Merritt Sharp, III v. County of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERRITT L. SHARP III; CAROL No. 15-56146

SHARP,

Plaintiffs-Appellees, D.C. No.

8:14-cv-00331-

v. AG-JPR

COUNTY OF ORANGE; RYAN

ANDERSON; JEREMIAH PRESCOTT; OPINION

ALEXANDRA FLORES; JUSTIN

CHEVALIER; MARK VAN DE KREEKE;

ANTON PEREYRA,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted April 3, 2017

Pasadena, California

Filed September 19, 2017

2 SHARP V. COUNTY OF ORANGE

Before: David M. Ebel, * Milan D. Smith, Jr., and N. Randy

Smith, Circuit Judges.

Opinion by Judge Ebel

Dissent by Judge N.R. Smith

SUMMARY **

Qualified Immunity / 42 U.S.C. § 1983

The panel affirmed the district court’s denial of qualified

immunity to sheriff deputies as to plaintiff Merritt L. Sharp

III’s retaliation claim, as well as the denial of state-law

immunities on plaintiffs’ state claims; reversed the denial of

qualified immunity on plaintiff Carol Sharp’s retaliation

claim and Sharp III’s claims for the seizure of his person, the

use of excessive force against him, and the search of his

person, as well as plaintiffs’ shared claim concerning the

search of their home; and remanded for further proceedings.

The case arose out of the execution of an arrest warrant

for plaintiffs’ son, Merritt L. Sharp IV, whom sheriff

deputies thought was residing in his parents’ home. The

sheriffs mistakenly arrested, searched and detained Sharp

III, and searched the entire house. Plaintiffs alleged

*

The Honorable David M. Ebel, Senior Judge for the United States

Court of Appeals for the Tenth Circuit, sitting by designation.

**

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

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

SHARP V. COUNTY OF ORANGE 3

violations of their constitutional rights under 42 U.S.C. §

1983, and several pendent California state law claims.

First, the panel addressed Sharp III’s claims that the

deputies unlawfully seized him in violation of the Fourth

Amendment. Concerning the initial mistaken arrest of Sharp

III on the front lawn and initial transfer to the patrol vehicle,

the panel held that this initial arrest based on mistaken

identity was constitutionally unreasonable, and thus illegal,

but it did not violate clearly established law, and thus

qualified immunity was warranted. Concerning the

subsequent detention of Sharp III inside the patrol vehicle

after the deputies discovered that he was not the warrant

subject, the panel held that the categorical detention rule in

Michigan v. Summers, 452 U.S. 692 (1981), did not apply to

arrest warrants at issue in this case. Because there were no

particular circumstances justifying Sharp III’s detention

after learning he was not the arrest-warrant subject, the panel

concluded that detention was unconstitutional. The panel,

further held, however, that the detention did not violate

clearly established law because of the legal ambiguity

existing at the time of the arrest as to whether the categorical

Summers exception applied to arrest warrants. The panel

concluded that qualified immunity should have been

granted.

The panel next addressed Sharp III’s claims that Deputy

Anderson violated the Fourth Amendment by using

excessive force when Sharp III was arrested. The panel held

that while the degree of force here was significant, Deputy

Anderson was entitled to qualified immunity because

plaintiffs did not offer anything other than general legal

propositions which cannot clearly establish that Deputy

Anderson’s particular conduct was unlawful.

4 SHARP V. COUNTY OF ORANGE

Concerning Sharp III’s assertion of a Fourth Amendment

violation based on the search of his person during the initial

arrest, the panel held that since the arrest was not clearly

proscribed by established law, neither was the subsequent

search. Accordingly, qualified immunity should have been

granted.

The panel addressed the plaintiffs’ assertion that the

deputies’ search of their residence violated the Fourth

Amendment. The panel held that the officers reasonably

believed that Sharp IV resided in plaintiffs’ home. The panel

further held that Sharp IV’s probation condition requiring

him to submit his property to suspicionless searches defeated

plaintiffs’ claims that the deputies exceeded the scope of the

authorized search by looking in areas where Sharp IV would

not be found. The panel also held that there was no

established law clearly proscribing the deputies’ reliance

upon Sharp IV’s probation condition for their search of the

residence. For these two reasons, the panel concluded that

qualified immunity was warranted on this claim.

Concerning Sharp III’s First Amendment claim based on

the deputies’ alleged retaliation against him for being

argumentative, the panel held that Sharp III suffered

unconstitutional retaliation that was clearly proscribed by

established law. The panel concluded that qualified

immunity was properly denied.

The deputies asserted four immunities under California

state law to plaintiffs’ various state law claims. The panel

held that two immunities – “discretionary” immunity under

Cal. Gov. Code § 820.2 and “prosecutorial” immunity under

Cal. Gov. Code § 821.6 – did not apply as a matter of law.

The panel also held that the remaining two immunities –

arrest-warrant immunity under Cal. Gov. Code § 43.55(a)

and false-arrest immunity under Cal. Penal Code § 847(b) –

SHARP V. COUNTY OF ORANGE 5

did not apply as a consequence of the panel’s determination

that the deputies’ actions here were unreasonable. The panel

concluded that the district court properly denied these

immunities.

The panel held that the district court did not err in

declining to award summary judgment to deputies not

implicated in certain claims where the district court

welcomed a motion to release specific defendants, but the

deputies neglected to make one.

Judge N.R. Smith dissented in part. Judge N.R. Smith

agreed with the majority that the deputies violated the

Constitution when the deputies seized Sharp III, when the

deputies used force against him, and when the deputies

searched his person. Judge N.R. Smith disagreed whether the

rights were “clearly established” at the time of the violation.

He wrote that the majority failed to view the facts in the light

most favorable to Sharp III when analyzing the Fourth

Amendment claims, and consequently the majority

improperly granted the deputies qualified immunity for their

initial arrest of Sharp III, their use of excessive force against

Sharp III, their subsequent search of Sharp III, and their

continued arrest of Sharp III. Judge N.R. Smith would hold

that Sharp III’s Fourth Amendment claims stemming from

these violations should go to trial along with Sharp III’s

claim of First Amendment retaliation.

COUNSEL

Michael J. Rossiter (argued), Zachary M. Schwartz, and

William L. Haluck, Koeller Nebeker Carlson & Haluck LLP,

Irvine, California, for Defendants-Appellants.

6 SHARP V. COUNTY OF ORANGE

Brenton Whitney Aitken Hands (argued) and Jerry L.

Steering, Law Office of Jerry L. Steering, Newport Beach,

California, for Plaintiffs-Appellees.

OPINION

EBEL, Circuit Judge:

This case arises out of the execution of an arrest warrant

gone wrong. Plaintiffs Merritt L. Sharp III (Sharp III) and

Carol Sharp (Carol) were in their home when several sheriff

deputies arrived. The deputies had an arrest warrant for

Plaintiffs’ son Merritt L. Sharp IV (Sharp IV), whom they

believed was residing in his parents’ home. During the

pursuit of Sharp IV, however, the deputies mistakenly

arrested his father Sharp III, believing him to be the subject

of the warrant. In the course of that arrest, one of the

deputies forcefully restrained Sharp III and searched his

person. After they discovered their mistake, the deputies

still kept Sharp III handcuffed and locked in a patrol car

while several of them searched Plaintiffs’ home for Sharp

IV, the true subject of the arrest warrant. They also removed

Carol from the house and forced her to wait during the home

search. Meanwhile, Sharp III was kept detained in the patrol

car after one of the deputies told him that he was being too

argumentative to be let out of the car during the search of his

home. Plaintiffs testified that when they returned to their

house, they discovered that the deputies had not just

searched for their son in the home, but also had searched

through bedroom drawers and kitchen cabinets without a

search warrant.

Plaintiffs brought this lawsuit asserting violations of

their constitutional rights under 42 U.S.C. § 1983, and also

SHARP V. COUNTY OF ORANGE 7

raised several pendent claims under California law. On

motion for summary judgment, Defendants raised various

immunities from suit, including qualified immunity from the

§ 1983 claims and a handful of state-law immunities from

the state claims. 1 The district court denied all immunities.

In its view, the deputies violated clearly established law,

thereby precluding qualified immunity, and the district court

further held that the asserted state-law immunities were

inapplicable as a matter of law and fact.

We AFFIRM in part and REVERSE in part. The district

court properly denied qualified immunity on Sharp III’s

retaliation claim, and appropriately rejected all state-law

immunities. However, the deputies are entitled to qualified

immunity on Carol’s retaliation claim and Sharp III’s claims

for the seizure of his person, the use of excessive force

against him, and the search of his person, as well as

Plaintiffs’ shared claim concerning the search of their home.

Although we conclude that much of this conduct was

unconstitutional, we hold that qualified immunity was

nevertheless warranted on these claims. Our conclusions are

driven by recent Supreme Court pronouncements on

qualified immunity and rest principally on the failure by

Plaintiffs to identify sufficiently specific constitutional

1

Along with individual sheriff deputies, Plaintiffs sued the County

of Orange for allegedly maintaining constitutionally inadequate customs

and policies that resulted in the deputies’ unlawful conduct. See Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). The County sought

summary judgment because the undisputed record evidence did not

support liability under this theory. The district court agreed, awarded

summary judgment to the County, and the Plaintiffs do not cross-appeal.

Thus, the only issues on appeal concern the immunities asserted by the

deputy sheriffs.

8 SHARP V. COUNTY OF ORANGE

precedents to alert these deputies that some of their

particular conduct was unlawful.

I. BACKGROUND 2

In August 2013, Sharp IV was released from state prison

subject to conditions of probation. The conditions required

him to “[s]ubmit [his] person and property . . . to search and

seizure at any time of the day or night by any law

enforcement officer . . . with or without a warrant, probable

cause or reasonable suspicion.” ER at 121. With no place

to stay after his release, his parents, Sharp III and Carol,

agreed to let him live in their home at 408 Camino Bandera.

Thus, upon his release, Sharp IV informed the probation

office of this address as his place of residence. In mid-

September 2013, however, Sharp IV’s parents kicked him

out of their house. Carol then called their son’s probation

and parole officers and informed them that Sharp IV “no

longer lived in [their] home.” SER 255.

In September 2013, a California criminal court issued

two arrest warrants for Sharp IV. The deputies decided to

execute the warrants on the evening of October 2, 2013—a

date on which Sharp IV, coincidentally, was present at the

Camino Bandera residence to pick up some belongings.

Before executing the warrants, Deputy Prescott reviewed

Sharp IV’s two active arrest warrants, which indicated that

Sharp IV was male, white, fifty-one years old, 180 pounds,

between 5’11” and 6’ tall, and resided at 408 Camino

Bandera. He also reviewed Sharp IV’s DMV records and

2

Unless otherwise indicated, the following recited facts are not

materially disputed. To the extent that there are genuine disputes of

material fact in the record, we accept the facts most favorable to

Plaintiffs in the context of Defendants’ motion for summary judgment.

SHARP V. COUNTY OF ORANGE 9

probation response form, which confirmed the same address

of residence. Finally, he checked Sharp IV’s criminal

records and learned that Sharp IV had previously committed

violent crimes, including kidnapping, assault with a deadly

weapon, and felony domestic violence. After reviewing

these materials, Deputy Prescott met Deputies Van De

Kreeke and Chevalier in a parking lot near the Camino

Bandera residence to formulate a plan. Deputy Prescott

showed them a packet of documents which included a

photograph of Sharp IV and the arrest warrant listing the

Camino Bandera residence as Sharp IV’s address of record.

At around 11:00 p.m., October 2, 2013, the deputies

arrived at the Camino Bandera residence. Deputy Chevalier

made his way to the backyard while Deputies Prescott and

Van De Kreeke went to the front door. At the front door,

they placed a piece of tape over the peephole opening and

knocked several times. Sharp III looked through the

peephole but could not see anything, so he flashed the front-

porch light and confirmed that something was covering the

peephole. Around that time, Deputy Prescott reported that

he saw a person in a black shirt peek through the blinds.

Deputy Chevalier then radioed that the subject was

fleeing out the backyard: “[H]e’s running out the back. Foot

pursuit . . . going to be heavily wooded bushes. Male[,]

white, 5’11”, 180, wearing a black shirt, tan pants, white

shoes.” ER 20 (emphasis added). Deputies Prescott and Van

De Kreeke rushed around the back of the residence to assist

in the pursuit, but nobody could locate the subject. Working

their way through dense brush to find Sharp IV, the deputies

arrived at a nearby golf course and spread out to cover more

ground. At 11:05 p.m., Deputy Prescott radioed to nearby

officers to cover the Camino Bandera residence in case the

subject doubled back to the house. Deputy Chevalier added

10 SHARP V. COUNTY OF ORANGE

a further warning shortly thereafter: “Be advised, he’s prone

to violence. Violent history towards law enforcement.”

ER 22. By this time Deputy Anderson, who was on patrol

nearby and had heard these radio transmissions, began

making his way to the Camino Bandera residence for back-

up support.

Meanwhile, the deputies continued their search for Sharp

IV on the golf course. While on the golf course, Deputy

Prescott saw a man in the backyard of the Camino Bandera

residence whom he believed may have been Sharp IV.

Deputy Prescott reported that the man he saw was bald, wore

a blue shirt, and had the same stature as Sharp III. According

to Deputy Prescott, the man yelled something at the deputies,

turned around, and re-entered the home through the

backdoor. 3

Deputy Prescott then radioed the group that the

“[s]uspect’s gonna be back in the house, just went in the back

door.” ER 31. Then he directed Deputy Anderson

specifically, “I need you to go to the front of the house.”

ER 32. Deputy Anderson responded that he was en route.

Believing that Sharp IV had re-entered the house, Deputies

Prescott, Chevalier, and Van De Kreeke began making their

way back to the residence.

3

Deputy Prescott claimed he heard the person in the backyard yell,

“You guys couldn’t catch a cold.” ER 23. The parties dispute the precise

content of the statement. They further dispute whether Deputy Prescott

could have even seen anyone in the backyard over the tall brush that

would have obscured his view from the golf course. These factual

disputes are not material to our review of the order denying summary

judgment.

SHARP V. COUNTY OF ORANGE 11

At around 11:13 p.m. Deputy Anderson, accompanied

by Deputy Flores, arrived at the house. They had not seen a

photograph of the warrant subject, nor did they know the

subject’s name. Deputy Anderson did, however, recall from

an earlier radio transmission that “the suspect fleeing the

residence [was] described as a white male wearing a black

shirt and tan pants.” 4 SER 149 (emphasis added). The

deputies also knew that the suspect was “last seen in the area

of the house” and “may have r[u]n back into the house.”

SER 152.

As Deputies Anderson and Flores arrived at the scene,

Sharp III—the suspect’s father—walked out of the front

door wearing a light blue shirt and blue jeans. As Sharp III

walked off the front porch, Deputy Anderson admitted there

was enough light to be able to approximate Sharp III’s age.

Although Defendants dispute this, Sharp III claims he was

not yelling or acting belligerent at the time, but rather walked

calmly toward the deputies. Despite the mismatched

clothing and an alleged demeanor inconsistent with that of a

fleeing suspect, Deputies Anderson and Flores began

shouting commands with their weapons drawn: “Get down

on the ground!” and “put your hands up!” ER 32. 5

4

Later in his deposition, Deputy Anderson stated that all he

remembered was that the subject was “male” and “white”—nothing

about the clothing. SER 152. However, on summary judgment we adopt

the version of the facts most favorable to the non-moving parties, here

Plaintiffs. We thus credit his earlier statement that he heard the fleeing

suspect was wearing a black shirt and tan pants, rather than his later

contradictory statement of ignorance regarding the suspect’s clothing.

5

Defendants point out that, before arresting Sharp III, Deputy

Anderson asked Sharp III his name, to which he responded, “Merritt.”

ER 32. The warrant subject’s first name was also Merritt, so Defendants

12 SHARP V. COUNTY OF ORANGE

The deputies then placed Sharp III under arrest. In

explaining their rationale for the arrest, Deputy Anderson

stated: “I hadn’t identified who he was and believed he may

be the wanted person.” ER 178. Deputy Flores, who was

the supporting deputy on the scene rather than the deputy

who physically conducted the arrest, further explained: “I

didn’t know who was coming out of the house, to be

honest. . . . [I]t wasn’t secured, so we were trying to just

detain everybody[.]” SER 237. Nevertheless, despite their

uncertainty, the deputies proceeded to arrest Sharp III.

In doing so, Deputy Anderson grabbed Sharp III’s left

arm, put it behind his back, “shove[d] it” upward toward his

neck, and handcuffed his left wrist. ER 187. Deputy

Anderson then conducted a search of Sharp III’s person,

instructing him to empty out his pockets on the front lawn.

Finally, Deputy Anderson handcuffed Sharp III’s right wrist,

thereby fully restraining his arm movement. According to

Sharp III, the handcuffs were “so tight that [he] still ha[s]

scars on [his] wrists to this very day.” SER 273.

At 11:15 p.m., Deputy Anderson placed Sharp III in the

back of a patrol car. He asked for the arrestee’s full name

and birthday, to which Sharp III responded that his name was

Merritt Llewellyn Sharp and that he was born on August 6,

1940—thereby making him seventy-three years old. For the

next several minutes, Deputy Anderson attempted to match

Sharp III’s identity with outstanding warrants by running the

contend that the arresting deputies reasonably believed Sharp III was the

warrant subject. But the arresting deputies did not know the warrant

subject’s name, so learning that Sharp III’s first name was also Merritt

did not corroborate their suspicion that Sharp III was the warrant subject.

SHARP V. COUNTY OF ORANGE 13

information through a mobile computer, but this effort was

delayed by low internet connectivity in the area.

At 11:19 p.m., several deputies went back to search the

house pursuant to Sharp IV’s probationary search condition.

At the front door, however, they confronted Sharp III’s wife,

Carol, who informed them that they had arrested the wrong

man, and that her son Sharp IV did not live there anymore.

Realizing their mistake, the deputies began to question Sharp

III about his son’s whereabouts. Sharp III was angry and

still restrained in the back of the patrol car, but he answered

their questions. He disclaimed any awareness of his son’s

location, but told the deputies that his son had been in the

house twenty minutes earlier.

At this time, the deputies did not release Sharp III.

Instead, they kept him handcuffed and locked in the patrol

car. Sharp III was furious and adamantly protested his

detention, loudly swearing at the deputies and threatening to

sue them. In response, Deputy Anderson told Sharp III: “If

you weren’t being so argumentative, I’d probably just put

you on the curb.” SER 280.

The home search began at 11:28 p.m., during which time

Carol was forced to wait on the front porch with Deputies

Flores and Hudson. Plaintiffs claim that the search

encompassed more than just a search for Sharp IV. Taking

the facts as stated by Plaintiffs, Deputies Prescott, Chevalier,

Van De Kreeke, and Pereyra entered the home and opened

kitchen cabinet and pantry doors, removed the air-

conditioning cover in the attic, and searched various drawers

in Carol’s own bedroom. When Carol was allowed back in

the house, she discovered clothing flung on the floor in her

bedroom closet. After the search concluded, Sharp III was

released from the patrol car at 11:39 p.m. That means, even

after the deputies discovered he was not the subject of the

14 SHARP V. COUNTY OF ORANGE

arrest warrant, Sharp III was detained for about twenty

minutes in the patrol car.

The morning after the incident, Plaintiffs went to an

urgent care facility for treatment of Sharp III’s shoulder,

which had been causing him pain after Deputy Anderson

yanked his left arm behind his back. Sharp III ultimately

needed surgery to repair a torn rotator cuff.

Plaintiffs now assert violations of their constitutional

rights under 42 U.S.C. § 1983, and several pendent claims

under California state law. As for the federal claims which

we address on appeal from denial of qualified immunity,

Sharp III asserts violations of the Fourth Amendment based

on the seizure of his person (including the initial mistaken

arrest and the continuing detention in the patrol car), the

search of his person, and the use of excessive force against

him. He also brings a First Amendment retaliation claim

based on the deputies’ refusal to release him on account of

his “argumentative” demeanor. Carol brings a similar

retaliation claim based on her verbal protests about the

deputies’ treatment of her husband. Finally, Plaintiffs

together bring a shared Fourth Amendment claim for the

search of their home. As for California state-law claims,

they assert various statutory and common-law violations

arising out of the same conduct that is the subject of the

federal claims. The deputies moved for summary judgment

on the grounds that they were entitled to qualified immunity

against the federal claims, and state-law immunities against

the state claims. The district court denied summary

judgment, thereby prompting this interlocutory appeal. 6

6

We have appellate jurisdiction because a district court’s denial of

qualified immunity is immediately appealable to the extent it turns on an

SHARP V. COUNTY OF ORANGE 15

II. DISCUSSION

We review de novo a district court’s order on summary

judgment, and we evaluate the evidence in the light most

favorable to Plaintiffs, the non-movants. See, e.g., Olsen v.

Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

Qualified immunity is proper unless Plaintiffs establish that

(1) the deputies committed a constitutional violation, and

(2) the deputies’ specific conduct violated “clearly

established” federal law. E.g., Kirkpatrick v. Cty. of

Washoe, 843 F.3d 784, 788 (9th Cir. 2016).

A. Seizure of Sharp III

Sharp III claims that the deputies unlawfully seized him

in violation of the Fourth Amendment. There are two

aspects to this seizure which we analyze separately: (1) the

initial mistaken arrest of Sharp III in the front lawn and

initial transfer to the patrol vehicle, and (2) his subsequent

detention inside the patrol vehicle after the deputies

discovered that he was not the warrant subject. These

separate phases of Sharp III’s allegedly unreasonable seizure

require separate treatment because they implicate different

Fourth Amendment principles.

The legality of the initial mistaken arrest—when the

deputies mistakenly believed they had correctly

apprehended the subject of the warrant—turns on the

objective reasonableness of their belief that the man they

arrested was in fact the warrant subject. There is no

categorical authority to commit such an unreasonable

issue of law, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and the

denial of a state-law immunity from suit is also immediately appealable,

Liberal v. Estrada, 632 F.3d 1064, 1075 (9th Cir. 2011).

16 SHARP V. COUNTY OF ORANGE

mistake, so we analyze only the specific facts that confronted

the deputies during the arrest. However, after the deputies

learned that Sharp III was not the true warrant subject, they

returned to search for Sharp IV in the Camino Bandera

residence. At that moment, a new Fourth Amendment

principle was potentially implicated for the continued

detention of Sharp III. Under Michigan v. Summers,

irrespective of the exigencies of the particular

circumstances, officers may categorically detain the

occupant of a home while executing a search warrant in that

home. 452 U.S. 692, 705 (1981). These deputies rely on

Summers to assert that they could continue to detain Sharp

III—even after they knew he was not the subject of the arrest

warrant—while they searched his home for Sharp IV, for the

purpose of executing the arrest warrant. The principal issue

as to the validity of this claimed defense is whether

Summers, which hinged critically on the distinct character of

search warrants, applies also to arrest warrants.

1. Initial Arrest of Sharp III Based on Mistaken Identity

Sharp III encountered Deputies Anderson and Flores

when he walked out of his front door. At gun point, the

deputies ordered him to the ground and placed him under

arrest because he “may” have been the subject of the

warrant. ER 178. But the deputies were wrong—Sharp III

was the suspect’s father. We conclude that this initial arrest

based on mistaken identity was constitutionally

unreasonable, and thus illegal, but it did not violate clearly

established law. Qualified immunity was therefore

warranted.

a. The Initial Arrest Was Unconstitutional

In a case of mistaken identity, “the question is whether

the arresting officers had a good faith, reasonable belief that

SHARP V. COUNTY OF ORANGE 17

the arrestee was the subject of the warrant.” Rivera v. Cty.

of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014); accord

Hill v. California, 401 U.S. 797, 802 (1971) (“[W]hen the

police have probable cause to arrest one party, and when

they reasonably mistake a second party for the first party,

then the arrest of the second party is a valid arrest.” (internal

quotation marks omitted)). The constitutionality of the

arrest thus turns on the reasonableness of the deputies’

mistake.

In this case, the mistake of identity was unreasonable. At

the outset, it is not clear that Deputies Anderson and Flores

actually even formed a specific belief that Sharp III was the

warrant subject. Deputy Anderson testified that he “hadn’t

identified who [Sharp III] was and believed [Sharp III] may

be the wanted person.” ER 178. Deputy Flores said that she

“didn’t know who was coming out of the house, . . . so we

were trying to just detain everybody[.]” SER 237. However,

both deputies should have known that Sharp III was not the

subject they heard described on the radio transmissions.

They had not been privy to all the information known by the

other deputies who first encountered the fleeing suspect. All

they knew was what they heard from the other deputies on

the scene, who reported that the fleeing suspect (and reported

subject of the arrest warrant) was wearing a black shirt and

tan pants. But Sharp III was wearing completely different

clothing—a light blue shirt and blue jeans. What is more,

when they encountered Sharp III, he was walking toward

them, rather than fleeing like the described suspect.

Defendants counter that it was nighttime and the

situation was dynamic and evolving, but that does not give

officers the license to arrest anyone near the scene of a

fleeing suspect. It was thus unreasonable for Deputies

Anderson and Flores to conclude that Sharp III was the

18 SHARP V. COUNTY OF ORANGE

subject of the arrest warrant. The initial arrest of Sharp III

therefore violated the Fourth Amendment.

b. The Violation Was Not Clearly Established

Although unconstitutional, the arrest was not clearly

proscribed by established federal law. The Supreme Court

has repeatedly instructed that we examine “whether the

violative nature of particular conduct is clearly established”

by controlling precedent, not whether the conduct violates a

general principle of law. Mullenix v. Luna, 136 S. Ct. 305,

308 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011)). Therefore, while Hill v.

California, 401 U.S. 797, 802 (1971), and Rivera v. County

of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014), establish

a general rule that an unreasonable mistake of identity

renders an arrest unconstitutional, we cannot simply apply

that general rule to the facts of this case.

Except in the rare case of an “obvious” instance of

constitutional misconduct (which is not presented here),

Plaintiffs must “identify a case where an officer acting under

similar circumstances as [defendants] was held to have

violated the Fourth Amendment.” White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam) (emphasis added). In other

words, Plaintiffs must point to prior case law that articulates

a constitutional rule specific enough to alert these deputies

in this case that their particular conduct was unlawful. To

achieve that kind of notice, the prior precedent must be

“controlling”—from the Ninth Circuit or Supreme Court—

or otherwise be embraced by a “consensus” of courts outside

the relevant jurisdiction. Wilson v. Layne, 526 U.S. 603, 617

(1999).

Plaintiffs offer only one controlling case that they

believe meets this standard, United States v. Delgadillo-

SHARP V. COUNTY OF ORANGE 19

Velasquez, 856 F.2d 1292 (9th Cir. 1988), but we reject it as

too dissimilar on its facts. In that case, officers had an

“untested tip” about a known drug dealer, a printout of his

physical description, a twenty-year-old photograph of the

fugitive, and his apartment address. Id. at 1294, 1296. The

officers conducted surveillance of the apartment building

over two days and observed an apparent drug transaction

made outside the building by a Latin male whose appearance

did not match the photograph. Id. at 1294. The officers then

arrested that Latin male, but he ultimately was not the

suspect they were looking for. We concluded that the

officers lacked probable cause to make the arrest, and we

rejected the mistake-of-identity defense because “they had

no reason to believe” the arrestee was their suspect. Id. at

1297.

Our case differs materially from Delgadillo-Velasquez.

In particular, the deputies here arrived late on the scene and

understood the situation to be dynamic and evolving, with a

fleeing suspect who was prone to act violently against law

enforcement. The need to act quickly and decisively—even

if mistakenly—was thus greater here than it was in

Delgadillo-Velasquez. Further, in Delgadillo-Velasquez, the

arresting officers had a photograph of the suspect that did

not match the arrestee, whereas in our case Deputies

Anderson and Flores had never seen a picture of the warrant

subject and had only heard a general description of his

clothing which was received under fleeting and stressful

circumstances. Thus, Delgadillo-Velasquez does not clearly

establish that the deputies in our case violated the Fourth

Amendment.

It is true that in a sufficiently “obvious” case of

constitutional misconduct, we do not require a precise

factual analogue in our judicial precedents. Brosseau v.

20 SHARP V. COUNTY OF ORANGE

Haugen, 543 U.S. 194, 199 (2004) (per curiam) (“[I]n an

obvious case, [highly generalized] standards can ‘clearly

establish’ the answer, even without a body of relevant case

law.”); Hope v. Pelzer, 536 U.S. 730, 741 (2002)

(“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.”);

United States v. Lanier, 520 U.S. 259, 271 (1997) (“[I]n

[some] instances a general constitutional rule already

identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though the

very action in question has not previously been held

unlawful[.]” (internal quotation marks and alteration

omitted)). 7

But this obviousness principle, an exception to the

specific-case requirement, is especially problematic in the

Fourth-Amendment context. When a violation is obvious

enough to override the necessity of a specific factual

analogue, we mean to say that it is almost always wrong for

an officer in those circumstances to act as he did. But that

kind of categorical statement is particularly hard to make

when officers encounter suspects every day in never-before-

seen ways. There are countless confrontations involving

officers that yield endless permutations of outcomes and

responses. So the obviousness principle has real limits when

it comes to the Fourth Amendment. See Mullenix, 136 S. Ct.

at 308 (The legal rule’s “specificity is especially important

7

As one of our sibling circuits explained: “[S]ome things are so

obviously unlawful that they don't require detailed explanation and

sometimes the most obviously unlawful things happen so rarely that a

case on point is itself an unusual thing. Indeed, it would be remarkable

if the most obviously unconstitutional conduct should be the most

immune from liability only because it is so flagrantly unlawful that few

dare its attempt.” Browder v. City of Albuquerque, 787 F.3d 1076, 1082-

83 (10th Cir. 2015).

SHARP V. COUNTY OF ORANGE 21

in the Fourth Amendment context, where the Court has

recognized that it is sometimes difficult for an officer to

determine how the relevant legal doctrine . . . will apply to

the factual situation the officer confronts.” (internal

quotation marks and alteration omitted)).

With these observations in mind, we find this is not “one

of those rare cases” in which a violation was so “obvious”

that qualified immunity does not apply “even without a case

directly on point.” A.D. v. Cal. Highway Patrol, 712 F.3d

446, 455 (9th Cir. 2013). After all, Deputy Prescott had

some basis to believe that Sharp III has reentered the house

and may have tried to exit the front door since he would have

known that the officers had the back exit covered. Thus,

Deputy Prescott’s instructions to Deputies Anderson and

Flores to “go to the front of the house” could be construed

by Deputy Anderson and Deputy Flores as an informed

advisement that Deputy Prescott thought the suspect Sharp

IV was at imminent risk of exiting the front of the house.

ER 32. Deputies Anderson and Flores also had heard on the

radio that the fleeing suspect had a history of violence

toward law enforcement. Further, the deputies may have felt

an acute need to apprehend the subject without verifying his

identity based on their perception that the suspect had fled

from the other deputies just minutes earlier. Finally, the

arresting deputies here had never seen a picture of the

warrant subject or even a detailed physical description of

him other than the generalized reference to the fleeing

suspect’s clothes, transmitted over the radio under fleeting

and stressful circumstances. These factors make this a non-

obvious constitutional violation, and thus we require a

specific precedent or principle that would have alerted

Deputies Anderson and Flores that their specific conduct, or

at least conduct more closely analogous to their own, was

unlawful. Finding none, we conclude they were entitled to

22 SHARP V. COUNTY OF ORANGE

qualified immunity as to the initial arrest based on mistaken

identity.

2. The Subsequent Detention of Sharp III in Patrol

Vehicle Was Unconstitutional

The deputies subsequently detained Sharp III’s in the

patrol car after they discovered that he was not the warrant

subject. Defendants contend that, under the rule of Michigan

v. Summers, 452 U.S. 692 (1981), officers have the

categorical authority to detain a home occupant in the

immediate vicinity of the home while executing an arrest

warrant for a different subject in the home. But Summers

involved a search warrant, which is meaningfully different

from an arrest warrant. We hold that the categorical

detention rule announced in Summers does not apply to

arrest warrants, and because there were no particular

circumstances justifying Sharp III’s detention after learning

he was not the arrest-warrant subject, we conclude that

detention was unconstitutional as well. However, once

again, it did not violate clearly established law because of

the legal ambiguity existing at the time of the arrest as to

whether the categorical Summers exception applied to arrest

warrants. Thus, qualified immunity should have been

granted.

a. Sharp III’s Detention Cannot Be Justified By

an Extension of Michigan v. Summers to

Arrest Warrants

We first analyze whether Summers gives law

enforcement the categorical authority to detain home

occupants incident to the execution of an arrest warrant.

After concluding that such categorical authority does not

extend to arrest warrants, we next examine whether, in the

particular circumstances of this case, it was constitutionally

SHARP V. COUNTY OF ORANGE 23

reasonable to detain Sharp III after realizing he was not the

subject of the arrest warrant.

i. Categorical Detention Authority Under

Summers

It is established that a warrant to search a home

“implicitly carries with it the limited authority to detain the

occupants of the premises while a proper search is

conducted.” Summers, 452 U.S. at 705. As Justice Scalia

described it, the Summers detention authority “is not the

Government’s right; it is an exception—justified by

necessity—to a rule that would otherwise render the seizure

unlawful.” Bailey v. United States, 568 U.S. 186, 204 (2013)

(Scalia, J., concurring) (internal quotation marks and citation

omitted). Moreover, this exception is categorical—it does

not depend on the specific circumstances in a particular case,

see Muehler v. Mena, 544 U.S. 93, 98 (2005), although it is

“limited to the immediate vicinity of the premises” in

question, Bailey, 568 U.S. at 199; see id. at 194, 201 (finding

the Summers exception inapplicable because the occupant

was detained a mile away from the home and thus was not

within the immediate vicinity of the searched premises). We

hold that the Summers exception, which hinged critically on

the distinct nature of a search warrant, does not extend to

arrest warrants.

Search warrants and arrest warrants are meaningfully

different because they protect different Fourth Amendment

interests. See Steagald v. United States, 451 U.S. 204, 212–

13 (1981) (finding that an arrest warrant is not sufficient to

enter a third party’s home to arrest a subject, and that a

24 SHARP V. COUNTY OF ORANGE

separate search warrant must be obtained for that purpose). 8

So it is not appropriate to assume that the rules of search

warrants automatically apply to those of arrest warrants. We

therefore conduct an independent analysis to determine

whether the Summers rule encompasses arrest warrants.

In deciding the scope of this rule, we examine the

original justifications outlined by the Supreme Court in

announcing the rule in the first place. Those justifications

were three-fold: (1) the detention of occupants whose home

is already the subject of a search warrant only “minimally”

inflicts an “incremental” intrusion on their rights, Summers,

452 U.S. at 701–02; (2) the search warrant itself implies that

someone in the home may have committed a crime, thereby

making it constitutionally reasonable to detain the

occupants, id. at 703–04; and (3) the police have substantial

interests in detaining occupants while the search is

conducted, id. at 702–03. These reasons do not apply with

the same force to arrest warrants. We assess each in turn.

First, because an arrest warrant targets a person, rather

than a dwelling, detaining an occupant who is not the subject

of the warrant inflicts an entirely separate Fourth

Amendment injury on an entirely separate person—it is not

a minimal or “incremental” intrusion because the arrest

injured a different person than the subject of the warrant.

8

Search warrants safeguard the privacy interest in the home by

requiring officers to secure a judicial determination of probable cause

that incriminating evidence would be found therein. Steagald, 451 U.S.

at 212-13. By contrast, arrest warrants protect a person’s liberty

interest—the interest in not being unreasonably seized while in his

home—by subjecting the officers’ probable-cause determination to

judicial approval. Id.

SHARP V. COUNTY OF ORANGE 25

Second, arrest warrants do not imply that someone other

than the subject of the warrant is guilty of a crime. In fact,

the Supreme Court recognized this very principle in

Maryland v. Buie: A “search warrant implie[s] a judicial

determination that police had probable cause to believe that

someone in the home was committing a crime[,]” whereas

“the existence of [an] arrest warrant implies nothing about

whether dangerous third parties will be found in the

arrestee’s house.” 494 U.S. 325, 334 n.2 (1990) (emphasis

added) (rejecting the State’s argument that an “arrest warrant

carrie[s] with it the authority to search for persons who could

interfere with the [in-home] arrest”).

Third, the interests of law enforcement in detaining

occupants during a search (mostly) do not apply to the

execution of an arrest warrant. The Summers Court

articulated three such interests: (1) “preventing flight in the

event that incriminating evidence is found”; (2) facilitating

“the orderly completion of the search” as detainees’ “self-

interest may induce them to open locked doors or locked

containers to avoid the use of force”; and (3) “minimizing

the risk of harm to the officers.” Summers, 452 U.S. at 702–

03. With the exception of the final factor, these

considerations simply do not apply with the same force to

arrest warrants.

The first interest—prevention of flight in the event that

incriminating evidence is found—is wholly inapplicable to

the arrest-warrant context. An occupant might be expected

to flee when the police find contraband during the execution

of a search warrant. By contrast, an occupant who is not the

subject of an arrest warrant is not likely to be arrested

himself when the warrant is executed. So there is no real

flight risk in the arrest-warrant context.

26 SHARP V. COUNTY OF ORANGE

The second interest—the orderly completion of the

search—is also inapposite. The essence of this rationale is

that the occupant can help the police conduct the search by

opening locked doors, but unless the subject of the arrest

warrant is behind a locked door and the co-occupant has a

key, this does not apply to arrest warrants.

The third interest—officer safety—is admittedly

sometimes present in the arrest-warrant context as well.

After all, co-occupants might frustrate the arrest of a family

member or retaliate against officers if not properly

restrained. But this lone interest cannot be enough to give

officers the categorical power to detain home occupants

during the execution of an arrest warrant irrespective of

whether such a threat actually exists. The Summers Court

relied on much more than that to give officers the “far-

reaching authority” they now have to execute search

warrants, Bailey v. United States, 133 S. Ct. 1031, 1039

(2013), so reliance on this factor alone is insufficient to

extend the Summers rule—a rule of categorical authority—

to arrest warrants.

Our decision in United States v. Enslin, 327 F.3d 788

(9th Cir. 2003), is not to the contrary. In that case, we upheld

a “de minimis” seizure of a home occupant (requiring only

that he show his hands to an officer) during the in-home

execution of an arrest warrant for a different person. Id. at

795–98. While we cited Summers for the general

proposition that risk to officer safety is minimized when

officers take control of a situation, our holding in Enslin was

predicated on a fact-specific reasonableness

determination—balancing the seriousness of the intrusion

against the interest in preserving officer safety in that

particular case. Id. at 796–97. Such a fact-bound inquiry

would not have been undertaken if the court had extended

SHARP V. COUNTY OF ORANGE 27

the categorical Summers rule to the arrest-warrant context.

Thus, Enslin does not compel a contrary holding in this case.

Officers do not have the categorical authority to detain co-

occupants of a home incident to the in-home execution of an

arrest warrant.

That does not mean, however, that such a detention

would never be authorized under the particular

circumstances confronting an officer. Declining to extend

the categorical Summers rule to arrest warrants does not

leave officers defenseless when entering a home to execute

an arrest warrant. There will surely be circumstances when

detention of persons on, or immediately near, the premises

will be objectively reasonable. After all, entry into a home

for the purpose of arresting an occupant can be a dangerous

effort, and officers ought to have reasonable tools at their

disposal to take command of the situation to protect their

own safety and the safety of others. See Summers, 452 U.S.

at 702–03 (“The risk of harm to both the police and the

occupants is minimized if the officers routinely exercise

unquestioned command of the situation.”). Those tools

might include detention of occupants to stabilize the

situation while searching for the subject of an arrest warrant

or conducting a lawful protective sweep of the premises.

But as we explain, the deputies in this case were not

presented with anything remotely near the circumstances

needed to justify the detention of Sharp III.

ii. Whether the Detention of Sharp III Was

Reasonable Under the Specific

Circumstances Confronting the Deputies

Defendants contend that, in these particular

circumstances, Sharp III’s detention was reasonably

necessary to keep him from interfering with the search for

28 SHARP V. COUNTY OF ORANGE

Sharp IV in the house. But construing the facts in Plaintiffs’

favor, we find no evidence to support that inference other

than the unsupported speculation that an irritated father

might intervene in a police effort to apprehend his son. We

decline to indulge such naked conjecture, especially because

Sharp III was not engaged in any such disruptive activity at

the time of the arrest. He was walking toward the officers in

an apparently compliant manner. Sharp III’s subsequent

frustration is best understood as a reaction to the deputies’

mistake in arresting him and his ongoing confinement in a

patrol car. With no categorical authority to detain Sharp III

under Summers, and no circumstance-specific authority to

confine him either, the deputies have no more legal legs to

stand on. We thus find this patrol-car detention

unconstitutional.

b. The Violation Was Not Clearly Established

Although there was no constitutional authority to detain

Sharp III in the patrol car after discovering he was not the

subject of the warrant, that particular detention was not

clearly proscribed by established law. Except when there is

an “obvious” instance of constitutional misconduct,

Plaintiffs must “identify a case where an officer acting under

similar circumstances as [defendants] was held to have

violated the Fourth Amendment.” White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam) (emphasis added). Simply put,

there is no such controlling case here that would alert these

officers to the proper scope of Summers.

In fact, non-binding case law could be perceived by a

reasonable officer to point in the other direction. We have

held in an unpublished decision that the Summers exception

does, in fact, extend to arrest warrants. Katzka v. Leong,

11 F. App’x 854, 855–56 (9th Cir. 2001) (unpublished).

Further, our published decision in Enslin, although it does

SHARP V. COUNTY OF ORANGE 29

not go so far as to apply the Summers categorical exception

to arrest warrants, could nevertheless provide some support

to a reasonable officer in concluding that the Summers

categorical exception does apply to arrest warrants.

327 F.3d at 795–98. And finally, other federal courts of

appeals have also indicated that the Summers’ rationale

might apply in the arrest-warrant context. See Gomez v.

United States, 601 F. App’x 841, 846–49 (11th Cir. 2015)

(unpublished); Cherrington v. Skeeter, 344 F.3d 631, 638

(6th Cir. 2003).

To be sure, the Supreme Court limited the Summers

exception—and did so unequivocally—to the execution of

warrants in the “immediate premises” of a home, see Bailey,

568 U.S. at 194, 201 (finding that one mile away from the

searched premises did not qualify as within the immediate

vicinity), but that limitation does not answer the question

whether the Summers exception extends to arrest warrants—

and our case law on that question, as well as rulings from

several other federal circuit courts, could lead reasonable

persons to different conclusions. Neither is there any

contention here by Plaintiffs that Sharp III’s seizure was not

within the “immediate vicinity” of the Camino Bandera

residence.

Plaintiffs have also failed to identify a case that

pronounces a constitutional rule at a level of specificity

sufficient to alert these deputies here that their conduct was

unconstitutional in the specific circumstances they

confronted. Nor is this a sufficiently “obvious” case

justifying departure from our requirement that there be some

factually analogous judicial precedent. Thus, qualified

immunity should have been granted.

30 SHARP V. COUNTY OF ORANGE

B. Use of Excessive Force Against Sharp III

Sharp III claims that Deputy Anderson violated the

Fourth Amendment by using excessive force when Sharp III

was arrested. Taking the facts as offered by Plaintiffs,

Deputy Anderson yanked Sharp III’s left arm behind his

back—thereby causing a rotator-cuff tear which required

surgery—and then applied handcuffs that were tight enough

to break Sharp III’s skin. While the degree of force here was

significant, Deputy Anderson was entitled to qualified

immunity because Plaintiffs have not offered anything other

than general legal propositions which cannot clearly

establish that Deputy Anderson’s particular conduct was

unlawful.

Plaintiffs contend that the use of force is unlawful

because the arrest itself is unlawful. But that is not so. We

have expressly held that claims for false arrest and excessive

force are analytically distinct. See, e.g. Beier v. City of

Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (“Because the

excessive force and false arrest factual inquiries are distinct,

establishing a lack of probable cause to make an arrest does

not establish an excessive force claim, and vice-versa.”

(citing Arpin v. Santa Clara Valley Transp. Agency,

261 F.3d 912, 921–22 (9th Cir. 2001)). That is consistent

with the Supreme Court’s recent decision in County of Los

Angeles v. Mendez, which instructed courts not to conflate

the analysis for excessive-force claims with related Fourth

Amendment claims. 137 S. Ct. 1539, 1547 (2017). Thus,

our conclusion that the arrest here was unconstitutional does

not predetermine the question of whether the quantum of

force used was excessive.

Turning to the degree of force used, Plaintiffs point only

to cases that establish the general framework for evaluating

how much force is constitutionally excessive. See, e.g.,

SHARP V. COUNTY OF ORANGE 31

Graham v. Connor, 490 U.S. 386, 395 (1989). But that is

not enough to defeat a qualified-immunity defense. We are

aware of no controlling constitutional principle or judicial

precedent that is specific enough to alert Deputy Anderson

that the degree of force he used in these circumstances was

unreasonable. Thus, qualified immunity was warranted.

C. Search of Sharp III’s Person

Sharp III next asserts a Fourth Amendment violation

based on the search of his person during the initial arrest.

Police officers have the categorical authority to conduct a

search of an arrestee’s person incident to a lawful arrest. See

United States v. Robinson, 414 U.S. 218, 235 (1973).

Having concluded that the arrest was unconstitutional, the

search too must be deemed unlawful. But as we noted

earlier, the arrest was not clearly proscribed by established

law, and neither is the subsequent search. Plaintiffs do not

identify a single case that clearly establishes a search in these

circumstances would be unconstitutional. Accordingly,

qualified immunity should have been granted.

D. Search of Plaintiffs’ Home

Plaintiffs assert that the deputies’ search of the Camino

Bandera residence violated the Fourth Amendment for two

principal reasons: the deputies (1) unlawfully entered the

home to search for Sharp IV without a reasonable basis to

believe that Sharp IV resided and was actually present

therein; and (2) exceeded the scope of their authority to

search the home for Sharp IV by searching in some areas—

e.g., kitchen and bedroom drawers—wherein Sharp IV

would not reasonably be found. We address each argument

in turn.

32 SHARP V. COUNTY OF ORANGE

1. Unlawful Entry Into the Home

Plaintiffs first argue that the deputies unlawfully entered

the home because they could not have reasonably believed

that the subject of the arrest warrant, Sharp IV, resided in the

home. It is well settled that an arrest warrant authorizes the

police to enter the warrant subject’s home to execute the

arrest of that subject when there is reason to believe he is

within the home. See, e.g., Payton v. New York, 445 U.S.

573, 602–03 (1980). When the home is owned by a third

party, “an officer must have a reasonable belief that the

suspect named in the arrest warrant resides in the third

party’s home . . . .” Watts v. Cty. of Sacramento, 256 F.3d

886, 889–90 (9th Cir. 2001) (emphasis added); see also

Steagald v. United States, 451 U.S. 204, 205–06 (1981)

(absent consent or exigent circumstances, police officers

may not enter the home of a third party to execute an arrest

warrant for a non-resident).

We find the officers reasonably believed that Sharp IV

resided in Plaintiffs’ home, despite Carol’s statement on the

front porch that her son did not live there. Sharp IV’s

probation response form, DMV records, and arrest warrants

all confirmed that he lived at the Camino Bandera residence,

and it was not unreasonable to rely on those official

documents rather than Carol’s contrary statement, made in

the heat of a stressful moment, which could have reasonably

been discounted as an effort to protect her son from capture.

2. Scope of the Search for Sharp IV

Plaintiffs next contend that the scope of the search was

excessively broad because the deputies searched in areas

where Sharp IV could not reasonably be found. The

authority to search a home does not ordinarily extend to the

search of areas where the subject of a warrant would not be

SHARP V. COUNTY OF ORANGE 33

found. See United States v. Ross, 456 U.S. 798, 820 (1982)

(“A lawful search of fixed premises generally extends to the

entire area in which the object of the search may be found.”).

But a condition of probation that requires an offender to

submit his property to suspicionless searches gives officers

more latitude in searching the offender’s property. See

Samson v. California, 547 U.S. 843, 846 (2006); United

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

Sharp IV’s probation condition requiring him to submit

his property to suspicionless searches defeats Plaintiffs’

claim that the deputies exceeded the scope of the authorized

search by looking in areas where Sharp IV would not be

found. This is the deputies’ principal theory for why the

scope of the search was justified, but Plaintiffs make no

argument in response to this dispositive theory. In any

event, there is no established law clearly proscribing the

deputies’ reliance upon Sharp IV’s probation condition for

their search of the Camino Bandera residence. For these two

principal reasons, qualified immunity was warranted on this

claim.

In two cases, the Supreme Court has upheld the search

or seizure of a probationer or parolee against Fourth-

Amendment attack. In United States v. Knights, the Court

held that merely reasonable suspicion, and not probable

cause or even a warrant, was enough to search a dwelling

belonging to a probationer who has accepted conditions

similar those in this case. 534 U.S. at 121. More recently,

in Samson v. California, the Court held that no

individualized suspicion at all is required to search the

person of a parolee when he has accepted such conditions.

547 U.S. at 846. In both of these cases, the Court based its

conclusion on the fact that a probationer or parolee has a

diminished expectation of privacy, especially when he

34 SHARP V. COUNTY OF ORANGE

accepts probationary conditions that explicitly and

unambiguously inform him of a police officer’s authority to

search his property. Knights, 534 U.S. at 119–20; Samson,

547 U.S. at 851–52.

Reliance on this line of authority to justify the broad

search of Plaintiffs’ home admittedly poses some difficult

legal questions. For instance, does acceptance of a

probationary search condition constitute “consent” to search

the home; i.e., a complete waiver of Fourth Amendment

rights? 9 Can the search condition diminish a co-occupant’s

reasonable expectation of privacy in his home or otherwise

bind a co-occupant to the “consent” given by the

probationer? 10 Even if so, in this case, did Carol’s

contemporaneous objection to the search revoke any

“consent” that might have been attributed to her, or negate

the possible diminution of her privacy expectation brought

about by Sharp IV’s search condition? Established law does

not offer clear answers to these questions. Thus, we cannot

say that the deputies’ particular conduct here violated clearly

established law.

Further, while it might be argued that the deputies’

search in Plaintiffs’ personal bedroom drawers was itself

9

The Supreme Court has expressly left open this question in

Samson, 547 U.S. at 852 n.3, and Knights, 534 U.S. at 118, choosing

instead to resolve the issue on the ground that acceptance of a search

condition diminishes the offender’s reasonable expectation of privacy.

10

Ordinarily, when a person consents to the search of a home shared

by other residents, such consent authorizes the police to search common

areas of that home, even if doing so intrudes on the privacy rights of co-

residents who did not themselves consent to the search. See United

States v. Matlock, 415 U.S. 164, 170-71 (1974).

SHARP V. COUNTY OF ORANGE 35

beyond the permissible scope of Sharp IV’s probationary

condition because those areas would not reasonably contain

Sharp IV’s “property,” Plaintiffs did not assert this

contention on appeal and so necessarily have failed to carry

their burden of showing a clearly established violation.

Nevertheless, we are skeptical of the argument. It is not

patently unreasonable for the police to expect probationers

to hide contraband in non-obvious places. For these reasons,

we cannot say that the scope of the deputies’ search

exceeded the lawful bounds of clearly established

precedent. 11

For these reasons, qualified immunity was warranted on

this claim.

E. First Amendment Retaliation

Sharp III asserts a First Amendment claim based on the

deputies’ alleged retaliation against him for being

argumentative. To establish a retaliation claim, the evidence

must show that (1) the officer’s conduct “would chill or

11

Plaintiffs argue that the search was unconstitutional under

Maryland v. Buie, which held that officers executing an in-home arrest

warrant can conduct a “protective sweep” without individualized

suspicion only in areas “immediately adjoining the place of arrest.”

494 U.S. 325, 333-34 (1990). For the purpose of protecting the safety of

the arresting officers, Buie permits officers to make a quick scan for

dangerous individuals that might be hiding in areas immediately next to

the place of the arrest, id. at 327, but holds that officers need reasonable

suspicion to search in spaces outside that immediately adjoining area.

However, when there is no actual arrest—as in the case before us

today—the issue of a home search incident to an arrest warrant under

Buie never arises. Further, and more importantly, Buie did not involve a

probationary search condition, so the single most important fact relied

upon here to justify the search of Plaintiffs’ home was not present in

Buie. Thus, Buie is not controlling.

36 SHARP V. COUNTY OF ORANGE

silence a person of ordinary firmness from future First

Amendment activities,” and (2) the officer’s desire to chill

speech was a “but-for cause” of the adverse action. Skoog v.

Cty. of Clackamas, 469 F.3d 1221, 1231–32 (9th Cir. 2006)

(internal quotation marks omitted). While in the patrol car,

Sharp III was visibly angry at the deputies, swore at them,

and threatened to sue them. In response, Deputy Anderson

told him, “If you weren’t being so argumentative, I’d

probably just put you on the curb.” SER 280 (emphasis

omitted). We conclude that Sharp III suffered

unconstitutional retaliation that was clearly proscribed by

established law.

Defendants do not take issue with the first prong of the

inquiry—that continued detention would “chill” someone

from engaging in protected speech. So we assume without

deciding that this element is satisfied. Instead, the deputies

stake their defense entirely on the second prong of causation.

They contend that Sharp III’s belligerent demeanor was not

a “but-for cause” of the continued detention. But Deputy

Anderson’s statement plainly belies that contention, as it is

quite literally a statement of but-for causation: “If you

weren’t [exercising your First Amendment rights], I’d

probably [change the current conditions of your detention].”

SER 280. The causation element is thus met and so Deputy

Anderson’s conduct amounted to unconstitutional

retaliation.

This violation was clearly established by Ford v. City of

Yakima, 706 F.3d 1188 (9th Cir. 2013). In that case, a police

officer pulled over a driver who was blasting loud music, and

because the driver would not stop “running [his] mouth” and

exhibited an uncooperative “attitude,” the officer arrested

him and booked him in jail—rather than merely issuing a

citation. Id. at 1190–91. The officer repeated that he was

SHARP V. COUNTY OF ORANGE 37

arresting the man because the man would not “shut up” and

had “diarrhea of the mouth.” Id. at 1191. On these facts, we

found an unconstitutional retaliation. These facts are

sufficiently analogous to the case before us to conclude that

Deputy Anderson was on notice that his particular conduct

was unconstitutional. Thus, qualified immunity was

properly denied. 12

F. State-Law Immunities

In addition to their federal constitutional claims,

Plaintiffs brought a litany of state-law claims, including an

anti-retaliation claim under Cal. Civ. Code § 52.1, as well as

common-law claims for false imprisonment, assault and

battery, negligent infliction of emotional distress, and

trespass. In defense, the deputies assert the following

immunities under California state law: (1) “discretionary”

immunity under Cal. Gov. Code § 820.2; (2) “prosecutorial”

immunity under Cal. Gov. Code § 821.6; (3) arrest-warrant

immunity under Cal. Gov. Code § 43.55(a); and (4) false-

arrest immunity under Cal. Penal Code § 847(b). We hold

that the first two asserted immunities do not apply as a matter

12

In the district court, Carol (Sharp III’s wife) also asserted a

retaliation claim based on the deputies’ threat to handcuff her “because

of her verbal protests of their conduct toward her and her husband.”

ER 265. The district court found that Carol had offered evidence

sufficient to defeat summary judgment on this claim, citing a statement

that the deputies threatened to retaliate against Carol if Sharp III did not

stop “going off on the deputy.” SER 8. Putting aside whether Carol can

assert a free-speech claim grounded in someone else’s protected speech,

we find no record evidence that the deputies made this statement at all.

In any event, Plaintiffs do not argue this claim on behalf of Carol on

appeal. Instead they focus entirely on Sharp III’s experience in the patrol

car. We thus find that opposition to summary judgment on Carol’s

retaliation claim was waived.

38 SHARP V. COUNTY OF ORANGE

of law, and the latter two do not apply as a consequence of

our determination that the deputies’ actions here were

unreasonable. The district court therefore properly denied

these immunities.

1. Cal. Gov. Code § 820.2

“As a matter of law, section 820.2 [‘discretionary’]

immunity does not apply to an officer’s decision to detain or

arrest a suspect.” 13 Liberal v. Estrada, 632 F.3d 1064, 1084

(9th Cir. 2011). Nor would this immunity extend to any

other police action in this case because Cal. Gov. Code

§ 820.2 covers only “policy” decisions made by a

“coordinate branch[] of government,” not “operational

decision[s] by the police purporting to apply the law.” Id. at

1084–85 (internal quotation marks omitted). The district

court thus correctly denied discretionary immunity.

2. Cal. Gov. Code § 821.6

The “prosecutorial” immunity under Cal. Gov. Code

§ 821.6 does not apply because it is limited to malicious-

prosecution claims. 14 In 1974, the California Supreme Court

held that § 821.6 immunity does not extend beyond

malicious-prosecution claims. Sullivan v. Cty. of Los

Angeles, 527 P.2d 865, 870–71 (Cal. 1974). Since then,

13

Cal. Gov. Code § 820.2 provides: “[A] public employee is not

liable for an injury resulting from his act or omission where the act or

omission was the result of the exercise of the discretion vested in him,

whether or not such discretion be abused.”

14

Cal. Gov. Code § 821.6 provides: “A public employee is not liable

for injury caused by his instituting or prosecuting any judicial or

administrative proceeding within the scope of his employment, even if

he acts maliciously and without probable cause.”

SHARP V. COUNTY OF ORANGE 39

intermediate appellate courts have expanded the immunity

to investigative steps taken prior to a judicial proceeding,

including action by police officers. E.g., Gillian v. City of

San Marino, 147 Cal. App. 4th 1033, 1048 (2007). But

“[w]hen interpreting state law, a federal court is bound by

the decision of the highest state court.” Hewitt v. Joyner,

940 F.2d 1561, 1565 (9th Cir. 1991) (emphasis added)

(internal quotation marks omitted). Thus, because

California’s highest court has not extended § 821.6

immunity to actions outside of malicious prosecution, this

immunity does not apply here.

3. Cal. Civ. Code § 43.55(a)

The arrest-warrant immunity under Cal. Gov. Code

§ 43.55(a) shields officers from suit when executing an

arrest warrant when they act with a “reasonable belief” that

the arrestee is the subject of the warrant. 15 As we have

already explained, however, the deputies unreasonably

assumed that Sharp III was the warrant subject. This

immunity therefore does not apply.

4. Cal. Penal Code § 847(b)(1)

The false-arrest immunity under Cal. Penal Code

§ 847(b)(1) protects officers from suit when they make an

arrest that they had “reasonable cause” to believe was

15

Cal. Civ. Code § 43.55(a) provides: “There shall be no liability on

the part of, and no cause of action shall arise against, any peace officer

who makes an arrest pursuant to a warrant of arrest regular upon its face

if the peace officer in making the arrest acts without malice and in the

reasonable belief that the person arrested is the one referred to in the

warrant.” (Emphasis added).

40 SHARP V. COUNTY OF ORANGE

lawful. 16 As with the previous immunity, our conclusion

that the arresting deputies lacked such a reasonable belief

precludes the application of state-law immunity under Cal.

Penal Code § 847(b)(1).

G. Summary Judgment as to Other Deputies

We finally address a contention made throughout

Defendants’ briefs that all deputies not implicated in certain

claims should be awarded summary judgment as to those

claims. The district court welcomed a motion to release

specific defendants on this ground, but the deputies

neglected to make one. We therefore do not fault the district

court for declining to award summary judgment to certain

defendants when it invited them to make a more

particularized claim that they were not involved in some of

the challenged actions. We thus find no error in the district

court’s decision on this subject.

III. CONCLUSION

We AFFIRM the district court’s denial of qualified

immunity as to Sharp III’s retaliation claim, as well as the

denial of state-law immunities on all Plaintiffs’ state claims.

However, we REVERSE the denial of qualified immunity

on Carol’s retaliation claim, and Sharp III’s claims for the

seizure of his person, the use of excessive force against him,

and the search of his person, as well as Plaintiffs’ shared

claim concerning the search of their home. We REMAND

16

Cal. Penal Code § 847(b)(1) provides: “There shall be no civil

liability on the part of, and no cause of action shall arise against, any

peace officer . . . for false arrest or false imprisonment arising out of any

arrest under any of the following circumstances: [] The arrest was lawful,

or the peace officer, at the time of the arrest, had reasonable cause to

believe the arrest was lawful.” (Emphasis added).

SHARP V. COUNTY OF ORANGE 41

to the district court for further proceedings consistent with

this opinion.

N.R. SMITH, Circuit Judge, dissenting in part:

In resolving a claim of qualified immunity, “summary

judgment is improper if, resolving all disputes of fact and

credibility in favor of the party asserting the injury, (1) the

facts adduced show that the officer’s conduct violated a

constitutional right, and (2) that right was “clearly

established” at the time of the violation.” Kirkpatrick v. Cty.

of Washoe, 843 F.3d 784, 788 (9th Cir. 2016) (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)). Applying this

precedent here, we must first resolve all factual conflicts in

favor of Sharp III. We need not discuss the first prong

because the Majority concedes (and I agree) that the deputies

violated the Constitution (a) when the deputies seized Sharp

III, (b) when the deputies used force against him, and

(c) when the deputies searched his person. Thus, we need

only discuss the second prong of the analysis.

A right is clearly established if a reasonable officer

would know that the alleged conduct violated the

Constitution. Anderson v. Creighton, 483 U.S. 635, 640

(1987). An officer has fair warning that conduct violates the

Constitution if the conduct is an obvious violation of

constitutional principles or if a factually analogous case

prohibits the conduct. White v. Pauly, 137 S. Ct. 548, 552

(2017). Because the Majority fails to view the facts in the

light most favorable to Sharp III, they claim that the

deputies’ unconstitutional actions were not sufficiently

egregious for the deputies to have fair warning that they were

violating the Constitution. Resolving all disputes of fact and

42 SHARP V. COUNTY OF ORANGE

credibility in favor of Sharp III, I must dissent. Let me

explain.

I. Seizure of Sharp III

The parties and the Majority agree that the seizure of

Sharp III must be analyzed in two parts: (1) the initial arrest

of Sharp III, and (2) the continuation of the arrest in the

patrol vehicle after the deputies learned that he was not the

subject of the arrest warrant. I proceed accordingly.

A. The Initial Arrest of Sharp III was an Obvious

Constitutional Violation

It is axiomatic that a warrantless arrest requires probable

cause. E.g., Michigan v. Summers, 452 U.S. 692, 700 (1981).

Indeed, our court’s precedent makes it apparent to law

enforcement officers that a warrantless arrest can be made

only if probable cause exists. United States v. Lopez,

482 F.3d 1067, 1072 (9th Cir. 2007) (“Under the Fourth

Amendment, a warrantless arrest requires probable cause.”);

Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th

Cir. 1990) (“If there is one irreducible minimum in our

Fourth Amendment jurisprudence, it is that a police officer

may not detain an individual simply on the basis of suspicion

in the air.”). Similarly, the Summers Court made it

abundantly clear that there are virtually no exceptions to the

probable cause requirement when it comes to arrests:

The central importance of the probable-cause

requirement to the protection of a citizen’s

privacy afforded by the Fourth Amendment’s

guarantees cannot be compromised [by

removing the probable cause requirement for

arrests]. The requirement of probable cause

has roots that are deep in our history.

SHARP V. COUNTY OF ORANGE 43

Hostility to seizures based on mere suspicion

was a prime motivation for the adoption of

the Fourth Amendment, and decisions

immediately after its adoption affirmed that

common rumor or report, suspicion, or even

‘strong reason to suspect’ was not adequate

to support a warrant for arrest. The familiar

threshold standard of probable cause for

Fourth Amendment seizures reflects the

benefit of extensive experience

accommodating the factors relevant to the

‘reasonableness’ requirement of the Fourth

Amendment, and provides the relative

simplicity and clarity necessary to the

implementation of a workable rule.

Although we refused in Dunaway to find an

exception that would swallow the general

rule, our opinion recognized that some

seizures significantly less intrusive than an

arrest have withstood scrutiny under the

reasonableness standard embodied in the

Fourth Amendment. In these cases the

intrusion on the citizen’s privacy was so

much less severe than that involved in a

traditional arrest that the opposing interests in

crime prevention and detection and in the

police officer's safety could support the

seizure as reasonable.

Summers, 452 U.S. at 697–98. (emphasis added) (quotation

marks and citations omitted). Following this reasoning, the

Supreme Court concluded that exceptions are permissible

only if they “are consistent with the general rule that every

arrest, and every seizure having the essential attributes of a

44 SHARP V. COUNTY OF ORANGE

formal arrest, is unreasonable unless it is supported by

probable cause.” Id. at 701. Thus, Michigan v. Summers

makes it apparent to law enforcement officers that a

warrantless arrest can be made only with probable cause.

Turning to the facts, the Majority writes that “it is not

clear that Deputies Anderson and Flores actually even

formed a specific belief that Sharp III was the warrant

subject.” I agree. In explaining the facts leading to Sharp

III’s arrest, Deputy Flores stated that she “didn’t know who

was coming out of the house, to be honest. . . . [I]t wasn't

secured, so we were trying to just detain everybody[.]” In

addition, Sharp III did not match the description of the

suspect. Sharp III was significantly older than the suspect,

was wearing different clothing than the suspect, and

displayed a demeanor inconsistent with a fleeing suspect.

Thus, it is not surprising that Deputy Anderson also admitted

that he “hadn’t identified who [Sharp III] was” and only

believed that Sharp III “may be” the wanted person. These

facts seem to make clear that the deputies did not actually

mistake Sharp III for the fleeing suspect. Further, even if the

facts are not clear, we must resolve any ambiguity in favor

of Sharp III. E.g., Olsen v. Idaho State Bd. of Med., 363 F.3d

916, 922 (9th Cir. 2004). These facts then require us to

analyze this case based on the assumption that Deputies

Anderson and Flores did not form a specific belief that Sharp

III was the warrant subject, but arrested him simply because

he was present at the scene. As a result, the deputies made a

warrantless arrest.

Viewing the evidence in the light most favorable to

Sharp III, it is obvious that the deputies arrested Sharp III

without probable cause. The facts in this case do not come

close to meeting the probable cause standard. In an effort to

avoid that uncomfortable truth, the Majority ignores the

SHARP V. COUNTY OF ORANGE 45

statements made by Deputies Anderson and Flores and

analyzes this case as one of mistaken identity. 1 But that

theory crumbles when we view the facts in the light most

favorable to Sharp III. Since the deputies had fair warning

that their conduct violated Sharp III’s Fourth Amendment

rights when they arrested him without probable cause, they

are not entitled to qualified immunity. The District Court

was right; this claim should go to trial.

B. The Continued Seizure of Sharp III was an Obvious

Constitutional Violation

As noted, it is obvious that, “[u]nder the Fourth

Amendment, a warrantless arrest requires probable cause.”

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

In addition, seizing a citizen without probable cause for

exercising their First Amendment rights is an obvious

violation of the Fourth Amendment. Duran v. City of

Douglas, Ariz., 904 F.2d 1372, 1377–78 (9th Cir. 1990).

Viewing the evidence in the light most favorable to Sharp

III, the deputies lacked probable cause to continue Sharp

III’s arrest; the deputies continued the arrest only because

Sharp III exercised his First Amendment rights. Since the

deputies had fair warning that this conduct violated Sharp

1

A case of mistaken identity is not an exception to the probable

cause requirement. “Probable cause to arrest 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) (emphasis added) (citing Beck v.

Ohio, 379 U.S. 89, 91 (1964)). Thus, an arrest warrant coupled with a

reasonable belief that the person being arrested is the subject of the arrest

warrant gives rise to probable cause to arrest that person. On the other

hand, an arrest based on an unreasonable belief that the person being

arrested is the subject of the arrest warrant offends the Fourth

Amendment.

46 SHARP V. COUNTY OF ORANGE

III’s Fourth Amendment rights, they are not entitled to

qualified immunity. The District Court was right; this claim

should go to trial. Again, let me explain.

1. Viewing the Evidence in the Light Most

Favorable to Sharp III, the Deputies Continued

Sharp III’s Arrest in Retaliation for Exercising

His First Amendment Rights

The Majority recites these facts related to Sharp III’s

seizure after the deputies realized he was not the subject of

the arrest warrant:

At this time, the deputies did not release

Sharp III. Instead, they kept him handcuffed

and locked in the patrol car. Sharp III was

furious and adamantly protested his

detention, loudly swearing at the deputies and

threatening to sue them. In response, Deputy

Anderson told Sharp III: “If you weren’t

being so argumentative, I’d probably just put

you on the curb.”

Based on Deputy Anderson’s statement, the Majority

concedes that the deputies failed to release Sharp III in

retaliation for exercising his First Amendment rights. In

contrast, when analyzing whether the continued detention

violated Sharp III’s Fourth Amendment rights, the Majority

inexplicably ignores Deputy Anderson’s statement. Instead,

the Majority improperly concludes that the deputies may

have reasonably but mistakenly believed that the exception

in Summers applied to arrest warrants. However, the

Majority’s conclusion is possible only if we view the

evidence in the light most favorable to the deputies. Thus,

viewing the facts in the light most favorable to Sharp III, the

SHARP V. COUNTY OF ORANGE 47

deputies continued Sharp III’s arrest because he exercised

his First Amendment rights.

2. Continuing Sharp III’s Seizure for Exercising

His First Amendment Rights was an Obvious

Violation of Sharp III’s Fourth Amendment

Rights

Holding a suspect in custody for exercising his First

Amendment rights is an obvious violation of the Fourth

Amendment. Indeed, case law in our circuit compels this

conclusion. In Duran v. City of Douglas, Ariz., an officer

detained the defendant for “making obscene gestures toward

[the officer] and yelling profanities.” Duran v. City of

Douglas, Ariz., 904 F.2d 1372, 1377 (9th Cir. 1990). The

Duran court held that, “while police, no less than anyone

else, may resent having obscene words and gestures directed

at them, they may not exercise the awesome power at their

disposal to punish individuals for conduct that is not merely

lawful, but protected by the First Amendment.” Id. at 1378.

Consequently, the court held that detaining an individual

without probable cause for exercising First Amendment

rights was an obvious violation of the Fourth Amendment.

Id. The import of Duran is clear: the deputies committed a

clearly established violation of the Fourth Amendment when

they kept Sharp III in custody for exercising his First

Amendment rights. 2 As a result, the second prong of the

qualified immunity analysis does not provide immunity to

the deputies.

2

Duran provided sufficient notice to the deputies that their conduct

was a violation of the Fourth Amendment. Thus, in addition to being an

“obvious” violation, the violation was clearly established by a factually

analogous case.

48 SHARP V. COUNTY OF ORANGE

3. The Deputies Committed an Obvious Violation of

Sharp III’s Fourth Amendment Rights Even if

Summers Applied to Arrest Warrants

The deputies claim that they are entitled to qualified

immunity, because it was not clearly established (at the time

of Sharp III’s detention) that Summers did not apply to arrest

warrants. The Majority agrees that this legal principle was

not clearly established prior to this case. I disagree. 3

However, even if the deputies could have believed that the

Summers exception applied to arrest warrants, Summers

unequivocally proscribed the continuation of Sharp III’s

arrest.

The court in Summers concluded that a valid search

warrant “implicitly carries with it the limited authority to

detain the occupants of the premises while a proper search is

conducted.” Summers, 452 U.S. at 705. However, Summers

made it abundantly clear that this exception does not apply

to arrests. Id. at 697–98 “The central importance of the

probable-cause requirement to the protection of a citizen’s

privacy afforded by the Fourth Amendment’s guarantees

cannot be compromised [by removing the probable cause

3

Unless there is a specific exception, the general Fourth

Amendment rules apply. See Summers, 452 U.S. at 697-98. The

Summers Court created such an exception for brief detentions made

during the execution of a search warrant. However, by nature of being

an exception, it applies only to those specific circumstances. Otherwise,

the exception would swallow the general rule. Thus, a law enforcement

officer cannot commit a Fourth Amendment violation and hope that a

court will create or extend an exception covering that violation. The

Majority’s reasoning would lead to the conclusion that there can never

be a clearly established violation of the Fourth Amendment absent a

factually analogous case; officers could always argue that they thought a

court would create or extend an exception that covered their conduct.

SHARP V. COUNTY OF ORANGE 49

requirement for arrests].” Id. at 697. In fact, the Court’s

reasoning was explicitly based on the fact that the detention

permitted under the exception would be “significantly less

intrusive than an arrest.” Id.

In this case, the Majority agrees Sharp III was arrested,

so the exception in Summers could never apply. While a

mere detention can turn into a de facto arrest, United States

v. Baron, 860 F.2d 911, 914 (9th Cir. 1988), the Majority

does not go there. Further, I am aware of no case in which

an arrest turned into a mere detention. 4 Consequently, Sharp

III continued to be under arrest during his subsequent seizure

in the patrol vehicle. Thus, Summers, even if it applied to

arrest warrants, could never justify Sharp III’s continued

seizure. Since the language in Summers is categorical and

clear, any reasonable officer would know this.

II. Search of Sharp III’s Person

“[E]xcept in certain carefully defined classes of cases, a

search of private property without proper consent is

‘unreasonable’ unless it has been authorized by a valid

search warrant.” Camara v. Mun. Court of City & Cty. of

San Francisco, 387 U.S. 523, 528–29 (1967). It is obvious

that no exception for a search made incident to an unlawful

4

I do not mean to say that an arrest could never turn into a detention.

However, the facts in this case do not support such a conclusion. Perhaps

if the deputies had taken Sharp III out of the patrol car and explicitly

informed him that he was not under arrest, the arrest would de-escalate

into a detention. As it stands, it is difficult to imagine a scenario where a

person is not under arrest when they are forcibly handcuffed and placed

into the back of a patrol vehicle. See United States v. Del Vizo, 918 F.2d

821, 824 (9th Cir. 1990) (“There has been an arrest if, under the

circumstances, a reasonable person would conclude that he was not free

to leave after brief questioning.”).

50 SHARP V. COUNTY OF ORANGE

arrest exists; therefore, the deputies had sufficient notice that

an unlawful arrest would result in an unlawful search. Thus,

the search made incident to Sharp III’s unlawful arrest was

an obvious violation of the Fourth Amendment’s prohibition

of unreasonable searches. Since the deputies had fair

warning that the search violated Sharp III’s Fourth

Amendment rights, they are not entitled to qualified

immunity. The District Court was right; this claim should go

to trial.

III. Use of Excessive Force Against Sharp III

The Majority claims they are “aware of no controlling

constitutional principle . . . that is specific enough to alert

Deputy Anderson that the degree of force he used in these

circumstances was unreasonable.” Let’s examine that

premise.

The use of force by a law enforcement officer violates

the Fourth Amendment if the force is unreasonable given all

the “relevant circumstances.” Hammer v. Gross, 932 F.2d

842, 846 (9th Cir. 1991). Analyzing whether the use of force

is unreasonable involves three steps. “First, we must assess

the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating ‘the type and amount of

force inflicted.’” Glenn v. Washington Cty., 673 F.3d 864,

871 (9th Cir. 2011) (quoting Espinosa v. City & Cnty. of

S.F., 598 F.3d 528, 537 (9th Cir. 2010)). “Second, we

evaluate the government’s interest in the use of force.” Id. In

doing so, we must consider “the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.”

Graham v. Connor, 490 U.S. 386, 396 (1989). Third, “we

balance the gravity of the intrusion on the individual against

the government’s need for that intrusion.” Glenn, 678 F.3d

SHARP V. COUNTY OF ORANGE 51

at 871 (quoting Miller v. Clark Cty., 340 F.3d 959, 964 (9th

Cir. 2003)). 5

Viewing the evidence in the light most favorable to

Sharp III, the deputies used considerable force against Sharp

III. The deputies arrested Sharp III at gun point and used

enough force to tear his rotator cuff. On the other hand, he

had committed no crime. Deputy Flores conceded that the

deputies arrested Sharp III because “we were trying to just

detain everybody[.]” Sharp III posed no immediate threat to

the safety of the officers or others. Sharp III walked calmly

toward the deputies and was fully compliant. He never

resisted or attempted to evade arrest by flight. No reasonable

officer would believe using force, let alone significant force,

was lawful under these circumstances. None of the Graham

factors were present. Since Deputy Anderson had fair

warning that his use of force violated Sharp III’s Fourth

Amendment rights, he is not entitled to qualified immunity.

The District Court was right; this claim should go to trial.

IV. Conclusion

Contrary to precedent regarding qualified immunity, the

Majority fails to view the facts in the light most favorable to

Sharp III when analyzing these Fourth Amendment claims.

Consequently, the Majority improperly grants the deputies

qualified immunity for their initial arrest of Sharp III, their

use of excessive force against Sharp III, their subsequent

search of Sharp III, and their continued arrest of Sharp III.

Instead, viewing the facts in the light most favorable to

5

The Supreme Court recently cautioned that Graham does not “by

[itself] create clearly established law outside ‘an obvious case.’” White,

137 S. Ct. at 552 (emphasis added) (quoting Brosseau v. Haugen,

543 U.S. 194, 199 (2004)). This is an obvious case.

52 SHARP V. COUNTY OF ORANGE

Sharp III, the deputies are not entitled to qualified immunity

for any of these constitutional violations. Thus, Sharp III’s

Fourth Amendment claims stemming from these violations

should go to trial right along with Sharp III’s claim of First

Amendment retaliation. I dissent.