“[W]hen considering qualified immunity, we are . . . limited to considering what facts the officer could have known at the time of the incident.”
How later courts described this case
- “[W]hen considering qualified immunity, we are . . . limited to considering what facts the officer could have known at the time of the incident.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOANN DAVIS, an individual; PAUL No. 15-55671
CILLEY, an individual,
Plaintiffs-Appellees, D.C. No.
5:13-cv-00483-
v. CBM-KK
UNITED STATES OF AMERICA;
NORMAN CONLEY, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted February 8, 2017
Pasadena, California
Filed April 13, 2017
Before: Sidney R. Thomas, Chief Judge, and Andrew J.
Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Chief Judge Thomas
2 DAVIS V. UNITED STATES
SUMMARY*
Qualified Immunity/Bivens
The panel affirmed the district court’s denial of federal
agent Norman Conley’s motion for summary judgment on the
ground of qualified immunity for a Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388, 389 (1971), claim
brought by Joann Davis against Conley, alleging wrongful
detention under the Fourth Amendment.
Davis, who is an elderly woman, was detained by Conley
in a public parking lot for two hours, while she stood in urine-
soaked pants, and Conley questioned her incident to a search,
concerning Davis’ possession of a paperweight containing a
rice-grain-sized bit of lunar material.
The panel held that Davis raised genuine issues of
material fact as to whether Conley’s detention of Davis was
unreasonably prolonged and degrading under Frankline v.
Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). The panel also
held that the circumstances leading up to the sting operation
further supported the conclusion that Conley’s detention of
Davis was unreasonable where: Conley knew that Davis
wanted to sell the paperweight due to her financial hardship
arising from her severely ill son’s medical expenses; Conley
knew that Davis believed the paperweights were legally
gifted to her late husband for his service as a NASA engineer;
Conley knew that Davis initiated contact with NASA for
assistance in selling the paperweight legally; and Conley did
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DAVIS V. UNITED STATES 3
not inform Davis that her possession of the paperweight was
illegal or ask her to surrender it to NASA. The panel
concluded that Conley was not entitled to qualified immunity
as a matter of law.
COUNSEL
John K. Rubiner (argued), Gerard Fox Law P.C., Los
Angeles, California; Steven I. Wallach, Gerard Fox Law P.C.,
New York, New York; for Defendants-Appellants.
Peter B. Schlueter (argued), Schlueter Law Firm PC,
Redlands, California, for Plaintiffs-Appellees.
OPINION
THOMAS, Chief Judge:
In this appeal, we consider whether a federal agent is
entitled to qualified immunity from suit for detaining an
elderly woman in a public parking lot for two hours, while
she stood in urine-soaked pants, to question her, incident to
a search, about her possession of a paperweight containing a
rice-grain-sized bit of lunar material. We conclude he is not,
and we affirm the judgment of the district court.
I
Joann Davis, and her late husband Robert, worked
together at North American Rockwell, which had a contract
with the National Aeronautics and Space Administration
(“NASA”) in connection with the nation’s space program.
4 DAVIS V. UNITED STATES
By all accounts, Robert was a brilliant engineer, and he
ultimately became a manager of North American Rockwell’s
Apollo project. While working on the space program, he
received many items of memorabilia, including two lucite
paperweights. One contained a rice-grain-sized fragment of
lunar material, or “moon rock;” the other contained a small
piece of the Apollo 11 heat shield. According to unverified
family lore, the paperweights were given to Robert by Neil
Armstrong in recognition of Robert’s service to NASA.
When Robert died in 1986, Joann retained possession of
the paperweights. She married her current husband, Paul
Cilley, in 1991. Davis began experiencing financial hardship
in 2011. Her son was severely ill, having had over 20
surgeries and requiring expensive medical care. In addition,
she unexpectedly had to raise several grandchildren when
their mother, Davis’s youngest daughter, died.
Her son suggested that the paperweights might have
value, so Davis began contemplating selling them to cover
some of his medical costs. She contacted some public
auction houses, without success, so she then contacted NASA
via email for assistance in “find[ing] a buyer for 2 rare Apollo
11 space artifacts.” She explained that “[b]oth of these items
were given to [her late husband] by Neil Armstrong,” and that
“[he] was very instrumental in all of the space programs right
up until his death in February of 1986.”
Davis’s email was forwarded to the NASA Office of
Inspector General at the Kennedy Space Center in Florida,
where Norman Conley was a special agent and criminal
investigator. Conley’s supervisor instructed him to
investigate whether Davis indeed possessed a moon rock and
to obtain a Registered Confidential Source to initiate
DAVIS V. UNITED STATES 5
telephone contact with her. A few hours after Davis sent the
email, Conley’s source called her, posing as a broker named
“Jeff” who previously worked on the “space-shuttle
program,” was well-known at NASA, learned of Davis’s
email to NASA, and would help her sell the paperweights.
Over the course of seven phone calls with “Jeff,” all of
which were recorded but the first, Davis expressed concern
that the paperweights would be confiscated by NASA unless
she could somehow prove they were actually a gift to her late
husband; she told “Jeff” that she had spoken with her
accountant regarding her tax liability for the sale because she
could not “hide stuff” and was “not that kind of person”; and
she explained that she wanted to “do[] things legally” because
she is “just not an illegal person.” “Jeff” responded, agreeing
that “you and I are both legal people,” but “the sale of a moon
rock . . . can’t be done publicly.”
In a later call, Davis told “Jeff” that she heard of someone
serving a prison sentence for selling lunar material, but she
understood her situation to be different because her late
husband received the paperweights as a gift. At no point did
“Jeff” or Conley inform Davis that all lunar material is
property of the U.S. government or that her possession of the
paperweights was illegal. Davis also mentioned during these
conversations that, because her former husband worked for
the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
she had several firearms in her home that she was trying to
sell.
6 DAVIS V. UNITED STATES
Based on these phone calls, Conley obtained a warrant to
search Davis and seize the moon rock paperweight.1 In his
affidavit supporting the warrant, Conley stated that he
believed Davis was “in possession of contraband, evidence of
the crime, fruits, and instrumentalities of the crime
concerning a violation of [18 U.S.C. § 641].”2
To execute the warrant, “Jeff” made arrangements with
Davis to meet around noon on May 19, 2011, at a Denny’s
Restaurant located in Lake Elsinore, California. Davis
believed the purpose of this meeting was to finalize the sale
1
NASA was not interested in seizing the heat shield paperweight
because it would be too difficult to verify its authenticity.
2
18 U.S.C. § 641 reads in part:
Whoever embezzles, steals, purloins, or knowingly
converts to his use or the use of another, or without
authority, sells, conveys or disposes of any record,
voucher, money, or thing of value of the United States
or of any department or agency thereof, or any property
made or being made under contract for the United
States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with
intent to convert it to his use or gain, knowing it to have
been embezzled, stolen, purloined or converted–
Shall be fined under this title or imprisoned not more
than ten years, or both; but if the value of such property
in the aggregate, combining amounts from all the
counts for which the defendant is convicted in a single
case, does not exceed the sum of $1,000, he shall be
fined under this title or imprisoned not more than one
year, or both.
DAVIS V. UNITED STATES 7
of the paperweights. In fact, it was a government sting
operation to seize the moon rock paperweight.
Davis proceeded to meet with “Jeff” at the restaurant.
She was accompanied by Cilley, who was approximately 70
years old. At the time of the incident, Davis was 74 and
4’11” tall. Three armed federal agents and three Riverside
County Sheriff's personnel were present, but not visible.
Once Davis, Cilley, and “Jeff” were seated in a booth
inside the restaurant and exchanged pleasantries, Davis
placed the paperweights on the table. “Jeff” said he thought
the heat shield was worth about $2,000. Shortly thereafter,
Conley announced himself as a “special agent,” and another
officer’s hand reached over Davis, grabbed her hand, and
took the moon rock paperweight. Simultaneously, a different
officer grabbed Cilley by the back of the neck and restrained
him by holding his arm behind his back in a bent-over
position. Then, an officer grabbed Davis by the arm, pulling
her from the booth. At this time, Davis claims that she felt
like she was beginning to lose control of her bladder. One of
the officers took her purse. Both Cilley and Davis were
compliant. Four officers escorted them to the restaurant
parking lot for questioning after patting them down to ensure
that neither was armed. At some point before the escort,
Conley left the restaurant and went to the parking lot.
Davis claims that she told officers twice during the escort
that she needed to use the restroom, but that they did not
answer and continued walking her toward an SUV where
Conley was waiting. Davis subsequently urinated in her
clothing. Although their accounts differ in some respects,
Conley and Davis agree that he knew she was wearing urine-
soaked pants as he interrogated her in the restaurant parking
8 DAVIS V. UNITED STATES
lot. Davis claims that she was not allowed an opportunity to
clean herself or change her clothing, despite communicating
to Conley several times that she was “very uncomfortable.”3
An officer read the search warrant aloud, and Conley then
read Davis her Miranda rights. Conley asked Davis to sit
inside the SUV, but Davis declined. Conley then proceeded
to question Davis for one-and-a-half to two hours, during
which time Davis remained standing in the same place.
Davis was never handcuffed that day. Nonetheless, while
Conley questioned her, another officer wearing a flack jacket
stood behind her and pushed her each time she shifted her
weight or stepped backwards. During the questioning,
Conley kept Davis’s purse and car keys and told her
repeatedly that “they still really want to take you in,” and that
she needed to give him more information before he could
release her. She was kept from going to her car. At least
ninety minutes had passed when Conley told Davis she was
free to leave.
After the sting operation was complete and NASA lunar
experts were able to confirm the moon rock’s authenticity,
Conley opened a full investigation. The investigation was
closed when the U.S. Attorney in Orlando, Florida, formally
declined to prosecute Davis. Davis’s son died seven months
after the incident.
3
Conley claims that he offered Davis “a number of remedies”
regarding her wet clothing, all of which she refused. However, that
factual dispute is not before us on this interlocutory appeal, in which we
can only consider legal issues and must construe the facts in the light most
favorable to the plaintiff.
DAVIS V. UNITED STATES 9
On August 7, 2013, Davis and Cilley filed their first
amended complaint against the United States and the NASA
officials involved in the incident. Davis and Cilley raised,
inter alia, a Bivens claim against Conley for wrongful
detention under the Fourth Amendment. See Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388, 389 (1971)
(establishing a private right of action for damages against
federal officials who violate the constitutional rights of
others). Conley sought summary judgment for the Bivens
claim on the ground of qualified immunity. Concluding that
genuine issues of material fact existed as to the lawfulness of
Davis’s detention, the district court denied Conley’s summary
judgment motion.4 Conley timely appealed.
II
Because Conley raises only legal issues in this
interlocutory appeal, we have jurisdiction under 28 U.S.C.
§ 1291. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2019
(2014); Behrens v. Pelletier, 516 U.S. 299, 313 (1996). We
review de novo a district court’s grant or denial of summary
judgment. See, e.g., Ariz. Dream Act Coal. v. Brewer,
818 F.3d 901, 908 (9th Cir. 2016). When considering a grant
of summary judgment, “[v]iewing the evidence in the light
most favorable to the nonmoving party,” we “must determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.” Oliver v. Keller, 289 F.3d 623, 626 (9th
Cir. 2002). On summary judgment, the moving party bears
the burden of establishing the basis for its motion and
4
The district court granted summary judgment as to other issues and
other defendants, but those issues are not before us on this interlocutory
appeal.
10 DAVIS V. UNITED STATES
identifying evidence that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
Although we must view the facts in the light most
favorable to the nonmoving party, when considering qualified
immunity, we are also limited to considering what facts the
officer could have known at the time of the incident. White
v. Pauly, 137 S. Ct. 548, 550 (2017) (citing Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2474 (2015)). “[S]ummary
judgment in favor of moving defendants is inappropriate
where a genuine issue of material fact prevents a
determination of qualified immunity until after trial on the
merits.” Liston v. County of Riverside, 120 F.3d 965, 975
(9th Cir. 1997).
A defendant is not entitled to qualified immunity if “the
facts that a plaintiff has alleged or shown make out a
violation of a constitutional right,” and that right was
“‘clearly established’ at the time of [the] defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (citations
omitted). The Supreme Court recently reiterated that a
“clearly established” constitutional right “should not be
defined ‘at a high level of generality.’” Pauly, 137 S. Ct. at
552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Rather, it must be “‘particularized’ to the facts of the case.”
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
III
The Fourth Amendment proscribes “unreasonable”
searches and seizures. U.S. Const. Amend. IV. A detention
DAVIS V. UNITED STATES 11
can be unreasonable “either because the detention itself is
improper or because it is carried out in an unreasonable
manner.” Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.
1994). We must determine reasonableness “from the
perspective of a reasonable officer on the scene.” See
Graham v. Connor, 490 U.S. 386, 396 (1989). Davis argues
that Conley violated the Fourth Amendment because his
detention of her was unreasonably prolonged and degrading,
particularly given that she is elderly, her clothing was urine-
soaked, the detention took place in a public parking lot, and
the moon rock paperweight had already been seized.
Viewing the facts in the light most favorable to Davis, we
agree.
Under the Fourth Amendment, “a warrant to search for
contraband founded on probable cause implicitly carries with
it the limited authority to detain the occupants of the premises
while a proper search is conducted.” Michigan v. Summers,
452 U.S. 692, 705 (1981). Nevertheless, “special
circumstances, or possibly a prolonged detention, might lead
to a different conclusion in an unusual case.” Id. at 705 n.21;
see also Muehler v. Mena, 544 U.S. 93, 101 (2005) (“[A]
lawful seizure can become unlawful if it is prolonged beyond
the time reasonably required to complete that mission.”
(internal quotation marks omitted)). For instance, search-
related detentions that are “unnecessarily painful [or]
degrading” and “lengthy detentions[] of the elderly, or of
children, or of individuals suffering from a serious illness or
disability raise additional concerns.” Foxworth, 31 F.3d at
876. Thus, a “seizure must be ‘carefully tailored’ to the law
enforcement interests that . . . justify detention while a search
warrant is being executed.” Meredith v. Erath, 342 F.3d
1057, 1062 (9th Cir. 2003) (citing Summers, 452 U.S. at
699–705).
12 DAVIS V. UNITED STATES
In Foxworth, police officers executed a search warrant at
a residence where a suspected gang member engaging in drug
activity might be present at the home of his mother and the
plaintiff. 31 F.3d at 874. The plaintiff suffered from
advanced multiple sclerosis, rendering him bedridden, unable
to feed himself or sit up without assistance, and unable to
control his bowels. As a result, he wore only a t-shirt in bed.
Id. After entering the plaintiff’s bedroom with guns drawn
and searching the room, officers cuffed his hands behind his
back, carried him to the living room, and placed him on a
couch with his genitals exposed. Id. at 875. After
complaining that the handcuffs were causing him pain and
that he was cold and tired from sitting upright, the officers
recuffed his hands in front of his body and gave him a
blanket. Id. The plaintiff was then forced to sit on the couch
for over two hours until the search of the house was complete.
Id. We held that the detention was unreasonable. Id. at 878.
Here, Conley does not dispute that he detained Davis in
the parking lot for up to two hours. At the time of the
detention, Conley was aware of several facts that color the
reasonableness of his actions. First, Conley knew that Davis
was a slight, elderly woman, who was then nearly seventy-
five years old and less than five feet tall. Second, he knew
that Davis lost control of her bladder during the search and
was wearing visibly wet pants. Third, he knew that Davis
and Cilley were unarmed and that the search warrant had
been fully executed by the time Davis was escorted to the
parking lot. Fourth, Conley knew that Davis had not
concealed possession of the paperweights, but rather had
reached out to NASA for help in selling the paperweights.
Finally, because all but the first of the phone calls between
Davis and “Jeff” were recorded, Conley knew the exact
content of most of those conversations, including that Davis
DAVIS V. UNITED STATES 13
was experiencing financial distress as a result of having to
raise grandchildren after her daughter died, her son was
severely ill and required expensive medical care, and Davis
needed a transplant. Those conversations also revealed
Davis’s desire to sell the paperweights in a legal manner and
her belief that she possessed them legally because they were
a gift to her late husband.
Because the moon rock paperweight had been seized and
both Davis and Cilley had already been searched for other
weapons and contraband, Conley had no law enforcement
interest in detaining Davis for two hours while she stood
wearing urine-soaked pants in a restaurant’s parking lot
during the lunch rush. This is precisely the type of “unusual
case” involving “special circumstances” that leads us to
conclude that a detention is unreasonable. See Foxworth,
31 F.3d at 876 (quoting Summers, 452 U.S. at 705 n.21).
Conley’s detention of Davis, an elderly woman, was
unreasonably prolonged and unnecessarily degrading.
Conley argues that the circumstances surrounding the
detention in Foxworth are far more egregious and therefore
distinguishable from Davis’s detention. Specifically, Conley
argues that, unlike the plaintiff in Foxworth, Davis was
suspected of illegal activity and named in the search warrant,
she consented to answering questions during the detention,
and she was not partially nude or disabled during the
detention. However, Foxworth does not require that a
detention be so egregious to be found unreasonable. Here,
Conley knew significantly more about Davis and the threat
she posed—or, more accurately, did not pose—than the
officers knew about the plaintiff in Foxworth. Moreover, the
search in Foxworth was incomplete, unlike the search here.
And the fact that Davis consented to further questioning has
14 DAVIS V. UNITED STATES
no bearing on the reasonableness of the detention. See
Foxworth, 31 F. 3d at 875.
Nonetheless, Conley argues that the circumstances
surrounding Davis’s detention are more closely analogous to
cases where the searches were found to be reasonable, such
as Crosby v. Hare, 932 F. Supp. 490 (W.D.N.Y. 1996), and
Hunter v. Namanny, 219 F.3d 825 (8th Cir. 2000). Not only
are these decisions not binding, they are distinguishable.
Both Crosby and Hunter involve an embarrassing detention
that occurred inside the plaintiff’s home while officers
conducted a search for illegal drugs. Therefore, in both cases,
the officers possessed law enforcement interests in detaining
the plaintiffs, namely to prevent the destruction of evidence
and to maintain officer safety. See Crosby, 932 F. Supp. at
495; Hunter, 219 F.3d at 831. Here, conversely, the search
was complete, Davis stood detained for up to two hours with
urine-soaked pants in view of the public, and Conley had no
such interest.
Conley also argues that, because Davis mentioned during
the phone calls with “Jeff” that she had several, possibly
illegal, firearms in her home, he acted reasonably. But when
Davis was detained, officers had already confirmed that
neither she nor Cilley was armed. Further, Conley arranged
the sting operation to take place over the lunch hour at a
family restaurant. This fact undermines his contention that he
possessed a legitimate concern that Davis and Cilley would
come to the meeting armed.
The remaining circumstances leading up to the sting
operation further support our conclusion that Conley’s
detention of Davis was unreasonable. Based on the
conversations between Davis and “Jeff,” Conley knew that
DAVIS V. UNITED STATES 15
Davis wanted to sell the paperweights because she was
experiencing financial hardship, particularly in light of her
adult son’s medical condition. He also knew that she
believed the paperweights were gifts to her late husband—a
belief bolstered by the fact that the artifacts were each
encased in a lucite globe, a common gift for honoring a
person’s service or accomplishments—and that she was thus
in legal possession of them. Finally, he knew that she was
elderly, that she intended to sell the paperweights legally, and
that she initiated contact with NASA for assistance in doing
so. Despite all of this knowledge, Conley did not inform
Davis that her possession of the paperweights was illegal or
ask her to surrender them to NASA. Instead, he organized a
sting operation involving six armed officers to forcibly seize
a lucite paperweight containing a moon rock the size of a rice
grain from an elderly grandmother.
IV
Considering these facts in the light most favorable to
Davis, as well as the facts Conley knew at the time of the
detention, the district court correctly concluded that Davis has
raised genuine issues of material fact as to whether Conley’s
detention of Davis was unreasonably prolonged and
degrading under Foxworth, and that Conley was not entitled
to qualified immunity as a matter of law.
AFFIRMED.