Edward Sialoi v. City of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD SIALOI; KELLI No. 14-55387

SIALOI; FOLENI SIALOI;

GAYLE PASI; LAGO SIALOI; D.C. No.

LIUA SIALOI; HARDY TEO 3:11-cv-02280-W-KSC

FALEALILI; TAPILI SOFA;

G. S., a minor, by his father

and guardian ad litem, Foleni OPINION

Sialoi; T. O. S., a minor, by

their father and guardian ad

litem, Lago Sialoi; T. A. S., a

minor, by their father and

guardian ad litem, Lago

Sialoi; T. R. S., a minor, by

their father and guardian ad

litem, Lago Sialoi; B.F., a

minor, by his father and

guardian ad litem, Hardy Teo

Falealili; ESTATE OF

SEPTEMBER SIALOI, by her

husband and successor in

interest, Sialoi Sialoi, Jr.,

Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO; ALLEN

SLUSS; BRADLEY PHELPS;

JOSEPH KRAWCZYK; DAVID

ROHOWITS; ANTHONY REESE;

2 SIALOI V. CITY OF SAN DIEGO

MICHAEL HALL; EDWARD

KASZYCKI; COREY STASCH;

MIGUEL GARCIA; MICHAEL

HAYES; WADE IRWIN; SCOTT

SMITH; KELVIN LUJAN; JOHN

CARROLL; WAYNE DOEDEN;

TAMMY CLENDENEN; TYLER

BIGBIE; RICHARD SLADE;

DAVID HWANG; JONATHAN

BAMBAD; SIGNORINO, Officer;

TENENBAUM, Officer; DOES,

1–30,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, Senior District Judge, Presiding

Argued and Submitted February 5, 2016

Pasadena, California

Filed May 24, 2016

Before: Stephen Reinhardt, Richard A. Paez,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt

SIALOI V. CITY OF SAN DIEGO 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial, on summary

judgment, of a motion for qualified immunity brought by San

Diego police officers in an action under 42 U.S.C. § 1983 and

state law alleging, among other things, unlawful arrest and

detention, illegal search, and excessive force.

The panel first held that it has jurisdiction to consider this

appeal, but that its jurisdiction was limited to deciding only

the question whether, taking all the facts in the light most

favorable to the plaintiffs, the defendants were entitled to

qualified immunity as a matter of law.

The panel held that taking the facts in the light most

favorable to the plaintiffs, once officers discovered that an

item held by one of the suspects was a mere toy, rather than

a handgun, the officers violated clearly established law and

acted wholly unreasonably in using extreme force to disrupt

a peaceful birthday party for a seven-year-old girl, and in

searching the family’s apartment without a warrant or

consent. Accordingly, the panel affirmed the district court’s

denial of qualified immunity in all respects.

*

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

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

4 SIALOI V. CITY OF SAN DIEGO

COUNSEL

John E. Riley (argued), Deputy City Attorney, Jan I.

Goldsmith, City Attorney, Office of the San Diego City

Attorney, San Diego, California, for Defendants-Appellants.

Michael R. Marrinan (argued), Law Offices of Michael R.

Marrinan, San Diego, California, for Plaintiffs-Appellees.

OPINION

REINHARDT, Circuit Judge:

In October of 2010, officers with the San Diego Police

Department responded to a report that two armed black males

had been seen in the parking lot of an apartment complex.

When they arrived, the officers, armed with assault rifles and

eventually numbering over twenty, encountered not two

armed black males but a large Samoan family celebrating the

birthday of a seven-year-old girl. The officers detained the

members of the family (handcuffing the vast majority of

them, including numerous adolescents) and then searched

each of them for weapons. Finding nothing incriminating, the

officers then searched the family’s apartment without a

warrant or consent. Again finding nothing incriminating, the

officers left without removing a single family member from

the scene or filing any charges.

The plaintiffs filed this action against the officers

involved in the incident, as well as the City of San Diego,

alleging various claims under 42 U.S.C. § 1983 and

California law, including unlawful arrest and detention,

illegal search, and excessive force. The defendants moved

SIALOI V. CITY OF SAN DIEGO 5

for summary judgment on the ground of qualified immunity,

and the district court granted the motion with respect to the

City but denied it with respect to the officers. The officers

then appealed the denial of their motion for summary

judgment. We affirm the district court.

I

A

On Saturday, October 2, 2010, the Sialoi family gathered

in front of the apartment belonging to Sialoi Sialoi, Jr. and his

wife, September Sialoi, to celebrate the birthday of seven-

year-old plaintiff T.R.S. The family held a barbecue during

which no alcohol was served or consumed. Around 10:22pm

that evening, the manager of the apartment complex called

9-1-1 to report that two black or Samoan adult males had

been ducking down around the apartment complex, as if

waiting for someone. He reported that one carried a handgun,

the other a shotgun. Two minutes later, he called back to

provide additional information: the men were black, not

Samoan; one had bushy hair and was wearing a brown T-

shirt, and the other was wearing a long-sleeved shirt with a

hood.

Sergeant Sluss of the San Diego Police Department was

in charge of the response to the apartment manager’s 9-1-1

call. The sergeant assembled a contact team consisting of

“maybe six officers,” and assigned Officer Wayne Doeden a

team of four officers. The officers arrived on the scene four

6 SIALOI V. CITY OF SAN DIEGO

minutes after the second call from the apartment manager,

and, together, approached the Sialoi party.1

When the officers arrived, the Sialoi family was drinking

coffee, eating birthday cake, and singing songs. One of the

men was playing a guitar, and some of the women were

inside the apartment with the youngest children. Sergeant

Sluss and his team came around the corner of the apartment

building and saw three teenagers between the ages of 13 and

15, G.S., T.O.S., and B.F., playing in the parking lot near the

apartment. Sergeant Sluss reported to dispatch that one of the

teenagers had something in his hand that appeared to be a

handgun. Notably, however, the three teenage boys did not

otherwise fit the description provided by the apartment

manager: there were three of them, not two; all were Samoan,

not black; and none was wearing clothing that matched the

apartment manager’s description. The officers arrived with

their guns drawn at the parking lot where the boys were

playing. Some of the officers held AR-15 assault rifles,

which the officers pointed at the three teenagers. A police

helicopter circled overhead. The helicopter operator

informed the police that there were people having a barbecue

nearby.

Six or seven police officers first approached 13-year-old

B.F., who had nothing in his hands. They demanded that B.F.

get on the ground, and he complied. One officer put his knee

1

From this point on, the plaintiffs and defendants disagree on key facts.

When reviewing the denial of qualified immunity, we must take all facts

in the light most favorable to the plaintiffs. See George v. Edholm,

752 F.3d 1206, 1214 (9th Cir. 2014). For this reason, the following

statement of facts describes the incident as the plaintiffs contend it

transpired.

SIALOI V. CITY OF SAN DIEGO 7

on B.F.’s neck to hold him down, while the others searched

him for weapons. After finding nothing, the officers next

approached 15-year-old T.O.S. Again, the officers pointed

their guns at him and ordered him to get on the ground.

T.O.S. complied, lying down next to B.F., where the officers

searched him for weapons while pointing their guns at his

head. Again, the officers found nothing. Finally, the officers

approached 15-year-old G.S., who was standing some

distance away between two parked cars in front of the Sialoi

apartment. G.S. was holding a plastic paintball gun in his

hand. When G.S. saw the officers, he immediately dropped

the paintball gun. The officers ordered him to get on the

ground, and G.S. replied that he could not fit on the ground

between the two cars, but he attempted to comply with the

officers’ orders anyway. He and several other plaintiffs

called out to the officers, attempting to explain to them that

the paintball gun was not in fact a real gun but merely a toy.

He was then told to crawl out from between the cars to the

driveway, where he was searched. Again, the officers found

nothing. Immediately after G.S. crawled out from between

the cars, an officer walked over and picked up the toy gun.

He held the gun in the air and confirmed that it was only a

toy. At this point, the officers handcuffed all three teenagers,

yanked them off the ground, and placed them in the back of

a police car.

The officers then approached the other members of the

Sialoi family, and began to detain, search, and handcuff them,

including two adult women and a thirteen-year-old girl,

T.A.S. By this time, other officers had arrived, increasing the

total number present at the scene to over twenty. The officers

ordered the plaintiffs one-by-one to keep their hands up and

walk to the middle of the parking lot, where they did a pat-

down search. Throughout this time, the laser sights on some

8 SIALOI V. CITY OF SAN DIEGO

of the officers’ guns projected red beams of light on the

plaintiffs’ bodies as they were searched. When the search

was complete, each plaintiff was handcuffed and ordered to

remain in the middle of the parking lot under armed guard.

The officers placed Sialoi Sialoi Jr. in the back of the police

car with the three teenagers because he initially refused to put

his hands in the air and pleaded with the officers to stop

pointing their weapons at the children. The officers also

pushed Liua Sialoi, who was pregnant at the time, onto the

ground. Edward Sialoi informed the officers that he had a

medical condition and recently had back surgery. Because of

this, he requested that the officers use two sets of handcuffs.

The officers did not comply, and instead, violently yanked his

arm behind him, tearing his rotator cuff, labrum, and biceps

tendon.

After everyone outside had been handcuffed and moved

to the middle of the parking lot (or placed in a police car), the

officers ordered anyone inside the apartment to vacate the

building. Kelli Sialoi, Gayle Pasi, T.R.S., and Pasi’s four-

year-old nephew exited the building. They were detained at

the curb with the other plaintiffs, but were not handcuffed.

Sergeant Sluss and several other officers then entered and

searched the Sialois’ apartment without a warrant or consent.

After the search of the apartment, a lieutenant arrived and

asked the officers if any of the handcuffed people were

“going downtown.” Receiving a negative response, the

lieutenant removed September Sialoi’s handcuffs and left.

The other officers then began removing the handcuffs from

the other plaintiffs. The plaintiffs contend that they had been

detained for approximately 30–40 minutes, although the

police’s computerized log of the incident indicates that the

search lasted only 17 minutes.

SIALOI V. CITY OF SAN DIEGO 9

According to the computer-aided dispatch report and the

deposition of Sergeant Sluss, the officers were informed a

few minutes after they “started securing . . . the scene” that

the apartment manager had called to say that the people they

had detained were not the suspects that he reported in his

disturbance call. The officers did not attempt to contact the

apartment manager or locate the actual suspects. Later, the

plaintiffs learned that no report was ever written about the

seizures of the various plaintiffs, the injuries to Edward

Sialoi, the search of the Sialoi home, or indeed anything

about the incident.

B

After the plaintiffs filed suit, the defendants moved for

summary judgment both on the basis that the officers’ actions

did not violate the plaintiffs’ rights and that, in any case, the

officers were entitled to qualified immunity. The defendants

also sought summary judgment for the claims against the

City, asserting that the officers were not acting pursuant to a

“policy” within the meaning of Monell v. Department of

Social Services of the City of New York, 436 U.S. 658 (1978).

The district court granted the motion with respect to the City,

but denied it with respect to the officers. It reasoned that the

arguments in favor of the individual defendants’ qualified

immunity rested on disputed factual circumstances

appropriately left to a jury—namely, that the three teenaged

boys reasonably fit the description of the suspects in the

disturbance call and that the officers did not discover that

G.S.’s gun was a toy until after the searches had been

completed. The individual defendants filed a motion for

reconsideration, which the district court denied. They then

appealed the denial of qualified immunity with respect to the

10 SIALOI V. CITY OF SAN DIEGO

unlawful arrest and search claims, but did not appeal the

denial of qualified immunity as to the excessive force claims.

II

As a threshold matter, we must determine whether (and,

if so, to what extent) we have jurisdiction to consider the

individual defendants’ appeal. When reviewing a denial of

qualified immunity, it is well-established that we lack

jurisdiction to review a district court’s conclusion that

genuine factual disputes exist but that we have jurisdiction to

resolve legal questions raised in the appeal. See Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985); Huskey v. City of San

Jose, 204 F.3d 893, 896 (9th Cir. 2000). One such legal

question is whether, taking all the facts in the light most

favorable to the plaintiffs, those facts can sustain a claim that

“clearly established constitutional rights have been violated.”

Huskey, 204 F.3d at 896. The plaintiffs argue that we lack

jurisdiction to review the denial of qualified immunity

because, they contend, the defendants’ briefs on appeal

merely dispute the plaintiffs’ version of what happened.

Although it is true that most of the arguments in the

defendants’ briefs assume the officers’ version of what

happened, the defendants do also argue that they are entitled

to qualified immunity as a matter of a law even under the

plaintiffs’ version of the events.

We therefore have jurisdiction to consider this appeal, but

our jurisdiction is limited to deciding only the question

whether, taking all the facts in the light most favorable to the

plaintiffs, the defendants are entitled to qualified immunity as

a matter of law. In doing so, we must consider two questions.

First, “whether the facts, ‘[t]aken in the light most favorable

to the party asserting the injury,’ show that the officers

SIALOI V. CITY OF SAN DIEGO 11

violated a constitutional right.’” George v. Edholm, 752 F.3d

1206, 1214 (9th Cir. 2014) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled in part on other grounds in

Pearson v. Callahan, 555 U.S. 223 (2009) (alteration in

original)). Second, if the officers did violate a right, “whether

federal rights asserted by [the] plaintiff were clearly

established at the time of the alleged violation.” Id. (internal

quotation marks omitted). A right is clearly established when

“[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). Put another way, an officer’s actions violate

clearly established law when “it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Torres v. City of Los Angeles, 548

F.3d 1197, 1211 (9th Cir. 2008). We review these questions

de novo. Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004).

III

Defendants argue that they are entitled to qualified

immunity for both the seizure and search of the plaintiffs, and

for the warrantless search of the plaintiffs’ apartment.

Because the officers’ actions are subject to several different

legal rules, we address the defendants’ arguments in the

following subparts: (1) whether the officers are entitled to

qualified immunity for the seizure of the three teenage boys,

G.S., T.O.S., and B.F.; (2) whether the officers are entitled to

qualified immunity for the seizure of Sialoi Sialoi Jr.;

(3) whether the officers are entitled to qualified immunity for

the seizure of the remaining plaintiffs; and (4) whether the

officers are entitled to qualified immunity for the warrantless

search of the Sialois’ apartment. Although the legal standard

may differ for each of the officers’ actions, the answer to the

12 SIALOI V. CITY OF SAN DIEGO

question of each action’s constitutionality is the same.

Taking the facts in the light most favorable to the plaintiffs,

once the officers discovered that the item in G.S.’s hand was

a mere toy, the officers violated clearly established law and

acted wholly unreasonably in using extreme force to disrupt

a peaceful birthday party for a seven-year-old girl, and in

searching the Sialoi apartment without a warrant or consent.

Accordingly, we affirm the district court’s denial of qualified

immunity in all respects.

A: The Officers’ Seizure of G.S., T.O.S., and B.F.

1. Whether the seizure violated the constitutional rights

of G.S., T.O.S., and B.F.

A group of six or seven officers approached the three

teenagers, ordered each of them onto the ground, handcuffed

them, searched them, and then placed them in the back of a

police car. Although the officers engaged in materially

indistinguishable conduct toward G.S., T.O.S., and B.F., the

defendants, oddly, admit that the officers arrested G.S. but

argue that the officers’ conduct toward T.O.S. and B.F.

amounted to mere investigatory detention. Accordingly, we

must first determine whether the officers arrested T.O.S. and

B.F. or merely detained them during an investigatory stop.

Although police generally need probable cause to search

or seize a person, there exists a limited exception for brief

investigatory stops “where a police officer observes unusual

conduct which leads him reasonably to conclude in light of

his experience that criminal activity may be afoot.” Terry v.

Ohio, 392 U.S. 1, 30 (1968). In contrast to a full-blown

arrest, an investigatory stop need only be justified by

reasonable suspicion. United States v. I.E.V., 705 F.3d 430,

SIALOI V. CITY OF SAN DIEGO 13

434–35 (9th Cir. 2012). “There is no bright-line rule to

determine when an investigatory stop becomes an arrest.”

Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996).

Instead, we have set forth several factors to distinguish

between the two types of seizures, including whether the

suspect was handcuffed; whether the police drew their

weapons; “whether the police physically restrict the suspect’s

liberty,” including by placing the suspect in a police car;

whether “special circumstances” (such as an uncooperative

suspect or risk of violence) are present to justify the

“intrusive means of effecting a stop”; and whether the

officers are outnumbered. See id. at 1188–90. We need not

discuss these factors in detail, however, because Washington

answers the question whether the teenagers were arrested or

merely detained. In that case, we held that any reasonable

juror would be compelled to find an arrest where the officers

ordered the two plaintiffs from a car, shone a spotlight on

them, drew their weapons, handcuffed them, and then placed

them in separate police cars. Washington, 98 F.3d at 1184,

1192. Taking all the facts in the light most favorable to the

plaintiffs, the officers’ conduct toward T.O.S. and B.F. was,

if anything, more intrusive and thus amounted to an arrest.

“Under the Fourth Amendment, a warrantless arrest

requires probable cause,” which “exists when officers have

knowledge or reasonably trustworthy information sufficient

to lead a person of reasonable caution to believe that an

offense has been or is being committed by the person being

arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th

Cir. 2007). Whether probable cause exists depends “on the

totality of facts” available to the officers, who “may not

disregard facts tending to dissipate probable cause.” Id. at

1073 (internal quotation marks omitted). “In some instances

there may initially be probable cause justifying an arrest, but

14 SIALOI V. CITY OF SAN DIEGO

additional information obtained at the scene may indicate that

there is less than a fair probability that the [individual] has

committed or is committing a crime. In such cases, execution

of the arrest or continuation of the arrest is illegal.” Id.

Taking the facts in the light most favorable to the

plaintiffs, the officers did not have probable cause to arrest

the three teenagers. The defendants attempt to justify the

arrest on the basis of the fact that G.S. was initially holding

what appeared to be a weapon. We may assume that the

officers were justified in initiating an investigatory stop of the

teenagers after they spotted what they believed to be a gun in

G.S.’s hand. The police determined almost immediately after

approaching G.S., however, that the gun was, in fact, a toy,

and at that point any suspicion that the teenagers were

engaged in a crime dissipated.2 Not only did none of the

teenagers possess a gun, but none of them in any way

matched the apartment manager’s description of the suspects.

They were three Samoan teenagers, not two black adults, and

none of the boys was wearing either a brown shirt or a

hooded long-sleeved T-shirt. Nevertheless, the officers

handcuffed all three and placed them in the back of a police

car after learning that the item in G.S.’s hand was a toy. At

a minimum, then, the officers violated the Fourth Amendment

by continuing the seizure beyond the point at which they

determined that G.S. had not in fact had a weapon in his

hand. See Lopez, 482 F.3d at 1037.

In sum, once the officers determined that the item in

G.S.’s hand was a toy, no officer of “reasonable caution”

would have had any reason to believe that G.S., T.O.S., and

2

The defendants do not contend that it is a crime to possess a paintball

gun.

SIALOI V. CITY OF SAN DIEGO 15

B.F. were the suspects the apartment manager described, or

were otherwise engaged in unlawful activity. Accordingly,

taking the facts in the light most favorable to the plaintiffs,

the officers violated the constitutional rights of G.S., T.O.S.,

and B.F. when they arrested them.

2. Whether the constitutional right was clearly

established

Because the standard for probable cause is well settled,

the question with respect to whether an unlawful arrest

violated clearly established law is “whether it is reasonably

arguable that there was probable cause for arrest—that is,

whether reasonable officers could disagree as to the legality

of the arrest such that the arresting officer is entitled to

qualified immunity.” Rosenbaum v. Washoe Cty., 663 F.3d

1071, 1076 (9th Cir. 2011). Here, the defendants argue that

detaining the three teenagers “until further investigation was

completed was not unreasonable conduct,” given the totality

of the circumstances. It is true, as the defendants argue, that

the officers found themselves in a potentially dangerous

situation: they were in a high-crime area responding to a

report of suspects with weapons. While these background

circumstances are no doubt relevant to the question whether

the officers’ conduct was reasonable, they do not render it

even “reasonably arguable” that probable cause existed for

the arrests of the young boys. Where no facts specific to the

arrestees establish probable cause, officers may not rely on

general background facts to immunize themselves from suit.

See Crowe v. Cty. of San Diego, 608 F.3d 406, 439 (9th Cir.

2010) (holding that it is clearly established that “[w]here the

standard is probable cause, a search or seizure of a person

must be supported by probable cause particularized with

respect to that person” (emphasis added) (quoting Ybarra v.

16 SIALOI V. CITY OF SAN DIEGO

Illinois, 444 U.S. 85, 91 (1979))). No such particularized

facts exist here. To repeat, the officers encountered not two

black individuals but instead three Samoans wearing clothing

that did not resemble the apartment manager’s description.

Before handcuffing the three boys and placing them in a

police car, the officers knew that the item in G.S.’s hand was

a mere toy, knew that none of the boys possessed a gun, and

were aware of no other even remotely suspicious activity in

which any of the boys had engaged or were engaging. For

these reasons, no reasonable officer would have concluded

that probable caused existed to arrest the teenagers, and we

affirm the district court’s denial of qualified immunity for

their arrest.

B: The Officers’ Seizure of Sialoi Sialoi Jr.

1. Whether the seizure violated Sialoi Sialoi Jr.’s

constitutional rights

The officers handcuffed Sialoi Sialoi Jr. and placed him

in the back of the police car after he pleaded with the officers

to stop pointing their weapons at the children. Sialoi Sialoi

Jr. did “raise his voice” and initially refused to raise his hands

when directed to do so by the police, but he calmed down

within a matter of minutes and complied with the officers’

requests when they approached him for the purpose of

handcuffing him. As with the three teenagers, the factors set

forth in Washington compel the conclusion that a rational jury

could find that the officers’ conduct with respect to Sialoi

Sialoi Jr. amounted to an arrest. See 98 F.3d at 1188–90.

Similarly to G.S., T.O.S., and B.F., the officers patted Sialoi

Sialoi Jr. down, handcuffed him, and placed him in the back

of a police car. By this time, over twenty officers had arrived

at the scene, many of whom had their weapons drawn and

SIALOI V. CITY OF SAN DIEGO 17

trained on the plaintiffs. The defendants argue that the

seizure of Sialoi Sialoi Jr. was a mere detention because he

was initially uncooperative. We cannot say, however, as

defendants argue, that Sialoi Sialoi Jr.’s temporary refusal to

raise his hands and initial objection to the officers’ tactics

would as a matter of law prevent a rational jury from

concluding that he was arrested. To the contrary—in cases in

which we have relied on an individual’s non-compliance with

officers’ commands to hold as a matter of law that an arrest

did not occur, the individual demonstrated far greater, and far

more dangerous, defiance. See, e.g., Haynie v. Cty. of Los

Angeles, 339 F.3d 1071, 1073–74, 1077 (9th Cir. 2003)

(finding no arrest where the suspect initially refused to pull

over, made furtive movements with his hands inside his car,

refused to submit to a frisk, and continued yelling at the

officers after being handcuffed); Allen v. City of Los Angeles,

66 F.3d 1052, 1057 (9th Cir. 1995) (finding no arrest where

the suspects led officers on a long high-speed chase and,

when the suspects finally pulled over, one was “non-

compliant and combative” and the other drunk).

Accordingly, taking the facts in the light most favorable to

Sialoi Sialoi Jr., the officers’ conduct amounted to an arrest.

A rational jury could also conclude that this arrest was

unlawful. An individual’s temporary refusal to comply with

an officer’s commands is not in itself a valid basis for an

arrest. Mackinney v. Nielsen, 69 F.3d 1002, 1005–06 (9th

Cir. 1995). Nor is an individual’s peaceful, verbal challenge

to police action a valid basis. Id. at 1006–07 (noting that

“[t]he freedom of individuals verbally to oppose or challenge

police action without thereby risking arrest is one of the

principal characteristics by which we distinguish a free nation

from a police state” (quoting City of Houston v. Hill, 482 U.S.

451, 462–63 (1987) (alteration in original)). Furthermore,

18 SIALOI V. CITY OF SAN DIEGO

once the officers confirmed that the item in G.S.’s hands was

a toy, they no longer had any reason to believe that Sialoi

Sialoi Jr.—or in fact any of the family members—was

engaged in the criminal activity that the apartment manager

reported. Accordingly, taking the facts in the light most

favorable to Sialoi Sialoi Jr., the officers arrested him without

probable cause, thereby violating his constitutional rights.

2. Whether the constitutional right was clearly

established

As with the three teenagers, the background

circumstances on which the defendants rely to establish

qualified immunity (the officers presence in a high-crime

area) do not make it even “reasonably arguable” that probable

cause existed to arrest Sialoi Sialoi Jr. Nor does Sialoi Sialoi

Jr.’s initial response to the officers’ instructions. See

Mackinney, 69 F.3d at 1005–07. We therefore hold that no

reasonable officer would have thought it lawful to arrest

Sialoi Sialoi Jr., and we affirm the district court’s denial of

qualified immunity for his arrest.

C: The Officers’ Seizure of the Remaining Plaintiffs

1. Whether the seizure violated the rights of the

remaining plaintiffs

The remaining plaintiffs were either patted down,

handcuffed, and ordered to stand in the middle of the

apartment complex’s parking lot, or, in the case of those

plaintiffs initially inside the apartment, seized when they

came outside but not handcuffed. Unlike the three teenagers

and Sialoi Sialoi Jr., none of the remaining plaintiffs was

placed in the back of a police car. Nevertheless, the officers’

SIALOI V. CITY OF SAN DIEGO 19

conduct toward some, if not most, of these plaintiffs likely

amounted to an arrest. We need not decide, however, with

respect to each individual plaintiff whether the officers’

tactics were sufficiently intrusive to rise to that level of

seizure because we hold that the officers lacked even

reasonable suspicion to detain and search the remaining

plaintiffs.3

An investigatory detention is unlawful unless supported

by reasonable suspicion. Liberal v. Estrada, 632 F.3d 1064,

1077 (9th Cir. 2011). Although less stringent than probable

cause, reasonable suspicion nevertheless requires that officers

“have ‘specific, articulable facts which, together with

objective and reasonable inferences, form the basis for

suspecting that the particular person detained is engaged in

criminal activity.’” Id. (quoting United States v. Lopez-Soto,

205 F.3d 1101, 1105 (9th Cir. 2000)); see also United States

v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2001)

(“[R]easonable suspicion may not be ‘based on broad profiles

which cast suspicion on entire categories of people without

any individualized suspicion of the particular person to be

stopped.’”).

Taking the facts in the light most favorable to the

remaining plaintiffs, the officers had no “specific, articulable

facts” that would form the basis for reasonable suspicion to

3

Because the reasonable suspicion standard required to detain a suspect

is less stringent than the probable cause standard needed to justify an

arrest, see Alabama v. White, 496 U.S. 325, 330 (1990), our holding that

the facts do not establish reasonable suspicion necessarily means that they

are insufficient to establish probable cause as well. However, our

conclusion in this section in no way precludes the plaintiffs from arguing

to the jury, and prevailing on, the theory that the officers’ actions with

respect to the remaining plaintiffs amounted to an arrest.

20 SIALOI V. CITY OF SAN DIEGO

detain the other plaintiffs. In no way did the remaining

plaintiffs fit the description of the suspects in the apartment

manager’s report. None was a black adult male (in fact,

many of them were not even males), and none was wearing

a brown T-shirt or a long-sleeved T-shirt with a hood. They

were not ducking around the apartment complex suspiciously

but instead barbecuing, singing songs, and eating cake at a

young child’s birthday party. The defendants nonetheless

argue that the remaining plaintiffs’ presence “at night [in] an

area known for criminal activity” and their “proximity” to the

three teenagers offered a basis for detaining them. By the

time the officers detained the remaining plaintiffs, however,

the officers knew that their proximity to the three teenagers

was innocuous because the officers had already determined

that none of the boys possessed a weapon and had no reason

to suspect that they were otherwise engaged in any unlawful

conduct. Furthermore, the Sialoi family’s presence in a high-

crime area cannot serve as the basis for detaining them,

because it merely “cast[s] suspicion on entire categories of

people without any individualized suspicion of the particular

person to be stopped.” Sigmond-Ballesteros, 285 F.3d at

1121.

The officers also argue that the remaining plaintiffs were

“agitated” and “display[ed] growing hostility.” Not only is

this contention inconsistent with the plaintiffs’ version of the

events, it also conflicts with the officers’ own description of

the encounter. The officers in charge at the scene testified

that, aside from Sialoi Sialoi Jr.’s brief refusal, everyone

complied with the officers’ demands. (Sergeant Sluss

deposition: “Q. So everybody complied with your order? A.

Yes”); (Officer Doeden deposition: “Q. Was there anybody

that night that did not comply with the command of an officer

that you were aware of? A. Not that I saw.”). In fact, nothing

SIALOI V. CITY OF SAN DIEGO 21

in the record as a whole—let alone when taking the facts in

the light most favorable to the non-moving parties—suggests

that the remaining plaintiffs acted aggressively toward the

officers so as to justify their detention.

In sum, the officers had no basis for concluding that the

gathered plaintiffs had anything to do with the events

portrayed in the apartment manager’s report, and nothing

the remaining plaintiffs did once the officers arrived offered

any basis for detaining them.

The remaining plaintiffs challenge not only the officers’

decision to detain them but also their decision to frisk them

for weapons. Incident to a valid investigatory stop, an officer

may, consistent with the Fourth Amendment, “conduct a brief

pat-down (or frisk) of an individual when the officer

reasonably believes that ‘the persons with whom he is dealing

may be armed and presently dangerous.’” I.E.V., 705 F.3d at

434 (quoting Terry, 392 U.S. at 30). This interest in the

safety of the officers and others nearby is the “sole

justification” for a Terry frisk. Id. at 435 (internal quotation

marks and emphasis omitted). Here, for the reasons set forth

in the previous paragraph, the officers’ detention of the

remaining plaintiffs was unlawful under the plaintiffs’

version of the events. For this reason, any search incident to

that detention necessarily is as well. See id.

We also hold that, taking the facts in the light most

favorable to the remaining plaintiffs, their search was

unlawful for another reason. Even if, contrary to our

conclusion, the officers did have reasonable suspicion to

initiate a detention of the remaining plaintiffs, the officers

still had no basis to search them for weapons. The defendants

attempt to justify these frisks on the basis that they were

22 SIALOI V. CITY OF SAN DIEGO

necessary to find and secure the “second” gun described in

the earlier report to the police. In so arguing, the defendants

fail to take the facts in the light most favorable to the

remaining plaintiffs. They ignore the fact that the officers

had no reason to suspect that they would find a “second” gun

amongst the Sialoi family because the item in G.S.’s hand

could not possibly have been the “first” gun; it was a mere

toy in the hands of someone who in no way matched the

description of the suspects. Moreover, even if, contrary to the

remaining plaintiffs’ version of the events, the officers had

not immediately discovered that the ostensible weapon was

a mere toy, the officers had no reasonable basis to expect to

find the “second” gun, which was a shotgun, hidden on the

body of one of the remaining family members.4 Because no

officer could have reasonably believed that any of the

remaining plaintiffs might have a concealed weapon, we hold

that the frisks violated the Fourth Amendment.

2. Whether the constitutional right was clearly

established

We hold that, taking the facts in the light most favorable

to the remaining plaintiffs, no reasonable officer would have

thought it lawful to detain and search them. The defendants

do not dispute that it has long been clearly established that it

is unlawful to conduct an investigatory stop and search

unsupported by reasonable suspicion. See, e.g., Ramirez v.

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

Once the officers discovered that the item in G.S.’s hand was

a mere toy, the only fact that in any way suggested that the

Sialoi family was involved in criminal activity was the sole

4

One might wonder, for instance, where exactly on her body the officers

believed that thirteen-year-old T.A.S. was hiding a shotgun.

SIALOI V. CITY OF SAN DIEGO 23

circumstance of their presence outside an apartment building

near which two armed suspects had earlier been spotted.

Were this sufficient to establish reasonable suspicion, the

police would be authorized to indiscriminately detain

individuals in areas of expected criminal activity without any

“basis for suspecting that the particular person detained is

engaged in criminal activity.” Liberal, 632 F.3d at 1077

(emphasis added). Accordingly, no reasonable officer would

think that the location of the encounter alone could serve as

the basis for reasonable suspicion. Furthermore, because the

officers do not “allege[] any specific facts” suggesting that

any of the remaining plaintiffs possessed a weapon, “we

conclude that it would have been clear to a reasonable officer

that [the] pat-down[s] . . . [were] unlawful in this situation.”

Ramirez, 560 F.3d at 1022–23. Accordingly, we affirm the

district court’s denial of qualified immunity for the officers’

seizure and search of the remaining plaintiffs.

D: The Search of the Sialois’ Apartment

1. Whether the search violated the Sialois’

constitutional rights

It is clear that “searches and seizures inside a home

without a warrant are presumptively unreasonable.” Groh v.

Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks

omitted). Here, the officers first attempt to justify the search

of the Sialois’ apartment on the theory that it was lawful

under Maryland v. Buie, 494 U.S. 325 (1990), as a

warrantless “protective sweep” of the Sialoi apartment

24 SIALOI V. CITY OF SAN DIEGO

incident to the arrest of G.S.5 Id. at 334. Buie is inapplicable,

however. There, officers possessed a valid arrest warrant that

authorized them to enter the suspect’s residence. 494 U.S. at

330. The issue in Buie was not whether the officers could

enter the residence but instead whether, having obtained

judicial authorization to enter the home, the officers were

justified in continuing to search it after they had arrested the

target of the arrest warrant. Id. Buie thus offers no

independent justification for entry of a residence, but only

addresses the question of what the police may do once

lawfully inside. See United States v. Flippin, 924 F.2d 163,

165 (9th Cir. 1991) (noting that the “protective search was

upheld in Buie because the police had a legitimate right to

enter the home”).

Moreover, even if Buie applied to the situation before us,

the facts in the light most favorable to the plaintiffs do not

suggest that the apartment “harbor[ed] an individual posing

a danger to those on the arrest scene.” Buie, 494 U.S. at 334.

This is so for the same reasons that we have stressed

repeatedly in this opinion. The officers had no basis for

believing that a dangerous individual was amongst the Sialois

because, at the time of the protective sweep, the officers had

already detained everyone present under heavily-armed police

guard, and had determined that no one at the birthday party

was engaged in any criminal activity at all.

5

Under Buie, officers can perform a “protective sweep” incident to an

arrest inside a residence if they possess “articulable facts which, taken

together with the rational inferences from those facts, would warrant a

reasonably prudent officer in believing that the area to be swept harbor[ed]

an individual posing a danger to those on the arrest scene.’” 494 U.S. at

334.

SIALOI V. CITY OF SAN DIEGO 25

Next, the defendants attempt to justify the search on the

basis of the exigency exception to the warrant requirement,

which permits “warrantless entry where officers ‘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

improperly frustrating legitimate law enforcement efforts.’”

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154,

1161 (9th Cir. 2014) (quoting Hopkins v. Bonvicino, 573 F.3d

752, 763 (9th Cir. 2009)). The defendants argue that the

officers had probable cause to enter the Sialois’ apartment to

find that oft-referenced “second gun.” But this argument is

easily answered in the same manner as the defendants’

argument about the seizure and search of the assembled

members of the Sialoi family. No probable cause existed to

believe that anyone connected with the Sialois possessed the

“second gun” because the officers knew, before searching the

Sialois’ apartment, that G.S.’s toy could not have been the

“first gun” described in the call to the police, and there was

no other reason at that time to suspect that any of the Sialois

had taken part or were taking part in any unlawful activity.

We therefore hold that the search of the Sialoi apartment

violated their constitutional rights.

2. Whether the constitutional right was clearly

established

Finally, we conclude that no reasonable officer would

have thought it lawful to search the Sialois’ apartment. The

defendants argue that the “one to two minute[]” search of the

apartment was not unreasonable. It was clearly established at

the time of the incident, however, that when officers arrive at

a residence and find “no evidence of weapons, violence, or

26 SIALOI V. CITY OF SAN DIEGO

threats,” that warrantless entry into that residence is

unreasonable, regardless of the duration. Sandoval, 756 F.3d

at 1165.6 Accordingly, we affirm the denial of qualified

immunity for the officers’ entry and search of the Sialois’

apartment.

IV

Taking all the facts in the light most favorable to the

plaintiffs, the defendants are not entitled to qualified

immunity, and the district court properly denied their motion

for summary judgment.

AFFIRMED.

6

Although Sandoval was published in 2014, it addresses alleged civil

rights violations that occurred in October 2009, a year prior to the incident

at issue in this case. 756 F.3d at 1158. Thus, Sandoval’s discussion of

clearly established law applies equally here.