Shaniz West v. City of Caldwell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANIZ WEST, No. 18-35300

Plaintiff-Appellee,

D.C. No.

v. 1:16-cv-00359-

REB

CITY OF CALDWELL; CITY OF

CALDWELL POLICE DEPARTMENT;

FORMER CHIEF CHRIS ALLGOOD, OPINION

Defendants,

and

DOUG WINFIELD, Sergeant, in his

official and individual capacity;

ALAN SEEVERS; MATTHEW

RICHARDSON,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Idaho

Ronald E. Bush, Magistrate Judge, Presiding

Argued and Submitted March 7, 2019

Portland, Oregon

Filed July 25, 2019

2 WEST V. CITY OF CALDWELL

Before: Susan P. Graber and Marsha S. Berzon, Circuit

Judges, and Eduardo C. Robreno,* District Judge.

Opinion by Judge Graber;

Dissent by Judge Berzon

SUMMARY**

Civil Rights

The panel reversed the district court’s order denying

qualified immunity to police officers in an action alleging the

officers violated plaintiff’s rights by coercing her consent to

enter her house to search for a suspect and then by shooting

tear gas canisters through the windows and causing extensive

damage to the house.

The panel assumed, without deciding, that plaintiff’s

consent to Officer Richardson was not voluntary. The panel

held that given the circumstances, including the amount of

time that passed between Richardson’s threat to arrest

plaintiff and his request for consent, the lack of voluntariness

was not so clearly established such that Richardson would

have known that plaintiff’s consent was not voluntary.

Richardson was therefore entitled to qualified immunity on

that claim.

*

The Honorable Eduardo C. Robreno, United States District Judge for

the Eastern District of Pennsylvania, 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.

WEST V. CITY OF CALDWELL 3

The panel held that assuming the consent was voluntary

and defendants exceeded the scope of the consent by shooting

tear gas into the house, they were still entitled to qualified

immunity. The panel held that given that defendants thought

they had permission to enter plaintiff’s house to apprehend a

dangerous, potentially armed, and suicidal felon barricaded

inside, it was not obvious, in the absence of a controlling

precedent, that defendants exceeded the scope of plaintiff’s

consent by causing the tear gas canisters to enter the house in

an attempt to flush the suspect out into the open. Officers

Seevers and Winefield were therefore entitled to qualified

immunity on this claim.

Addressing the reasonableness of defendants’ search, the

panel held that given the unusual circumstances, the need for

specificity of precedent in the Fourth Amendment context,

and controlling cases establishing that officers can sometimes

damage a home during a search without violating the

occupant’s Fourth Amendment rights, this was not an obvious

case in which to deny qualified immunity without any

controlling precedent clearly establishing that defendants

violated plaintiff’s rights. Defendants were therefore entitled

to qualified immunity on this claim as well.

Dissenting in part, Judge Berzon stated that in her view

defendants Seevers and Winfield were not entitled to

qualified immunity on the scope of consent claim.

4 WEST V. CITY OF CALDWELL

COUNSEL

Landon S. Brown (argued) and Bruce J. Castleton, Naylor &

Hales P.C., Boise, Idaho, for Defendants-Appellants.

Jeremiah Hudson (argued), Rebecca A. Rainey, and Vaughn

Fisher, Fisher Rainey Hudson, Boise, Idaho, for Plaintiff-

Appellee.

OPINION

GRABER, Circuit Judge:

This appeal arises from a SWAT team’s search of

Plaintiff Shaniz West’s house to apprehend her former

boyfriend, a gang member who had outstanding felony arrest

warrants for violent crimes. Plaintiff sued for extensive

damage to her house that resulted from the search. The

district court denied qualified immunity to Defendants

Matthew Richardson, Alan Seevers, and Doug Winfield, who

are officers with the Caldwell, Idaho, police department. We

reverse.

FACTUAL AND PROCEDURAL BACKGROUND1

On a summer afternoon in August 2014, Plaintiff’s

grandmother called 911 to report that: Plaintiff’s former

boyfriend, Fabian Salinas, was in Plaintiff’s house and might

be threatening her with a BB gun; Plaintiff’s children also

were in the house; and Salinas was high on

1

The relevant facts are undisputed.

WEST V. CITY OF CALDWELL 5

methamphetamine. The grandmother warned the dispatcher

that Plaintiff might tell the police that Salinas was not in the

house.

The police knew that Salinas was a gang member. At the

time, he had outstanding felony arrest warrants for several

violent crimes. His criminal record included convictions for

rioting, discharging a weapon, aggravated assault, and drug

crimes. In addition, during a recent high-speed car chase,

Salinas had driven his vehicle straight at a Caldwell patrol

car, forcing the officer to swerve off the road to avoid a

collision. The police also had information that Salinas

possessed a .32 caliber pistol.

Four officers, including Richardson, responded to the 911

call. Richardson was familiar with Salinas’ criminal history.

After arriving at Plaintiff’s house, Richardson called

Plaintiff’s cell phone several times, but she did not answer.

He then called Plaintiff’s grandmother, who repeated that

Salinas was in Plaintiff’s house. She also said that Salinas’

sister had been at the house but had left when Salinas arrived.

Richardson then called the sister, who confirmed that she had

seen Salinas in Plaintiff’s house within the last 30 minutes,

that he had a firearm that she thought was a BB gun, and that

he was high on drugs. Richardson knocked on the front door

of the house but received no response.

While the officers were discussing how to proceed,

Sergeant Joe Hoadley noticed Plaintiff walking down the

sidewalk toward her house. Hoadley and Richardson

approached Plaintiff. Richardson asked Plaintiff where

Salinas was; she responded that he “might be” inside her

house. Richardson followed up: “Might or yes?” He told

Plaintiff that Salinas had a felony arrest warrant, so if Salinas

6 WEST V. CITY OF CALDWELL

was in the house and she did not tell the police, she could “get

in trouble” for harboring a felon. “Is he in there?” At that

point, Plaintiff told Richardson that Salinas was inside her

house, even though she did not know if he was still there; she

had let Salinas into the house earlier in the day to retrieve his

belongings, but she left the house while he was still there.

Plaintiff felt threatened when Richardson told her that she

could get in trouble if she were harboring Salinas, because

Plaintiff’s mother had been arrested previously for harboring

him.

After Plaintiff told Richardson that Salinas was in the

house, Richardson walked away to confer with the other

officers. They discussed whether to contact the SWAT team,

but Plaintiff did not know that the SWAT team might become

involved. Richardson returned to Plaintiff about 45 seconds

later. He said: “Shaniz, let me ask you this. Do we have

permission to get inside your house and apprehend him?”

Plaintiff nodded affirmatively and gave Richardson the key

to her front door. Plaintiff knew that her key would not open

the door because the chain lock was engaged, but it is unclear

from the record whether Richardson also knew that. After

handing over the key, Plaintiff called a friend to pick her up,

and she left in the friend’s car.

Hoadley then called the local prosecutor’s office and

reported to the on-call prosecutor that Plaintiff consented to

having officers enter her house to arrest a person who was

subject to a felony arrest warrant. The prosecutor told

Hoadley that the officers did not need to obtain a search

warrant.

Hoadley next contacted Seevers, the SWAT Commander,

to request assistance in arresting a felon who was barricaded

WEST V. CITY OF CALDWELL 7

inside a house and who might be armed and on drugs.

Seevers, in turn, notified Winfield, the SWAT Team Leader,

of the request. Seevers told Winfield that Salinas’ family

reported that he was in Plaintiff’s house with a firearm

(described as a BB gun) and that he was suicidal. Winfield

contacted Hoadley for more information. Hoadley told him

that Salinas had felony arrest warrants, that Salinas was a

suspect in a gun theft and that not all the stolen firearms had

been recovered, that Salinas was suicidal, and that all signs

indicated that Salinas was in Plaintiff’s house. Hoadley also

told Winfield that Plaintiff had given her consent for officers

to enter her house to effect an arrest and that the on-call

prosecutor had confirmed that the officers did not need a

warrant.

The SWAT team met at the local police station to retrieve

their tactical gear and establish a plan. Winfield, who created

the plan, hoped to get Salinas to come out of the house

without requiring an entry by members of the SWAT team.

The plan had three stages: (1) contain Plaintiff’s house and

issue oral commands for Salinas to come out; (2) if stage one

failed, introduce tear gas into the house to force Salinas out;

and (3) if stages one and two failed, enter and search the

house for Salinas after the tear gas dissipated. Seevers

reviewed and approved the plan, which conformed to

commonly accepted police practices.

While the SWAT team prepared at the station, the officers

at Plaintiff’s house continued to watch for Salinas and to

update the SWAT team over the radio. One officer reported

hearing movement in the house, and another said that he

heard the deadbolt latch while he was standing near the front

door.

8 WEST V. CITY OF CALDWELL

The SWAT team arrived at Plaintiff’s house late in the

afternoon. They made repeated announcements telling

Salinas to come out of the house, but he did not appear. After

waiting about 20 minutes, members of the team used 12-

gauge shotguns to inject tear gas into the house through the

windows and the garage door. After deploying the tear gas,

the SWAT team continued to make regular announcements

directing Salinas to come out of the house, but still he did not

appear. After about 90 minutes the team entered the house.

They used Plaintiff’s key to unlock the deadbolt on the front

door, but they could not enter because of the chain lock.

They then moved to the back door, which they opened by

reaching through the hole created earlier by shooting the tear

gas through the back door’s window. The SWAT team

searched the entire house without finding Salinas.

Plaintiff and her children could not live in the house for

two months because of the damage caused by the search,

including broken windows and tear-gas-saturated possessions.

The City of Caldwell paid for a hotel for Plaintiff and her

children for three weeks and paid her $900 for her damaged

personal property. Plaintiff then filed this action, seeking

damages and alleging claims for unreasonable search,

unreasonable seizure, and conversion.

As relevant here, Defendants moved for summary

judgment after the close of discovery, seeking qualified

immunity. The district court denied Seevers and Winfield’s

motion on the ground that it is “well-established that a search

or seizure may be invalid if carried out in an unreasonable

fashion.” The court denied Richardson’s motion on the

ground that, if he had not obtained Plaintiff’s voluntary

consent, the need for a warrant was clearly established.

Defendants timely appealed.

WEST V. CITY OF CALDWELL 9

DISCUSSION2

A. Principles Governing Qualified Immunity

Police officers have qualified immunity for their official

conduct unless (1) they violate a federal statutory or

constitutional right and (2) that right was clearly established

at the time of the challenged conduct. District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018). “Clearly established”

means that existing law “placed the constitutionality of the

officer’s conduct ‘beyond debate.’” Id. (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court has

emphasized, especially in the Fourth Amendment context,

that we may not “define clearly established law at a high level

of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam) (quoting City of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1776 (2015)). Rather, we must

locate a controlling case that “squarely governs the specific

facts at issue,” except in the “rare obvious case” in which a

general legal principle makes the unlawfulness of the

officer’s conduct clear despite a lack of precedent addressing

similar circumstances. City of Escondido v. Emmons, 139

S. Ct. 500, 503–04 (2019) (per curiam) (quoting Kisela, 138

S. Ct. at 1153, and Wesby, 138 S. Ct. at 590).3

2

We review de novo the district court’s denial of qualified immunity,

viewing the facts in the light most favorable to Plaintiff and drawing

reasonable inferences in her favor. Kramer v. Cullinan, 878 F.3d 1156,

1161–62 (9th Cir. 2018). We have jurisdiction to decide the legal

questions presented when we assume the truth of Plaintiff’s version of the

facts. Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per curiam).

3

See, e.g., Hope v. Pelzer, 536 U.S. 730, 738–41 (2002)

(characterizing prison guards’ violation of the Eighth Amendment as

“obvious” where, long after an emergency situation had ended, the guards

10 WEST V. CITY OF CALDWELL

We have discretion to decide which prong of the qualified

immunity analysis to address first. Pearson v. Callahan,

555 U.S. 223, 236 (2009). In our discussion below, we will

assume, without deciding, that Defendants violated Plaintiff’s

rights and will analyze only whether those rights were clearly

established as of August 2014.

B. Voluntariness of Consent

Plaintiff contends that her consent was not voluntary

because Richardson told her that, if Salinas was in the house

and she denied it, she could “get in trouble” for harboring a

wanted felon. Plaintiff asserts that she felt threatened. As

noted, we assume without deciding that her consent for the

police to “get inside [her] house” was not voluntary.

The remaining question is whether, in these

circumstances, the lack of voluntariness was clearly

established such that Richardson would have known that

Plaintiff’s consent was not voluntary. Those circumstances

included: time passed between his threat to arrest Plaintiff

for concealing Salinas’ whereabouts and his request for

consent, during which Richardson walked away from

Plaintiff; Plaintiff nodded her assent when Richardson

returned and asked her for “permission to get inside [her]

house” to arrest Salinas; Plaintiff handed Richardson her

house key without being asked for it; Plaintiff knew that

Salinas was a wanted felon; and Richardson did not threaten

to arrest Plaintiff for withholding consent for the officers to

enter her home.

placed a prisoner in leg irons, forced him to remove his shirt, and

handcuffed him to a hitching post in the hot sun for seven hours with little

water and no bathroom breaks).

WEST V. CITY OF CALDWELL 11

In support of her argument, Plaintiff cites Calabretta v.

Floyd, 189 F.3d 808 (9th Cir. 1999); United States v.

Ocheltree, 622 F.2d 992 (9th Cir. 1980); and an unpublished

district court decision that is not precedential. See al-Kidd,

563 U.S. at 741 (holding that a district court decision is not

controlling authority in any jurisdiction). The cited cases are

clearly distinguishable. Indeed, the differences between the

situation that Richardson faced and these two opinions “leap

from the page,” Kisela, 138 S. Ct. at 1154 (quoting Sheehan,

135 S. Ct. at 1776).

In Calabretta, we denied qualified immunity to a police

officer and a social worker who entered a home to perform a

child welfare check. When the children’s mother opened the

front door, the police officer “told her that if she did not

admit them, then he would force their way in.” 189 F.3d

at 811. Thus, the mother did not give voluntary consent to

the entry. By contrast, Richardson was attempting to arrest

a dangerous felon, not to conduct a welfare check. More

importantly, Richardson spoke to Plaintiff away from her

house, not at the front door; he did not threaten to force his

way into the house against her will; and he did not threaten to

arrest Plaintiff if she refused consent to having the police

enter her home.

In Ocheltree, we ordered suppression of evidence that an

agent from the Drug Enforcement Administration obtained

after coercing a suspect into opening his briefcase. The agent

stopped the suspect at an airport, and the suspect agreed to

accompany the agent to his office, where the agent asked for

permission to search the briefcase. Even though the agent

lacked probable cause, he told the suspect that he would get

a search warrant if the suspect failed to consent. We held that

the agent’s promise to obtain a search warrant clearly

12 WEST V. CITY OF CALDWELL

conveyed that the suspect would remain in custody in the

meantime; that is, in effect the agent threatened an arrest and

detention without probable cause. 622 F.2d at 993–94. By

contrast, Richardson did not threaten to arrest Plaintiff if she

declined consent. Moreover, after Plaintiff confirmed that

Salinas was in the house, Richardson walked away for nearly

a minute before returning to ask for permission to enter the

house, clearly signaling a lack of intent to detain Plaintiff.

And Plaintiff felt comfortable leaving the scene in her

friend’s car, indicating that she well understood that she was

not threatened with detention. Finally, Richardson had

probable cause to believe that Salinas was in Plaintiff’s

house.

Our research has uncovered no controlling Supreme Court

or Ninth Circuit decision holding that “an officer acting under

similar circumstances as [Defendants] . . . violated the Fourth

Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(per curiam). Prior precedent must articulate “a constitutional

rule specific enough to alert these deputies in this case that

their particular conduct was unlawful.” Sharp v. County of

Orange, 871 F.3d 901, 911 (9th Cir. 2017). Given the factors

that suggested voluntary consent, we hold that a lack of

consent was not clearly established and that a lack of consent

was not so obvious that the requirement of similar precedent

can be overcome. Richardson is, therefore, entitled to

qualified immunity on this claim.

C. Scope of Consent

Plaintiff next argues that, even if she consented

voluntarily to entry into her house, Seevers and Winfield

exceeded the scope of her consent by having the SWAT team

shoot tear gas into the house. As noted, Plaintiff agreed that

WEST V. CITY OF CALDWELL 13

officers could “get inside [her] house and apprehend” Salinas,

and she knew that Salinas was a wanted felon. Other than the

limitation concerning the reason for entry—to arrest

Salinas—Plaintiff expressed no limitation concerning, for

example, when officers could enter or where in her house the

officers would be allowed to look.

As with the other alleged constitutional violations, we

assume without deciding that Defendants exceeded the scope

of consent by employing tear gas canisters for their initial

entry, which is the entry that damaged Plaintiff’s house. The

dissent goes to great lengths to argue that Defendants violated

Plaintiff’s Fourth Amendment rights because no reasonable

person would have understood Plaintiff’s consent to

encompass shooting tear gas canisters into the house. But we

do not dispute that point here. And, contrary to the dissent’s

characterization, we do not hold “that a ‘typical reasonable

person’ consenting to an entry to look for a suspect could be

understood by a competent police officer as consenting to

damage to his or her home so extreme that [it] renders [the

home] uninhabitable for months.” Dissent at 25. Rather, we

assume that Defendants exceeded the scope of consent and

address only whether clearly established law, defined at an

appropriate level of specificity, “placed the constitutionality

of the officer’s conduct ‘beyond debate.’” Wesby, 138 S. Ct.

at 589 (quoting al-Kidd, 563 U.S. at 741). The dissent never

comes to grips with this legal standard.

Once again, we conclude that no Supreme Court or Ninth

Circuit case clearly established, as of August 2014, that

Defendants exceeded the scope of consent. Defendants did

“get inside” Plaintiff’s house, first with objects and later with

people. Plaintiff never expressed a limitation as to time,

place within the house, or manner of entry. Defendants did

14 WEST V. CITY OF CALDWELL

not, for instance, enter other buildings, exceed an expressed

time limit, or enter for a different purpose than apprehending

Salinas. To the extent that handing over the key implied that

Plaintiff expected Defendants to enter through the front door,4

Defendants did attempt to do that.

The dissent argues that Florida v. Jimeno, 500 U.S. 248,

251 (1991), “clearly established that general consent to search

is not without its limitations.” Dissent at 24. But in the

Fourth Amendment context, the Supreme Court has warned

us time and time again that we may not “define clearly

established law at a high level of generality.” Kisela, 138 S.

Ct. at 1152 (quoting Sheehan, 135 S. Ct. at 1776). Jimeno

held that it was “reasonable for an officer to consider a

suspect’s general consent to a search of his car to include

consent to examine a paper bag lying on the floor of the car.”

500 U.S. at 251. The Court also noted that it would be “very

likely unreasonable to think that a suspect, by consenting to

the search of his trunk, has agreed to the breaking open of a

locked briefcase within the trunk.” Id. at 251–52. That is the

phrase on which the dissent hangs its hat. Dissent at 24. But,

outside the context of a vehicle search, Jimeno provides

nothing more than a general principle for consent; it does not

articulate “a constitutional rule specific enough to alert these

deputies in this case that their particular conduct was

unlawful.” Sharp, 871 F.3d at 911.

The dissent also cites United States v. Ibarra, 965 F.2d

1354, 1357–58 (5th Cir. 1992) (en banc) (per curiam), for the

proposition that Defendants exceeded the scope of Plaintiff’s

consent by causing extensive damage to her home. In Ibarra,

4

Plaintiff knew, though, that the key would not open the front door

because of the chain lock.

WEST V. CITY OF CALDWELL 15

an equally divided Fifth Circuit, sitting en banc, affirmed the

district court’s ruling that officers exceeded the scope of a

guest’s general consent to search a house when they used a

sledgehammer to break boards that sealed off the attic from

the rest of the house. Id. For three reasons, Ibarra does not

provide clearly established law here. First, Ibarra is not

precedential even in the Fifth Circuit. See United States v.

Yarbrough, 852 F.2d 1522, 1538 n.8 (9th Cir. 1988)

(“Opinions which are affirmed by an equally divided en banc

Court of Appeals have no precedential value.”); United States

v. Mendoza-Gonzalez, 318 F.3d 663, 667 n.5 (5th Cir. 2003)

(“Decisions by an equally divided en banc court have no

value as binding precedent.”). Second, because Ibarra is an

isolated Fifth Circuit case, it cannot provide clearly

established law in our circuit. See Sharp, 871 F.3d at 911

(“[T]he 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.”

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))). And

third, the factual differences between Ibarra and this case

“leap from the page.” Kisela, 138 S. Ct. at 1154 (quoting

Sheehan, 135 S. Ct. at 1776).

Given that Defendants thought they had permission to

enter Plaintiff’s house to apprehend a dangerous, potentially

armed, and suicidal felon barricaded inside, it is not obvious,

in the absence of a controlling precedent, that Defendants

exceeded the scope of Plaintiff’s consent by causing the tear

gas canisters to enter the house in an attempt to flush Salinas

out into the open. Seevers and Winfield are, therefore,

entitled to qualified immunity on this claim.

16 WEST V. CITY OF CALDWELL

The cases that Plaintiff cites in support of her scope-of-

consent theory pertain instead to the reasonableness of the

search. We turn, next, to that issue.

D. Reasonableness of Search and Seizure

The pivotal question is whether Seevers and Winfield’s

actions were reasonable. We assume without deciding that

Defendants used excessive force by shooting tear gas

canisters through the windows of Plaintiff’s house as the

initial means by which they “[got] inside” the house to search

for and arrest Salinas. That is the action that caused the

damage underlying Plaintiff’s complaint. We examine

whether the unreasonableness of Defendants’ actions was

clearly established as of August 2014.

Defendants reasonably believed that Salinas was in the

house, that he was high on meth, that he possessed what had

been described as a BB gun, that he was suicidal, and that he

owned a .32 caliber pistol. They also knew that he was a

gang member with outstanding felony arrest warrants for

violent crimes and that he had aggressively tried to run down

a patrol car during a recent high-speed chase. We have found

no Supreme Court or Ninth Circuit case clearly establishing

that the procedure Defendants followed, including the use of

tear gas and the resulting destruction, is unreasonable in those

circumstances.

Plaintiff cites three cases in support of her argument that

the unreasonableness of Defendants’ actions was clearly

established: Liston v. County of Riverside, 120 F.3d 965 (9th

Cir. 1997); Mena v. City of Simi Valley, 226 F.3d 1031 (9th

Cir. 2000); and an unpublished district court decision that is

not controlling authority. The stark factual differences

WEST V. CITY OF CALDWELL 17

between the published cases and this case preclude a

conclusion that the unreasonableness of Defendants’ actions

was clearly established in August 2014.

In Liston, officers damaged property when they executed

a search warrant at the wrong house; the man for whom they

were searching had sold the house and a different family had

moved in. We noted expressly that “officers executing a

search warrant occasionally ‘must damage property in order

to perform their duty.’” 120 F.3d at 979 (quoting Dalia v.

United States, 441 U.S. 238, 258 (1979)). Thus, we

remanded for a determination of when the property damage

occurred because, until the officers learned that they had

entered the wrong house, they reasonably could have believed

“that the way they conducted the search was lawful.” Id.

at 979.

By contrast, Defendants here entered the right house

and—because of statements from Plaintiff, her grandmother,

and Salinas’ sister—they reasonably believed that Salinas

was barricaded inside. Defendants also knew that Salinas

was a violent, and likely armed, felon. Liston, in fact,

recognizes that (1) a mistaken but reasonable belief that the

object of the search is within the searched premises supports

qualified immunity and (2) property damage can occur

lawfully during a search.

In Mena, we affirmed the denial of qualified immunity for

officers who were “unnecessarily destructive” while

searching a home. 226 F.3d at 1041. The officers broke

down two doors that already were unlocked, and the occupant

of the home saw one officer kicking the open patio door

while declaring: “I like to destroy these kind of materials, it’s

cool.” Id. We noted that destroying property during a search

18 WEST V. CITY OF CALDWELL

“does not necessarily violate the Fourth Amendment,” but

“Defendants appear to have damaged Plaintiffs’ property in

a way that was ‘not reasonably necessary to execute the

search warrant.’” Id. (brackets omitted) (quoting United

States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991)).

Plaintiff does not claim, and the record does not suggest,

that Defendants damaged her house because they thought that

doing so was “cool.” Moreover, Mena simply does not

describe an acceptable amount of property damage that a

SWAT team may inflict while trying to flush a violent and

likely armed felon (who recently had threatened a police

officer’s life) out of a house.

Another precedent, Bravo v. City of Santa Maria, 665

F.3d 1076 (9th Cir. 2011), also bears on our analysis. There,

we held that a SWAT team’s nighttime incursion is a “far

more serious occurrence than an ordinary daytime intrusion”

and so requires exigent circumstances. Id. at 1085–86. But

the search in this case occurred on a summer afternoon,

during daylight hours; Defendants knew that Plaintiff was not

home and certainly was not asleep inside.

“[T]he ultimate touchstone of the Fourth Amendment is

reasonableness,” whether officers search a home with a

warrant or with the occupant’s consent. Fernandez v.

California, 571 U.S. 292, 298 (2014) (quoting Brigham City

v. Stuart, 547 U.S. 398, 403 (2006)). Given the unusual

circumstances of this case, the need for specificity of

precedent in the Fourth Amendment context, and controlling

cases establishing that officers can sometimes damage a

home during a search without violating the occupant’s Fourth

Amendment rights, this is not an obvious case in which to

deny qualified immunity without any controlling precedent

WEST V. CITY OF CALDWELL 19

clearly establishing that Defendants violated Plaintiff’s rights.

See Sharp, 871 F.3d at 912 (explaining that “the obviousness

principle has real limits when it comes to the Fourth

Amendment,” because “officers encounter suspects every day

in never-before-seen ways”). Seevers and Winfield are,

therefore, entitled to qualified immunity on this claim as well.

CONCLUSION

Defendants are entitled to qualified immunity because,

assuming that their actions violated Plaintiff’s Fourth

Amendment rights, those rights were not clearly established,

at the appropriate level of specificity, in August 2014.

REVERSED.

BERZON, Circuit Judge, dissenting in part:

In my view, Defendants Seevers and Winfield are not

entitled to qualified immunity on the scope of consent claim.

I therefore dissent in part.

I

Shaniz West returned home to find her house surrounded

by the members of the Caldwell Police Department (“the

Department”). The Department sought to execute a warrant

for the felony arrest of her ex-boyfriend, Fabian Salinas.

When Defendant Officer Matthew Richardson asked West

whether Salinas was inside her home, she initially expressed

uncertainty. West explained that she had asked Salinas to

leave when he stopped by earlier to retrieve his belongings

20 WEST V. CITY OF CALDWELL

but was unsure whether he had actually left. Only after

Officer Richardson informed her that she could be arrested

for harboring a felon did West tell him that Salinas was inside

(which, it later turned out, he was not). Officer Richardson

then asked West, “Do we have permission to get inside your

house and apprehend him?” Consenting to the search with a

nod of her head, West provided a key to her home but left

before any search took place. The Department did not contact

her further.

After receiving West’s consent to “get inside [her] house

and apprehend him,” the Department sent a request for

assistance to the Special Weapons and Tactics (“SWAT”)

team. SWAT team leader Doug Winfield and Lieutenant Alan

Seevers, respectively, formulated and reviewed a tactical

plan. The plan consisted of three phases, all of which were

ultimately executed.

First, SWAT, over a public address system, instructed

Salinas to leave the house. Second, SWAT used a 12-gauge

shotgun to shoot tear gas canisters into the home, breaking

windows and extensively damaging the walls and ceiling in

the process. SWAT then waited 90 minutes for the tear gas to

spread and force Salinas outside. When Salinas did not come

out and the tear gas had dissipated, SWAT implemented the

final phase of the tactical plan, entering the residence to look

for Salinas. Before entering, SWAT attempted to enter

through the front door with the key West provided but could

not gain entry, as the chain lock was engaged. SWAT next

tried the back door, reaching through a window the tear gas

WEST V. CITY OF CALDWELL 21

canisters had broken and unlocking the back door.1 The

subsequent search of West’s home revealed that Salinas was

not inside.

The fruitless police activity—primarily the use of tear gas

before entering the house—extensively damaged West’s

home. To put the extensive property injury in context: West’s

personal belongings and the home itself were saturated in tear

gas; broken glass littered the floor; and the walls and ceiling

had gaping holes from contact with the tear gas canisters. In

the aftermath of the destruction, West and her children could

not live in their home for several months.

West filed suit against the City of Caldwell, the Caldwell

Police Department, and the individual officers involved in the

search. Among other things, she alleged that Winfield and

Seevers exceeded the scope of her consent by designing and

executing a tactical plan that culminated in making her home

uninhabitable.

II

“The standard for measuring the scope of a suspect’s

consent under the Fourth Amendment is that of ‘objective’

reasonableness—what would the typical reasonable person

have understood by the exchange between the officer and the

suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).

Contrary to the majority’s reading of West’s consent—which

quite frankly, borders on the fantastic—no “typical

reasonable person [would] have understood . . . the exchange

1

West asserted that the key unlocked both the front and back door.

There is no indication in the record that the SWAT team ever tried the key

on the back door.

22 WEST V. CITY OF CALDWELL

between . . . [O]fficer [Richardson] and [West]” as permitting

the throwing of destructive tear gas canisters into her house

from the outside, before any officers even attempted to “get

inside [the] house and apprehend [Salinas].” (emphasis

added). Interpreting the exchange between West and Officer

Richardson as permitting the SWAT attack on West’s house

as performed is patently unreasonable. Any reasonable officer

would have known at the time that the search exceeded the

scope of West’s consent, for two principal reasons.

First, West’s consent quite obviously contemplated an

entry by live human beings, not the tossing of incendiary

objects into the house from the outside. That understanding

is confirmed by the framing of Officer Richardson’s consent

request. Officer Richardson asked, “Do we have permission

to get inside your house and apprehend him,” incorporating

the understanding that “we”—the officers—would be

entering the house. (emphasis added). Furthermore, in

providing Officer Richardson with a key to her home when

she consented to the search, West signaled that her consent

was for a peaceful entry by actual persons, not a destructive

assault on her home from the outside.

The majority adopts an entirely implausible contrary

reading of West’s consent, one a “typical reasonable person

[would not] have understood by the exchange between the

officer and the suspect.” Jimeno, 500 U.S. at 251. Because

West “never expressed a limitation as to time, place within

the house, or manner of entry,” the majority concludes that

her consent that officers could “get inside” permitted a

violent initial attack on her house with toxic objects. Maj. Op.

at 13. In so concluding, the majority supposes that someone

who permits law enforcement officers to “get inside [her]

house” while handing over a key consents to the officers not

WEST V. CITY OF CALDWELL 23

entering the house but instead lobbing dangerous objects,

such as tear gas canisters—or stones or bombs, for other

examples—into the house from the outside. It further

presupposes that, in providing consent to entry, a resident

must preemptively forbid actions no one would guess are

contemplated by the commonsense understanding of the

articulated consent. That is not the law. See Jimeno, 500 U.S.

at 251.

That no “typical reasonable person” would have

understood West’s exchange with Officer Richardson as the

majority’s far-fetched reading suggests is further confirmed

by considering why the tear gas canisters were thrown into the

home. SWAT deployed the tear gas canisters to entice Salinas

to leave the house on his own volition. West’s consent

obviously did not contemplate that manner of apprehension.

West permitted officers (1) “to get inside [her] house and

[(2)] apprehend him,” in that order. That permission signifies

that officers were to “apprehend him” while still “inside” the

residence, not that foreign objects would be thrown into the

home to force Salinas to leave the house and that the officers

would then arrest him outside.

In short, despite the majority’s attempt to distort West’s

consent, any “typical reasonable person” would have

understood the exchange as permitting a physical entry by

actual persons only, in which officers would try to find

Salinas in the house and arrest him there.

Second, even if West consented to a plan that covered

attacks on her house from the outside with dangerous objects,

a reasonable officer would have known that, at some point,

the destruction of property could exceed the scope of West’s

consent. In Jimeno, the Supreme Court held that general

24 WEST V. CITY OF CALDWELL

consent to search the suspect’s vehicle, without any express

limitations on scope, permitted the officer to search the

vehicle as well as a paper bag on the vehicle’s floor. 500 U.S.

at 251. In so holding, Jimeno clearly established that general

consent to search is not without its limitations. As an example

of such inherent limits, Jimeno reasoned that “[i]t is very

likely unreasonable to think that a suspect, by consenting to

the search of his trunk, has agreed to the breaking open of a

locked briefcase within the trunk.” Id. at 251–52.

Applying Jimeno to the present case, it is clear that

extensive property destruction rendering a home

uninhabitable goes beyond the limitations inherent in a

general consent to search. Small personal property is not

afforded more Fourth Amendment protection than residential

properties. So if the “breaking open of a locked briefcase

within [a] trunk” is “very likely unreasonable” and exceeds

the scope of ordinary consent, it goes without saying that

assaulting a home with tear gas and making the residential

property uninhabitable for months is likewise unreasonable,

and exceeds the scope of consent. Id. A resident need not

expressly state, for example, that the officers could “get

inside [her] house and apprehend [Salinas],” but could not

attack it with incendiary objects that would make it

impossible to live in the house. As in the Jimeno hypothetical,

that limitation is inherent in the consent, and a reasonable

officer would have so understood.

Notably, I have found no federal case that holds—or

suggests—otherwise. Although some cases have held that

there are circumstances in which a general consent to search

WEST V. CITY OF CALDWELL 25

allows for intentional damage to personal property,2 no

appellate decision, as far as I can tell, has approved massive

damage to a dwelling after a general consent to search. See

also United States v. Ibarra, 965 F.2d 1354, 1357–58 (5th

Cir. 1992) (en banc) (per curiam) (affirming by equally

divided court with seven judges determining that the officers

exceeded the scope of consent by using a sledgehammer to

break boards securing entry to the attic).

In concluding that the officers performed a search

consistent with West’s consent, the majority does what no

court has before—it holds that a “typical reasonable person”

consenting to an entry to look for a suspect could be

understood by a competent police officer as consenting to

damage to his or her home so extreme that renders it

uninhabitable for months. Aside from its complete

implausibility as a matter of common experience, the

majority’s holding is likely to hamper legitimate law

2

Four circuits have determined that general consent to search does

not permit intentional damage to personal property. See United States v.

Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004); United States v.

Torres, 32 F.3d 225, 231–32 (7th Cir. 1994); United States v. Zamora-

Garcia, 831 F.3d 979, 983 (8th Cir. 2016); United States v. Strickland,

902 F.2d 937, 942 (11th Cir. 1990). The Third, Tenth, and D.C. Circuits

have similarly suggested that although a general consent to search a place

or item may permit the police to dismantle or temporarily modify that

property, the consent does not give the police authorization to destroy that

property or otherwise “render it useless.” United States v. Kim, 27 F.3d

947, 956–57 (3d Cir. 1994) (quoting United States v. Springs, 936 F.2d

1330, 1334–35 (D.C. Cir. 1991)); see also United States v. Osage,

235 F.3d 518, 521, 522 n.2 (10th Cir. 2000). The Second Circuit allows

for intentional damage to personal property in the course of a general

consent search. See United States v. Mire, 51 F.3d 349, 351–52 (2d Cir.

1995).

26 WEST V. CITY OF CALDWELL

enforcement activity by making homeowners extremely

reluctant to agree to consensual searches.

III

The majority faults this dissent for not providing closely

similar cases to guide the clearly established law inquiry with

regard to the application of Jimeno’s “typical reasonable

person” standard. Maj. Op. at 13–15. But this case well

illustrates that some police actions are so clearly

unacceptable under the applicable standard that it is the

absence of closely similar cases that is most telling. See Hope

v. Pelzer, 536 U.S. 730, 741–46 (2002). Here, for example,

the likely reason there are no closely similar cases standing

for the proposition that officers may not use a general consent

to search to take actions that render a home uninhabitable for

months is that law enforcement officers well understand that,

and do not rely on consent alone to conduct home-destructive

activities.

Moreover, contrary to the majority’s assumption, the

scope of consent claim in this case is not akin to the various

excessive force cases which have triggered the Supreme

Court’s repeated admonitions regarding the need for closely

similar clearly established case law in qualified immunity

cases. Maj. at 13–14. Unlike the many cases in which officers

often face difficult split-second decisions and so need

detailed instructions if they are to be held liable for

constitutional violations, see, e.g., Stanton v. Sims, 571 U.S.

3, 10 (2013) (per curiam), the officers here had time to inform

West of the dangerous nature of their intended activities

before relying on her consent. The fact that they decided not

to inform her in more detail could suggest that they

anticipated that she would not agree to the search as

WEST V. CITY OF CALDWELL 27

performed—as she probably would not have—but proceeded

anyway. Given the timing and extensive planning that went

into the destructive search of West’s home, the dynamic in a

case such as this one is entirely different from that in usual

excessive force cases, in which the Court has insisted on

closely analogous case law for qualified immunity purposes.

There will be, of course, cases in which it will not be clear

to law enforcement officers whether the consent obtained

reaches the activities undertaken, or in which the preplanned,

and consented to, scheme goes awry for reasons beyond the

officer’s control. In such situations, insistence on affirmative

guidance from closely similar cases makes sense before

requiring the law enforcement defendants to pay for the

plaintiff’s injuries.3 But here, the destructive activities

occurred at the outset of SWAT’s execution of its scheme and

as far as the tear gas itself was concerned, went exactly as

planned (although Salinas did not emerge). Where, as here,

there is simply no plausible possibility that a “typical

reasonable person” would have understood that West agreed

to the destruction, the absence of case law approving similar

actions on the grounds of general consent should be a

sufficient basis to deny qualified immunity.

For the foregoing reasons, I respectfully, but

emphatically, dissent.

3

More accurately, the governmental entity’s insurer will pay. See

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885

(2014).