Motley v. Parks

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARLA MOTLEY; JUAN JAMERSON, 

Plaintiffs-Appellants,

v.

BERNARD PARKS; DARYL GATES; No. 02-56648

GERALD CHALEFF; HERBERT D.C. No.

BOECKMAN; T. WARREN JACKSON;  CV-00-01472-

ROBERT M. TALCOTT; RAYMOND C. MMM

FISHER; GUADALUPE SANCHEZ;

OPINION

GREGORY KADING; AL RUEGG;

JAMES BLACK; LAWRENCE WEBSTER;

DEAN HANSELL,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted En Banc

June 23, 2005—San Francisco, California

Filed December 30, 2005

Before: Mary M. Schroeder, Chief Judge, Betty B. Fletcher,

Harry Pregerson, Stephen Reinhardt, Alex Kozinski,

Andrew J. Kleinfeld, Barry G. Silverman, Susan P. Graber,

M. Margaret McKeown, Richard A. Paez, and Jay S. Bybee,

Circuit Judges.

Opinion by Judge Silverman;

Dissent by Judge Reinhardt

16823

MOTLEY v. PARKS 16827

COUNSEL

Stephen Yagman; Marion R. Yagman; Kathryn S. Bloom-

field, Yagman & Yagman & Reichmann & Bloomfield, Ven-

ice Beach, California, for the plaintiffs-appellants.

Rockard J. Delgadillo, City Attorney; Janet G. Bogigian, Dep-

uty City Attorney, Los Angeles, California, for defendants-

appellees Bernard Parks, Daryl Gates, Gregory Kading and

Albert Ruegg.

Debra W. Yang, United States Attorney; Leon W. Weidman,

Assistant United States Attorney, Chief, Civil Division; David

Pinchas, Assistant United States Attorney, Los Angeles, Cali-

fornia, for defendants-appellees James Black and Larry Web-

ster.

16828 MOTLEY v. PARKS

Bill Lockyer, Attorney General; Robert R. Anderson, Chief

Assistant Attorney General; Allen Crown, Acting Senior

Assistant Attorney General; Darrell Lepkowsky, Supervising

Deputy Attorney General; Robert Helfand, Elizabeth A.

Keech, Deputies Attorney General, Los Angeles, California,

for defendant-appellee Guadalupe Sanchez.

OPINION

SILVERMAN, Circuit Judge:

We took this case en banc to clarify a number of issues in

this circuit surrounding parole-related searches. We hold that,

before conducting a warrantless search pursuant to a properly

imposed parole condition, law enforcement officers must have

probable cause to believe that the parolee resides at the house

to be searched. In this case, they did. We do not, however,

decide whether law enforcement officers also need particular-

ized suspicion of wrong-doing before conducting such a

search because, while this appeal was pending, the Supreme

Court granted certiorari on that issue. It is sufficient for us to

conclude that, at the time the officers searched plaintiffs’

home, it was not clearly established that any suspicion of

wrong-doing on the part of the parolee was needed.

Accordingly, we affirm the grant of summary judgment in

favor of the officers on the illegal search claim. Also, we

affirm the dismissal of the Monell claims against former

LAPD police chiefs Parks and Gates, but reverse the summary

judgment to Officer Kading on the excessive force claim.

FACTS AND DISTRICT COURT PROCEEDINGS

The material facts, as construed in the light most favorable

to plaintiffs, are as follows.1 On February 20, 1998, Janae

1

We recognize that some of the material facts are contradicted by the

officers’ deposition testimony and declarations, but accept Motley’s reci-

MOTLEY v. PARKS 16829

Jamerson, a member of the Four Trey Crips gang, was

released on parole from state prison. As a condition of his

parole, Jamerson was required to consent that his person, resi-

dence, and any property under his control could be searched

at any time, by any agent of the Department of Corrections or

any other peace officer, with or without a warrant. See Cal.

Penal Code § 3067.2

During the month of January 1999, Darla Motley, Jamer-

son’s then-girlfriend, moved into an apartment located at 416

East 40th Place in Los Angeles. At some point, Jamerson also

lived there. However, Motley testified that “everything” was

in her name and that she paid the rent and all bills associated

with the apartment. Jamerson’s mother and brother lived in

another apartment at that address. On February 3, 1999,

Jamerson was taken back into custody as a result of a parole

violation. A few days later, Motley gave birth to their son,

Juan Jamerson.

Approximately six weeks later, on the morning of March

18, 1999, Los Angeles Police Department Officer Albert

Ruegg held a briefing for LAPD officers, officers from the

federal Bureau of Alcohol, Tobacco and Firearms, and Cali-

fornia state parole officers regarding the planned searches of

ten parolees’ residences in the Newton Street area. These offi-

cers were all part of the Newton Street task-force, a combined

tation of the facts for two reasons. This case arises in the posture of a

motion for summary judgment; accordingly, we are required to view all

facts and draw all reasonable inferences in favor of the nonmoving party,

Motley. See Hope v. Pelzer, 536 U.S. 730, 733 n.1 (2002). In addition,

here we are asked to resolve issues of qualified immunity; this inquiry

again requires us to take the facts “in the light most favorable to the party

asserting the injury.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

2

“Any inmate who is eligible for release on parole pursuant to this chap-

ter shall agree in writing to be subject to search or seizure by a parole offi-

cer or other peace officer at any time of the day or night, with or without

a search warrant and with or without cause.” Cal. Penal Code § 3067(a).

16830 MOTLEY v. PARKS

state and federal effort organized in November of 1998 to

combat gang-related violence and criminal activity. In March

1999, the task force was investigating the sudden rise in

shootings and armed robberies taking place in the Newton

Street area. Janae Jamerson was one of the ten parolees with

gang connections identified to be living in the Newton Street

area in the spring of 1999. The officers concede they had no

reasonable suspicion to believe that Jamerson was then-

involved in any crime; they were simply contacting and

searching local parolees with gang connections as a way to

“clean up” the Newton Street neighborhood.

Sometime before March 18, Officer Ruegg had directed a

member of his team to prepare “packages” on suspected gang-

member parolees in the Newton Street area. The proper prepa-

ration of a package entailed verifying whether a parolee was

on active parole and compiling address and identifying infor-

mation. Ruegg was informed that Jamerson’s last known

address was the apartment at 416 East 40th Place and that he

was on active parole. During the March 18 briefing, the offi-

cers charged with preparing the packages relayed the pertinent

information to the members of the various search teams.

At approximately 10:00 or 10:30 that morning, four task-

force officers from the various agencies went to search what

they believed to be Jamerson’s residence. The two ATF offi-

cers, James Black and Larry Webster, proceeded to the rear

of the apartment unit; California Parole Agent Guadalupe

Sanchez and LAPD officer Gregory Kading went to the front

door and knocked loudly.

Motley testified at her deposition that when she came to the

door, Kading identified himself as an LAPD officer, said that

he was there with Jamerson’s parole officer, and asserted that

they had a warrant to search the apartment. In fact, the offi-

cers did not have a warrant, and Jamerson’s parole officer was

not present. An exchange regarding Jameron’s whereabouts

ensued. Motley told the officers that Jamerson did not live

MOTLEY v. PARKS 16831

there and that he was in custody. One of the officers replied

that Jamerson had been released three days earlier. Motley

countered that she knew Jamerson was still in custody. The

officers then asked who was inside with her, and Motley

replied that only she and her five-week-old son, Juan, were at

home. Finally, one of the officers told Motley that they

needed to conduct the search and that if she did not let them

in, they would arrest her for interfering with the search and

Juan would be put in foster care. At this point, Motley

unlocked the security gate and Kading, Sanchez, and Black

entered the apartment. With their firearms drawn, Kading and

Black searched the house for Jamerson; Webster eventually

joined the others, but remained primarily in the living room.

During the search, Kading entered Motley’s bedroom with

his firearm unholstered. Juan was lying on Motley’s bed in

the bedroom. According to Motley, upon entering the room,

Kading pointed his gun at Juan and kept the firearm trained

on the infant while he searched the room; Kading put his gun

away only when another officer came in and helped him

examine a box at the foot of the bed. The officers spent at

least twenty minutes searching Motley’s bedroom.

After the officers left, Motley called Jamerson’s parole

officer, Ms. Smith, and told her that officers had come and

searched her entire home. Ms. Smith stated that she did not

authorize the search and confirmed that Jamerson was still in

custody. A few weeks after the search of her residence, Mot-

ley moved to San Pedro, because she said that she was afraid

to stay in the Newton Street area with her son.

Motley, on behalf of herself and her son Juan, filed a

§ 1983 action alleging that the officers violated their Fourth

Amendment rights, used excessive force, and conspired to

violate their Fourth Amendment and equal protection rights,

and that the law enforcement agencies were liable for the offi-

cers’ actions under Monell v. Department of Social Services,

436 U.S. 658 (1978). The officers moved for summary judg-

16832 MOTLEY v. PARKS

ment asserting that they were immune from suit. The district

court agreed and granted summary judgment on all claims.

Motley argues on appeal that the officers were not entitled to

qualified immunity for the unlawful search, the use of exces-

sive force against her infant son, and the Monell claims

against Gates and Parks.3

ANALYSIS

I. Qualified Immunity Standard

A private right of action pursuant to 42 U.S.C. § 1983

exists against law enforcement officers who, acting under the

color of authority, violate federal constitutional or statutory

rights of an individual. See Wilson v. Layne, 526 U.S. 603,

609 (1999). The defense of qualified immunity, however,

shields an officer from trial when the officer “reasonably mis-

apprehends the law governing the circumstances she confront-

ed,” even if the officer’s conduct was constitutionally

deficient. Brosseau v. Haugen, 543 U.S. 194, 125 S. Ct. 596,

599 (2004) (per curiam).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

laid out the framework for determining an officer’s entitle-

ment to qualified immunity. The threshold inquiry requires a

court to ask, “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right?” Id. at 201. The

inquiry ends at this stage if no constitutional right is found to

have been violated; the plaintiff cannot prevail. Id. If, on the

other hand, the plaintiff’s allegations do make out a constitu-

tional injury, then the court must determine whether that con-

stitutional right was clearly established at the time of the

violation. Id. If the right was not clearly established, the quali-

fied immunity doctrine shields the officer from further litiga-

3

Motley does not appeal the district court’s rulings on her conspiracy

claims.

MOTLEY v. PARKS 16833

tion. Id. Finally, even if the violated right was clearly

established, the Saucier court recognized that it may be diffi-

cult for a police officer fully to appreciate how the legal con-

straints apply to the specific situation he or she faces. Under

such a circumstance, “[i]f the officer’s mistake as to what the

law requires is reasonable, . . . the officer is entitled to the

immunity defense.” Id. at 205.

The parties urge us to skip the first step of the Saucier anal-

ysis. They ask us to assume that the officers violated Motley’s

constitutional rights by conducting a warrantless and suspi-

cionless search of her apartment without sufficient reason to

believe Jamerson lived there, and determine whether those

rights were clearly established at the time of the search. The

Supreme Court has placed strong emphasis on the need to

concentrate at the outset on the definition of the constitutional

right. See Brosseau, 125 S. Ct. at 598; Hope v. Pelzer, 536

U.S. 730, 736 (2002); Saucier, 533 U.S. at 201. The threshold

inquiry is intended to “set forth principles which will become

the basis for a holding that a right is clearly established” in

later cases. Saucier, 533 U.S. at 201. “This is the process for

the law’s elaboration from case to case,” and “[t]he law might

be deprived of this explanation were a court simply to skip

ahead to the question whether the law clearly established that

the officer’s conduct was unlawful in the circumstances of the

case.” Id.; see also Wilson, 526 U.S. at 609 (“Deciding the

constitutional question before addressing the qualified immu-

nity question also promotes clarity in the legal standards for

official conduct, to the benefit of both the officers and the

general public.”); Robinson v. Solano County, 278 F.3d 1007,

1012-13 (9th Cir. 2002) (en banc) (discussing Saucier).

Given the Supreme Court’s emphasis on our duty to clarify

the constitutional standards governing law enforcement offi-

cers in the performance of their duties, we find it necessary

to decide, first, what level of knowledge the officers needed

to support the belief that Jamerson resided at the 40th Place

16834 MOTLEY v. PARKS

address. In other words, how certain did they have to be that

they were at the right residence?

However, resolution of the related constitutional issue,

whether the officers also needed particularized suspicion of

wrong-doing on Jamerson’s part, poses unique circumstances

that warrant deviating from Saucier’s threshold inquiry. The

Supreme Court has granted certiorari in Samson v. California

on the precise issue involved in this case. See 126 S. Ct. 34

(2005).4 Thus, the very justification for Saucier’s first step is

inapplicable; avoiding the constitutional question will not

impede the elaboration of constitutional principles, and

answering the constitutional question would foster neither

certainty nor finality. The confluence of our consideration of

this case en banc and the Supreme Court’s concurrent review

of the same issue presents an extraordinary circumstance not

before presented.5 In this unusual circumstance, we bypass

Saucier’s first step and decide only whether it was clearly

established at the time of the search that the officers needed

some suspicion of wrongdoing.

4

The question presented for review in the petition for certiorari is:

“Does the Fourth Amendment prohibit police from conducting a warrant-

less search of a person who is subject to a parole search condition, where

there is no suspicion of criminal wrongdoing and the sole reason for the

search is that the person is on parole?” Petition for Writ of Certiorari,

Samson v. California, No. 04-9728, 2005 WL 2367028 (Apr. 12, 2005).

5

We note that two other circuit courts have avoided constitutional deter-

minations at the first step of the Saucier analysis where they were asked

to decide novel issues of state law that would have been “provisional only

and subject to reversal as a result of subsequent state court rulings.” Ehr-

lich v. Town of Glastonbury, 348 F.3d 48, 60 (2d Cir. 2003); see also

Tremblay v. McClellan, 350 F.3d 195, 200 (1st Cir. 2003) (“Saucier . . .

surely did not mean to require federal courts to define and clarify unclear

state statutes when this is wholly unnecessary to decide the case as

hand.”). Although we need not address the substance of that analysis, this

case presents an even more compelling reason to proceed to step two of

the Saucier analysis.

MOTLEY v. PARKS 16835

II. Section 1983 Illegal Search Claim

A. Probable Cause Is Needed to Establish Residence

[1] Where a law enforcement officer’s observations support

“a reasonable belief” that a parolee resides at a particular

address, this “provide[s] a reasonable basis for [a parole]

search.” United States v. Dally, 606 F.2d 861, 863 (9th Cir.

1979) (per curiam). We have not had occasion to elaborate

further the underpinnings of our analysis in the context of a

parole search. Nevertheless, the development of our precedent

in related contexts proves instructive.

In Perez v. Simmons, officers searched the home of Irma

Perez, without her consent, while looking for her brother who

was on probation and the subject of an arrest warrant. 884

F.2d 1136, 1141 (9th Cir. 1989), as amended 900 F.2d 213

(9th Cir. 1990), and as corrected 998 F.2d 775 (9th Cir.

1993). We stated that before law enforcement officers may

search a home to execute a search warrant, they must have

“reasonable grounds for believing” that the subject of the war-

rant resides in the apartment. Id. at 1140; see also United

States v. Albrektsen, 151 F.3d 951, 953-54 (9th Cir. 1998)

(applying same standard). In the absence of this requirement,

we risk diminishing the Fourth Amendment protections owed

to the homeowner.

Our subsequent decision in Watts v. County of Sacramento,

256 F.3d 886 (9th Cir. 2001), comports with this holding.

There, law enforcement officers received a tip that a murder

suspect was living at a particular address with his girlfriend

and two small children. The address differed from the sus-

pect’s last known address. When the officers arrived at the

address identified by the tipster, the plaintiff answered the

door. The officers observed that the plaintiff generally fit the

description of the suspect; moreover, and unfortunately for

the plaintiff, both the murder suspect and the plaintiff had the

same first name, Chris. The officers handcuffed the plaintiff

16836 MOTLEY v. PARKS

and performed a protective sweep of the house. At some

point, the officers realized that they had the wrong person in

custody and, after thirty to forty-five minutes, released the

plaintiff and explained the mistake to him. On appeal, we

reversed the district court’s grant of summary judgment to the

officers and held that an officer must have a “reasonable

belief” that the suspect named in an arrest warrant resides in

a third party’s home. Id. at 889-90 (relying on Payton v. New

York, 445 U.S. 573, 603 (1980)).

[2] These cases make clear that a search conducted without

consent or a search warrant is permissible only when the offi-

cers have some heightened knowledge that they are at the

address where either the parolee or the subject of an arrest

warrant resides. The underlying analysis fits equally well

here. A reasonable parole search conducted by law enforce-

ment officers without a warrant does not run afoul of the

Fourth Amendment. See Griffin v. Wisconsin, 483 U.S. 868,

872-75 (1987). Generally, a condition of parole that permits

warrantless searches provides officers with the limited author-

ity to enter and search a house where the parolee resides, even

if others also reside there. But they have to be reasonably sure

that they are at the right house. Nothing in the law justifies

the entry into and search of a third person’s house to search

for the parolee. “The Fourth Amendment’s protection against

unreasonable searches in a person’s home is not diminished

by the mere presence of a guest in the home.” Perez, 884 F.2d

at 1141. In other words, the parole condition indicates only

the parolee’s acquiescence to a warrantless search of his own

residence. Absent this provision and the existence of exigent

circumstances, officers must obtain consent or a warrant to

enter a house. See Moore v. Vega, 371 F.3d 110, 116 (2d Cir.

2004) (“Because plaintiff is not a parolee, she cannot be sub-

jected to the same burdens upon her privacy, and the depar-

tures from the usual warrant and probable-cause requirements

allowed with respect to parolees are not justified for her.”).

[3] Recently, we attempted to reconcile our previous hold-

ings. Following analysis of federal precedent, we concluded

MOTLEY v. PARKS 16837

that when it came to whether a person lives at a particular res-

idence, the “reason to believe” or “reasonable belief” standard

“should be read to entail the same protection and reasonable-

ness inherent in probable cause.” United States v. Gorman,

314 F.3d 1105, 1111-15 (9th Cir. 2002); see also Watts, 256

F.3d at 890 (“Courts have generally required substantial evi-

dence pointing to the suspect’s co-resident status to create a

reasonable belief that he lives in the home of a third party.”);

United States v. Harper, 928 F.2d 894, 896 (9th Cir. 1991)

(determining that police must have probable cause to believe

the subject of an arrest warrant is an actual resident of a loca-

tion before entering the premises to execute the warrant). We

see no reason to depart from that conclusion here.

These long-prevailing standards seek to safeguard

citizens from rash and unreasonable interferences

with privacy and from unfounded charges of crime.

They also seek to give fair leeway for enforcing the

law in the community’s protection. Because many

situations which confront officers in the course of

executing their duties are more or less ambiguous,

room must be allowed for some mistakes on their

part. But the mistakes must be those of reasonable

men, acting on facts leading sensibly to their conclu-

sions of probability. The rule of probable cause is a

practical, nontechnical conception affording the best

compromise that has been found for accommodating

these often opposing interests. Requiring more

would unduly hamper law enforcement. To allow

less would be to leave law-abiding citizens at the

mercy of the officers’ whim or caprice.

Brinegar v. United States, 338 U.S. 160, 176 (1949).

[4] Requiring officers to have probable cause to believe

that a parolee resides at a particular address prior to conduct-

ing a parole search protects the interest of third parties. Law

enforcement officers are allowed to search a parolee’s resi-

16838 MOTLEY v. PARKS

dence, but they must have probable cause to believe that they

are at the parolee’s residence. In sum, we hold that before

conducting a warrantless search pursuant to a parolee’s parole

condition, law enforcement officers must have probable cause

to believe that the parolee is a resident of the house to be

searched.

B. The Officers Had Probable Cause to Believe That

Jamerson Resided with Motley

We now turn our attention to whether appellees’ conduct

deprived Motley of this right. Officer Ruegg supervised the

Newton Street task-force; Kading, Sanchez, and Black con-

ducted the search; and Webster was an agent in training who

remained in the living room during the search. The officers

contend that they reasonably relied on the information gath-

ered by and received from the LAPD regarding Jamerson’s

parole status and last known address. Ruegg testified that to

the best of his recollection, approximately a month before the

search he assigned the task of compiling and confirming

Jamerson’s information to a member of his unit.6 In addition

to that information, Kading testified that he had contact with

Jamerson on previous occasions, including at the 416 East

40th Place residence. During at least one of those prior inter-

actions, Jamerson and his grandmother confirmed that Jamer-

son lived at the location at issue. Indeed, Sanchez testified

that when they arrived at the apartment building, Kading indi-

cated that Jamerson lived in the rear unit.7 Kading additionally

testified that he independently knew Jamerson was on parole.

6

Motley argues that the information was compiled in November 1998,

and as a result, it was stale and unreliable. The district court found, as do

we, that this argument is not supported by the record. The most that can

be said from the record is that the task-force started in November 1998

and began collecting “broad information” at that time. As for specific

information related to the address in question, the uncontradicted evidence

established that such information was developed “sometime within that

month prior to” March 18, 1999, the date of the search.

7

The following exchange took place at Sanchez’s deposition:

Q: How did you choose to go to the [structure] in the back?

MOTLEY v. PARKS 16839

A supervisor can be liable under § 1983 if he “set[s] in

motion a series of acts by others . . . , which he knew or rea-

sonably should have known, would cause others to inflict the

constitutional injury.” Larez v. City of Los Angeles, 946 F.2d

630, 646 (9th Cir. 1991) (internal quotation marks and brack-

ets omitted). Liability can exist without direct participation by

the supervisor. Redman v. County of San Diego, 942 F.2d

1435, 1446 (9th Cir. 1991) (en banc). However, “[a]bsent

some indication to a supervisor that an investigation was inad-

equate or incompetent, supervisors are not obliged either to

undertake de novo investigations or to cross examine subordi-

nates reasonably believed to be competent as to whether their

investigations were negligent.” Cecere v. City of New York,

967 F.2d 826, 829 (2d Cir. 1992). There is no evidence in the

record that Ruegg knew or had any reason to believe that the

investigation regarding Jamerson’s last known address and

parole status was inadequate or incompetent.

[5] Effective and efficient law enforcement requires coop-

eration and division of labor to function. For that reason, law

enforcement officers are generally entitled to rely on informa-

tion obtained from fellow law enforcement officers. See

Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S.

560, 568 (1971); United States v. Bernard, 623 F.2d 551, 560-

61 (9th Cir. 1980). We recently reaffirmed this principle in

United States v. Jensen, 425 F.3d 698 (9th Cir. 2005), where

we held that, under the “collective knowledge doctrine,” prob-

able cause may be based on “the collective knowledge of all

the officers involved in the investigation and all of the reason-

A: That was information that LAPD had.

Q: What information was communicated to you that you should

go to the structure in the back? Did someone tell you, “Go

to the one over there,” or something like that?

A: I believe it was a sergeant that indicated that it was the rear

residence.

16840 MOTLEY v. PARKS

able inferences that may be drawn therefrom.” Id. at 705

(internal quotation marks omitted). We emphasized that an

officer “was entitled to rely on the observations and knowl-

edge of the others, even though some of the critical informa-

tion had not been communicated to him.” Id. (brackets and

internal quotation marks omitted).

Typically, of course, “only one or a few officers plan and

lead a search, but more — perhaps many more — help exe-

cute it. The officers who lead the team that executes a warrant

are responsible for ensuring that they have lawful authority

for their actions.” Ramirez v. Butte-Silver Bow County, 298

F.3d 1022, 1027 (9th Cir. 2002), aff’d, 540 U.S. 551 (2004).

“Line officers, on the other hand, are required to do much

less.” Id. at 1028. All officers, however, have an ongoing duty

to make appropriate inquiries regarding the facts received or

to further investigate if insufficient details are relayed. See

Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283,

1293 n.16 (9th Cir. 1999). We have said, for example, that

when conducting a search pursuant to a warrant, the officers

involved should familiarize themselves with the nature and

scope of the search authorized by the warrant. See Guerra v.

Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986). The lynchpin is

whether the officer’s reliance on the information was objec-

tively reasonable. See United States v. Hensley, 469 U.S. 221,

232-33 (1985).

[6] During the briefing on the morning of the search, other

officers provided appellees with Jamerson’s parole status and

last known address. We agree with the district court that the

officers’ reliance on this information was objectively reason-

able. Where an officer has an objectively reasonable, good-

faith belief that he is acting pursuant to proper authority, he

cannot be held liable if the information supplied by other offi-

cers turns out to be erroneous. See id. at 232; United States

v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976) (“A facially

valid direction from one officer to another to stop a person or

a vehicle insulates the complying officer from assuming per-

MOTLEY v. PARKS 16841

sonal responsibility or liability for his act done in obedience

to the direction.”). “In dealing with probable cause, . . . as the

very name implies, we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act.” Brinegar, 338 U.S. at 175; see also Illinois

v. Rodriguez, 497 U.S. 177, 185 (1990) (“[P]robable cause . . .

demands no more than a proper assessment of probabilities in

particular factual contexts.” (internal quotation marks omit-

ted)). Given that the appellees had probable cause to believe

that Jamerson resided with Motley, they acted lawfully in

searching the residence, even though it turned out that only

Motley was there at the time.8

We also affirm the grant of summary judgment in favor of

ATF Agent Webster on the independent ground that he did

not participate in the search of the premises. See Jones v. Wil-

liams, 297 F.3d 930, 936 (9th Cir. 2002) (discussing that

merely being present at the scene of an alleged constitutional

violation, without personal participation, is insufficient to

hold individual officer liable).

[7] Finally, we conclude that because the officers had prob-

able cause to believe that they were at Jamerson’s residence,

they were entitled to maintain that belief until “presented with

convincing evidence that the information they had relied upon

was incorrect.” Moore, 371 F.3d at 118. Motley’s statement

that Jamerson did not live at that address, coming from a less-

than-disinterested source, did not undermine the information

the officers previously had received from their advance brief-

ing. It is not an unheard-of phenomenon that one resident will

8

We additionally note that Motley and Jamerson’s infant son continued

to live at the 40th Place apartment, and a good argument can be made that

the apartment remained Jamerson’s “residence” even though he was “tem-

porarily away.” We need not decide that issue. It is sufficient to hold that

on March 18, 1999, the officers had probable cause to believe that Mot-

ley’s home was also Jamerson’s.

16842 MOTLEY v. PARKS

tell police that another resident is not at home, when the other

resident actually is hiding under a bed when the police come

to call. See, e.g., United States v. Amburn, 412 F.3d 909, 913

(8th Cir. 2005) (recounting that suspect was discovered hiding

under a bed after two friends claimed he had “left”).

As explained above, the officers required probable cause to

believe that the apartment on 40th Place was Jamerson’s, and

they met that burden. The next question is whether it was

clearly established at the time they searched Motley’s apart-

ment that the officers required particularized suspicion of

wrong-doing on Jamerson’s part. For the reasons that follow,

we hold that it was not.

C. It Was Not Clearly Established That Appellees

Needed Any Suspicion of Wrong-Doing

[8] “To accomplish the purpose of parole, those who are

allowed to leave prison early are subjected to specified condi-

tions for the duration of their terms. These conditions restrict

their activities substantially beyond the ordinary restrictions

imposed by law on an individual citizen.” Morrissey v.

Brewer, 408 U.S. 471, 478 (1972). A state may closely super-

vise parolees and impinge on their privacy rights to a greater

extent than on the rights of the general public because admin-

istration of the parole system is within the state’s “special

needs” to ensure that the parolee observes the conditions of

parole. Griffin, 483 U.S. at 873. Parolees retain some Fourth

Amendment safeguards, id. at 874, but are not entitled to the

full panoply of rights and protections possessed by the general

public.

[9] The touchstone of the Fourth Amendment is reasonable-

ness. Aside from that well-settled principle, though, the law

concerning what level of suspicion officers had to have before

conducting a parole search — if any — was in “disarray”

when appellees searched Motley’s apartment. United States v.

Conway, 122 F.3d 841, 843 (9th Cir. 1997) (Wallace, J., con-

MOTLEY v. PARKS 16843

curring) (“Our precedent on the Fourth Amendment standards

governing state probation searches is in considerable disar-

ray.”).9

It is useful to begin our analysis with the Supreme Court’s

1987 decision in Griffin, where it held that a state may pro-

vide by law for searches of parolees and their property,

including their homes, on less than probable cause. The Court

upheld a Wisconsin regulation that subjected parolees to

searches upon “reasonable grounds” to suspect the presence

of contraband. See 483 U.S. at 872. In upholding that regula-

tion, however, the Court did not specify the lower bounds of

its holding. For instance, the Court did not decide whether a

state law may provide for searches of parolees at any time, for

any or no reason.

Since Griffin, the Supreme Court has twice addressed the

constitutional limitations on parole-related searches, but nei-

ther case answers the precise question before us. In Pennsyl-

vania Board of Probation and Parole v. Scott, 524 U.S. 357,

369 (1998), the Court held that parole boards are not required

by federal law to exclude evidence obtained in violation of the

Fourth Amendment. The Court expressly declined to rule on

the question of whether a search of a parolee’s residence must

be based on reasonable suspicion where the parolee has con-

sented to searches as a condition of parole. Id. at 362 n.3.

Three years later, the Court picked up where it left off, hold-

ing that “no more than reasonable suspicion” of a probation

violation is required to conduct a search of a probationer’s

residence. United States v. Knights, 534 U.S. 112, 121 (2001)

(emphasis added) (“When an officer has reasonable suspicion

that a probationer subject to a search condition is engaged in

criminal activity, there is enough likelihood that criminal con-

9

We have consistently recognized that there is no “ ‘constitutional dif-

ference between probation and parole for purposes of the fourth amend-

ment.’ ” Moreno v. Baca, 400 F.3d 1152, 1168 n.12 (9th Cir. 2005)

(quoting Harper, 928 F.2d at 896 n.1).

16844 MOTLEY v. PARKS

duct is occurring that an intrusion on the probationer’s signifi-

cantly diminished privacy interests is reasonable.”). The

Court in Knights determined that the search at issue was sup-

ported by reasonable suspicion, but again expressly left open

the precise question before us: Is a parolee’s expectation of

privacy so diminished that a search without any particularized

suspicion is reasonable? Id. at 120 n.6. This alone strongly

suggests that the issue was not clearly established in March

1999, nearly two years before the Court issued its opinion in

Knights. See United States v. Kincade, 379 F.3d 813, 830 (9th

Cir. 2004) (en banc) (“The only rational interpretation of

Knights’s express reservation is that . . . it remains entirely an

open question whether suspicionless searches of conditional

releasees pass constitutional muster when such searches are

conducted for law enforcement purposes.”), cert. denied, 125

S. Ct. 1638 (2005).

Of course, the lack of a Supreme Court decision does not

prevent a finding that a right is clearly established. Naturally,

our decisions relating to the legality of searches of probation-

ers and parolees are binding on law enforcement officers in

this circuit. But our caselaw provides no clearer a picture of

what was constitutionally required when the officers searched

Motley’s apartment. Before that search, some of our cases

suggested that if officers conducted a parole search in accor-

dance with state law, it would pass constitutional muster. See

United States v. Garcia-Cruz, 978 F.2d 537, 541 (9th Cir.

1992) (“A parole search is proper if conducted in a manner

consistent with state law.”). For example, in United States v.

Johnson, 722 F.2d 525, 527 (9th Cir. 1983), we held that the

validity of a state probation condition permitting searches

“upon any reasonable request of a law enforcement officer”

was governed by California law. See id. (“First, we look to

whether the search condition itself was valid under California

law. Second, we examine whether under the circumstances of

this case the search condition was correctly applied.”). While

we required that there “ ‘be some conduct reasonably sugges-

tive of criminal activity to “trigger” the search,’ ” we cited

MOTLEY v. PARKS 16845

California law for that rule. Id. at 527 (quoting People v.

Guerrero, 149 Cal. Rptr. 555, 560 (Cal. Ct. App. 1978)).

Indeed, in evaluating the reasonableness of the search in

Johnson, our only reliance on federal law was our condemna-

tion of the “practice of using one person’s search condition as

a pretext for conducting a general search unrelated to the acts

of the probationer.” Id. at 528.

Next, in United States v. Wryn, 952 F.2d 1122, 1124 (9th

Cir. 1991), we held that “had the warrantless search of the

probationer Wryn’s home been authorized by either Montana

state law or by Wryn’s probation agreement we would con-

sider the search ‘reasonable’ under the fourth amendment.”

Wryn involved a state law that required “reasonable cause as

may be ascertained by a probation/parole officer” before con-

ducting a search. Id. at 1124 n.1. We did not indicate in any

way, however, that Montana’s “reasonable cause” require-

ment ensured that its law authorizing probation searches did

not itself violate the Fourth Amendment.

In United States v. Watts, 67 F.3d 790 (9th Cir. 1995), we

again tied the constitutionality of probation searches to com-

pliance with state law. We said that “[b]ecause a state’s oper-

ation of its probation system presents ‘special needs’ beyond

normal law enforcement which render impracticable the

Fourth Amendment’s usual warrant and probable cause

requirements, probation searches conducted pursuant to state

law satisfy the Fourth Amendment’s reasonableness require-

ment.” Id. at 793 (citing Griffin, 483 U.S. at 872-80). As in

Wryn, the relevant state law at the time required reasonable

suspicion of criminal activity before conducting a parole

search, see People v. Burgener, 714 P.2d 1251, 1269-71 (Cal.

1986),10 and that standard was satisfied. See Watts, 67 F.3d at

794 (officer conducting search “suspected that Watts . . . had

returned to the business of selling drugs”). Thus, we had no

10

Burgener was overruled by People v. Reyes, 968 P.2d 445, 449 (Cal.

1998), which is discussed infra at 16845-49.

16846 MOTLEY v. PARKS

occasion to decide whether a state law that did not require

such suspicion violates the Fourth Amendment.

Two years later, we appeared to clarify what we meant

when we previously referred to state law in the context of

parole searches. In Conway, we said that “[a] probation search

is permissible if conducted pursuant to a state law that satis-

fies the Fourth Amendment’s reasonableness standard.” 122

F.3d at 842 (emphasis added). We ultimately upheld the

search in Conway because it satisfied a state statute authoriz-

ing parolee searches upon “reasonable cause to believe that an

offender has violated a condition or requirement of the sen-

tence.” Id. (internal quotation marks omitted). If we achieved

clarity in Conway, it did not last long.

In the same year we decided Conway, we embraced our

earlier condemnation of using a parolee’s search condition as

a pretext for other law enforcement investigations and

declared that “we have long recognized that the legality of a

warrantless search depends upon a showing that the search

was a true probation search and not an investigation search.”

United States v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997)

(search cannot be a “mere ‘subterfuge’ enabling the police to

avoid having to obtain a search warrant”). Adding to the con-

fusion, we said nothing of a reasonable suspicion of wrong-

doing on the probationer’s part. Although in Knights the

Supreme Court ultimately rejected Ooley’s and Johnson’s

focus on the underlying purpose of the search, see United

States v. Stokes, 292 F.3d 964, 967 (9th Cir. 2002) (“Knights

overturned a ruling of this court invalidating a search of a pro-

bationer on the ground that the search was not for probation-

ary purposes, but was a mere subterfuge for a criminal

investigation.”), that occurred after the search at issue here,

see Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)

(“Generally, courts do not look to post-incident cases to deter-

mine whether the law was clearly established at the time of

the incident.”).

MOTLEY v. PARKS 16847

[10] Against that backdrop, we simply cannot say that the

contours of when officers could conduct parole-related

searches was “sufficiently clear” so that appellees understood

that their warrantless and suspicionless search of Motley’s

apartment violated her rights. See Sorrels v. McKee, 290 F.3d

965, 970 (9th Cir. 2002) (phrasing test as, “[s]urveying the

legal landscape as it existed in 1997 and 1998, were the con-

tours of the right sufficiently clear that a reasonable official

would understand that what he was doing violated that right?”

(internal quotation marks and brackets omitted)).11 Around six

(Text continued on page 16849)

11

We acknowledge that, in the absence of binding precedent, we look

to all available decisional law. See Osolinski, 92 F.3d at 936. While the

other circuits have grappled with issues concerning parole-related

searches, many of their rulings have no bearing on this case because they

involve a state-imposed requirement of something like reasonable suspi-

cion. See, e.g., United States v. Baker, 221 F.3d 438, 449 (3d Cir. 2000);

United States v. Payne, 181 F.3d 781, 786-87 (6th Cir. 1999); United

States v. Jones, 152 F.3d 680, 687 (7th Cir. 1998); United States v. Lewis,

71 F.3d 358, 362 (10th Cir. 1995). Indeed, the only pre-March 1999 cir-

cuit cases that appear to address the issue before us — whether warrantless

and suspicionless searches of parolees are constitutional — arrived at dif-

ferent conclusions. Compare Owens v. Kelley, 681 F.2d 1362, 1368 (11th

Cir. 1982) (“It is clear that a requirement that searches only be conducted

when officers have ‘reasonable suspicion’ or probable cause that . . . a

condition of probation has been violated could completely undermine the

purpose of the search condition.”), with United States v. Scott, 678 F.2d

32, 34-35 (5th Cir. 1982) (“emerging and now rather stabilized concept”

of reasonable suspicion governs parole searches). Two other circuit courts

avoided the issue. See United States v. McFarland, 116 F.3d 316, 318 (8th

Cir. 1997) (“leav[ing] . . . for another day” the question of whether Cali-

fornia’s law authorizing suspicionless parole searches is constitutional);

United States v. Giannetta, 909 F.2d 571, 576 & n.2 (1st Cir. 1990) (“We

express no opinion as to whether [search conditions without a reasonable-

ness limitation] could routinely be imposed on all probationers.”).

Nor does our survey of other pre-March 1999 caselaw compel the con-

clusion that the relevant law was clearly established. Two federal district

courts sanctioned the warrantless and suspicionless search of a parolee,

see Rowe v. Carson, 911 F. Supp. 389, 393-94 (D. Neb. 1996) (recogniz-

ing that the Nebraska Supreme Court upheld as constitutional search con-

ditions “ ‘requiring the probationer to submit to warrantless searches, to

16848 MOTLEY v. PARKS

the extent that they contribute to the rehabilitation process and are done

in a reasonable manner’ ” (quoting State v. Morgan, 295 N.W.2d 285, 289

(Neb. 1980))); United States ex rel. Randazzo v. Follette, 282 F. Supp. 10,

13 (S.D.N.Y. 1968) (“Any search by a parole officer in good faith to

determine whether a paroled prisoner is complying with the conditions of

his release would . . . be reasonable [unless] made too often or if made at

an unreasonable hour or if unreasonably prolonged or for other reasons

establishing arbitrary or oppressive conduct by the parole officer.” (inter-

nal quotation marks and ellipsis omitted)), as did several state courts, see,

e.g., State v. Zeta Chi Fraternity, 696 A.2d 530, 540 (N.H. 1997)

(“random warrantless searches of probationers not based on particularized

suspicion of misconduct are constitutionally permissible” if search condi-

tion “is reasonably related to the supervision and rehabilitation of the pro-

bationer”); State v. Perbix, 331 N.W.2d 14, 21 (N.D. 1983) (“We . . .

decline to impose a requirement that [parole] searches may be permitted

only upon a showing of ‘reasonable suspicion . . . .’ ”), overruled by State

v. Maurstad, 647 N.W.2d 688 (N.D. 2002); see also Hancock v. State, 424

S.E.2d 77, 78 (Ga. Ct. App. 1992) (upholding search condition authorizing

searches “any time of the day or night, with our without a search warrant

whenever requested . . . by a probation supervisor”).

Many states disagreed with that approach. See, e.g., People v. Eiland,

576 N.E.2d 1185, 1191-92 (Ill. Ct. App. 1991) (probation searches must

satisfy “reasonableness standard”); Pena v. State, 792 P.2d 1352, 1357-58

(Wyo. 1990) (parole searches require “reasonable suspicion”); Common-

wealth v. LaFrance, 525 N.E.2d 379, 380 (Mass. 1988) (“We agree that

. . . the Fourth Amendment . . . forbid[s] the search of a probationer or her

premises unless the probation officer has at least a reasonable suspicion

that a search might produce evidence of wrongdoing.”); State v. Velas-

quez, 672 P.2d 1254, 1260 (Utah 1983) (parole searches require reason-

able suspicion). In many cases, however, it is difficult if not impossible

to discern whether the state court was interpreting state law as requiring

reasonable suspicion or something similar. See, e.g., Eiland, 576 N.E.2d

at 1191 (“any probation condition imposed must be ‘reasonable’ under the

language of section 5-6-3(b) [of Ill. Rev. Stat.]”); Seim v. State, 590 P.2d

1152, 1155 (Nev. 1979) (citing Colorado caselaw for requirement that

officer “have reasonable grounds to believe that a violation of the parole

or probation has occurred”); see also Zeta Chi Fraternity, 696 A.2d at

538-39 (discussing federal cases but noting that when “federal law is not

more favorable to the defendant, we make no separate federal analysis”

(citations omitted)); LaFrance, 525 N.E.2d at 380 (state constitution also

requires reasonable suspicion before conducting probation search). To the

MOTLEY v. PARKS 16849

months before the search of Motley’s apartment, California

law changed dramatically and sanctioned a suspicionless

search of a parolee’s residence. See People v. Reyes, 968 P.2d

445, 451 (Cal. 1998) (overruling earlier decision and conclud-

ing that “particularized suspicion is not required in order to

conduct a search based on a properly imposed search condi-

tion” (emphasis added)). Appellees reasonably could have

believed that, under our prior caselaw, the constitutionality of

the search condition in Jamerson’s parole agreement — which

did not require any suspicion of wrong-doing — depended in

significant part on compliance with California law. Indeed,

given our decisions in Ooley and Johnson, appellees reason-

ably could have viewed federal law as prohibiting only those

searches that are done as a pretext for police investigations

unrelated to the parolee. Although we now know that the lat-

ter belief was wrong in light of Knights, and the Supreme

Court in Samson may tell us the former was too, that could

not have been predicted in March 1999.

Motley cites two other cases to support her argument that

we have “long required officers to have reasonable suspicion

linking the parolee to some wrongdoing,” but neither comes

close to meeting the “clearly established” threshold. In United

States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991), we noted

that “[t]he permissible bounds of a probation search are gov-

erned by a reasonable suspicion standard.” The question

before us, though, was whether a safe inside the probationer’s

residence was a reasonable extension of the search condition

in his probation agreement. We ultimately held that the “po-

lice must have reasonable suspicion, that an item to be

searched is owned, controlled, or possessed by probationer, in

order for the item to fall within the permissible bounds of a

probation search.” Id. Thus, viewed in its proper context, the

Davis holding has little to do with our requiring a particular-

extent those courts were interpreting state law as imposing such a require-

ment, they shed no light on the issue before us.

16850 MOTLEY v. PARKS

ized suspicion of wrong-doing. It merely reflects our require-

ment — set forth earlier in this opinion — that officers have

probable cause to believe that what they intend to search actu-

ally belongs, or is connected, to the parolee.

United States v. Dally is at best ambiguous on the issue.

There we said that a parolee “may be searched, pursuant to a

consent provision in his parole terms, if his parole officer rea-

sonably believes a search is appropriate.” 606 F.2d at 863.

The parole agreement required Dally to obtain permission

before changing residences and consent to searches “of his

residence by his Parole Agent, any agent of the Department

of Corrections, or any law enforcement officer.” Id. at 862

(internal quotation marks omitted). We held that the parole

officer’s search was “authorized by California law” where the

parolee failed to return calls and the officer learned that the

parolee had another residence. Id. at 863. We did not, how-

ever, clarify whether we did so because the officer had a rea-

sonable belief as to the parolee’s new residence or because the

parolee had violated the terms of his parole agreement by

moving without permission.

Finally, we find it necessary to address Moreno v. Baca,

No. 02-55627, 2005 U.S. App. LEXIS 26906 (9th Cir. Dec.

9, 2005) (as amended), decided earlier this year by a three-

judge panel of our court. Moreno alleged that in January

2000, for essentially no reason whatsoever, while he was

merely walking down the street, officers stopped, detained,

and searched him. It was not until afterward that officers

learned that Moreno was on parole. The officers sought to jus-

tify their actions retroactively on the ground that, as a parolee,

Moreno was subject to search at will. Accordingly, the issue

before the Moreno panel was whether officers must be aware

of a parole condition before conducting a parole search. The

panel’s holding concludes that

[b]ecause the Deputies did not know of Moreno’s

parole status . . . at the time they searched and seized

MOTLEY v. PARKS 16851

him, th[is] circumstance[ ] cannot justify their con-

duct. At the time of the incident in this case, it was

clearly established that the facts upon which the rea-

sonableness of a search or seizure depends, whether

it be an outstanding arrest warrant, a parole condi-

tion, or any other fact, must be known to the officer

at the time the search or seizure is conducted.

Id. at *21-22 (citations omitted).

We agree with the Moreno court to the extent that it deter-

mined that the officers must be aware that the individual is on

parole before conducting a parole search. See, e.g., United

States v. Luckett, 484 F.2d 89, 90-91 (9th Cir. 1973) (per

curiam). However, Moreno could be read as a declaration that

it has long been the law of this circuit that law enforcement

officers must have reasonable suspicion of wrongdoing to jus-

tify a parole search. Whether or not that reading goes beyond

the issue presented in Moreno, we reject it. We are squarely

confronted with the issue in this case and hold that it was not

clearly established at the time the officers searched Motley’s

apartment.

[11] In summary, the officers are entitled to qualified

immunity for their search of Motley’s apartment because,

first, they had probable cause to believe that parolee Jamerson

was living there; and second, it was not clearly established

that a particularized suspicion of wrong doing on Jamerson’s

part was required as a prerequisite to the search of his resi-

dence. Accordingly, as respects the search, summary judg-

ment in favor of the officers was properly granted.

III. Section 1983 Excessive Force Claim

Motley alleges that during the search of her apartment,

Kading pointed a firearm at five-week-old Juan Jamerson,

who was lying on the bed in Motley’s bedroom, and kept the

firearm trained on the infant while he searched the room. The

16852 MOTLEY v. PARKS

district court concluded that Kading was entitled to qualified

immunity with respect to this claim. We reverse and remand.

A. Parameters of the Constitutional Right

[12] Claims that law enforcement officers have used exces-

sive force in the course of an arrest, investigatory stop, or

other seizure12 “are properly analyzed under the Fourth

Amendment’s ‘objective reasonableness’ standard.” Graham,

490 U.S. at 388. The use of a force against a person who is

helpless or has been subdued is constitutionally prohibited.

Robinson, 278 F.3d at 1014-15 (holding that officers’ use of

firearms at close range, pointed at unarmed misdemeanor sus-

pect’s head, was excessive force); see also Drummond v. City

of Anaheim, 343 F.3d 1052, 1057-58 (9th Cir. 2003) (holding

that officers’ alleged act of prolonged pressure onto detainee’s

prone body as he lay on the ground handcuffed and gasping

for air constituted excessive force), cert. denied, 542 U.S. 918

(2004); Headwaters Forest Def. v. County of Humboldt, 276

F.3d 1125, 1130 (9th Cir. 2002) (holding that repeated use of

pepper spray against nonviolent protestors under police con-

trol rose to the level of excessive force).

[13] An officer’s show of force is subject to Fourth Amend-

ment reasonableness requirements even where no actual force

is applied. See Robinson, 278 F.3d at 1014-15 (indicating

agreement with the Fifth Circuit that “ ‘[a] police officer who

terrorizes a civilian by brandishing a cocked gun in front of

that civilian’s face may not cause physical injury, but he has

certainly laid the building blocks for a section 1983 claim

against him.’ ” (quoting Petta v. Rivera, 143 F.3d 895, 905

(5th Cir. 1998) (per curiam))). The Seventh Circuit has also

12

“A ‘seizure’ triggering the Fourth Amendment’s protections occurs

only when government actors have, ‘by means of physical force or show

of authority, . . . in some way restrained the liberty of a citizen.” Graham

v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968)).

MOTLEY v. PARKS 16853

reached this conclusion. In McDonald v. Haskins, 966 F.2d

292 (7th Cir. 1992), the court held that

It should have been obvious to [the officer] that his

threat of deadly force — holding a gun to the head

of a 9-year-old and threatening to pull the trigger —

was objectively unreasonable given the alleged

absence of any danger to [the officer] or other offi-

cers at the scene and the fact that the victim, a child,

was neither a suspect nor attempting to evade the

officers or posing any other threat.

Id. at 295.

[14] In this case, as in McDonald, none of the factors justi-

fying the use of force toward Juan exists. While it may have

been reasonable for Kading to have drawn his firearm during

the initial sweep of a known gang member’s house, his keep-

ing the weapon trained on the infant, as he was alleged to

have done, falls outside the Fourth Amendment’s objective

reasonableness standard. Motley has stated a constitutional

violation.

B. Qualified Immunity

Having determined that Motley’s factual allegations, if

true, establish a constitutional violation, we turn our attention

to evaluating whether the law was clearly established such

that a reasonable officer would have known that the conduct

was unlawful. To be clearly established for qualified immu-

nity purposes, the contours of the asserted right must be “suf-

ficiently clear that a reasonable official would understand that

what he is doing violates that right.” Camarillo v. McCarthy,

998 F.2d 638, 640 (9th Cir. 1993) (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, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.”

16854 MOTLEY v. PARKS

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

omitted); McDonald, 966 F.2d at 295 (recognizing that the

qualified immunity defense will not succeed merely because

the alleged behavior is so egregious that no previous case has

found liability under those circumstances).

[15] Viewing the evidence in the light most favorable to

Motley, the conduct engaged in by Officer Kading was objec-

tively unreasonable given the absence of danger posed by

Juan to Kading or any of the other officers at the scene. The

use of any force was unwarranted under these circumstances.

Any reasonable officer should have known that holding an

infant at gunpoint constituted excessive force. “Although

there is no prior case prohibiting the use of this specific type

of force in precisely the circumstances here involved, that is

insufficient to entitle [Officer Kading] to qualified immunity:

notwithstanding the absence of direct precedent, the law may

be, as it was here, clearly established.” Deorle v. Rutherford,

272 F.3d 1272, 1285 86 (9th Cir. 2001). We reverse the dis-

trict court’s grant of summary judgment in favor of Officer

Kading on the excessive force claim and remand to the district

court for further proceedings.

IV. Monell Claims

[16] We agree with the district court that Motley has not

presented sufficient evidence to establish liability pursuant to

Monell v. Department of Social Services, 436 U.S. 658

(1978). Accordingly, we affirm the dismissal of her claims

against former LAPD police chiefs Parks and Gates.

CONCLUSION

We affirm the district court’s grant of summary judgment

in favor of the officers as respects the search. We also affirm

the district court’s summary judgment in favor of the city offi-

cials as to the Monell claims. We reverse the court’s grant of

MOTLEY v. PARKS 16855

qualified immunity to Officer Kading concerning the exces-

sive force claim and remand for further proceedings.

AFFIRMED in part; REVERSED in part. The parties

shall bear their own costs on appeal.

REINHARDT, Circuit Judge, with whom B. FLETCHER,

PREGERSON and PAEZ, Circuit Judges, join, dissenting:1

I agree with the majority that because the Supreme Court

has granted certiorari in a case that will likely resolve a ques-

tion that we have consistently avoided — whether reasonable

suspicion is required for the search of the home of a proba-

tioner or parolee who has executed a standard consent form

as a condition of his probation or parole — we are justified

in proceeding directly to the second prong of the Saucier test.

I also agree for similar reasons that the pertinent law is not

clearly established and, thus, that qualified immunity applies

with respect to the search of a probationer’s or parolee’s resi-

dence without reasonable suspicion. I further agree that prob-

able cause to believe that a probationer or parolee lives in a

particular place is required in order to search that location.

Thus, my disagreement with the majority opinion is narrow.

I disagree only with respect to the holding that probable cause

existed for the officers to believe that Jamerson lived in Mot-

ley’s home. Contrary to the majority, I would hold that the

officers did not have probable cause to believe that Jamerson

currently resided there and would therefore reverse the district

court’s determination that Officers Ruegg, Kading, Sanchez,

and Black were entitled to qualified immunity.

As the majority notes, the information regarding Jamer-

1

Although I concur in Parts I, II.A, II.C, III and IV, I dissent with

respect to Part II.B and the final paragraph of Part II, and therefore with

respect to the Conclusion and the ultimate holding.

16856 MOTLEY v. PARKS

son’s residence could have been collected at any point

between November 1998, when the task force began gather-

ing such information, and March 1999, when the LAPD brief-

ing was conducted. Because Officer Ruegg assigned the task

of gathering and confirming parolee information to another

officer, he stated at his deposition that he had no way of

knowing at what point during that period the information

regarding Jamerson had been obtained. Also at his deposition,

Ruegg acknowledged his awareness that “sometimes parolees

didn’t live where police thought they lived” and stated that he

could not personally confirm the accuracy of any of the paro-

lee data. Instead, Ruegg testified that it was the responsibility

of the searching officers to verify such information before

going to a parolee’s residence. Given Ruegg’s position and

his knowledge that the information regarding Jamerson’s resi-

dence could well be stale, it was not reasonable for him to fail

to verify it through the use of any of several available meth-

ods. See Ramirez v. Butte-Silver Bow County, 298 F.3d 1022,

1027 (9th Cir. 2002), aff’d by Groh v. Ramirez, 540 U.S. 551

(2004). As the supervisor of the search team, Ruegg is liable

under § 1983 for the failure to verify and is not entitled to

qualified immunity. See Larez v. City of Los Angeles, 946

F.2d 630, 646 (9th Cir. 1991).

Similarly, probable cause was lacking for the searching

officers to believe that Jamerson was currently residing with

Motley. At the March 18, 1999 LAPD briefing, the searching

officers were provided with Jamerson’s last known address

and Jamerson’s parole status, but they were not informed how

current or stale that information was. When they arrived at

Motley’s residence, Motley told them that Jamerson did not

currently reside there and that he was being held in custody.

Instead of calling Jamerson’s parole officer to ascertain

whether it was true that Jamerson was currently in custody, or

otherwise attempting to confirm such information, the officers

lied, asserting falsely that Jamerson had been released, that

Jamerson’s parole officer was accompanying them on the

search, and that they had a warrant to search the premises.

MOTLEY v. PARKS 16857

Even after the officers communicated those deliberate false-

hoods to Motley, she emphatically repeated that Jamerson did

not currently reside at her home and was being held in cus-

tody. At this point, the officers had a clear duty to confirm

Jamerson’s custody and residence status.

Although officers may reasonably “rely on information

obtained from fellow law enforcement officers, . . . this in no

way negates a police officer’s duty to reasonably inquire or

investigate these reported facts.” Mendocino Envtl. Ctr. v.

Mendocino County, 192 F.3d 1283, 1293 n.16 (9th Cir. 1999)

(citation omitted). Moreover, “[i]t is incumbent on the officer

executing a search warrant to ensure the search is lawfully

authorized and lawfully conducted.” Groh, 540 U.S. at 563.

The searching officers in the instant case did not have a

search warrant, but, as confirmed by their supervising officer,

nevertheless had a duty to ensure that the information they

possessed was correct. Of critical importance is the fact that

the officers had not been advised by their supervisor how cur-

rent or stale was the information regarding Jamerson’s resi-

dence. Thus, Motley’s repeated insistence that Jamerson was

currently in custody, i.e. not currently in residence, was in no

manner inconsistent with the specific information they pos-

sessed. Nevertheless, the officers made no attempt to verify

Jamerson’s current residence, even though they presumably

could easily have done so by making a quick phone call to

Jamerson’s parole officer.2 Furthermore, the officers’ deliber-

ate falsehoods strongly suggest that they did not have a rea-

sonable belief that Jamerson was still a resident and that they

sought to obviate the necessity for a further inquiry by gaining

2

Justice Scalia recently asserted during oral argument in Ayotte v.

Planned Parenthood of Northern New England, No. 04-1144 (S. Ct.

argued Nov. 30, 2005), that it would take a doctor only thirty seconds to

place a phone call to a judge to ask for the necessary permission to per-

form an abortion. One might assume that if it takes only thirty seconds for

a doctor to reach a judge regarding an abortion, it would take even less

time for a law enforcement officer to reach a parole officer in order to con-

firm an individual’s custody status.

16858 MOTLEY v. PARKS

entry through threats and deceit. All in all, Officers Kading,

Sanchez, and Black did not have probable cause to believe

that Jamerson currently resided in Motley’s home,3 and, like

Ruegg, are not entitled to qualified immunity.4 Accordingly,

I dissent.

3

Compare United States v. Harper, 928 F.2d 894, 896-97 (9th Cir.

1991) (holding that the following facts about a parolee’s residence “just

barely” constituted probable cause to believe he resided there: the parolee

had lived with his family immediately prior to incarceration, the parolee’s

family leased the house and several family members lived there, a source

told the officers that the parolee lived there, the police saw the parolee

enter the house with his own key several times, and several of the paro-

lee’s known associates had their cars parked outside the house).

4

This analysis does not apply to Officer Webster, who was an officer in

training at the time of the search and did not participate in the search of

Motley’s home.