court of Appeal found insufficient evidence

that Henry G. was beyond the control of his mother where he

did not tell her where he was going, stayed out until 3 a.m.,

and struck her when she attempted to physically stop him

from leaving the house. Kirkpatrick v. Henry G. (In re Henry

G.), 104 Cal. Rptr. 585, 587, 589–90 (Ct. App. 1972).

Similarly, in In re D.J.B., the court explained that a single act

may show that a minor is beyond control only when it is

sufficiently serious, and the court held that a single instance

of leaving home without parental consent did not rise to such

a level. Bayes v. D.J.B. (In re D.J.B.), 96 Cal. Rptr. 146, 149

(Ct. App. 1971). Cases in which a single instance of defiance

was sufficient to find that a minor was beyond the control of

a parent involved an extraordinarily serious act of defiance.

See Bayes v. David S. (In re David S.), 91 Cal. Rptr. 261, 263

(Ct. App. 1970) (holding that a minor who had told his

mother he would be spending the weekend with friends about

C.B. V. CITY OF SONORA 43

40 miles from home but who was actually found about 600

miles away from home attempting to cross the border into

Mexico was beyond the control of his parents); see also In re

Bettye K., 285 Cal. Rptr. at 636–37.

Here, when viewed in the light most favorable to C.B., the

officers did not know of even a single instance of

disobedience, much less one serious enough to trigger

sections 601(a) and 625(a). C.B. did not take his medicine,

but the officers had no basis to conclude that he had refused

to do so and did not know what kind of medication it was.

C.B. was purportedly a “runner,” but the officers had no

information that he had actually attempted to run from

anyone that day. During the brief period before the officers

decided to handcuff him, C.B. did not disobey any of their

orders. And, as soon as they initiated the process of

handcuffing and removing him from the school grounds, C.B.

complied with all of their instructions. In sum, the officers

knew of no defiant act by C.B.; any belief that C.B. was

beyond the school’s control was not reasonable because it

lacked any basis in fact. Moreover, even assuming it was

reasonable to believe that C.B. had earlier defied a school

official by refusing medicine and running, it was apparent

that C.B. had not run off school grounds and was, instead,

sitting calmly in the school playground. Such a singular

instance of disobedience does not even come close to

satisfying the statutory requirement that the minor be

“beyond the control” of his custodian. See In re Bettye K.,

285 Cal. Rptr. at 636–37; In re Henry G., 104 Cal. Rptr. at

587, 589–90; In re D.J.B., 96 Cal. Rptr. at 149; In re David

S., 91 Cal. Rptr. at 263. An officer who enforces a state

statute “in a manner which a reasonable officer would

recognize exceeds the bounds of the [statute] will not be

entitled to immunity even if there is no clear case law

44 C.B. V. CITY OF SONORA

declaring the [statute] or the officer’s particular conduct

unconstitutional.” Grossman, 33 F.3d at 1210.22

Chief McIntosh and Officer Prock argue that their belief

that sections 601(a) and 625(a) applied in this instance was

reasonable because Coach Sinclair allegedly told Chief

McIntosh that C.B. was “out of control,” “would run off

campus,” and was “yelling and cussing.”23 Whatever the

merits of the argument that a reasonable officer might have

believed that sections 601(a) and 625(a) justified taking a

child into custody in light of these additional facts, that is not

the scenario presented here. Neither Coach Sinclair nor

C.B.—the other witnesses present during this purported

exchange—recalls Coach Sinclair making these statements.

Although it is possible that C.B.’s and Coach Sinclair’s

recollections are incomplete, when taking the facts in the

light most favorable to C.B., see Harper, 533 F.3d at 1021, it

must be assumed that it is Chief McIntosh’s account that is

inaccurate.24

Based on the foregoing, Chief McIntosh and Officer

Prock are not, in my view, entitled to qualified immunity with

respect to C.B.’s unlawful seizure claim.

22

Because C.B.’s conduct could not possibly satisfy the “beyond the

control” prong of the statute, there is no need to consider whether the term

“custodian” as used in section 601(a) includes school authorities.

23

Notably, neither the officers nor Coach Sinclair ever testified that

Coach Sinclair told Chief McIntosh that C.B. would “run off campus.”

24

Accordingly, there is no need to decide whether, under the version of

events most favorable to the officers, Chief McIntosh and Officer Prock

were justified in seizing C.B. pursuant to sections 601(a) and 625(a),

although that is a dubious proposition.

C.B. V. CITY OF SONORA 45

2.

a.

C.B. also argues that the officers used excessive force in

violation of the Fourth Amendment when, upon removing

him from school grounds, they handcuffed C.B. for twenty-

five to thirty minutes. The Fourth Amendment guarantees the

right to be free from an arrest effectuated through excessive

force. Graham v. Connor, 490 U.S. 386, 394–95 (1989);

Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004).

C.B. argues that the officers’ conduct was unreasonable under

the test set out in Graham. Under Graham, whether the

amount of force employed was excessive depends on “the

facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an

immediate threat to he safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.” 490 U.S. at 396.

We have previously applied T.L.O.’s reasonableness

standard to evaluate whether a school official was entitled to

qualified immunity from an excessive force claim. See

Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175,

1179–81 (9th Cir. 2007). Additionally, at the time of the

incident, at least two of our sister circuits had held that

T.L.O.’s reasonableness standard governs law enforcement

searches and seizures concerning school-related incidents in

school settings. See Gray, 458 F.3d at 1304; Shade, 309 F.3d

at 1060–61. We have not yet considered whether Graham or

T.L.O. applies to law enforcement officers’ use of force

against a student in a school setting, and we do not resolve

that question today. But we believe that Preschooler II,

Gray, and Shade could have led a reasonable officer to

46 C.B. V. CITY OF SONORA

conclude that T.L.O. governs police use of force in response

to school-related incidents as well. In no event, however, do

we think that an officer could have reasonably believed that

T.L.O. governs police use of force once a student is in police

custody and outside the confines of the school setting, as C.B.

was throughout the commute to his uncle’s place of business.

Ultimately, in our view, whether T.L.O. or Graham

governed Chief McIntosh’s and Officer Prock’s actions at any

given moment is of little consequence. Chief McIntosh’s and

Officer Prock’s use of handcuffs on a calm, compliant, but

nonresponsive 11-year-old child was unreasonable under

either standard. Other than an assertion that they were told

C.B. might run away, Chief McIntosh and Officer Prock offer

no justification for their decision to use handcuffs on C.B.

During the entire incident, C.B. never did anything that

suggested he might run away or that he otherwise posed a

safety threat. He weighed about 80 pounds and was

approximately 4’8’’ tall—by no means a large child.

Moreover, he was surrounded by four or five adults at all

times. The police department’s own policy manual cautions

against using handcuffs on children under the age of 14

unless the child has committed “a dangerous felony or when

they are of a state of mind which suggests a reasonable

probability of their desire to escape, injure themselves, the

officer, or to destroy property.” Even Chief McIntosh

admitted that it was “[n]ot likely” that C.B. could run away.

In these circumstances, we conclude that the decision to use

handcuffs on C.B. was unreasonable, notwithstanding Coach

Sinclair’s unexplained statement that C.B. was a “runner.”

The further decision to leave C.B. in handcuffs for the

duration of the half-hour commute to his uncle’s business—a

commute that took place in a vehicle equipped with safety

C.B. V. CITY OF SONORA 47

locks that made escape impossible—was clearly

unreasonable.

Judge Smith counters that the use of handcuffs was

justified because C.B. might have attempted to run at various

points during their interaction, risking serious harm to

himself. M. Smith Opin. at 59–60. But there is no evidence

that C.B. was likely to run; even Chief McIntosh himself

thought it unlikely that C.B. would be able to flee. See Tolan

v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam)

(overturning grant of qualified immunity because the lower

court did not view the evidence in favor of the nonmoving

party). “Anything is possible” is not a sufficient basis to

handcuff a child who poses no likely threat of any kind.

b.

At the time of the incident, the law was also clearly

established that, at a minimum, police use of force in

response to school-related incidents had to be reasonable in

light of the circumstances and not excessively intrusive. See

T.L.O., 469 U.S. at 341–42; Preschooler II, 479 F.3d at

1179–81. And the law was clearly established that, as a

general matter, police use of force must be carefully

calibrated to respond to the particulars of a case, including the

wrongdoing at issue, the safety threat posed by the suspect,

and the risk of flight. See Graham, 490 U.S. at 396.

Although these general standards “cannot always, alone,

provide fair notice to every reasonable law enforcement

officer that his or her conduct is unconstitutional,” Mattos,

661 F.3d at 442, “in an obvious case, these standards can

‘clearly establish’ the answer, even without a body of relevant

case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004)

(per curiam).

48 C.B. V. CITY OF SONORA

Applying handcuffs to C.B., and keeping him handcuffed

for the approximately thirty minutes it took to drive to his

uncle’s business, was an obvious violation of these standards.

It is beyond dispute that handcuffing a small, calm child who

is surrounded by numerous adults, who complies with all of

the officers’ instructions, and who is, by an officer’s own

account, unlikely to flee, was completely unnecessary and

excessively intrusive. Moreover, none of the Graham factors

even remotely justified keeping C.B. handcuffed for

approximately thirty minutes in the back seat of a safety-

locked vehicle.

Chief McIntosh and Officer Prock argue that because they

were reasonable in taking C.B. into custody pursuant to the

California Welfare & Institutions Code sections 601(a) and

625(a), their use of handcuffs was also reasonable because

California Penal Code section 835 provides that an individual

under arrest “may be subjected to such restraint as is

reasonable for his arrest and detention.” Even if California

law permitted the level of force used here¯which it does

not¯that would have no bearing on whether the officers

violated clearly established federal law. See Ramirez v. City

of Buena Park, 560 F.3d 1012, 1024–25 (9th Cir. 2009).

California Penal Code section 835 cannot shield the officers

from liability for a clear constitutional violation.

In sum, we hold that Chief McIntosh and Officer Prock

are not entitled to qualified immunity for handcuffing C.B.

D.

Finally, we turn to Defendants’ argument that they are

entitled to an offset against damages because of C.B.’s

settlement with the Sonora School District. Defendants argue

C.B. V. CITY OF SONORA 49

that they are entitled to an offset under California Code of

Civil Procedure section 877.25 Section 877 provides that,

when a plaintiff enters into a settlement with one or more

joint tortfeasors, “it shall reduce the claims against the other[]

[tortfeasors] in the amount stipulated by the [settlement].”

“Whether individuals are joint tortfeasors under [section] 877

depends upon whether they caused ‘one indivisible injury’ or

‘the same wrong.’” Decker v. Tramiel (In re JTS Corp.),

617 F.3d 1102, 1116 (9th Cir. 2010) (quoting May v. Miller,

278 Cal. Rptr. 341, 344 (Ct. App. 1991); see also Lafayette v.

Cnty. of L.A., 208 Cal. Rptr. 668, 672 (Ct. App. 1984)). C.B.

contends that Defendants are not entitled to an offset because

the Sonora School District caused a distinct injury. We need

not resolve this issue because Defendants have not met their

burden to show that they are entitled to an offset for another

reason.

California Civil Code section 1431.2(a) provides that

liability for economic damages is joint and several, but

liability for noneconomic damages is apportioned according

25

It is not clear that California law, as opposed to federal law, governs

Defendants’ settlement offset claim in a case such as this one, which

involves both federal and state law claims. See Corder v. Brown, 25 F.3d

833, 839–40 (9th Cir. 1994) (recognizing that courts are split as to whether

state law or federal common law determines a defendant’s entitlement to

an offset in suits involving federal claims but declining to resolve the split

because the text of the particular federal statute at issue permitted an

offset). Defendants argue only that they are entitled to an offset under

California Code of Civil Procedure section 877. As we explain in text,

even if section 877 applied here, Defendants would not be entitled to an

offset. Accordingly, we need not decide whether state or federal law

applies.

50 C.B. V. CITY OF SONORA

to the principles of comparative fault.26 California courts

have interpreted California Civil Code section 1431.2 as

limiting California Code of Civil Procedure section 877 to

economic damages only. See Greathouse v. Amcord, Inc.,

41 Cal. Rptr. 2d 561, 564 (Ct. App. 1995) (“It is now well

established that Code of Civil Procedure section 877 allows

[the defendants] to set off settlement payments only for

economic damages against the jury’s verdict. Settlement

payments attributable to non-economic damages are not

subject to the setoff.”); Espinoza v. Machonga, 11 Cal. Rptr.

2d 498, 502 (Ct. App. 1992) (explaining that there can be no

offset for noneconomic damages because a “plaintiff’s valid

‘claim’ against one . . . tortfeasor for non-economic damages

can never be the liability of ‘the others’” (quoting Cal. Civ.

Code § 1431.2)). Consequently, in calculating offsets,

California courts look to the percentage of the jury’s award

that is attributable to noneconomic damages and reduce the

award by that same proportion of the settlement. See Conrad

26

California Civil Code section 1431.2(b) defines economic and

noneconomic damages as follows:

(1) For purposes of this section, the term

“economic damages” means objectively verifiable

monetary losses including medical expenses, loss of

earnings, burial costs, loss of use of property, costs of

repair or replacement, costs of obtaining substitute

domestic services, loss of employment and loss of

business or employment opportunities.

(2) For the purposes of this section, the term

“non-economic damages” means subjective,

non-monetary losses including, but not limited to, pain,

suffering, inconvenience, mental suffering, emotional

distress, loss of society and companionship, loss of

consortium, injury to reputation and humiliation.

C.B. V. CITY OF SONORA 51

v. Ball Corp., 29 Cal. Rptr. 2d 441, 443 (Ct. App. 1994);

Espinoza, 11 Cal. Rptr. 2d at 504. But, where “the special

verdict [does] not specify economic and noneconomic

damages, but merely award[s] an undifferentiated lump sum,”

and the defendant failed to propose such a special verdict, the

defendant is deemed to have waived any right to any offset.

Conrad, 29 Cal. Rptr. 2d at 443–44. This is because “[a]

defendant seeking an offset against a money judgment has the

burden of proving the offset.” Id. at 444.

Here, Defendants initially did propose a jury instruction

that distinguished between economic and noneconomic

damages. However, when the court provided its proposed

jury instructions and verdict form, Defendants did not object

to the exclusion of their proposed allocation. The court

specifically asked Defendants if they had any objections to

either the proposed jury instructions or the verdict form, and

Defendants objected to unrelated portions of the jury

instructions, but not the omission of their proposed question

about damages on the verdict form. By failing to object to an

undifferentiated verdict form, Defendants have not met their

burden to show what portion of the jury’s award was for

economic damages. See Conrad, 29 Cal. Rptr. 2d at 443–44;

cf. Grosvenor Props. Ltd. v. Southmark Corp., 896 F.2d 1149,

1152–53 (9th Cir. 1990) (recognizing that mere submission

of an alternative proposed instruction is insufficient to

preserve for appeal an objection to the instruction given).

Consequently, the district court did not err in refusing to

award Defendants a $20,000 offset against the jury’s damages

award.

52 C.B. V. CITY OF SONORA

III. Conclusion

We conclude that Defendants have not identified any

plain error in the district court’s jury instructions, the district

court’s evidentiary rulings were not an abuse of discretion,

and Defendants have not shown they are entitled to a

settlement offset. Furthermore, we hold that Chief McIntosh

and Officer Prock are not entitled to qualified immunity

because no officer could have reasonably believed that their

use of handcuffs to remove C.B. from school grounds

complied with the Fourth Amendment. However, as set forth

in Judge M. Smith’s majority opinion, the district court’s

ruling on Chief McIntosh’s and Officer Prock’s motion for

judgment as a matter of law denying them qualified immunity

on C.B.’s Fourth Amendment unlawful seizure claim is

reversed.

The judgment of the district court is affirmed in part,

reversed in part. The judgment against Chief Mace McIntosh

is reduced by $15,000. The judgment against Officer Hal

Prock is reduced by $5,000.

AFFIRMED IN PART AND REVERSED IN PART.

C.B. shall recover his costs on appeal against the City of

Sonora; no costs are awarded against Chief McIntosh and

Officer Prock.

C.B. V. CITY OF SONORA 53

M. SMITH, Circuit Judge, concurring in part, and dissenting

in part, with whom O’SCANNLAIN, TALLMAN, and

BYBEE, Circuit Judges, join in full, and with whom

KOZINSKI, Chief Judge, and GRABER and GOULD,

Circuit Judges, join as to Part I, which is the opinion of the

court:

A majority of the en banc court agrees that Chief

McIntosh and Officer Prock (the officers) are entitled to

qualified immunity with respect to C.B.’s unlawful seizure

claim. A reasonable officer would not have known that

taking a child in C.B.’s situation into temporary custody was

unreasonable, and therefore unconstitutional. However, I

respectfully dissent from the majority’s conclusion denying

the officers qualified immunity with respect to C.B.’s

excessive force claim. In my view, the officers are entitled to

qualified immunity on both of C.B.’s Fourth Amendment

claims because the constitutional rights at issue in this case

were neither clearly established nor “obvious” at the time

C.B. was taken into temporary custody.

To determine whether an officer is entitled to qualified

immunity, we consider (1) whether he violated a

constitutional right and (2) whether the constitutional right

was clearly established. Pearson v. Callahan, 555 U.S. 223,

232, 236 (2009). “[C]ourts should define the ‘clearly

established’ right at issue on the basis of the ‘specific context

of the case.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)

(per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). Our court, however, has been singled out and

chastised by the Supreme Court for our propensity to

improperly find “clearly established” rights. Specifically, the

Court has mandated that “courts—and the Ninth Circuit in

particular—not . . . define clearly established law at a high

54 C.B. V. CITY OF SONORA

level of generality.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2084 (2011) (emphasis added) (internal citation omitted).

Despite the Court’s clear instruction that we not “define

clearly established law at a high level of generality,” the

majority’s hurried discussion of the second prong of the

qualified immunity analysis does just that. Specifically, the

majority defines the relevant law as requiring the use of force

to be “carefully calibrated to respond to the particulars of a

case . . . .”1 But this very general statement clearly does not

provide “fair warning” to a reasonable officer that

handcuffing C.B. to take him into temporary custody violates

his Fourth Amendment rights. See Tolan, 134 S. Ct. at 1866;

Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004) (per

curiam).

I respectfully disagree with the majority’s

characterization of these facts as an “obvious violation” of

C.B.’s constitutional rights, and with its conclusion that this

case is not therefore subject to the Court’s admonitions

against defining “clearly established law” in overly general

terms. I acknowledge that the Court has recognized that

general standards can create a “clearly establish[ed]” right in

an “obvious case,” even “without a body of relevant case

law.” See Brosseau, 543 U.S. at 199. But the facts of this

case, even when viewed in the light most favorable to C.B.,

see Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th

Cir. 2008), do not come close to constituting an “obvious”

1

The Supreme Court has explained that “[t]he general proposition . . .

that an unreasonable search or seizure violates the Fourth Amendment is

of little help in determining whether the violative nature of particular

conduct is clearly established.” al-Kidd, 131 S. Ct. at 2084.

C.B. V. CITY OF SONORA 55

violation of a “clearly establish[ed]” right. See Brosseau,

543 U.S. at 199.

I. Unlawful Seizure Claim

Assuming New Jersey v. T.L.O.’s reasonableness standard

applies, as my colleagues do, C.B. cannot show that a

reasonable officer would have understood that taking him into

temporary custody was unreasonable, and therefore

unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739

(2002); New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

When analyzing whether an individual’s Fourth

Amendment rights were violated, we must determine whether

the seizure was reasonable under “all the circumstances.”

T.L.O., 469 U.S. at 341. Qualified immunity insulates the

officers from liability unless “existing precedent . . . ha[s]

placed the statutory or constitutional question beyond

debate.” al-Kidd, 131 S. Ct. at 2083.

Viewed in its entirety, the record reveals that the situation

confronting the officers did not present an “obvious”

violation of C.B.’s constitutional rights. The circumstances

facing the officers when they decided to take C.B. into

temporary custody are as follows. First, officers knew that

school officials had reported that C.B. was a “runner” and

“out of control.” Second, although Judge Paez describes C.B.

as “compliant,” C.B. himself admitted that he completely

ignored Officer Prock’s questions for three and a half

minutes. Third, the officers did not know exactly which

medication C.B. had failed to take. But a reasonable officer

would have evaluated Coach Sinclair’s statements in context,

and would likely have believed that Coach Sinclair stated that

C.B. did not take his medication because it was related to his

56 C.B. V. CITY OF SONORA

behavior—the very reason why the officers were called to the

school in the first place.

A reasonable officer in this situation, faced with a

juvenile who (a) was reportedly a “runner,” (b) was “out of

control,” (c) ignored the officer’s questions, and (d) had not

taken his medication, would not have known that taking such

a juvenile into temporary custody in order to transport him

safely to his uncle was an “obvious” violation of his

constitutional rights.

Judge Paez attempts to characterize this situation as an

“obvious” violation of C.B.’s constitutional rights by

emphasizing that C.B. was a “compliant and calm 11-year-old

child,” and that the officers had “[no] knowledge of

disobedience.” However, C.B. had resisted the officers by

ignoring their questions and was reported by the school as out

of control, regardless of how he appeared at the exact

moment when the officers took him into temporary custody.

And although a reasonable officer would have observed that

C.B. was young, age alone does not impose a complete bar on

taking an individual into temporary custody, or on believing

a school official’s report.

Judge Paez also notes that the decision to take C.B. into

temporary custody was made “sans any police investigation.”

Respectfully, this characterization fails to address several

important points. The facts show that the officers did

investigate by obtaining information from Coach Sinclair and

attempting to question C.B., who refused to respond.

Additionally, taking C.B. into custody without any further

investigation was not an obvious violation of his

constitutional rights because clearly established law at the

time of the seizure did not mandate any additional

C.B. V. CITY OF SONORA 57

investigation, nor did it preclude reasonable reliance on the

statements of school officials. See T.L.O., 469 U.S. at 346.

If we were to hold that the officers’ conduct was an

“obvious violation,” we would effectively establish a new

rule that police officers in a situation similar to this one must

undertake an independent investigation whenever they

observe behavior that appears in any way inconsistent with a

school official’s report. Such a requirement would be

unworkable in the real world of law enforcement and school

administration. Does an officer who is told by a school

official that a student is a runner and has not taken his

medications, but who later encounters the student seated and

quiet, need to undertake an investigation because the student

is not running or “out of control” at that time? What would

that investigation entail? Would it require reviewing the

student’s record with school officials to determine what being

a “runner” means in that particular student’s situation?

Would it involve talking with school counselors, teachers, or

physicians who have dealt with the student to better

understand the severity of the student’s problems? By

characterizing the officers’ conduct as an “obvious violation”

of constitutional rights, the dissent would require an officer

to undertake such an uncabined investigation prior to

responding to these situations, or risk personal financial

liability if he did not. It would disincentivize officers from

responding to calls for help from school officials under

similar circumstances.

But the officers’ conduct was not an “obvious violation”

of C.B.’s constitutional rights. Under “all the circumstances,”

T.L.O., 469 U.S. at 341, a reasonable officer would not have

understood that taking C.B. into temporary custody violated

his rights. The Supreme Court has been pellucidly clear that

58 C.B. V. CITY OF SONORA

the purpose of qualified immunity is to give officers

“breathing room” in uncertain situations. Stanton v. Sims,

134 S. Ct. 3, 5 (2013) (per curiam) (quoting al-Kidd, 131 S.

Ct. at 2085). Accordingly, the officers are entitled to

qualified immunity on the unlawful seizure claim.2

II. Excessive Force Claim

I respectfully disagree with the majority’s conclusion that

the scope of C.B.’s right to be free from excessive force was

2

Judge Berzon states that our case law requires police officers to have

some cause to take children into custody. She cites language from Crowe

v. County of San Diego, that a police officer was not entitled to qualified

immunity when he “failed to provide any justification” for a seizure.

608 F.3d 406, 439 (9th Cir. 2010). At issue there was the detention at a

police station of the parents of a murder victim. Id. Additionally, it was

the district court that had denied summary judgment due to the officer’s

failure to provide any justification. We affirmed, but on the ground that

the parents did not consent to the detention because the officer had pointed

a gun at them.

In Henderson v. Mohave County, also cited by Judge Berzon, we

denied qualified immunity to officers who seized a child after ignoring her

mother’s court order showing that she had custody. 54 F.3d 592, 595 (9th

Cir. 1995).

Relying on these cases, Judge Berzon concludes that no reasonable

officer would have believed that there was cause to take C.B. into custody

under section 601 of the Welfare and Institutions Code. Even assuming

Crowe applies here, it does not require that a state law provide

justification for the seizure. Rather, under the Fourth Amendment, the

seizure need only be reasonable under all the circumstances. See T.L.O.,

469 U.S. at 341. Unlike in Henderson, where the officers had no

justification for their actions, here, a reasonable officer would have

believed he was justified in taking C.B. into temporary custody based on

the information available to him, including the school’s report that he was

out of control and had not taken his medication.

C.B. V. CITY OF SONORA 59

clearly established. The majority gives inadequate weight to

the Court’s directive that “clearly established law” not be

defined at a high level of generality, see al-Kidd, 131 S. Ct.

at 2084, for it was far from “obvious” that handcuffing

C.B.—a known “runner” reported to be “out of

control”—constituted excessive force. Rather, assuming

without deciding that Graham v. Connor, 490 U.S. 386, 396

(1989), controls in this situation, handcuffing C.B. was

clearly reasonable when balanced against the need to ensure

C.B.’s safety by preventing him from fleeing or injuring

himself.

The “reasonableness of a particular use of force must be

judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. at

396 (internal quotation marks omitted). The force used by

officers must be objectively reasonable under the

circumstances, and need not be the least intrusive means

available to them. Id. at 397, 399; Luchtel v. Hagemann,

623 F.3d 975, 982 (9th Cir. 2010). “The calculus of

reasonableness must embody allowance for the fact that

police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary

in a particular situation.” Graham, 490 U.S. at 397–98. In

determining whether force, including the use of handcuffs, is

reasonable, we consider, among other things, whether the

individual poses an immediate threat to the safety of the

officers or others, and whether he is attempting to evade

arrest by flight. See id. at 396.

There is no clearly established law indicating that

handcuffing C.B. to transport him safely from school grounds

to his uncle’s business was not objectively reasonable under

60 C.B. V. CITY OF SONORA

the circumstances. See id. at 399. The majority characterizes

C.B. as a “small, calm child.” But when the officers

encountered C.B., the school had reported that C.B. was “out

of control,” and Coach Sinclair had stated that he was a

“runner.” Particularly in light of C.B.’s refusal to answer the

officers’ questions, a reasonable officer would have taken the

school officials’ concerns seriously. The fact that C.B. was

sitting at the time the officers encountered him does not

contradict Coach Sinclair’s statement that he was a runner.

A reasonable officer would not have known that encountering

C.B. sitting down and not responding to questions would

necessitate a detailed investigation into the veracity and

meaning of Coach Sinclair’s statement before using

handcuffs, especially in light of the fact that the

reasonableness inquiry allows officers to make split-second

judgments in uncertain situations. See id. at 397–98.

Finally, although the majority characterizes C.B.’s

unresponsiveness to Officer Prock’s questioning as mere

silent obedience, a reasonable officer could have viewed

C.B.’s refusal to answer the questions as an act of defiance.3

Indeed, officers are trained that such unresponsive behavior

may be a “cue[] to escalation,” indicating that the individual

may be looking for an opportunity to flee. Because a busy

roadway abuts C.B.’s schoolyard, the consequences of

ignoring Coach Sinclair’s warning and C.B.’s unresponsive

behavior, and spending time conducting an investigation,

could have been serious, or even fatal.

In this situation, a reasonable officer, relying on the

statement of Coach Sinclair that C.B. is a “runner,” see

3

C.B. admitted that he completely ignored Officer Prock’s questions for

three and a half minutes.

C.B. V. CITY OF SONORA 61

T.L.O., 469 U.S. at 346, could have determined that C.B.

would pose a danger to himself if he ran into the roadway,

and that he would be at risk of injury if he had to be

apprehended while running. A reasonable officer, relying on

precedent establishing that handcuffs may be appropriate to

prevent flight, see id.; Meredith v. Erath, 342 F.3d 1057,

1063 (9th Cir. 2003), would not have known that it was a

constitutional violation to place C.B. in handcuffs to ensure

his safety.4

Additionally, it was not clearly established that keeping

a juvenile in C.B.’s situation handcuffed for approximately

thirty minutes while the officers transported him to his uncle

was unconstitutional. A reasonable officer could have

believed that it was permissible to keep C.B. handcuffed to

ensure his safety in light of the fact that C.B. could have hurt

himself in the car, or attempted to flee while the officer was

removing the handcuffs before placing C.B. in the car.

Moreover, handcuffing C.B. to prevent flight comports with

standard police procedure. Although the City of Sonora’s

policy recommends that handcuffs generally should not be

used for a juvenile under the age of 14, it also provides that

officers may in their discretion handcuff a juvenile if he is of

the state of mind that suggests a reasonable probability of his

4

Judge Paez notes that Chief McIntosh believed that it was not likely

that C.B. could run away from the officers. However, Chief McIntosh’s

subjective beliefs are not relevant as “[t]he Fourth Amendment inquiry is

one of objective reasonableness under the circumstances, and subjective

concepts . . . have no proper place in that inquiry.” Graham, 490 U.S. at

399 (internal quotation marks omitted). Moreover, even if C.B. could not

have succeeded in running away, a reasonable officer could have believed

it was likely that C.B. would have tried to run away, given his history as

a runner. In such a case, the officer would have needed to apprehend

C.B., which would have posed a risk of injury.

62 C.B. V. CITY OF SONORA

desire to escape or that he may injure himself. This policy is

fully consistent with Supreme Court precedent. See Graham,

490 U.S. at 396.

Although handcuffing a juvenile is not a matter to be

taken lightly, neither is the juvenile’s safety. Under the

majority’s reasoning, officers’ legitimate concerns for a

child’s safety are no longer sufficient to justify handcuffing,

and officers are now potentially liable for monetary damages

if they use handcuffs out of concern for a child’s safety. But

had an officer in this situation not handcuffed C.B., and had

C.B. run into the roadway and been killed or injured by a

passing vehicle, the officer, knowing that C.B. was a runner,

would surely have been liable due to his failure to ensure

C.B.’s safety. Under the majority’s new rule, officers are

now damned if they do, and damned if they don’t, when

dealing with schoolchildren who are known runners.

Because this case is not an “obvious” one where general

standards clearly establish C.B.’s rights, a reasonable officer

would not have known that handcuffing C.B. to safely take

him into temporary custody violated his constitutional rights.

The Supreme Court has taught that qualified immunity

protects “all but the plainly incompetent or those who

knowingly violate the law.” al-Kidd, 131 S. Ct. at 2085

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).5 Here,

5

The Supreme Court’s recent case law illustrates the substantial

protection that qualified immunity affords police officers. Although each

case is decided based on its specific facts, the reality is that the Supreme

Court in the recent past has rarely denied qualified immunity to police

officers. As one scholar has observed, before the recent reversal of a grant

of qualified immunity in Tolan, 134 S. Ct. 1861, the Court had not ruled

against a police officer in a qualified immunity case since Groh v.

C.B. V. CITY OF SONORA 63

because there is no indication that the officers knowingly

violated the law, the majority, in denying qualified immunity,

must view the officers as “plainly incompetent.” I find no

evidence that either officer is “plainly incompetent.” Because

C.B.’s constitutional rights were not clearly established, the

district court improperly denied qualified immunity to the

officers. I therefore respectfully dissent from the majority’s

contrary conclusion denying qualified immunity to the

officers with respect to C.B.’s excessive force claim.

GOULD, Circuit Judge, with whom KOZINSKI, Chief Judge,

and GRABER, Circuit Judge, join, concurring in part in

Judge Paez’s opinion and concurring in part in Judge M.

Smith’s opinion:

I join Parts I, II.A, II.B, II.C.2, and II.D of Judge Paez’s

opinion, concerning the factual background, rejection of the

challenges to jury instructions and to evidentiary rulings, and

the conclusions that Chief McIntosh and Officer Prock used

excessive force in violation of the Fourth Amendment when,

in removing C.B. from school grounds, they handcuffed him

for 25 to 30 minutes and that they are not entitled to qualified

immunity for handcuffing C.B.

Ramirez, 540 U.S. 551 (2004), decided nearly a decade earlier. See Will

Baude, Tolan v. Cotton — when should the Supreme Court interfere in

‘factbound’ cases?, The Washington Post, The Volokh Conspiracy (May

7, 2014, 9:40 AM), http://www.washingtonpost.com/news/volokh-

conspiracy/wp/2014/05/07/tolan-v-cotton-when-should-the-supreme-

court-interfere-in-factbound-cases/?tid=pm_national_pop (last visited

September 22, 2014).

64 C.B. V. CITY OF SONORA

I join in Part I of Judge M. Smith’s opinion, concerning

the unlawful seizure claim, concluding that the officers are

entitled to qualified immunity as to the seizure of C.B.

On the issue of unlawful seizure: T.L.O.’s reasonableness

standard requires that a search be “justified at its inception”

and, “as actually conducted,” be “reasonably related in scope

to the circumstances which justified the interference in the

first place.” New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)

(internal quotation marks omitted). We should give weight

to the parts of the Court’s opinion in T.L.O. that gave its

reasons for holding that “the school setting requires some

easing of the restrictions to which searches by public

authorities are ordinarily subject.” Id. at 340.

The Court’s primary concern in T.L.O. was balancing the

“privacy interests of schoolchildren with the substantial need

of teachers and administrators for freedom to maintain order

in the schools.” Id. at 341. The need for order in the school

setting permits searches when reasonable grounds exist to

suspect violations not just of law, but of “the rules of the

school.” Id. at 342. When a court examines the rules of a

school, it “should, as a general matter, defer” to the school’s

judgment that the rule is necessary to prevent “conduct [that]

is destructive of school order or of a proper educational

environment.” Id. at 343 n.9. In applying this standard to the

facts of T.L.O.’s case, the Court approved of a school

administrator’s use of “the sort of common-sense

conclusio[ns] about human behavior upon which practical

people—including government officials—are entitled to

rely.” Id. at 346 (internal quotation marks omitted).

In concurrence, Justices Powell and O’Connor stressed

the “special characteristics” of the school environment,

C.B. V. CITY OF SONORA 65

noting that “teachers have a degree of familiarity with, and

authority over, their students that is unparalleled except

perhaps in the relationship between parent and child.” Id. at

348. Based on this relationship, the concurring Justices

concluded that “[t]he primary duty of school officials and

teachers . . . is the education and training of young people. A

State has a compelling interest in assuring that the schools

meet this responsibility. Without first establishing discipline

and maintaining order, teachers cannot begin to educate their

students.” Id. at 350 (Powell and O’Connor, JJ., concurring).

Reasonable officers could have believed that the

Constitution allows them to remove a student from school

grounds based on a facially reasonable request from school

officials. This conclusion is reinforced by the facts. Coach

Sinclair, the requesting official, was the school’s official

disciplinarian, the person most responsible for maintaining

order at Sonora Elementary. Coach Sinclair’s request was

supported by contentions that C.B. was a runner and had not

taken his medicine. The allegations supported the notion that

C.B. was violating the rules of the school or impairing

discipline and maintenance of order, prerequisites to

educating students. See id. Finally, the police officers were

on campus for less than five minutes before taking C.B. into

custody. This brief visit to the school environment could not

safely give them such information as would be necessary to

overrule the considered judgment of a school official,

particularly given the close relationship between teachers and

students. See id. at 348.

In the modern world, delay in the school setting can pose

grave dangers to many, an unfortunate fact that may at times

require police to act promptly upon arrival. In the context of

dangers presented to students at schools, rather than require

66 C.B. V. CITY OF SONORA

officers to make an independent investigation when they

arrive at a school, a reasonable police officer could believe

that the Constitution would allow him or her to rely on

responsible school officials. Here, the officers could

reasonably have believed that relying on Coach Sinclair over

what they personally saw in their brief and isolated visit was

the kind of “common-sense conclusion” that T.L.O. was

intended to permit. Id. at 346 (majority opinion). When a

school official makes a determination that it is necessary to

remove a student from campus to maintain order, protect that

student or others, or otherwise to prevent the destruction of

the “proper educational environment,” id. at 343 n.9, in my

view a reasonable officer could have believed that he or she

was entitled to rely on that judgment.

On the issue of excessive force by handcuffing: Police

officers may reasonably believe that the Fourth Amendment

permits them to give deference to a school official’s request

that a student be removed from campus. But that reasonable

belief in deference does not extend to the level of force that

they may use to accomplish the removal. See, e.g., Acosta v.

City of Costa Mesa, 718 F.3d 800, 826 (9th Cir. 2013) (per

curiam) (analyzing separately a claim of unreasonable seizure

or arrest and “whether the officers employed excessive force

when enacting the seizure and arrest”). The officers violated

the Fourth Amendment by handcuffing C.B., and they are not

protected from C.B.’s excessive force claim by qualified

immunity. None of the reasons motivating the Supreme

Court’s decision in T.L.O. bears on police officers’ use of

force. Neither the need for compliance with school rules, nor

the close relationship between teachers and students, nor the

importance of maintaining the educational environment has

any connection with the amount of force permissibly used by

C.B. V. CITY OF SONORA 67

officers in carrying out an otherwise reasonable request from

school officials.

The Supreme Court was explicit in Graham v. Connor,

490 U.S. 386, 396 (1989), that the application of Fourth

Amendment reasonableness to excessive force claims

“requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” C.B.

was not charged with or suspected of any crime. There is no

evidence that C.B. posed an immediate safety risk to himself,

to the officers, or to anyone else on the scene. And there was

no testimony that C.B. tried to escape, nor did the officers

believe that there was any reasonable possibility that he could

or would attempt to do so. Finally, the officers’ unreasonable

decision to use handcuffs was compounded by their decision

to leave the handcuffs on during a 30-minute trip in which

C.B. was secured in the back of a police cruiser with no

possibility of escape or harm to himself or others.

The Supreme Court’s jurisprudence has firmly established

that the force police officers apply must be reasonable.

Under the totality of the circumstances, it was not reasonable

to handcuff a small and docile 11-year-old child. The

Supreme Court’s law requiring that a reasonable level of

force be used against the citizenry is crystal clear and well

established.

68 C.B. V. CITY OF SONORA

BERZON, Circuit Judge, with whom Judge THOMAS joins,

concurring in part and dissenting in part:

I concur in Judge Paez’s opinion, with one exception: as

to C.B.’s unlawful seizure claim, I concur in the result

reached by Judge Paez but would reach that result via

different reasoning.

As to the seizure issue, the reliance on New Jersey v.

T.L.O, 469 U.S. 325 (1985), in the three other opinions in this

case is, in my view, entirely beside the point. The police

officer defendants have consistently maintained that they

seized C.B. because they had reasonable cause to believe he

was a child covered by California Welfare and Institutions

Code section 601(a). But section 601(a) does not cover

C.B.’s circumstance, nor could a reasonable police officer

have thought it did. As the defendants have never suggested

that they could, or did, seize C.B. to enforce the school’s own

rules and disciplinary needs, we should be reviewing their

actual defense, not manufacturing one for them.

I.

We are reviewing a judgment entered after a jury trial.

Over the course of that trial, the police officers repeatedly

explained that they took C.B. into custody pursuant to the

Welfare and Institutions Code. Officer Prock, for example,

acknowledged that he “arrest[ed]” C.B. under section 601.

So did Officer McIntosh. The officers’ expert witness

testified as to whether the circumstances allowed them to take

C.B. into temporary custody under section 601(a).

Furthermore, the testimony at trial established that at the

time of C.B.’s seizure, the understanding of both the officers

C.B. V. CITY OF SONORA 69

and the school was that he was being put in handcuffs and

carried away for law enforcement or mental health reasons,

not school discipline. C.B. thought he was going to jail; no

one told him otherwise. Coach Sinclair testified that she

“[a]bsolutely” believed the officers were taking C.B. to the

hospital pursuant to Welfare and Institutions Code section

5150, which enables a “peace officer” to take a person into

custody for seventy-two hours when there is probable cause

to believe the person “is a danger to others, or to himself,” “as

a result of a mental health disorder.”1 Officer Prock testified

that the plan was to take C.B. to the probation department

before releasing him to a family member. See Cal. Welf. &

Inst. Code § 626(d). It was only after C.B. was seized that

Officer Prock realized that he had a prior existing business

relationship with C.B.’s uncle and so decided, with Chief

McIntosh’s permission, to drive C.B. directly to the uncle’s

home.

In closing argument, counsel for the officers pointed the

jury to sections 625 and 601 of the Welfare and Institutions

Code and described this statutory authority as their “primary

defense” to C.B.’s constitutional claims. As to the

unconstitutional seizure claim, counsel for the officers

explained: “[W]e’re saying that the law authorizes us to take

the plaintiff into custody without a warrant because he’s

beyond the control of his guardian.” Counsel for the officers

went on to argue that the evidence showed C.B. was “beyond

the control of the school,” and that the officers were for that

reason “allowed to take him into temporary custody without

1

That such a seizure would have required probable cause was clearly

established and beyond dispute by 2008. See Bias v. Moynihan, 508 F.3d

1212, 1220 (9th Cir. 2007).

70 C.B. V. CITY OF SONORA

a warrant . . . . under the Welfare [and] Institutions Code

[sections] 625 and 601.”

The jury was instructed in accord with the proffered

defense that “seizure . . . without an arrest warrant is

reasonable if the officers . . . had probable cause to believe

that the person was subject to temporary custody without a

warrant,” and that “[w]hether the defendant officers had

probable cause to conclude that [the] plaintiff was a juvenile

who was subject to temporary custody under the Welfare

[and] Institutions Code, as that law is described in these

circumstances, should be determined by you under the totality

of the circumstances.”2 (Emphasis added.)

After the jury returned a verdict in favor of C.B., the

officers moved for judgment as a matter of law on the ground

that they were entitled to qualified immunity for C.B.’s

unlawful seizure claim. Their argument was that “the officers

were authorized to take [C.B.] into custody under [s]ection

625 and 601 of the California Welfare and Institutions Code.”

On appeal, the police officers continue to maintain that

they took C.B. into “temporary custody under Welfare [and]

Institutions Code sections 601 and 625.” They contend that

they “arrested Plaintiff C.B.” pursuant to this statutory

authority “based on reasonable cause to believe C.B. was

beyond the control of the school.” And, although the three

other opinions in this case cite T.L.O. as alternately barring or

justifying C.B.’s seizure, the officers themselves in their

appellate filings have never cited T.L.O. at all. In their

response to the petition for rehearing en banc, the officers

noted that the panel opinion “accurately identif[ied] Section

2

The officers offered no objection to this instruction.

C.B. V. CITY OF SONORA 71

601(a) and 625(a) as the authority invoked and relied upon by

the Officers[ ] in taking C.B. into temporary custody.”

Simply put, the police officers are defending against

C.B.’s allegations on the ground that they behaved as law

enforcement officers, not school administrators or officials,

when they arrested C.B. pursuant to their asserted statutory

authority to do so. The officers do not purport to have been

enforcing school disciplinary policies as agents of the school.

We should not be evaluating the officers’ seizure of C.B. by

recourse to a justification that they neither offer as authority

for their conduct nor endorse.

II.

The officers’ sole contention, then, is that they had cause

to take C.B. into custody because he was “beyond the control

of” his “custodian” under section 601(a). They had no such

cause for two reasons: (1) the school is not C.B.’s custodian,

and (2) he was not “beyond the control” of his parents,

guardian, or custodian.

Subsections (a) and (b) of section 601 provide:

(a) Any person under the age of 18 years who

persistently or habitually refuses to obey the

reasonable and proper orders or directions of

his or her parents, guardian, or custodian, or

who is beyond the control of that person, or

who is under the age of 18 years when he or

she violated any ordinance of any city or

county of this state establishing a curfew

based solely on age is within the jurisdiction

72 C.B. V. CITY OF SONORA

of the juvenile court which may adjudge the

minor to be a ward of the court.

(b) If a minor has four or more truancies

within one school year as defined in Section

48260 of the Education Code or a school

attendance review board or probation officer

determines that the available public and

private services are insufficient or

inappropriate to correct the habitual truancy

of the minor, or to correct the minor’s

persistent or habitual refusal to obey the

reasonable and proper orders or directions of

school authorities, or if the minor fails to

respond to directives of a school attendance

review board or probation officer or to

services provided, the minor is then within the

jurisdiction of the juvenile court which may

adjudge the minor to be a ward of the court.

However, it is the intent of the Legislature

that no minor who is adjudged a ward of the

court pursuant solely to this subdivision shall

be removed from the custody of the parent or

guardian except during school hours.

As Judge McKeown concluded in her dissent to the

original panel opinion in this case: “On its face, the term

‘custodian’ does not apply to school officials.” C.B. v. City

of Sonora, 730 F.3d 816, 828 n.2 (9th Cir. 2013) (McKeown,

J., dissenting). When the California legislature referred to

school authorities in section 601, it did so expressly, in

subsection (b). That subsection delineates the precise

circumstances under which the juvenile court may assert

jurisdiction over a minor for misbehavior at school.

C.B. V. CITY OF SONORA 73

Of particular relevance to C.B.’s situation, subsection

601(b) specifies that a minor may come under the juvenile

court’s jurisdiction “[i]f . . . a school attendance review board

or probation officer determines that the available public and

private services are insufficient or inappropriate . . . to correct

the minor’s persistent or habitual refusal to obey the

reasonable and proper orders or directions of school

authorities.” Cal. Welf. & Inst. Code § 601(b). C.B.’s

“refusal to obey the . . . orders or directions of school

authorities” spurred his seizure. But there was no

“determin[ation]” made by those statutorily empowered to do

so that “available . . . services [were] insufficient” to correct

C.B.’s disobedience. And there certainly was no

determination made that C.B.’s disobedience was “persistent

or habitual.” Accordingly, the provision of section 601 which

specifically applies to schools does not support C.B.’s

seizure. The officers do not argue that it does.

The complete absence from subsection (b) of a provision

allowing a juvenile court to assert jurisdiction over a minor

who “is beyond the control” of school authorities without a

proper determination being made by the appropriate persons

is telling. As “judicial interpreter[s],” we are “call[ed] on . . .

to consider the entire text, in view of its structure and of the

physical and logical relation of its many parts.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 167 (2012). When confronted with a general

provision and a specific provision that cannot be reconciled,

the specific provision prevails. Id. at 183. Here, even if

school authorities are properly considered C.B.’s custodian’s

during school hours, subsection (b) is the more specific

provision, and so must govern. Otherwise, whenever a minor

“persistently or habitually refuses to obey the reasonable and

proper orders or directions” of school authorities, he could be

74 C.B. V. CITY OF SONORA

within the juvenile court’s jurisdiction, leaving subsection

(b)’s procedural requirement a nullity.

That subsection (a) does not include minors who are

beyond the control of school authorities is confirmed by

review of the statute’s legislative history. An earlier version

of section 601 expressly applied to minors who were “beyond

the control of” “school authorities.” That version of the

statute read in full:

Any person under the age of 21 years who

persistently or habitually refuses to obey the

reasonable and proper orders or directions of

his parents, guardian, custodian or school

authorities, or who is beyond the control of

such person, or any person who is a habitual

truant from school within the meaning of any

law of this State, or who from any cause is in

danger of leading an idle, dissolute, lewd, or

immoral life, is within the jurisdiction of the

juvenile court which may adjudge such person

to be a ward of the court.

1961 Cal. Stat. 3471 (emphasis added); see also In re David

S., 12 Cal. App. 3d 1124, 1126 (Ct. App. 1970). In 1974, the

legislature amended section 601 by deleting “school

authorities,” as well as “or any person who is a habitual truant

from school within the meaning of any law of this state.”

1974 Cal. Stat. 2629. Section 601 was amended by the same

bill that added Article 9 to Chapter 6 of Division 9 of the

Education Code, creating “School Attendance Review

Boards.” 1974 Cal. Stat. 2624. The legislature’s “intent”

“[i]n enacting this article . . . [was] that intensive guidance

and coordinated community services. . . be provided to meet

C.B. V. CITY OF SONORA 75

the special needs of pupils with school attendance problems

or school behavior problems.” Id.

At the same time, and as part of the same legislation that

created school attendance review boards and that amended

section 601, the legislature added section 601.1 to the

Welfare and Institutions Code. 1974 Cal. Stat. 2629. That

section specifically governed disobedience of school

authorities, and required “persistent[] and habitual[] refus[al]”

in order for a minor to be “beyond the control of such

authorities”:

(a) Any person under the age of 18 years

who persistently or habitually refuses to obey

the reasonable and proper orders or directions

of school authorities, and is thus beyond the

control of such authorities, or who is a

habitual truant from school within the

meaning of any law of this state, shall, prior to

any referral to the juvenile court of the

county, be referred to a school attendance

review board pursuant to Section 12404 of the

Education Code.

(b) If the school attendance review board

determines that the available public and

private services are insufficient or

inappropriate to correct the insubordination or

habitual truancy of the minor, or if the minor

fails to respond to directives of the school

attendance review board or to services

provided, the minor is then within the

jurisdiction of the juvenile court which may

adjudge such person to be a ward of the court.

76 C.B. V. CITY OF SONORA

Id. The legislature thus required that minors who disobey

school authorities be referred to a school attendance review

board before coming within the juvenile court’s jurisdiction.

In the context of this legislative scheme, it is clear that the

deletion of “school authorities” and “habitual truan[cy]” from

section 601 was a purposeful excision. The legislature’s

considered judgment was that school discipline and

attendance problems should go to the school attendance

review boards before the child is referred to juvenile court,

and that only “persistent[] or habitual[] refus[al] to obey . . .

school authorities” would suffice. As already discussed, the

present version of 601 embodies this same basic structure.

In sum, “custodian” and “school authorities” have long

held separate meanings in this statute. The non-inclusion of

minors who are beyond the control of school authorities from

section 601(a) was no mistake.

There is still more evidence of the total implausibility of

the officers’ interpretation of section 601. The current

provision requires that minors adjudged a ward of the court

under subsection (b) may only be removed from a parent or

guardian during school hours. If “custodian” in subsection

(a) includes school authorities, then a minor may be removed

from his home if he is adjudged a ward of the court for

“persistently or habitually refus[ing] to obey” school

authorities or, as here, for being “beyond the control of”

school authorities — a result plainly contrary to subsection

(b)’s considered prohibition against such a practice. Thus,

even if custodian is a general term that could, in some

circumstances, encompass school officials, the context in

which the term appears and the evolution of the statute

indicate that it does not serve this role in section 601.

C.B. V. CITY OF SONORA 77

Moreover, all the cases applying 601(a) to minors who

disobey or are beyond the control of their custodians refer to

persons charged with overall custody of a minor, not school

officials. See, e.g., In re Ronnie P., 10 Cal. App. 4th 1079,

1083 (Ct. App. 1992); In re Rita P., 12 Cal. App. 3d 1057,

1059, 1060 (Ct. App. 1970). Where “custodian” appears

elsewhere in the California Welfare and Institutions Code and

the cases applying it, review of its use illustrates that it does

not refer to schools.

For example, Welfare and Institutions Code section 777

requires a noticed hearing before “changing or modifying a

previous order by removing a minor from the physical

custody of a parent, guardian, relative, or friend.” Cal. Welf.

& Inst. Code § 777 (emphasis added). And section 601(a)’s

grouping of custodian with “parents” and “guardian” is

replicated in Ex parte Moilanen, which holds that “[p]arents,

guardians or others in whose custody a minor child may be

found, are entitled to notice of hearings in proceedings

instituted for the purpose of separating children from

custodian[s].” 104 Cal. App. 2d 835, 842 (Dist. Ct. App.

1951). School administrators and authorities generally do not

have the type of liberty interest in their relationship with their

students that carries due process protection.

Finally, a minor, even one identified as a “runner,” cannot

properly be deemed “beyond the control of” his custodian for

refusing to come inside after recess on a single occasion. As

Judge Paez recounts, examination of the cases interpreting

section 601(a) illustrates that this section mostly applies to

runaways — minors who are quite literally “beyond the

control” of their parents, guardians, or custodians, and for that

reason properly may be adjudged a ward of the state. See,

e.g., In re Bettye K., 234 Cal. App. 3d 143, 150 (Ct. App.

78 C.B. V. CITY OF SONORA

1991); In re Ronald S., 69 Cal. App. 3d 866, 872 (Ct. App.

1977) (“As a matter of fact, the overwhelming number of

601's are runaways.”); In re D.J.B., 18 Cal. App. 3d 782, 787

(Ct. App. 1971); In re David S., 12 Cal. App. 3d at 1128; In

re Rita P., 12 Cal. App. 3d at 1059. Construing “beyond the

control of” a parent, guardian, or custodian to mean a single

incident of misbehavior, such as sitting on a bench non-

responsively and refusing to come indoors, would eviscerate

the critical requirement that out-of-control conduct

amounting to disobedience must be “persistent[] or

habitual[]” to fall under 601(a)’s purview.

In sum, section 601(a) has not been applied to include and

does not include a single act of defiance of school officials.

The officers simply had no cause to take C.B. into custody

under this provision.

III.

Nor does qualified immunity insulate the officers from

C.B.’s Fourth Amendment claims.

“A police officer, who violates another’s constitutional

right, will receive qualified immunity from suit under

42 U.S.C. § 1983 if the right the officer violated was not

protected by clearly established law at the time he acted.”

A.D. v. California Highway Patrol, 712 F.3d 446, 449 (9th

Cir. 2013). “To be clearly established, the . . . law only must

have been sufficiently clear that a reasonable official would

understand that what he [was] doing violate[d] [a

constitutional] right.” Id. (internal quotation marks omitted,

all but first alteration in original).

C.B. V. CITY OF SONORA 79

“By defining the limits of qualified immunity essentially

in objective terms,” the aim is not to “license . . . lawless

conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).

To the contrary: “Where a reasonable official could be

expected to know that certain conduct would violate . . .

constitutional rights, he should be made to hesitate.” Id. The

standard of objective legal reasonableness thus acts to

safeguard “[t]he public interest in deterrence of unlawful

conduct and in compensation of victims,” without tying the

hands of officials acting in situations “in which clearly

established rights are not implicated.” Id.

The officers do not argue that, because he was a student,

C.B. had no Fourth Amendment protections. Nor could they:

Students do not “shed their constitutional rights . . . at the

schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 506 (1969); see T.L.O., 469 U.S. at 336.

Thus, the clearly established law at issue in this case is the

Fourth Amendment right to be free from unreasonable

seizures and, more particularly, its individualized suspicion

requirement. This constitutional guarantee protects “the right

of every individual to the possession and control of his own

person, free from all restraint or interference of others, unless

by clear and unquestionable authority of law.” Terry v. Ohio,

392 U.S. 1, 9 (1968).

When law enforcement officials effect a seizure of a

person without a warrant, as the officers did here, the

reasonableness requirement generally is satisfied if probable

cause exists to believe the person is violating the law.

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 625,

624 (1989); Beier v. City of Lewiston, 354 F.3d 1058, 1071

(9th Cir. 2004). But a warrantless seizure may, in narrow

circumstances, survive Fourth Amendment scrutiny where

80 C.B. V. CITY OF SONORA

probable cause does not exist. T.L.O., 469 U.S. at 340. In

such circumstances, involving, for example, the need to

investigate and deter possible criminal activity, seizures

based on “reasonable” suspicions not rising to the level of

probable cause satisfy the Fourth Amendment. Terry,

392 U.S. at 22.

That the Fourth Amendment guarantee is secured in

general terms does not assure the officers immunity:

“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope

v. Pelzer, 536 U.S. 730, 741 (2002). And while the general

terms of the Fourth Amendment’s proscription against

unreasonable seizures call out for further specificity, Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2084 (2011), case law provided

this further specificity by the time of C.B.’s 2008 seizure.

By 2008, the law was clearly established that the

constitution requires police officers to have some legal cause

to take children into custody. Crowe v. County of San Diego

held that a police officer was not entitled to qualified

immunity for a claim that the 1998 detention of two children

after the murder of the children’s sister violated the children’s

Fourth Amendment rights, as the officer “failed to provide

any justification” for the children’s seizure, 608 F.3d 406,

439 (9th Cir. 2010); Henderson v. Mohave County rejected

law enforcement’s assertion that qualified immunity

protected them against a section 1983 suit for taking a child

into custody, even for the purpose of transporting the child

from one parent to another, where there was “no excuse” for

the officers’ seizure of the child, 54 F.3d 592, 595 (9th Cir.

1995).

C.B. V. CITY OF SONORA 81

Here, the officers acknowledged that their seizure of C.B.

amounted to an arrest. In assessing the circumstances under

which a law enforcement officer may take a child into

temporary custody for being “beyond the control” of a parent,

guardian, or custodian, the California legislature arrived at a

reasonable cause standard. Cal. Welf. & Inst. Code § 625(a).

Thus, when law enforcement officers have reasonable cause

to believe a child falls within the ambit of section 601, they

may hold the child in temporary detention. Id. As the

officers explained during their testimony, this temporary

custody could involve transferring custody to the probation

department or to a private shelter. Cal. Welf. & Inst. Code

§ 626.

In my view, the police officers could not reasonably have

believed that they had cause, reasonable or otherwise, to take

C.B. into custody under section 601(a). I will therefore

assume that the state statute’s adoption of a reasonable, rather

than probable, cause standard, is consistent with the

constitutional guarantee, and will further assume that

“reasonable cause” is less than “probable cause,” which is not

self-evident. Still, if the officers could not reasonably have

believed some cause existed under section 601(a), qualified

immunity offers them no protection.

No reasonable officer would have believed that he had

any cause to take C.B. into custody pursuant to section 601.

The officers were told that that day C.B. was “out of control,”

a runner who had not taken his medication, and, in response

to questioning, that he was not wanted on school grounds.

But Sonora Elementary obviously was not C.B.’s parent,

82 C.B. V. CITY OF SONORA

guardian, or custodian: For the reason I have explained, there

is just no sensible reading of the statute otherwise.3

Moreover and separately, the officers’ account assuredly

did not provide reasonable cause to believe C.B. “persistently

or habitually refuse[d] to obey . . . reasonable and proper

orders or directions.” Cal. Welf. & Inst. Code § 601(a). Nor

did it provide reasonable cause to believe that C.B. was

“beyond the control” of anyone. California law is clear that

a single act of defiance is generally insufficient to find that a

minor is beyond the control of a parent, guardian, or

custodian absent some extraordinarily serious act of defiance.

See Paez, J., Opin. at 43–44 (citing In re David S., 12 Cal.

App. 3d at 1128 (holding that a minor who had told his

mother he would be spending the weekend with friends about

40 miles from home but who was actually found about 600

miles away from home attempting to cross the border into

Mexico was beyond the control of his parents) and In re

Bettye K., 234 Cal. App. 3d at 149).

In short, there was no cause, probable, reasonable, or

otherwise, to take C.B. into temporary custody under section

601, and no reasonable officer could have believed otherwise.

As the defense proffered by the officers in this case

confirms, law enforcement officers enforce the law, not run-

of-the-mill school discipline.4 And law enforcement officers

3

While there was testimony from the defense expert witness that the

police officers were trained otherwise, flatly erroneous training does not

establish qualified immunity. See Cal. Att’ys for Criminal Justice v. Butts,

195 F.3d 1039, 1049–50 (9th Cir. 1999).

4

T.L.O. notes this distinction. 469 U.S. at 341 n.7.

C.B. V. CITY OF SONORA 83

alone are authorized to take a child into temporary custody

upon reasonable cause to believe the child is in violation of

section 601(a). Cal. Welf. & Inst. Code § 625. Because there

was no cause to believe C.B. could be detained under these

Welfare Code provisions, and no reasonable officer could

believe that there was, I would affirm the judgment for C.B.

on these grounds. I would not manufacture a T.L.O.–based

law-enforcement-officers-as-school-disciplinarians defense

never argued to the jury, or us.