Hopkins v. Bonvicino

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE HOPKINS, 

Plaintiff-Appellee,

v.

A. BONVICINO, Badge No. 1140,

individually & in his official No. 07-15102

capacity as a San Carlos Police

Officer; DAVID BUELOW  D.C. No.

CV-05-02932-JSW

individually & in his official

capacity as a San Carlos Police OPINION

Officer; NICK NGUYEN, Badge No.

1141, individually in his official

capacity as a San Carlos Police

Officer; CITY OF SAN CARLOS,

Defendants-Appellants.



Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

October 20, 2008—San Francisco, California

Filed July 16, 2009

Before: Mary M. Schroeder, Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt

9023

9028 HOPKINS v. BONVICINO

COUNSEL

Anthony Boskovich, Boskovich Law Office, San Jose, Cali-

fornia, for the plaintiff-appellee.

Todd H. Master, Howard Rome Martin & Ridley, Redwood

City, California, for the defendants-appellants.

OPINION

REINHARDT, Circuit Judge:

On August 22, 2003, two San Carlos Police Officers broke

into Bruce Hopkins’ home. They did not have a warrant, nor

did they have probable cause. All that they had was a state-

ment from a third-party that Hopkins had been involved in an

HOPKINS v. BONVICINO 9029

extremely minor traffic incident, an incident so minor that it

did not cause as much as a scratch on either of the vehicles

involved, and that he appeared to have been drinking. Based

on this information, the officers broke into Hopkins’ home

with their flashlights shining and their guns drawn. When they

found Hopkins, they handcuffed him, removed him from his

house, and placed him under arrest.

The officers’ explanation for their warrantless entry is both

simple and audacious: They claim that, after hearing that

Hopkins had the smell of alcohol on his breath, they feared he

was on the brink of a diabetic coma and broke into his house

in order to offer medical assistance. According to one offi-

cer’s deposition testimony, they entered with their guns drawn

because individuals suffering from diabetic emergencies “may

sometimes be confused” and can be “combative.” Apparently,

in the officer’s view, someone suffering from such a medical

emergency may need to be deterred by deadly force. Hopkins,

however, was neither confused nor combative because he was

not suffering from a diabetic emergency — he was lying in

his bedroom watching television, which is where the officers

found him. Yet, after the officers discovered that he was per-

fectly healthy and non-comatose, they did not say “we’re glad

to see that you are safe, sir; we’ll be on our way now.” They

did not say, “Sorry for the disturbance and for damaging your

property.” No, instead they handcuffed Hopkins at gunpoint,

removed him from his home, placed him under arrest, and

brought him to the San Mateo County jail for the final chapter

in the case of the nonexistent diabetes.

Hopkins sued the two officers who broke into his house,

their colleague who waited outside, and the City of San Car-

los under 42 U.S.C. § 1983. He asserts three causes of action:

unlawful warrantless entry of a home, unlawful arrest without

probable cause, and excessive use of force. The defendants

jointly moved for summary judgment on all counts — the

officers asserting a qualified immunity defense and the City

arguing that it should not be held liable under Monell v. N.Y.

9030 HOPKINS v. BONVICINO

City Department of Social Services, 436 U.S. 658 (1978). The

district court denied the motion, and the defendant-officers

now appeal.1 Because “physical entry of the home is the chief

evil against which the wording of the Fourth Amendment is

directed,” Payton v. New York, 445 U.S. 573, 585 (1980)

(quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313

(1972)), and because the officers’ conduct here unequivocally

violated Hopkins’ clearly established constitutional rights, we

affirm the denial of summary judgment with respect to Offi-

cers Bonvicino and Buelow, although we hold that their col-

league, Officer Nguyen, is entitled to qualified immunity.

I. Factual and Procedural Background

On a Friday evening in late August of 2003, Bruce Hopkins

finished his shift at work and went to the local American

Legion Hall in San Carlos, California, for a drink.2 After hav-

ing a few beers he left to drive home. While en route, he was

involved in a minor traffic incident with a car driven by Ms.

Waheeda Talib. Both Talib and Hopkins agree that they each

got out of their cars to inspect the vehicles for damage.3

According to Hopkins, the two agreed that there was no dam-

age and he continued on his way home. According to later

police reports of the incident, Talib claimed that after exiting

his car Hopkins denied responsibility for the incident and sim-

ply drove away.

Despite minor discrepancies in the details of the traffic

1

The denial of summary judgment with respect to the City of San Carlos

is not before us.

2

Because this case comes to us on defendants’ motion for summary

judgment, we take all facts in the light most favorable to Hopkins, the

nonmoving party.

3

Talib did not testify in any depositions for this lawsuit nor did she sub-

mit any affidavits or responses to interrogatories. Her statements are

drawn from the various police reports completed by the defendants in this

case.

HOPKINS v. BONVICINO 9031

incident’s immediate aftermath, the parties agree that Talib

followed Hopkins to his home without Hopkins being aware

that she was behind him. When Hopkins arrived home and

left his car, Talib confronted him about the incident and

accused him of being intoxicated. Talib later told the

defendant-officers that she suspected Hopkins was under the

influence of alcohol because when she spoke with him in

front of his residence she smelled alcohol on his breath and

observed that he seemed impaired and had difficulty walking.

During her confrontation with Hopkins, Talib spoke on her

cell phone. Fearing that she was either calling “her husband

to come down there and beat [him] up or [that] she was call-

ing the cops,” Hopkins entered his house “as quick as he

could.” His exchange with Talib on his front lawn lasted no

longer than a minute to a minute and a half. Once inside his

home, Hopkins went to his bedroom in the basement to watch

television.

Talib remained outside on Hopkins’ lawn and called the

police. She told the dispatcher that she had been involved in

a hit-and-run accident, that she followed the driver to his

house, and that she suspected he had been drinking. Shortly

thereafter, San Carlos police officers Armand Bonvicino and

Nick Nguyen arrived at Hopkins’ residence. Officer Bonvi-

cino, the “primary officer” for the call, asked Talib if she

needed medical assistance; she said she did not. Talib then

proceeded to tell Bonvicino and Nguyen about the traffic inci-

dent and reported that Hopkins appeared intoxicated when he

got out of his vehicle. Officer Bonvicino walked to the front

door of Hopkins’ house, knocked loudly, and announced him-

self as a police officer multiple times through an open win-

dow. He did not receive a response.

Officer Bonvicino then returned to the front lawn and con-

ferred with Officer Nguyen and with Officer David Buelow,

who had since arrived at the scene.4 While Officer Nguyen

4

Officer Buelow had been Officer Bonvicino and Officer Nguyen’s

field training officer when they were both police department trainees.

9032 HOPKINS v. BONVICINO

continued to interview Talib, Officers Bonvicino and Buelow

decided to walk to the side of the house in order to attempt

to contact Hopkins through a side door. The side entrance to

Hopkins’ home had a screen door, which was closed and

locked, and a solid door behind the screen, which was open.

After knocking on the screen door and receiving no response,

Officers Bonvicino and Buelow discussed with each other

possible explanations for Hopkins’ not answering. Among the

explanations they came up with was the possibility that Hop-

kins was on the brink of a diabetic coma. As both officers

later explained in their declarations and depositions, they had

been trained that what a layperson might describe as the odor

of alcohol on someone’s breath could actually be the “fruity”

smell associated with a diabetic emergency. With this poten-

tial medical emergency in mind, Officer Bonvicino loudly

announced through the screen that he and Officer Buelow

would be making an entry into the house to check on Hop-

kins’ welfare.

Officer Bonvicino cut a hole in the screen, reached in, and

unlocked the door. He and Officer Buelow then entered the

residence with their flashlights on and their guns drawn.

Inside, the officers searched for Hopkins in the areas of his

home in which a person might be found. They discovered him

lying on the floor in his bedroom, which was a converted

garage space. According to Hopkins, he had never heard the

officers’ knocking and was terrified when they entered with

their guns drawn and flashlights shining; he fell off the bed

as they were coming down the stairs into his room. The offi-

cers asked Hopkins to get up, show his hands, and move

toward them, which he did. At this point, Officer Bonvicino

holstered his sidearm because, in his words, Hopkins “was not

a threat to officer safety.” Officer Buelow, however, contin-

ued to point his gun at Hopkins. Hopkins was then handcuffed

and taken outside.

While Officers Bonvicino and Buelow were inside Hop-

kins’ home, Officer Nguyen had been interviewing Talib and

HOPKINS v. BONVICINO 9033

taking pictures of her and Hopkins’ cars. Once Hopkins was

brought outside, Talib positively identified him as the driver

of the vehicle that had bumped into hers. After Officer

Nguyen explained the mechanics of a citizen’s arrest to her

and provided her with a citizen’s arrest form printed by the

San Carlos police department, Talib executed a citizen’s

arrest of Hopkins for hit-and-run and asked the officers to

take him into custody. The officers took Hopkins to the San

Carlos Police Department. He was later charged with hit-and-

run and driving under the influence and transferred to San

Mateo County Jail. Hopkins’ criminal charges were quickly

dropped once the judge in San Mateo Superior Court granted

his motion to suppress the evidence against him on the ground

that the officers’ entry into his home was illegal.

After his criminal case concluded, Hopkins filed a civil

complaint under 42 U.S.C. § 1983 in the Northern District of

California, alleging, inter alia, that the officers violated his

civil rights by entering his house without a warrant, arresting

him without probable cause, and using excessive force. The

defendant-officers filed a joint motion for summary judgment,

contending that they did not violate Hopkins’ constitutional

rights, and, even if they did, that they are entitled to qualified

immunity. The district court granted the motion with respect

to Officer Nguyen’s liability for excessive force, but other-

wise denied the motion in all respects.

II. Standard of Review

A district court’s decision denying summary judgment on

the ground of qualified immunity is reviewed de novo. See,

e.g., Bingham v. City of Manhattan Beach, 341 F.3d 939, 945

(9th Cir. 2003). Qualified immunity is “an entitlement not to

stand trial or face the other burdens of litigation.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). Because the defense pro-

vides immunity from suit, not just a defense from liability, the

denial of a motion for summary judgment predicated on quali-

9034 HOPKINS v. BONVICINO

fied immunity is an immediately appealable collateral order.

Id. at 528-30.

The qualified immunity analysis involves two separate

steps. First, the court determines whether the facts “show the

officer’s conduct violated a constitutional right.” Saucier v.

Katz, 533 U.S. 194, 201 (2001). If the alleged conduct did not

violate a constitutional right, then the defendants are entitled

to immunity and the claim must be dismissed. However, if the

alleged conduct did violate such a right, then the court must

determine “whether the right was clearly established” at the

time of the alleged unlawful action. Id. A right is clearly

established if “a reasonable official would understand that

what he is doing violates that right.” Id. at 202. If the right is

not clearly established, then the officer is entitled to qualified

immunity. While the order in which these questions are

addressed is left to the court’s “sound discretion,” “it is often

beneficial” to perform the analysis in the sequence outlined

above. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). Of

course, where a claim of qualified immunity is to be denied,

both questions must be answered.

When determining whether there are any genuine issues of

material fact at the summary judgment stage, the court must

take all facts in the light most favorable to the non-moving

party. In the context of qualified immunity, determinations

that turn on questions of law, such as whether the officers had

probable cause or reasonable suspicion to support their

actions, are appropriately decided by the court. Act

Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993).

However, a trial court should not grant summary judgment

when there is a genuine dispute as to “the facts and circum-

stances within an officer’s knowledge” or “what the officer

and claimant did or failed to do.” Id.

III. Warrantless Entry

[1] Hopkins’ first claim is that his constitutional rights were

violated when, acting under color of state law, Officers Bon-

HOPKINS v. BONVICINO 9035

vicino and Buelow entered his house without a warrant in vio-

lation of the Fourth Amendment. The Fourth Amendment

provides: “The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .” U.S. CONST.

amend. IV. “[S]earches and seizures inside a home without a

warrant are presumptively unreasonable.” United States v.

Martinez, 406 F.3d 1160, 1163 (9th Cir. 2005) (internal quo-

tation marks omitted) (quoting Payton, 445 U.S. at 586).

[2] The presumption, however, is not irrebuttable. “There

are two general exceptions to the warrant requirement for

home searches: exigency and emergency.” Id. at 1164. These

exceptions are “narrow” and their boundaries are “rigorously

guarded” to prevent any expansion that would unduly inter-

fere with the sanctity of the home. United States v. Stafford,

416 F.3d 1068, 1073 (9th Cir. 2005). In general, the differ-

ence between the two exceptions is this: The “emergency”

exception stems from the police officers’ “community car-

etaking function” and allows them “to respond to emergency

situations” that threaten life or limb; this exception does “not

[derive from] police officers’ function as criminal investiga-

tors.” United States v. Cervantes, 219 F.3d 882, 889 (9th Cir.

2000) (emphasis added). By contrast, the “exigency” excep-

tion does derive from the police officers’ investigatory func-

tion; it allows them to enter a home without a warrant if they

have both probable cause to believe that a crime has been or

is being committed and a reasonable belief that their entry is

“necessary to prevent . . . the destruction of relevant evidence,

the escape of the suspect, or some other consequence improp-

erly frustrating legitimate law enforcement efforts.” United

States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en

banc).

Here, the defendant-officers attempt to justify their war-

rantless entry into Hopkins’ home primarily on the basis of

the emergency exception, but rely in the alternative on the

exigency exception. We address these defenses in turn.

9036 HOPKINS v. BONVICINO

A. The Emergency Exception

[3] This court has clearly held that a police officer may not

enter a home to investigate a medical emergency or other

immediate risk to life or limb unless he has “reasonable

grounds” to believe an emergency is at hand and that his

immediate attention is required. Cervantes, 219 F.3d at 888.

Although the test we announced in United States v. Cervan-

tes, 219 F.3d 882 (9th Cir. 2000), was altered by the Supreme

Court in Brigham City v. Stuart, 547 U.S. 398 (2006), the rea-

sonable grounds prong “survives Brigham City, and indeed

remains the core of the . . . analysis.” United States v. Snipe,

515 F.3d 947, 951 (9th Cir. 2008).5 Under this prong, “law

enforcement must have an objectively reasonable basis for

concluding that there is an immediate need to protect others

5

In Cervantes, we adopted a three part test for analyzing whether a war-

rantless entry is valid under the emergency exception. We held:

(1) The police must have reasonable grounds to believe that there

is an emergency at hand and an immediate need for their assis-

tance for the protection of life or property. (2) The search must

not be primarily motivated by intent to arrest and seize evidence.

(3) There must be some reasonable basis, approximating probable

cause, to associate the emergency with the area or place to be

searched.

219 F.3d at 888. In Brigham, the Supreme Court intervened and altered

the analysis by abrogating the second prong of the Cervantes test. The

Court held that “[a]n action is ‘reasonable’ under the Fourth Amendment,

regardless of the individual officer’s state of mind, ‘as long as the circum-

stances, viewed objectively, justify [the] action.’ ” Brigham City, 547 U.S.

at 404 (emphasis and second alteration in original) (quoting Scott v.

United States, 436 U.S. 128, 138 (1978)).

We then construed Brigham as requiring that officers executing a war-

rantless entry of a home “ha[ve] an objectively reasonable basis for con-

cluding that there [i]s an immediate need to protect others or themselves

from serious harm; and [that] the search’s scope and manner [a]re reason-

able to meet the need.” Snipe, 515 F.3d at 952. This formulation, when

combined with the third prong of Cervantes, which was unaffected by

either Brigham or Snipe, states our circuit’s current law governing the

emergency exception.

HOPKINS v. BONVICINO 9037

or themselves from serious harm.” Id. at 951-52 (emphasis

added). This “reasonable basis” requirement, clearly estab-

lished by Cervantes in 2000 and reaffirmed by Snipe in 2008,

is the core principle governing the officers’ conduct in the

present appeal.

We must “judge whether or not the emergency exception

applies in any given situation based on the totality of the cir-

cumstances, and, as with other exceptions to the warrant

requirement, the Government bears the burden of demonstrat-

ing that the search at issue meets these parameters.” United

States v. Stafford, 416 F.3d 1068, 1074 (9th Cir. 2005). Here,

the defendant-officers contend that two possible medical

emergencies justified their warrantless entry.

[4] The officers’ first argument is that because they were

responding to a reported automobile accident they were

authorized to enter Hopkins’ home to see if he was injured as

a result of that incident. However, taking the alleged facts in

the light most favorable to Hopkins, the police officers were

aware that the purported accident did not cause so much as a

scratch to either of the cars involved, as is confirmed by the

photographs of the vehicles taken that evening by Officer

Nguyen. Furthermore, after speaking with Talib — the

woman who called the police and spoke with them before

they entered Hopkins’ home, who was involved in the so-

called “accident,” and who observed Hopkins exit his car both

at the scene of the incident and back at his home — the offi-

cers, in their own words, learned “nothing” regarding the

nature of the accident that “caused [them] to be concerned for

Mr. Hopkins’ medical condition.” In short, there was abso-

lutely no indication that the minor bump between the two cars

was at all serious or that it had caused any type of medical

emergency. Accordingly, the mere fact that the officers were

responding to a minor “hit-and-run” cannot justify their war-

rantless entry into Hopkins’ home.

9038 HOPKINS v. BONVICINO

[5] Perhaps aware of the tenuous nature of this first argu-

ment, the officers put greater weight on their second pur-

ported medical emergency: the argument that they had reason

to believe that Hopkins was suffering from or on the brink of

a diabetic coma. This claim, however, is equally baseless,

and, if permitted to serve as the basis for the warrantless home

intrusion, would allow police officers to ignore the Fourth

Amendment almost at will. No one disputes that a diabetic

coma is a medical emergency, which it clearly is. Rather, the

question before us is whether Officers Bonvicino and Buelow

had an “objectively reasonable basis” to suspect that Hopkins

was in fact suffering from a diabetic coma. Snipe, 515 F.3d at

951. Taking the facts in the light most favorable to Hopkins,

the only information the officers possessed that would support

such a conclusion is as follows: (1) Talib said she smelled

alcohol on Hopkins’ breath; (2) Talib described Hopkins as

appearing slightly intoxicated; and (3) Hopkins did not

respond when the officers knocked on his door. The officers

argue that, because an individual suffering from the initial

phases of a diabetic coma can, to an untrained observer,

appear intoxicated and can have a “sickly sweet” or “fruity”

odor on his breath that a layperson might confuse with the

smell of alcohol, their fear of a diabetic emergency was rea-

sonable. This contention is unsupportable: the mere sugges-

tion that someone has a smell resembling alcohol on his

breath and appears slightly intoxicated does not create “rea-

sonable grounds” to suspect a diabetic emergency sufficient

to justify warrantless entry into a home. If it did, then, as the

officers acknowledged at oral argument, any time the police

receive information from a layperson that someone inside a

home has the appearance of a person who has consumed alco-

hol the police will be authorized to enter that home without

a warrant. This result would expand the “narrow[,] . . . rigor-

ously guarded exception[ ] to th[e] warrant requirement”

beyond all recognition, and simply cannot be the law. Staf-

ford, 416 F.3d at 1073.6

6

The officers’ contention is especially troubling in light of the large per-

centage of police activity that involves some report of alcohol consump-

HOPKINS v. BONVICINO 9039

[6] As this court has made clear, “if [police officers] other-

wise lack reasonable grounds to believe there is an emergen-

cy,” they must “take additional steps to determine whether

there [i]s an emergency that justifie[s] entry in the first place.”

United States v. Russell, 436 F.3d 1086, 1092 (9th Cir. 2006).

Here, the officers did not take any such additional steps. They

did not, as in Martin v. City of Oceanside, 360 F.3d 1078,

1080 (9th Cir. 2004), attempt to reach Hopkins by telephone

in order to check on his welfare. They did not ask Talib for

more information, such as whether she observed Hopkins

wearing a medical alert bracelet or whether the odor she

smelled on his breath was “fruity,” “sickly sweet,” or other-

wise distinguishable from the typical smell of alcohol on a

person’s breath. The mere fact that Hopkins did not answer

the door cannot tip the balance in the officers’ favor, since

nothing requires an individual to answer the door in response

to a police officer’s knocking. United States v. Washington,

387 F.3d 1060, 1070-71 (9th Cir. 2004). We do not dispute

that the police officers in this case had reasonable grounds to

believe that Hopkins had been drinking, but, without obtain-

ing more information, they could not reasonably have

believed that he needed immediate medical attention due to a

diabetic emergency.7

[7] Every case in this circuit that has upheld a warrantless

search of a home under the emergency exception has involved

tion. See generally BUREAU OF JUSTICE STATISTICS, ALCOHOL AND CRIME

(1998) (reporting high correlation between alcohol involvement and sus-

pected or actual criminal conduct), available at http://www.ojp.usdoj.gov/

bjs/pub/pdf/ac.pdf.

7

We also note that under United States v. Snipe, see supra note 5, we

“must consider the officers’ manner of entry.” 515 F.3d at 952. Here, the

officers entered the house with their guns drawn, a tactic that hardly seems

consistent with a response to a medical emergency where the victim is

expected to be comatose or quasi-comatose. Surely paramedics or emer-

gency medical technicians responding to diabetic emergencies do not do

so with guns drawn.

9040 HOPKINS v. BONVICINO

significantly more evidence of an emergency than is present

here. In Cervantes itself, the searching officer, who had been

trained to recognize the smell of highly combustible fumes

associated with methamphetamine production, personally

smelled those fumes emanating from an apartment after

responding to a call from the fire department. 219 F.3d at

885-86. In United States v. Bradley, a mother who had just

been arrested for possessing methamphetamine told the police

that her nine-year old son was home alone in the middle of the

night, a situation that we held “requir[ed] immediate police

assistance.” 321 F.3d 1212, 1215 (9th Cir. 2003). In Martin

v. City of Oceanside, officers entered a house in response to

a phone call from a father who called the police “with an

urgent request to check on the safety of his daughter . . .

[whom he] had been unable to reach . . . for several days.”

360 F.3d at 1080. In United States v. Martinez, officers

responding to a domestic violence call found a woman crying

on the front lawn of a house and heard a man shouting from

inside; in the unique context of “a domestic abuse call, [in

which] ‘violence may be lurking and explode with little warn-

ing,’ ” we upheld the officers’ warrantless entry to speak to

the screaming and potentially injured male resident. 406 F.3d

at 1162-64 (quoting Fletcher v. Clinton, 196 F.3d 41, 50 (1st

Cir. 1999)). In United States v. Stafford, we upheld a warrant-

less entry after a building maintenance man reported to police

that the walls of an apartment were covered in blood and

feces and that he smelled what he thought was a dead body.

416 F.3d 1068, 1071-73 (9th Cir. 2005). In United States v.

Russell, we upheld a warrantless entry where a series of con-

fused 911 calls suggested that one individual had shot another

inside a house and that the shooter was still inside when the

officers arrived. 436 F.3d 1086, 1090 (9th Cir. 2006). Finally,

in United States v. Snipe, the police entered a home in

response to a 911 call in which a “very hysterical sounding”

caller “screamed . . . [g]et the cops here now.” 515 F.3d at

949 (alteration in original).

[8] A statement that someone’s breath smelled like alcohol

is not even remotely comparable to the information we have

HOPKINS v. BONVICINO 9041

previously deemed to constitute “reasonable grounds” for sus-

pecting a medical or other life-threatening emergency. It is

simply inconceivable that a “reasonable officer” presented

with the information that Talib conveyed to Officers Bonvi-

cino and Buelow could conclude, on the basis of that informa-

tion alone, that he had “an objectively reasonable basis” to

suspect a medical emergency was at hand. Yet, as Officer

Buelow acknowledged in his deposition, he believed that,

hypothetically, any time an officer receives a report of alcohol

consumption, that officer would, in his discretion, have rea-

sonable grounds to enter a home without a warrant in order

to investigate a diabetic emergency. Whatever this under-

standing of the Fourth Amendment might be called, it cannot

be called “objectively reasonable.” Thus, the emergency

exception cannot justify the warrantless entry into Hopkins’

home.

B. The Exigency Exception

[9] The officers’ alternative argument is that, although they

claim to have entered Hopkins’ house in response to a medi-

cal emergency, a reasonable officer would have been justified

in entering the building in order to investigate a crime under

the “exigent circumstances” exception. “[W]hen the govern-

ment relies on the exigent circumstances exception, it . . .

must satisfy two requirements: first, the government must

prove that the officer had probable cause to search the house;

and second, the government must prove that exigent circum-

stances justified the warrantless intrusion.” United States v.

Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc). “Exi-

gent circumstances” can include “the destruction of relevant

evidence.” United States v. McConney, 728 F.2d 1195, 1199

(9th Cir. 1984) (en banc). Here, the officers claim that their

entry was justified because a reasonable officer would have

had probable cause to believe Hopkins had been driving under

the influence of alcohol in violation of CAL. VEH. CODE

§ 23152, and that an immediate entry was necessary in order

9042 HOPKINS v. BONVICINO

to obtain evidence of his blood alcohol content before the

alcohol in his bloodstream metabolized.

We address the probable cause and exigent circumstances

requirements in turn.

1. Probable Cause

[10] As the officers concede, the only crime for which they

can claim to have had probable cause to enter Hopkins’ resi-

dence is driving under the influence of alcohol, a violation of

CAL. VEH. CODE § 23152.8 “Officers have probable cause for

a search when ‘the known facts and circumstances are suffi-

cient to warrant a man of reasonable prudence in the belief

that contraband or evidence of a crime will be found.’ ”

United States v. Henderson, 241 F.3d 638, 648 (9th Cir. 2000)

(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

[11] This court has held that “[i]n establishing probable

cause, officers may not solely rely on the claim of a citizen

witness that [s]he was a victim of a crime, but must indepen-

dently investigate the basis of the witness’ knowledge or

interview other witnesses.” Arpin v. Santa Clara Valley

Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (citing

Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991)

(“[P]olice officers ha[ve] a duty to conduct an investigation

into the basis of [a] witness’ report”)). In violation of the rule

set forth in Arpin and Fuller, the officers here entered Hop-

kins’ home based solely on the information they obtained

8

The officers expressly waived below any argument that investigation

of a potential hit-and-run could have justified their warrantless entry. They

also acknowledge in their briefs on appeal that Talib’s citizen’s arrest, dis-

cussed infra Part IV.B, “is not a basis for [their] warrantless entry into the

residence.” And so they must, as their own police reports indicate that

Talib did not authorize a citizen’s arrest until after the officers entered

Hopkins’ home. Even if a stand-alone citizen’s arrest could justify a war-

rantless home entry — a dubious proposition, see infra Part IV.B — the

sequence of events here does not support such a justification.

HOPKINS v. BONVICINO 9043

from Talib — namely, that she had been involved in an

extremely minor car accident with Hopkins, that she smelled

alcohol on his breath, and that he appeared intoxicated. The

officers did not inspect Hopkins’ car to see if the hood was

still warm, cf. People v. Thompson, 135 P.3d 3, 5-8 (Cal.

2006), which would have corroborated Talib’s statement that

the car had recently been driven, nor did they inspect the vehi-

cle for any evidence of reckless driving or of alcohol con-

sumption, such as open containers or an alcoholic odor. They

did not ask Talib any questions in order to gain information

beyond her cursory and conclusory statements, such as

whether she observed Hopkins driving erratically or at an

abnormal speed. In short, the officers obtained no information

whatsoever beyond Talib’s brief statement. Under Arpin and

Fuller, these statements from a witness, without further inves-

tigation by the police, are insufficient to support probable cause.9

2. Exigent Circumstances

Even if the officers had probable cause that Hopkins had

been driving under the influence (and even if that would have

been sufficient for entry into his home pursuant to a warrant),

more is required to justify a warrantless entry into his house.

The Fourth Amendment requires that there be exigent circum-

stances for a warrantless entry. See, e.g., Johnson, 256 F.3d

at 907-09. The defendants contend that a reasonable officer

would have been justified in entering Hopkins home in order

9

We need not decide whether even if the officers had obtained indepen-

dent evidence supporting Talib’s allegations, the “probable cause” this

information provided would have been sufficient to justify the issuance of

a warrant to search Hopkins’ home for evidence of the minor misdemea-

nor violation at issue here. Whether a home, or the homeowner in his

home, may be searched pursuant to a warrant for evidence of a minor

motor vehicle violation involving neither personal injury nor property

damage raises a serious question in our minds and would require the bal-

ancing of the interests of the homeowner in the right to privacy in his

home versus the state’s interest in searching homes for evidence of such

minor criminal violations.

9044 HOPKINS v. BONVICINO

to obtain evidence of his blood-alcohol ratio, and that the

rapid metabolizing of the alcohol in his blood would consti-

tute exigent circumstances. This argument would seem to be

directly foreclosed by Welsh v. Wisconsin, a case in which the

United States Supreme Court held that “a warrantless home

arrest cannot be upheld simply because evidence of the peti-

tioner’s blood-alcohol level might have dissipated while the

police obtained a warrant.” 466 U.S. 740, 754 (1984); see also

id. at 748 (holding that the same analysis applies to “agents

of the government who seek to enter the home for purposes

of search or arrest”). Welsh involved an investigation of

alleged misdemeanor drunk driving, just as did Hopkins’ case.

However, relying on People v. Thompson, 135 P.3d 3 (Cal.

2006), a California Supreme Court decision, the officers argue

that Welsh is distinguishable because the Wisconsin DUI law

at issue in that case was a “nonjailable” offense, whereas in

California DUI is a misdemeanor punishable by up to six

months in county jail.

[12] The appellants are correct that three years after they

broke into Hopkins’ home the California Supreme Court

sought to distinguish Welsh on the basis of a difference

between jailable and nonjailable offenses. See id. at 9 (“We

therefore believe Welsh was limited to Wisconsin’s ‘amazing’

decision to classify DUI as a civil nonjailable offense

. . . .”). However, this is not the distinction that the United

States Supreme Court drew in Welsh, nor is it the distinction

that this circuit has repeatedly emphasized in its own

exigency-exception decisions. To the contrary, in Welsh the

Supreme Court held that the exigency analysis must turn on

“the gravity of the underlying offense,” 466 U.S. at 753

(emphasis added), not its status as “jailable” or “nonjailable.”

The Court specifically said that a finding of exigent circum-

stances is particularly inappropriate “when the underlying

offense . . . is realtively minor,” id. at 750 (emphasis added),

and cited favorably “those courts addressing the issue [that]

have refused to permit warrantless home arrests for nonfelo-

nious crimes.” Id. at 752 (emphasis added). The Supreme

HOPKINS v. BONVICINO 9045

Court expressly did not limit its holding in Welsh to nonjail-

able offenses,10 see id. at 753; to the contrary, it suggested that

exigent circumstances can rarely, if ever, support entry into a

home to investigate or arrest someone for a misdemeanor

offense.

[13] Building on the felony/misdemeanor distinction dis-

cussed in Welsh, this circuit has clearly held that “an exigency

related to a misdemeanor will seldom, if ever, justify a war-

rantless entry into the home.” LaLonde v. County of Riverside,

204 F.3d 947, 956 (9th Cir. 2000) (citing Welsh, 466 U.S. at

752-53). In United States v. Johnson, we analyzed en banc a

warrantless search of a home and noted that “in situations

where the underlying offense is only a misdemeanor, law

enforcement must yield to the Fourth Amendment in all but

the ‘rarest’ cases.” 256 F.3d 895, 909 n.6 (9th Cir. 2001) (en

banc) (quoting Welsh, 466 U.S. at 753). Because Johnson and

LaLonde relied on and directly cited Welsh for the proposition

that investigation of a misdemeanor will rarely, if ever, sup-

port exigent circumstances, see id. at 908, it is clear that,

whatever “rare” circumstances might justify a warrantless

home entry to investigate a misdemeanor, misdemeanor driv-

ing while under the influence, the very offense at issue in

Welsh and cited by Johnson, does not fall within that very

narrow exception. Here, the offense that the officers claim

supports their warrantless entry is indisputably a misdemea-

nor, see CAL. VEH. CODE §§ 23152, 23536; CAL. PENAL CODE

§ 17 (2008) (defining misdemeanor). More important, it is the

precise offense that the Supreme Court held insufficient to

justify a warrantless entry in Welsh. Accordingly, even were

there probable cause that Hopkins had in fact been driving

under the influence, a warrantless entry into his home was

unjustified.

10

In fact, the offense for which Welsh himself was ultimately charged

was a jailable offense under Wisconsin law, although the offending offi-

cers did not know this at the time they entered his home. See Welsh, 466

U.S. at 746 n.6.

9046 HOPKINS v. BONVICINO

The fact that the California Supreme Court expressed its

disagreement with the United States Supreme Court several

years after the officers broke into Hopkins’ home and that it

took a different view of the Fourth Amendment than this cir-

cuit and the United States Supreme Court does not alter our

conclusion in this case. It is the federal courts that are the

final arbiters of federal constitutional rights, not the state

courts. See, e.g., Bennett v. Mueller, 322 F.3d 573, 582 (9th

Cir. 2003) (“[S]tate courts will not be the final arbiters of

important issues under the federal constitution.” (quoting

Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557 (1940))). This

court’s precedents make clear that a warrantless home entry

to obtain evidence of a misdemeanor offense is “seldom, if

ever” constitutional, and that it was certainly unconstitutional

here. LaLonde, 204 F.3d at 956.

Accordingly, the exigency exception is inapplicable here

for two independent reasons — absence of probable cause and

absence of exigent circumstances — either of which is suffi-

cient to compel our holding that the officers’ forced entry into

Hopkins’ home violated his Fourth Amendment rights.

C. Officer Nguyen

[14] To this point, we have discussed the conduct of Offi-

cer Buelow and Officer Bonvicino, but not the conduct of

Officer Nguyen, who remained outside with Talib while his

colleagues broke into Hopkins home. The district court

granted Officer Nguyen’s motion for summary judgment with

respect to Hopkins’ claim of excessive force, but denied the

motion with respect to the unlawful entry claim. Hopkins

argues that Officer Nguyen should not enjoy qualified immu-

nity on the warrantless-entry claim because Nguyen was an

“integral participant” in the search. This argument, however,

misunderstands our circuit precedent. In Chuman v. Wright,

76 F.3d 292 (9th Cir. 1996), we rejected “the ‘team effort’

standard [that] allows the jury to lump all the defendants

together, rather than require it to base each individual’s liabil-

HOPKINS v. BONVICINO 9047

ity on his own conduct.” 76 F.3d at 295. In that case, we held

that a police officer’s “[b]eing a mere bystander [to his col-

leagues’ conduct] was insufficient” to support § 1983 liabil-

ity. Id. at 294.

[15] Hopkins seeks to distinguish Chuman by relying on

the “integral participant” rule, which, as its name suggests,

extends liability to those actors who were integral participants

in the constitutional violation, even if they did not directly

engage in the unconstitutional conduct themselves. However,

this rule requires more participation and support on the part

of a particular defendant than the undisputed facts in this case

show Officer Nguyen to have provided. Under the integral

participant rule, “an officer who does not enter an apartment,

but stands at the door, armed with his gun, while other offi-

cers conduct the search, can . . . be a ‘full, active participant’

in the search” and therefore can be subject to § 1983 liability.

Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004)

(emphasis added). Each of the cases cited in Boyd in which

the “integral participant” rule was deemed satisfied involved

officers who “provided armed backup during an unconstitu-

tional search.” Id. While the “integral participant” rule may

extend liability beyond simply those officers who provide

“armed backup,” it is clear that an officer who waits in the

front yard interviewing a witness and does not participate in

the unconstitutional search in any fashion cannot be held lia-

ble under Chuman.

[16] Hopkins argues that Officer Nguyen is not entitled to

qualified immunity because he was part of a conversation in

which the three officers formed a “plan of action” to enter the

house. However, the undisputed facts show that the decision

to enter Hopkins’ home was not made or discussed during that

conversation, but rather was made in a separate conversation

between Officers Buelow and Bonvicino at the side entrance

to Hopkins’ house.11 Accordingly, Officer Nguyen partici-

11

We also note that there is no allegation that Officer Nguyen either

ordered the unconstitutional search or directed it from afar. To the con-

9048 HOPKINS v. BONVICINO

pated in neither the planning nor the execution of the unlawful

search. We therefore reverse the district court with respect to

Officer Nguyen’s liability and hold that he is entitled to quali-

fied immunity on the unlawful search claim.

D. Clearly Established Law

Because Officer Nguyen did not commit a constitutional

violation with respect to Hopkins’ warrantless-entry claim, we

need not proceed to the second step of the qualified-immunity

analysis with respect to him. However, because both Officer

Bonvicino and Officer Buelow did violate Hopkins’ Fourth

Amendment rights by forcibly entering his home without a

warrant in the absence of any valid justification under either

the emergency or exigency exceptions, in order to determine

whether they are entitled to qualified immunity on this claim

we must examine whether the contours of those two excep-

tions were clearly established in 2003 when they engaged in

the conduct at issue.

[17] To begin with the emergency exception, our decision

in United States v. Cervantes clearly establishes that at the

time of the officers’ warrantless forced entry into Hopkins’

home “[t]he police [were required to] have reasonable

grounds to believe that there is an emergency at hand and an

immediate need for their assistance.” 219 F.3d at 888. That

opinion, which set forth the governing legal standard, was

trary, the record is clear that Officer Bonvicino was the “primary agent”

on the scene. It is also clear that Officer Buelow was the most senior offi-

cer, as he had been both Officer Bonvicino’s and Officer Nguyen’s Field

Training Officer. Thus, the rule that “[a] supervisor may be held liable

under § 1983 ‘if he or she was personally involved in the constitutional

deprivation or a sufficient causal connection exists between the supervi-

sor’s unlawful conduct and the constitutional violation’ ” does not apply

to Officer Nguyen. Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir.

2003) (quoting Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir.

2001)).

HOPKINS v. BONVICINO 9049

decided in June of 2000, over three years before Officers Bue-

low and Bonvicino engaged in their warrantless entry. Our

previous discussion, see supra Part III.A, makes clear that it

was patently unreasonable for Buelow and Bonvicino to

believe that a diabetic emergency was at hand based simply

on Talib’s description of Hopkins as slightly inebriated. Our

qualified immunity analysis, however, presents a somewhat

different question than whether there were “reasonable

grounds to believe that there [wa]s an emergency at hand;” id;

in determining whether the officers’ conduct violated clearly

established law, we must ask whether in 2003 a “reasonable

officer” would have known that he lacked “reasonable

grounds to believe that there [wa]s an emergency at hand.”

See Saucier v. Katz, 533 U.S. 194, 202 (2001); Robinson v.

Solano County, 278 F.3d 1007, 1012 (9th Cir. 2002) (en banc)

(“[T]he standard of reasonableness for purposes of qualified

immunity is distinct from the standard of reasonableness

embodied in the Fourth Amendment.”). Here, we unhesitat-

ingly conclude that a reasonable officer would indeed have

known that the emergency exception to the Fourth Amend-

ment would not encompass a warrantless entry into a home

based solely on statements from a third party that an individ-

ual inside the home appeared inebriated prior to entering the

residence. No reasonable officer, indeed no reasonable per-

son, upon hearing that someone appeared or smelled some-

what inebriated could, without any further information,

reasonably conclude that such a person was on the brink of a

diabetic coma. To the contrary, a reasonable officer hearing

such a description would conclude that the individual had

consumed alcohol — conduct that would most certainly not

justify a warrantless entry into a home. As we have previously

held, when there is a “complete lack of evidence that would

support a reasonable suspicion,” and the officers have pro-

vided a “wholly inadequate justification for the[ir] search, we

conclude that it would have been clear to a reasonable officer

that [such a search] was unlawful.” See Ramirez v. City of

Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009). Similarly,

9050 HOPKINS v. BONVICINO

in 2003, no reasonable officer would have believed that,

where a two-car automobile incident resulted in damage to

neither car and the drivers of both cars drove off without any

apparent physical complaint or difficulty, he should be suffi-

ciently concerned about possible injuries to one of the drivers

to forcibly enter his home in order to conduct an investigation

regarding his possible injuries. As a result, the defendants are

not entitled to qualified immunity under the emergency

exception.

[18] As for the exigency exception, both our conclusions

that the officers lacked probable cause to enter Hopkins’

home and that an investigation of a potential misdemeanor

drunk-driving incident does not create an exigent circum-

stance were clearly established at the time the officers broke

into the plaintiff’s home. As to probable cause, this court

determined as early as 1991 that “police officers ha[ve] a duty

to conduct an investigation into the basis of [a] witness’

report” and that absent such investigation the report alone

does not support probable cause. Fuller v. M.G. Jewelry, 950

F.2d 1437, 1444 (9th Cir. 1991). This rule was reaffirmed a

mere two years before the conduct at issue in this case. See

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,

925 (9th Cir. 2001). It was equally clearly established by 2003

that “an exigency related to a misdemeanor will seldom, if

ever, justify a warrantless entry into the home.” LaLonde v.

County of Riverside, 204 F.3d 947, 956 (9th Cir. 2000). More-

over, we made clear a year later, in United States v. Johnson,

that “where the underlying offense is only a misdemeanor,”

such as the misdemeanor drunk-driving at issue in Welsh,

“law enforcement must yield to the Fourth Amendment.” 256

F.3d 895, 909 n.6 (9th Cir. 2001) (en banc) (quoting Welsh,

466 U.S. at 753).

[19] The California Supreme Court’s decision in People v.

Thompson distinguishing Welsh cannot alter our conclusion

that the prohibition of warrantless entry into a home to inves-

tigate misdemeanor drunk-driving was “clearly established” at

HOPKINS v. BONVICINO 9051

the time Officers Buelow and Bonvicino broke into Hopkins’

home. For one thing, Welsh, LaLonde, and Johnson — bind-

ing precedents from the Supreme Court and this court clearly

establishing that rule — all predate the conduct underlying

this lawsuit, whereas People v. Thompson was decided three

years after the officers’ unconstitutional action. Furthermore,

a decision by a state court contrary to a holding of this court

cannot unsettle or “de-establish” the clarity of federal law.

Although “[t]he Supreme Court has provided little guidance

as to where courts should look to determine whether a particu-

lar right was clearly established at the time of the injury,” we

have held that “[i]n the Ninth Circuit, we begin our inquiry by

looking to binding precedent. If the right is clearly established

by decisional authority of the Supreme Court or this Circuit,

our inquiry should come to an end.” Boyd v. Benton County,

374 F.3d 773, 781 (9th Cir. 2004) (internal citation omitted)

(citing Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir.

1985)). Thus, with respect to the lack of probable cause and

the lack of exigent circumstances — the absence of either one

of which would preclude the officers’ reliance on the exi-

gency exception — the law as to both was clearly established

in 2003 and the officers are not entitled to qualified immunity

on the basis of that exception. Because it was also clearly

established that the officers’ conduct did not fall within the

emergency exception, the two defendants are not entitled to

qualified immunity on that basis either. Accordingly, the offi-

cers were properly denied summary judgment as to Hopkins’

warrantless-entry claim.

IV. Arrest Without Probable Cause

The officers also appeal the denial of their qualified-

immunity defense with respect to Hopkins’ claim of unlawful

arrest. This claim encompasses two different arrests: one that

occurred inside Hopkins’ home, and a second that occurred

9052 HOPKINS v. BONVICINO

once he was brought outside and placed under citizen’s arrest.

We analyze the two arrests separately.12

A. Arrest In Hopkins’ Home

The Fourth Amendment protects against warrantless arrest

inside a person’s home in the same fashion that it protects

against warrantless searches of the home, which is to say that

police officers may not execute a warantless arrest in a home

unless they have both probable cause and exigent circum-

stances. See, e.g., Payton, 445 U.S. at 586 (“It is a ‘basic prin-

ciple of Fourth Amendment law’ that searches and seizures

inside a home without a warrant are presumptively unreason-

12

In Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2008) (en banc),

this court held that an “armed standoff was a single Fourth Amendment

event, a continuous process of formalizing [an] arrest.” Id. at 1077. Here,

by contrast, two distinct seizures took place, one occurring after the other

was already accomplished. Drawing a distinction between two consecutive

and overlapping “seizures” is a common and longstanding practice in

Fourth Amendment jurisprudence, as in the case of so-called “Terry

stops,” see Terry v. Ohio, 392 U.S. 1, 16-19 (1968); see also, e.g., Rohde

v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir. 1998), or of unconstitu-

tionally excessive force, see Chavez v. Martinez, 538 U.S. 760, 773 n.5

(2003) (plurality opinion); Graham v. Connor, 490 U.S. 386, 388, 394

(1989); Pierce v. Multnomah County, 76 F.3d 1032, 1042 (9th Cir. 1996)

(quoting Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985)). These

longstanding precedents demonstrate that generally an individual who has

already been seized can still be further seized for purposes of the Fourth

Amendment — a proposition that is not inconsistent with Fisher’s holding

that Fourth Amendment infringements suffered between the initiation of

a seizure and the perfection, or “formalizing,” of that same seizure may

not be analyzed independently for purposes of the warrant requirement.

Fisher, 558 F.3d at 1077.

Here, Hopkins’ second seizure did not occur in the “process of formal-

izing” his first seizure, id., which was accomplished, at the latest, when

he was led from his house in handcuffs. See infra 34-35. Rather, much like

a Terry stop followed by a formal arrest, the first seizure here preceded

the second. Accordingly, the two arrests were independent Fourth Amend-

ment events that can independently support separate causes of action

under § 1983.

HOPKINS v. BONVICINO 9053

able.”); Welsh, 466 U.S. at 749 (“[W]arrantless . . . arrests in

the home are prohibited by the Fourth Amendment, absent

probable cause and exigent circumstances.”). In light of the

above, because Hopkins was in fact seized inside his home,

Officers Buelow and Bonvicino violated his Fourth Amend-

ment rights by arresting him without a warrant for the same

reasons that their emergency and exigency defenses fail to

justify their warrantless entry. See supra Part III.B.

An arrest — or, to use the Fourth Amendment’s terminol-

ogy, a “seizure” — “occurs when a law enforcement officer,

through coercion, ‘physical force[,] or a show of authority, in

some way restricts the liberty of a person.’ ” United States v.

Washington, 387 F.3d 1060, 1069 (9th Cir. 2004) (quoting

United States v. Chan-Jimenez, 125 F.3d 1324, 1325 (9th Cir.

1997)). “A person’s liberty is restrained when, ‘taking into

account all of the circumstances surrounding the encounter,

the police conduct would have communicated to a reasonable

person that he was not at liberty to ignore the police presence

and go about his business.’ ” Id. (quoting Florida v. Bostick,

501 U.S. 429, 437 (1991)). Here, taking the facts in the light

most favorable to Hopkins, Officers Buelow and Bonvicino

entered his home with guns drawn, ordered him to show his

hands, told him that he was under arrest, handcuffed him, and

took him outside. Under these circumstances, it is clear that

the officers restricted his liberty and seized him. See, e.g.,

United States v. Washington, 490 F.3d 765, 772 (9th Cir.

2007) (considering fact of police officer’s “directing [some-

one] where to walk” in holding that a seizure occurred);

United States v. Manzo-Jurado, 457 F.3d 928, 934 n.3 (9th

Cir. 2006) (holding that a police officer’s order to occupants

of a truck to “show their hands” was a seizure); United States

v. Bravo, 295 F.3d 1002, 1010 (9th Cir. 2002) (“Certainly

handcuffing is a substantial factor in determining whether an

individual has been arrested.”).

[20] Numerous precedents from this court and others,

including the United States Supreme Court, make it clear that

9054 HOPKINS v. BONVICINO

the officers’ treatment of Hopkins inside his home constituted

a seizure. There can be no doubt that the law in this respect

was clearly established prior to 2003 and thus should have

been known by a reasonable officer. See, e.g., Michigan v.

Chesternut, 486 U.S. 567, 573 (1988); INS v. Delgado, 466

U.S. 210, 215 (1984); Bostick, 501 U.S. at 437; Chan-

Jimenez, 125 F.3d at 1326. Accordingly, we affirm the district

court’s order denying Officers Buelow and Bonvicino’s

motion for summary judgment on qualified immunity grounds

with respect to Hopkins’ unlawful arrest claim. However,

because Officer Nguyen did not participate in the arrest inside

Hopkins’ home, we reverse the district court’s denial of his

motion for summary judgment with respect to this arrest. See

supra Part III.C.

B. Citizen’s Arrest

Hopkins also alleges that he was arrested for “hit-and-run”

without probable cause.13 This second arrest was executed

pursuant to Talib’s authority to perform a citizen’s arrest

under CAL. PENAL CODE § 837, which allows “[a] private per-

son [to] arrest another . . . [f]or a public offense committed

or attempted in h[er] presence.” The issue with respect to this

second arrest is thus whether, under the federal Constitution,

police officers are required to have independent probable

cause when effectuating an arrest authorized by a private citi-

zen.

We first addressed this question in Arpin v. Santa Clara

Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001). In that

case, a woman who was arrested after having an argument

with a city bus driver later brought suit under § 1983. We

concluded that the “bus driver[ ] made a citizen’s arrest . . . .

and delegated to [the] [o]fficers . . . the task of taking [the

13

Unlike in the other claims alleged, Officer Nguyen was an integral

participant in this arrest because he provided Talib with the citizen’s arrest

form and explained the procedure to her.

HOPKINS v. BONVICINO 9055

plaintiff] into custody.” 261 F.3d at 920. We upheld the grant

of summary judgment to the officers on the plaintiff’s state-

law claims for false arrest because California law explicitly

exempts officers effectuating a citizen’s arrest from civil lia-

bility. See CAL. PENAL CODE § 847. However, we reversed dis-

missal of the plaintiff’s federal claims, holding that the

officers could be liable under the Fourth Amendment because

they did not have sufficient independent probable cause to

arrest Arpin. See Arpin, 261 F.3d at 925.

[21] Given Arpin’s rule that the federal Constitution

requires police officers to have independent probable cause

when effectuating a citizen’s arrest, and taking the facts in

this case in the light most favorable to Hopkins, the

defendant-officers violated Hopkins’ constitutional rights

when they took him into custody because they did not have

probable cause to support Talib’s arrest for hit-and-run. The

hit-and-run statute on which Talib predicated her arrest con-

tains as an element that there be some damage to the vehicles

(or to some other property). See CAL. VEH. CODE § 20002;

People v. Carbajal, 899 P.2d 67, 72 n.10 (Cal. 1995) (“The

essential elements of a violation of section 20002 [include]

that the defendant: . . . knew damage resulted from the acci-

dent . . . .”). However, Officer Nguyen personally inspected

and took photographs of the vehicles involved in the pur-

ported “accident,” and those photographs do not appear to

show any damage to the cars. “In this procedural context,

where summary judgment [is at issue], we must credit the

video evidence submitted by [the non-moving party].”

Menotti v. City of Seattle, 409 F.3d 1113, 1150 (9th Cir.

2005). Furthermore, Hopkins also asserted in his deposition

that “there was nothing wrong with either vehicle,” an asser-

tion we must take as true. If there was no damage to the cars,

then the officers did not have probable cause to believe that

a violation of § 20002 had occurred. Therefore, Hopkins has

properly alleged that the officers acted unlawfully when they

took him into custody on the basis of Talib’s citizen’s arrest

without independent probable cause.

9056 HOPKINS v. BONVICINO

Having concluded that the officers violated Hopkins’

rights, we must next consider whether the rule that indepen-

dent probable cause must support an officer’s effectuation of

a citizen’s arrest was clearly established at the time Hopkins

was arrested. This is a close question. We conclude that even

though Arpin was decided two years before the conduct at

issue in this case, the rule it sets forth was not clearly estab-

lished at the time of Hopkins’ arrest. Although Arpin held that

it was analyzing a citizen’s arrest when it discussed the offi-

cers’ liability under the state-law claims at issue, when the

court turned its attention to the federal claims it described the

municipal bus driver who executed the citizen’s arrest as “ac-

t[ing] ‘with the intent to assist the government in its investiga-

tory . . . purposes.’ ” Arpin, 261 F.3d at 924 (quoting United

States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990)).

Accordingly, the court held that the citizen “summoned the

police . . . not for an independent purpose, but as a govern-

mental employee acting with the intent to assist the . . . Coun-

ty.” Id. In light of this language, Arpin could reasonably be

read to suggest that the citizen bus driver was acting as an

agent of the state, and therefore not executing a true citizen’s

arrest.14 Cf. CAL. PENAL CODE § 837 (defining citizen’s arrest

as executed by a “private person”). Given this lack of clarity,

a reasonable officer might not have known that taking Hop-

kins into custody solely on the basis of the citizen’s arrest in

this case violated the Fourth Amendment.

Since Arpin was decided, both our court and a district court

in this circuit have held in unpublished opinions that the

“teachings in Arpin . . . require police officers to conduct

additional investigation on a citizen’s arrest” in order to estab-

lish independent probable cause prior to effectuating that

14

The Arpin court further held that the officers in that case did not have

independent probable cause to arrest the plaintiff, but it is unclear whether

the court’s holding simply rearticulated the rule announced in Fuller v.

M.G. Jewelry, 950 F.2d 1437, 144 (9th Cir. 1991), that a statement from

an aggrieved witness is insufficient to support probable cause.

HOPKINS v. BONVICINO 9057

arrest. Sin v. Crystal Park Hotel Casino, 77 F. App’x 433, 434

(9th Cir. 2003) (internal citation omitted); accord Salisbury v.

Ward, No. 06-2993-MMC, 2006 U.S. Dist. LEXIS 94025 at

*10-11 (N.D. Cal. Dec. 19, 2006) (“[The requirement] that a

warrantless arrest . . . ‘be supported by probable cause . . . .’

applies even when the arrestee is taken into custody pursuant

to a citizen’s arrest.”). However, while unpublished opinions

“can be considered in determining whether the law was

clearly established,” Bahrampour v. Lampert, 356 F.3d 969,

977 (9th Cir. 2004), both of these opinions were issued after

the underlying conduct in this lawsuit, which renders them

incapable of making the right at issue clearly established at

the time of the violation.

[22] Because Arpin is unclear as to whether the bus driver

in that case was acting as a quasi-law enforcement officer or

as a private citizen in executing the arrest, we hold that the

requirement that a police officer establish independent proba-

ble cause before taking individuals into custody solely on the

basis of a citizen’s arrest was not clearly established in 2003.

Arpin’s less-than-clear reasoning makes it uncertain whether

at that time a “reasonable officer” would have known that it

was unlawful to take Hopkins into custody solely because

Talib had arrested him. It is equally uncertain whether such

an officer would have known that he needed independent

probable cause in order to do so.15 Accordingly, we hold that

15

Until a year prior to the time when Hopkins was arrested, a California

police officer who refused to take an individual into custody following a

citizen’s arrest could “be punished by a fine not exceeding ten thousand

dollars ($ 10,000), or by imprisonment in the state prison, or in a county

jail not exceeding one year;” that provision has since been repealed. CAL.

PENAL CODE § 142 (2001), amended by Assem. No. 1835, 2001-2002 Sess.

(Cal. 2002).

We do not mean to imply that a conflict between an officer’s liability

under state law versus under federal law creates a lack of clearly estab-

lished federal law. Rather, when faced with a close question regarding

whether the federal law itself is clearly established, we simply note that

the fact that state law immunizes similar conduct may tend to support an

officer’s claim of qualified immunity.

9058 HOPKINS v. BONVICINO

although Hopkins’ second arrest did indeed violate his consti-

tutional right to be free from seizure absent probable cause,

the officers are entitled to qualified immunity with respect to

that arrest.16

V. Excessive Force

Hopkins’ final claim is that the officers employed excessive

force in executing the arrest inside his house. It is clearly

established that the use of excessive force in effecting a sei-

zure violates the Fourth Amendment. See Tennessee v. Gar-

ner, 471 U.S. 1, 8-9 (1985). The law of this circuit regarding

excessive force as it relates to the use by police officers of

drawn firearms was established by the en banc court in Robin-

son v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en

banc). In that case, we held that “pointing a gun to the head

of an apparently unarmed suspect during an investigation can

be a violation of the Fourth Amendment, especially where the

individual poses no particular danger.” Id. at 1015. In Robin-

son, the court held that a constitutional violation had occurred

where the officers pointed their guns at the plaintiff and “[t]he

crime under investigation was at most a misdemeanor[,] the

suspect was apparently unarmed and approaching the officers

in a peaceful way[,] [t]here were no dangerous or exigent cir-

cumstances apparent at the time of the detention, and the offi-

cers outnumbered the plaintiff.” Id. at 1014.

[23] Taking the facts in the light most favorable to the

plaintiff, it is clear that this case is indistinguishable from

Robinson. Officer Bonvicino stated in his declaration that, at

least as of the time Hopkins got up from the bedroom floor,

he knew that Hopkins “was not a threat to officer safety.”

16

Our holding therefore excuses Officer Nguyen from all liability,

including liability for the excessive force claim, and dismisses him as a

defendant in this case. Officers Bonvicino and Buelow, however, are not

entitled to qualified immunity with respect to either the warrantless entry

into Hopkins’ home or the warrantless arrest inside his home.

HOPKINS v. BONVICINO 9059

However, Officer Buelow makes clear in his declaration that

he did not holster his weapon until after Hopkins was hand-

cuffed, sometime after Officer Bonvicino described Hopkins

as nonthreatening. Furthermore, the facts in the record,

including the officers’ own testimony that their reason for

forcefully entering Hopkins’ home was that they suspected he

was suffering from a medical emergency, suggest that they

were fully aware at all times that Hopkins did not pose a

threat to anyone. As to the other facts described in Robinson,

there is no dispute that the officers here outnumbered Hop-

kins, that he was unarmed, and that any putative crime the

officers might have been investigating was a misdemeanor.

Because Robinson was the law of this circuit at the time the

officers arrested Hopkins, it was clearly established that the

force they used was excessive. Accordingly, the district

court’s denial of summary judgment on this ground with

respect to Officers Bonvicino and Buelow is affirmed. The

district court’s grant of summary judgment on this claim in

favor of Officer Nguyen, who did not participate in the arrest

inside Hopkins’ home, is also affirmed. See supra note 16 and

supra Part III.C.

Conclusion

The district court’s denial of summary judgment with

respect to Officers Bonvicino and Buelow is AFFIRMED

except with respect to the citizen’s arrest part of the

warrantless-arrest claim. The grant of summary judgment in

favor of Officer Nguyen with respect to the excessive force

claim is also AFFIRMED. The denial of summary judgment

to Officer Nguyen with respect to the unlawful warrantless

entry and unlawful arrest claims is REVERSED. The case is

REMANDED for further proceedings consistent with this

opinion.

AFFIRMED in part, REVERSED in part, and

REMANDED.