Drendolyn Sims v. Mike Stanton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DRENDOLYN SIMS, No. 11-55401

Plaintiff - Appellant,

D.C. No.

v. 3:09-cv-01356-

JM-WMC

MIKE STANTON ,

Defendant - Appellee.

OPINION

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, Senior District Judge, Presiding

Argued and Submitted

August 8, 2012–Pasadena, California

Filed December 3, 2012

Before: Stephen Reinhardt, Barry G. Silverman, and Kim

McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt

2 SIMS V . STANTON

SUMMARY*

Civil Rights

The panel reversed the district court’s summary judgment

granting qualified immunity to a police officer and remanded

in this action brought under 42 U.S.C. § 1983.

Plaintiff suffered serious injuries as a result of the

officer’s act of kicking down the front gate of her yard. She

alleged that the officer violated her Fourth Amendment rights

by his warrantless entry into the curtilage of her house during

his pursuit of a suspect, who had committed at most a

misdemeanor offense. The panel first held that plaintiff’s

yard was curtilage entitled to the same Fourth Amendment

protections as her home. The panel held that the officer’s

actions amounted to an unconstitutional search and that the

law at the time of the incident would have placed a

reasonable officer on notice that his warrantless entry into the

curtilage of a home constituted an unconstitutional search,

which could not be excused in this case under the exigency or

emergency exception to the warrant requirement.

COUNSEL

L. Marcel Stewart, San Diego, California, for Petitioner.

Peter J. Ferguson, Santa Ana, California, for Respondent.

*

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

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

SIMS V . STANTON 3

OPINION

REINHARDT, Circuit Judge:

Drendolyn Sims suffered serious injuries as a result of

officer Mike Stanton’s act of kicking down the front gate to

her small, enclosed yard. Sims was standing directly behind

the gate when it swung open, knocking her down and

rendering her temporarily unconscious, or at least incoherent,

causing a laceration on her forehead and an injury to her

shoulder. Stanton unreasonably believed that his warrantless

entry into the curtilage of Sims’s home was justified by his

pursuit of Nicholas Patrick, who had committed at most a

misdemeanor offense by failing to stop for questioning in

response to a police order. Sims filed an action in district

court under 42 U.S.C. § 1983, alleging that her Fourth

Amendment rights had been violated by Stanton’s warrantless

entry into her front yard and seeking damages for her injuries.

The district court found that Stanton was entitled to

qualified immunity and granted his motion for summary

judgment. Reviewing that decision de novo, we must

determine whether Stanton violated Sims’s Fourth

Amendment right to be free from a warrantless entry into her

front yard and whether the contours of that right were

sufficiently established at the time that a reasonable officer

would have been aware that his conduct was unconstitutional.

We conclude that Stanton’s actions amounted to an

unconstitutional search. We hold that the law at the time of

the incident would have placed a reasonable officer on notice

that his warrantless entry into the curtilage of a home

constituted an unconstitutional search, which could not be

excused under the exigency or emergency exception to the

4 SIMS V . STANTON

warrant requirement. Stanton was, therefore, not entitled to

qualified immunity.

BACKGROUND1

On May 27, 2008 at approximately one o’clock in the

morning, Officer Stanton and his partner responded to a radio

call regarding an “unknown disturbance” in the street

involving a baseball bat in La Mesa, California. The officers

were driving a marked car and wearing police uniforms.

Stanton was familiar with the area as one “known for

violence associated with the area gangs,” and he “was also

aware of gang members being armed with weapons such as

guns and knives.” Still, when the officers arrived, they

observed nothing unusual.

The officers noticed three men walking in the street.

Upon seeing the car, two of the men turned into a nearby

apartment complex. The third, who turned out to be Patrick,

crossed the street about twenty-five yards in front of the

police car and walked quickly toward Sims’s home, which

was located in the same direction as the police car. Neither

officer saw Patrick with a baseball bat or any other possible

weapon. The officers had no information that would link

Patrick to the disturbance. Nor did the officers observe any

conduct on Patrick’s part that would suggest that he had been

1

Although we review a district court’s grant of summary judgment de

novo, evaluating the facts in the light most favorable to the nonmoving

party, most of the material facts in this case are not in dispute. Thus, we

set forth the undisputed facts and note where a disputed fact affects the

legal analysis that follows. See LaLonde v. Cnty. of Riverside, 204 F.3d

947, 950 n.3 (9th Cir. 2000).

SIMS V . STANTON 5

involved in the disturbance that they had been called to

investigate.

According to Stanton’s version of the facts, he exited the

patrol car, announced “police,” and ordered Patrick to stop

multiple times in a voice that was loud enough that all

persons in the area would have heard his commands.

Whether Patrick heard the commands or not, he did not stop.

Instead, he entered the gate to Sims’s front yard and the gate

shut behind him. Believing that Patrick was disobeying his

lawful order (a misdemeanor offense under California Penal

Code § 1482) and “fearing for [his] safety,” Stanton made a

“split-second decision” to kick open the gate to Sims’s yard.

Sims was standing behind the gate when it flew open, striking

her and sending her into the front stairs. She was temporarily

knocked unconscious, or at least became incoherent, as a

result of the blow and sustained a laceration on her forehead,

an injury to her shoulder, and was taken to the hospital.

The gate Stanton kicked open is part of a fence made of

“sturdy, solid wood” that is more than six feet tall, enclosing

the front yard to Sims’s home. Sims lives in a manufactured

home with a small front yard that abuts the house. She states

that she “enjoy[s] a high level of privacy in [her] front yard.”

Her fence, which was built for “privacy and protection,”

ensures that her outdoor space is “completely secluded” and

cannot be seen by someone standing outside the gate.

Additionally, the front yard is used for talking with friends,

2

California Penal Code § 148 makes “willfully resist[ing], delay[ing],

or obstruct[ing]” an officer “in the discharge or attempt to discharge any

duty of his or her office” a misdemeanor offense punishable by up to one

year and by a fine of up to $1000. § 148; see also In re M.M., 54 Cal. 4th

530, 533 (2012) (§ 148 is a misdemeanor offense).

6 SIMS V . STANTON

as Sims was doing on the evening of the incident, and for

storing her wheelchair, which she keeps parked inside the

fence.

Sims’s complaint against Stanton alleged unconstitutional

arrest, search, excessive force, and additional state law tort

claims. Stanton moved for summary judgment, which the

district court granted, finding that (1) Stanton did not use

excessive force; (2) exigency and a lesser expectation of

privacy in the curtilage surrounding Sims’s home justified the

warrantless entry; and (3) no clearly established law put

Stanton on notice that his conduct was unconstitutional and

therefore he was entitled to qualified immunity. Sims appeals

the district court’s decision on her unconstitutional search

claim and the grant of qualified immunity to Stanton.3

DISCUSSION

The Fourth Amendment prohibits officers from entering

an enclosed front yard—curtilage—without a warrant, to the

same extent that it prohibits them from entering a home. See

United States v. Perea-Rey, 680 F.3d 1179, 1184 (9th Cir.

2012). Thus, we first must determine whether Sims’s front

yard was curtilage. If so, Stanton’s warrantless entry is

unconstitutional unless it meets the requirements for an

exception to the warrant rule.

We next review the facts presented to the district court to

determine whether Stanton’s warrantless entry meets either

3

After dismissing Sims’s federal claims, the district court declined to

exercise supplemental jurisdiction over her state law claims and dismissed

them without prejudice. Because we reverse the dismissal of Sims’s

federal claims, we also reverse the dismissal of Sims’s state law claims.

SIMS V . STANTON 7

the exigency or emergency exceptions to the warrant

requirement. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th

Cir. 2009). Because both exceptions turn on the seriousness

of the underlying offense, we ultimately conclude that

Stanton’s warrantless entry cannot be justified by his pursuit

of Patrick, who committed, at most, only a misdemeanor. See

United States v. Johnson, 256 F.3d 895, 908 n.6 (9th Cir.

2001) (en banc) (exigency exception); LaLonde, 204 F.3d at

958 n.16 (emergency exception).

Curtilage

Before analyzing the exceptions to the warrant

requirement, it must be determined whether Sims’s yard is

curtilage and therefore entitled to the same Fourth

Amendment protections as her home.

It is well-established that “[t]he presumptive protection

accorded people at home extends to outdoor areas

traditionally known as ‘curtilage’—areas that, like the inside

of a house, harbor the intimate activity associated with the

sanctity of a person’s home and the privacies of life.” United

States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010)

(quoting United States v. Dunn, 480 U.S. 294, 300 (1987))

(internal quotations and alterations omitted). “Because the

curtilage is part of the home, searches and seizures in the

curtilage without a warrant are also presumptively

unreasonable.” Perea-Rey, 680 F.3d at 1184 (citing Oliver v.

United States, 466 U.S. 170, 180 (1984)). The district court

recognized that Sims’s front yard was curtilage, but erred in

finding that its status as curtilage entitled Sims to a “lesser

expectation of privacy . . . as opposed to the home itself.”

8 SIMS V . STANTON

Sims’s small, enclosed, residential yard is quintessential

curtilage. “[A] small, enclosed yard adjacent to a home in a

residential neighborhood [] is unquestionably such a ‘clearly

marked’ area ‘to which the activity of home life extends,’ and

so is ‘curtilage’ subject to the Fourth Amendment

protection.” Struckman, 603 F.3d at 739 (quoting Oliver,

466 U.S. at 182 n.12). Because Sims’s front yard obviously

meets the definition of curtilage, the district court did not

need to analyze it under the factors announced by the

Supreme Court in United States v. Dunn. 480 U.S. at 294.

These factors serve as “useful analytical tools” to ensure that

Fourth Amendment protections extend to areas that are much

further from the house but that still should be “treated as the

home itself.” Id. at 300–01. Here, however, the factors are

unnecessary because it is “easily understood from our daily

experience” that Sims’s yard is curtilage.4 Oliver, 466 U.S.

at 182 n.12; see also Struckman, 603 F.3d at 739.

4

Of course, applying the Dunn factors to Sims’s yard leads to the same

result. The first factor, “the proximity of the area claimed to be curtilage

to the home,” id. at 301, is met because her front yard is adjacent to her

home and extends only a short distance. The second factor, whether the

area is “included within an enclosure surrounding the home,” id., is met

because a tall wooden fence encloses both her front yard and her home.

Sims meets the third factor, “the nature of the uses to which the area is

put,” id., because Sims stated that she enjoyed a high degree of privacy in

her front yard, that she used it to store her wheelchair, and that she

entertains guests there. The final factor, “steps taken by the resident to

protect the area from observation by people passing by,” id., is met

because the gate that Stanton kicked in was a “sturdy, solid wood,” six-

foot-high fence with narrow slats between the planks of wood.

Stanton’s argument that because he could see the front door it was not

entitled to the same expectation of privacy is beside the point. The

warrantless entry was to Sims’s yard, which Stanton obviously could not

see prior to kicking in the front gate; if he could have, he would have

known that Sims was standing behind it.

SIMS V . STANTON 9

Because curtilage is protected to the same degree as the

home, the district court erred in applying a “totality of the

circumstances” balancing inquiry that justified the

warrantless intrusion based in part on a “lesser expectation of

privacy” in one’s front yard as compared to one’s home. We

hold that the Fourth Amendment protects Sims’s yard, a mere

extension of the home itself, from warrantless search. Perea-

Rey, 680 F.3d at 1184. Stanton’s warrantless entry, therefore,

was presumptively unconstitutional. Struckman, 603 F.3d at

743.

Exceptions To The Warrant Requirement

When the warrantless search is to home or curtilage, we

recognize two exceptions to the warrant requirement:

exigency and emergency. Hopkins, 573 F.3d at 763. “These

exceptions are narrow and their boundaries are rigorously

guarded to prevent any expansion that would unduly interfere

with the sanctity of the home.” Id. at 763. The exigency

exception assists officers in the performance of their law

enforcement function. It permits police to commit a

warrantless entry where “necessary to prevent . . . the

destruction of relevant evidence, the escape of the suspect, or

some other consequence improperly frustrating legitimate law

enforcement efforts.” Id. at 763 (citing United States v.

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

The emergency exception, in contrast, seeks to ensure that

officers can carry out their duties safely while at the same

time ensuring the safety of members of the public. It applies

when officers “have an objectively reasonable basis for

concluding that there is an immediate need to protect others

or themselves from serious harm.” Id. at 764 (citing United

States v. Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008))

(internal emphasis omitted).

10 SIMS V . STANTON

Under either exception, our review of whether the

circumstances justified the warrantless entry considers the

seriousness, or lack thereof, of the underlying offense.

Johnson, 256 F.3d at 908 n.6 (exigency exception); LaLonde,

204 F.3d at 958 n.16 (emergency exception). The district

court erroneously granted summary judgment to Stanton,

despite clear precedent that precludes the finding of an

exception to the warrant requirement when the circumstances

turn on only a misdemeanor offense. Johnson, 256 F.3d at

908 n.6; LaLonde, 204 F.3d at 958 n.16.

Exigency Exception

Stanton attempts to show that exigent circumstances

justified his warrantless entry, specifically that Patrick would

have escaped arrest. The burden to show exigent

circumstances rests on the officer, who must “point[] to some

real immediate and serious consequences if he postponed

action to get a warrant.” Welsh v. Wisconsin, 466 U.S. 740,

749–50, 751 (1984) (internal quotation marks and citation

omitted). We have recognized circumstances that justify a

warrantless entry to prevent “the destruction of relevant

evidence, the escape of the suspect, or some other

consequence improperly frustrating legitimate law

enforcement efforts.” Hopkins, 573 F.3d at 763 (quoting

McConney, 728 F.2d at 1199).

Not every law enforcement action, however, justifies an

exception to the warrant requirement. The recognition that

sometimes law enforcement needs take precedence must be

balanced against the Fourth Amendment protections against

unreasonable searches. We have given officers clear

guidance on how to approach the balance between “a

person’s right to be free from warrantless intrusions” and

SIMS V . STANTON 11

“law enforcement’s interest in apprehending a fleeing

suspect.” Johnson, 256 F.3d at 908 n.6. We have said, “[i]n

situations where an officer is truly in hot pursuit and the

underlying offense is a felony, the Fourth Amendment

usually yields,” but “in situations where the underlying

offense is only a misdemeanor, law enforcement must yield

to the Fourth Amendment in all but the ‘rarest’ cases.” Id.

(citations omitted). Stanton offers nothing to show why in

this case the Fourth Amendment should yield.

Stanton does not argue that this case involves probable

cause for any crime more serious than the single

misdemeanor of disobeying an officer’s order to stop.5 We

do not doubt that Stanton believed that Patrick might escape

arrest if he did not follow him into Sims’s front yard. The

possible escape of a fleeing misdemeanant, assuming Patrick

had been fleeing, is not, however, a serious enough

consequence to justify a warrantless entry. The precedent

relied on by the district court, United States v. Santana, which

held that a “suspect may not defeat an arrest which has been

set in motion in a public place . . . by the expedient of

escaping to a private place,” involved a fleeing felon.

427 U.S. 38, 43 (1976). Since Santana, the Supreme Court

and our court have made it clear that the exigency exception

to the warrant requirement generally applies only to a fleeing

felon not to a fleeing misdemeanant. Welsh, 466 U.S. at 750;

Johnson, 256 F.3d at 908 n.6. The district court erroneously

applied this precedent.

5

W hether Stanton had probable cause to believe that Patrick had

violated California Penal Code § 148 is fiercely debated by the parties.

W e do not need to decide this question, because, even if Stanton had

probable cause to believe that Patrick violated § 148, that violation would

at most be a misdemeanor offense.

12 SIMS V . STANTON

The warrantless intrusion is particularly egregious in this

case because Stanton violated the Fourth Amendment rights

of an uninvolved person, Sims. See Johnson, 256 F.3d at

909. Stanton could have knocked on the door and asked Sims

for permission to enter and speak with, or arrest, Patrick.

Knocking on the door would still not have justified a

warrantless entry, but at the very least, with the warning of a

knock, Sims might have been able to move away from behind

the gate before Stanton kicked it open. In any event, the

record before us does not reveal any “rare” circumstances that

would call for an exception to the rule that “where the

underlying offense is only a misdemeanor, law enforcement

must yield to the Fourth Amendment.” Johnson, 256 F.3d at

908 n.6.

Emergency Exception

Stanton asserts that he pursued Patrick into Sims’s

curtilage because he feared for his own safety. To establish

that the circumstances gave rise to an emergency situation,

Stanton must show an “objectively reasonable basis for

fearing that violence was imminent.” Ryburn v. Huff, 132 S.

Ct. 987, 992 (2012). As in the case of an exigency exception,

an “officer[’s] assertion of a potential threat to [his] safety

must be viewed in the context of the underlying offense.”

LaLonde, 204 F.3d at 958 n.16.6 Where the threat is to the

officer’s safety, we observe that “[o]ne suspected of

committing a minor offense would not likely resort to

6

Stanton attempts to distinguish LaLonde on the ground that it involved

the warrantless entry into a home, rather than a front yard. This

distinction is meaningless because the yard is curtilage and therefore

entitled to the same protection as the home under the Fourth Amendment.

See discussion supra, pp. 7–9.

SIMS V . STANTON 13

desperate measures to avoid arrest and prosecution.” Id.

(quoting United States v. George, 883 F.2d 1407, 1413 n.3

(9th Cir. 1989)). Reviewing the constitutionality of the

warrantless entry de novo, we conclude that the record does

not support a finding of an emergency after Patrick entered

Sims’s fenced yard.

Stanton was called to investigate a disturbance involving

a baseball bat at one o’clock in the morning. Although

Stanton knew the area as one associated with gangs whose

members may be armed, he had no information tying Patrick

to the reported disturbance. He did not see Patrick carrying

a baseball bat or any other weapon.7 The only facts in the

record suggesting suspicious behavior were that Stanton

observed Patrick “cross the street and quickly walk/run

toward” Sims’s home, and that after he ordered Patrick to

stop, Patrick “looked directly at [Stanton], ignored [his]

lawful orders and quickly went through a front gate.” Once

Patrick fled into Sims’s front yard, without signaling in any

way that he would engage Stanton, return with a weapon, or

otherwise threaten him with violence, there was simply no

evidence of imminent danger to the officer or anyone else.

The circumstances of this case stand in stark contrast to

the facts that supported the officer’s reasonable belief in

Ryburn that danger could be imminent. In Ryburn, four

officers went to high school student Vincent Huff’s home to

investigate threats that he was going to “shoot up” the school.

132 S. Ct. at 988. The officers testified to facts that were

specific to Mrs. Huff and her son that “led them to be

concerned for their own safety and for the safety of other

7

W hen Patrick was eventually stopped, he had no weapon on his person.

14 SIMS V . STANTON

persons in the residence.” Id. at 990. In addition to the

reported threat of a school shooting, these facts included:

the unusual behavior of the parents in not

answering the door or the telephone; the fact

that Mrs. Huff did not inquire about the

reason for their visit or express concern that

they were investigating her son; the fact that

she hung up the telephone on the officer; the

fact that she refused to tell them whether there

were guns in the house; and finally, the fact

that she ran back into the house while being

questioned.

Id. Based on the suspected presence of weapons in the home

of a teenager who had threatened to commit a violent felony

by the use of deadly weapons, those officers had an

“objectively reasonable basis” to fear that “family members

or the officers themselves were in danger.” Id. at 990. Here,

Stanton attempts to justify his fear that Patrick threatened his

safety, by pointing to the report of an incident involving a bat

and his belief that Sims’s neighborhood was a high-crime

area. However, none of the factors: Stanton’s belief that

Patrick committed a misdemeanor by failing to heed his

order, the original call to the police regarding the disturbance,

the presence of gangs and the crime rate in the neighborhood,

nor a combination of all three is sufficient to constitute an

“emergency” that justified breaking down a closed gate and

entering without a warrant.

Stanton described Sims’s neighborhood as “an area

known for violence associated with the area gangs,” and

stated that he “was also aware of gang members being armed

with weapons such as guns and knives.” Based on the facts

SIMS V . STANTON 15

which he knew about the neighborhood and the report of a

disturbance in the street, Stanton speculates that Patrick may

have been carrying a concealed weapon, that he may have

gone into Sims’s home in order to arm himself and then

return to the street, or that someone armed inside Sims’s

home might have attempted to interfere with Patrick’s arrest.

Without some particularized facts relating to Patrick,

Stanton’s inferences are too generalized and speculative to

provide an “objectively reasonable basis” for fearing that

violence might be imminent, see Ryburn, 132 S. Ct. at 992,

and nothing in the record reveals an emergency that justifies

the warrantless entry of a home’s curtilage in pursuit of a

misdemeanant.

A contrary conclusion would undermine Fourth

Amendment protections for individuals residing, often not by

choice, in poor neighborhoods where crime is more prevalent

than in wealthy communities. As we have said in the context

of drawing inferences from neighborhood characteristics to

support reasonable suspicion of criminal activity, “[w]e must

be particularly careful to ensure that a ‘high crime’ area

factor is not used with respect to entire neighborhoods or

communities in which members of minority groups regularly

go about their daily business.” United States v. Montero-

Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000). We do not

imply that general factors, such as the time of day, the nature

of the call, or the officers’ prior experience with gangs and

violence in the neighborhood, are of no relevance to an

officer’s fear that violence may occur. To justify an

emergency exception to the warrant requirement, however,

these factors must be combined with particularized evidence

that the person being pursued or the home being investigated

poses a threat to the officer’s or the public’s safety. This was

not the case here: Patrick entered Sims’s home, where he was

16 SIMS V . STANTON

apparently welcome, and gave Stanton no reason to believe

that his or anyone else’s safety would be in danger.

In sum, Stanton’s “assertion of a potential threat to [his]

safety,” based on generalized assumptions concerning the

neighborhood or its residents, rather than specific facts

relating to the individuals involved, did not justify an

exception to the warrant requirement when viewed “in the

context of the underlying offense,” at most a misdemeanor.

LaLonde, 204 F.3d at 958 n.16.

Qualified Immunity

In a claim for civil damages under § 1983, to avoid the

bar of qualified immunity, the plaintiff must show that the

officer violated a constitutional right and that the right was

“clearly established” at the time of the occurrence. Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). The determination

whether a right was clearly established “must be undertaken

in light of the specific context of the case, not as a broad

general proposition.” Saucier v. Katz, 533 U.S. 194, 201

(2001). The individual circumstances of the case do not,

however, provide a basis for qualified immunity if “the

unlawfulness was apparent in light of preexisting law.”

Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.

1998) (internal citation omitted). “Although earlier cases

involving ‘fundamentally similar’ facts can provide

especially strong support for a conclusion that the law is

clearly established, they are not necessary to such a finding.”

Hope v. Pelzer, 536 U.S. 730, 741 (2002). The Supreme

Court has made clear that “officials can still be on notice that

their conduct violates established law even in novel factual

circumstances.” Id. Therefore, the “salient question” is

SIMS V . STANTON 17

“whether the state of the law” in 2008 gave Stanton “fair

warning” that his warrantless entry was unconstitutional. Id.

Contrary to the district court’s findings, a reasonable

officer should have known that the warrantless entry into

Sims’s front yard violated the Fourth Amendment because

clearly established law afforded notice that Sims’s front yard

was curtilage and, was therefore, protected to the same extent

as her home. Established law also afforded notice that a

warrantless entry into a home cannot be justified by pursuit

of a suspected misdemeanant except in the rarest of

circumstances. Since well before the incident occurred in

2008, Supreme Court law and the precedent of this court had

established that, on the basis of the record before us,

Stanton’s conduct was clearly unconstitutional.

A front yard has been considered curtilage since 1984

when the Supreme Court decided Oliver v. United States.

466 U.S. at 170. A front yard enclosed by a six-foot-tall,

wooden fence, in which private items are stored and social

interactions take place is the paradigmatic example of

curtilage and is both “clearly marked” and “easily

understood.” Id. at 182 n.12. Thus, Stanton should have

known that his warrantless entry was presumptively

unconstitutional.

This presumption may be overcome only by

circumstances justifying either an exigency or emergency

exception. Stanton attempts to show exigent circumstances

by pointing to the risk that Patrick might escape. It should

have been clear to Stanton, however, from Supreme Court

and Ninth Circuit decisions that law enforcement actions

involving a misdemeanor offense will rarely, if ever, justify

a warrantless entry. Welsh, 466 U.S. at 750 (clearly

18 SIMS V . STANTON

established since 1984); Johnson, 256 F.3d at 908 (clearly

established since 2001). That Welsh leaves open the

possibility for a “rare” exception to this rule does not mean

that the rule was not clearly established at the time and does

not change our qualified immunity analysis. Here, nothing in

the record suggests that this case was “rare” in any respect.

Stanton also contends that the emergency exception

justified his warrantless entry by asserting that he feared for

his safety. The circumstances of this case belie the

reasonableness of that fear. The non-serious nature of the

underlying offense, failure to heed an officer’s command,

precludes us from finding, on the record before us, that an

emergency exception was applicable. LaLonde, 204 F.3d at

958 (clearly established since 2000). So, too, does the lack of

any reasonable basis for any specific concern that the

individuals involved were likely to engage in any act of

violence. Accordingly, Stanton is not entitled to qualified

immunity.

For the reasons stated above, the district court’s order

granting summary judgment in favor of the defendant is

REVERSED and REMANDED.