Jim Maxwell v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIM MAXWELL, individually and as No. 10-56671

guardian of Trevor Allen Bruce and

Kelton Tanner Bruce; KAY D.C. No.

MAXWELL, individually and as 3:07-cv-02385-

guardian of Trevor Allen Bruce and JAH-WMC

Kelton Tanner Bruce; JIM

MAXWELL, as executor of the Estate

of Kristin Marie Maxwell-Bruce,

Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO ; ALPINE FIRE

PROTECTION DISTRICT ; VIEJAS FIRE

DEPARTMENT ; LOWELL BRYAN

“SAM ” BRUCE , Deputy; BRADLEY

AVI; JEREMY FELBER; GREGORY

REYNOLDS; ANTHONY SALAZAR;

M. KNOBBE ; JEFFREY JACKSON ;

WARREN VOTH ; GARY KNEESHAW;

WILLIAM REILLY ; L. RODRIGUEZ;

BRIAN BOGGELN ; COLBY ROSS; CHIP

HOWELL; MICHAEL MEAD ; DOES,

Defendants-Appellees.

2 MAXWELL V . COUNTY OF SAN DIEGO

JIM MAXWELL, individually and as No. 10-56706

guardian of Trevor Allen Bruce and

Kelton Tanner Bruce; KAY D.C. No.

MAXWELL, individually and as 3:07-cv-02385-

guardian of Trevor Allen Bruce and JAH-WMC

Kelton Tanner Bruce; JIM

MAXWELL, as executor of the Estate

of Kristin Marie Maxwell-Bruce, ORDERS AND

Plaintiffs-Appellees, OPINION

v.

COUNTY OF SAN DIEGO ; ALPINE FIRE

PROTECTION DISTRICT ; VIEJAS FIRE

DEPARTMENT ; LOWELL BRYAN

“SAM ” BRUCE , Deputy; BRADLEY

AVI; JEREMY FELBER; BRIAN

BOGGELN ; COLBY ROSS; CHIP

HOWELL; MICHAEL MEAD ; DOES,

Defendants,

and

GREGORY REYNOLDS; ANTHONY

SALAZAR; M. KNOBBE ; JEFFREY

JACKSON ; WARREN VOTH ; GARY

KNEESHAW; WILLIAM REILLY ; L.

RODRIGUEZ,

Defendants-Appellants.

MAXWELL V . COUNTY OF SAN DIEGO 3

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

March 7, 2012—Pasadena, California

Filed February 14, 2013

Before: Jerome Farris, Richard R. Clifton,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Farris;

Dissent by Judge Ikuta

SUMMARY*

Civil Rights

In these consolidated appeals, the panel affirmed the

district court’s summary judgment denying qualified

immunity to San Diego Sheriff’s Department deputies and

reversed the district court’s dismissal, on sovereign immunity

grounds, of the Viejas Band Tribal Fire Department

paramedics. Plaintiffs, the surviving parents and children of

Kristin Marie Maxwell-Bruce, brought this 42 U.S.C. § 1983

action following the shooting of Kristin by her husband,

Sheriff Deputy Lowell Bruce. Plaintiffs sued the law

*

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

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

4 MAXWELL V . COUNTY OF SAN DIEGO

enforcement officials and paramedics who arrived at the

scene in the aftermath of the shooting.

The panel first held that the delay of Kristin’s ambulance

violated the Fourteenth Amendment due process clause and

that Sheriff’s officers were liable under the danger creation

exception. The panel determined that officers found Kristin

facing a preexisting danger from her gunshot wound and they

affirmatively increased that danger by preventing her

ambulance from leaving. The panel also held that plaintiffs’

multi-hour detention and separation violated the Fourth

Amendment’s ban on unreasonable seizures, given that

officers never claimed they had probable cause to arrest

plaintiffs or a reasonable suspicion for a temporary

Terry detention. The panel further held that officers violated

the Fourth Amendment when they pepper sprayed plaintiff

Jim Maxwell because there was no evidence that he was

resisting arrest.

The panel held that Captain Reynolds and Lieutenant

Salazar were liable for the actions of their subordinates

because a jury could reasonably conclude they tacitly

endorsed the other Sheriff’s officers’ actions by failing to

intervene. Finally, the panel held that the Viejas Fire

Department paramedics, who were sued as individuals, did

not enjoy tribal sovereign immunity because a remedy under

§ 1983 would operate against them in their individual

capacities, not against the tribe.

Dissenting, Judge Ikuta stated that under the existing case

law, the Sheriff’s deputies were entitled to qualified

immunity.

MAXWELL V . COUNTY OF SAN DIEGO 5

COUNSEL

Daniel M. Benjamin, Ballard Spahr LLP, San Diego,

California, and Todd Thibodo, Law Offices of Todd

Thibodo, Encino, California, for Plaintiffs-

Appellees/Plaintiffs-Appellants.

Morris G. Hill, Senior Deputy, San Diego County Counsel,

San Diego, California, for Defendants-Appellants Gregory

Reynolds, Anthony Salazar, Michael Knobbe, Jeffrey

Jackson, Warren Voth, Gary Kneeshaw, William Reilly, and

Leonard Rodriguez.

Phillip C. Samouris, John M. Morris, and Victoria E. Fuller,

Higgs, Fletcher & Mack LLP, San Diego, California, for

Defendants-Appellees Viejas Fire Department, Bradley Avi,

and Jeremy Felber.

ORDER

The panel has voted to deny the petition for rehearing in

case number 10-56671; Judges Clifton and Ikuta vote to deny

the petition for rehearing en banc, and Judge Farris so

recommends.

Judges Farris and Clifton vote to deny the petition for

rehearing in case number 10-56706; Judge Clifton votes to

deny the petition for rehearing en banc, and Judge Farris so

recommends. Judge Ikuta votes to grant the petition for

rehearing and the petition for rehearing en banc.

6 MAXWELL V . COUNTY OF SAN DIEGO

The full court has been advised of the petitions for

rehearing en banc and no judge has requested a vote on

whether to rehear the matters en banc. Fed. R. App. P. 35.

The petitions for panel rehearing and the petitions for

rehearing en banc are DENIED.

ORDER

The Opinion and Dissent filed September 13, 2012, slip

opinion number 11179, and appearing at 697 F.3d 941, is

withdrawn. It may not be cited as precedent by or to this

court or any district court of the Ninth Circuit.

OPINION

FARRIS, Circuit Judge:

These associated appeals concern the aftermath of the

shooting of Kristin Marie Maxwell-Bruce by her husband,

Lowell Bruce.

I

Around 10:50 PM on December 14, 2006, Lowell, a San

Diego County Sheriff’s Department deputy, shot Kristin in

the jaw with his Glock .40 caliber service pistol in the

couple’s bedroom.1 At the time, Lowell and Kristin lived in

1

These cases come to us in different procedural postures and thus

require us to consider different parts of the record. Case 10-56706 follows

the denial of summary judgment. W e review that decision in light of the

MAXWELL V . COUNTY OF SAN DIEGO 7

the home of Kristin’s parents, Jim and Kay Maxwell, along

with Lowell and Kristin’s children and Kay’s father, Fred

Stevens. Kristin was able to call 911 for help. Lowell also

called 911 and told the 911 dispatcher that he had shot

Kristin.

Deputy Jeffrey Jackson of the Sheriff’s Department was

dispatched to the scene and arrived at about 10:53 PM.

Jackson, along with Bill Davis, a neighbor who happens to be

a San Diego Police Department sergeant and who was

apparently notified of the shooting via telephone by Jim, went

into the Maxwell house. Jackson knew before he went into

the house that the suspect was a fellow deputy sheriff. When

Jackson arrived, he saw Kristin sitting in a chair, still talking

to the 911 dispatcher. Jackson walked past Kristin and

determined that Lowell was not a threat. Jackson took

Lowell’s phone and told the 911 dispatcher to send the fire

department. Jackson then escorted Lowell to Jackson’s patrol

car. Jackson did not frisk Lowell for weapons or handcuff

him.

Rani Gibbs, a neighbor of the Maxwells and a nurse,

entered the house at about 10:58 PM. Gibbs found Kristin

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion

only), admissions, interrogatory answers, or other materials” in the record.

Fed. R. Civ. P. 56(c)(1)(A). Case 10-56671 follows the grant of a motion

to dismiss for lack of subject matter jurisdiction. In reviewing such a

dismissal, “we may generally consider only allegations contained in the

pleadings, exhibits attached to the complaint, and matters properly subject

to judicial notice.” Colony Cove Props., LLC v. City of Carson, 640 F.3d

948, 955 (9th Cir. 2011) (internal quotation marks omitted). W e recite the

cases’ shared backgrounds together for the reader’s convenience but limit

our analysis of each claim to the appropriate parts of the record.

8 MAXWELL V . COUNTY OF SAN DIEGO

sitting in a chair, conscious, alert and oriented. At about

11:00 PM, an Alpine Fire Protection District fire truck

arrived, carrying Captain Brian Boggeln, firefighter Colby

Ross, and emergency medical technicians Michael Mead and

Gerald Howell II. Their fire truck did not have space for a

gurney.

Sheriff’s Department Deputies William Reilly, Leonard

Rodriguez, Warren Voth, and Gary Kneeshaw also arrived at

the scene around 11:00 PM. Voth and Kneeshaw were

initially told they were not needed and prepared to leave.

Jackson ordered Rodriguez to stay near the former’s patrol

car and went back into the house with Reilly, where they

retrieved Lowell’s gun.

The Alpine responders entered the house a few minutes

later, and Gibbs left shortly thereafter. Ross and Mead also

came in and began a medical examination of Kristin. The

Alpine responders determined that Kristin’s vital signs and

motor responses were normal and that she was able to

communicate. They also diagnosed her with an airway

obstruction. Boggeln and Ross placed a c-spine collar on

Kristin.

The Alpine responders concluded that Kristin had to go to

a trauma center quickly. They requested an air ambulance,

which they believed to be the fastest mode of transport, and

were informed it would arrive in 25 minutes at a landing zone

10 miles away. The air ambulance had advanced medical

capabilities for dealing with trauma patients.

Around 11:08 PM, an ambulance from the Viejas Band of

Kumeyaay Indians Tribal Fire Department arrived. The

Viejas Fire ambulance, which carried paramedics Bradley

MAXWELL V . COUNTY OF SAN DIEGO 9

Avi and Jeremy Felber, could transport Kristin to the landing

zone.

At the time, Kristin’s vital signs were still within normal

limits. The ambulance did not leave immediately. Rather, at

some point, the ambulance’s engine was turned off.

Sometime between 11:10 and 11:15 PM, Fred Stevens saw

Kristin sitting alone in the dining room, holding a towel to her

jaw.

Eventually, Avi and Felber brought in their backboard

and gurney. With help from Ross and Mead, they placed

Kristin on the backboard and taped her into place. The four

men then carried Kristin to the Viejas Fire ambulance. When

they arrived at the ambulance, Kristin began exhibiting signs

of distress, expelling blood from her mouth. The four men

tilted the backboard to allow the blood to drain, and Ross

suctioned the blood. They made other efforts to assist her

without success.

Meanwhile, Sergeant Michael Knobbe had arrived at the

scene at 11:16 PM. Knobbe believed himself to be in charge.

He was in fact outranked by Captain Gregory Reynolds and

Lieutenant Anthony Salazar, who arrived around the same

time as Knobbe. Nonetheless, Reynolds and Salazar stayed

near the end of the driveway and did not interfere with

Knobbe taking control of the crime scene.

Knobbe ordered Voth and Kneeshaw to stay at the crime

scene. He also ordered the house evacuated and sealed and

the Maxwells separated. Kay, Fred, and the children were

placed in a motor home on the driveway. Jim was allowed to

pace around the front of the driveway. Jim and Kay

repeatedly asked to be allowed to stay together and follow

10 MAXWELL V . COUNTY OF SAN DIEGO

Kristin to the hospital. They also told the deputies that they

had not seen or heard anything involving the shooting.

Nonetheless, they were told they had to stay and wait

separately for investigators to interview them.

Based on Alpine’s estimates, Kristin was placed in the

Viejas Fire ambulance between 11:18 and 11:25 PM.

Sergeant Knobbe, however, refused to let the ambulance

leave immediately because he viewed the area as a crime

scene and thought that Kristin had to be interviewed. As a

result of the delay, the ambulance did not leave until 11:30

PM. By that point, the air ambulance had already gotten to

the landing zone.

The Viejas Fire ambulance took 11 minutes to get to the

landing zone. Kristin died en route. The cause of death was

blood loss from her gunshot wound. According to the San

Diego County medical examiner, Kristin’s injuries were

repairable.

At about 12:45 AM, Knobbe told Jim—who was still

pacing on his driveway—that Kristin had died. At around

1:00 AM, Knobbe assigned Deputy Kneeshaw to monitor

Jim. Jim told Kneeshaw that he was going to tell Kay about

Kristin’s death. Kneeshaw told Jim that he had to stay put at

the end of the driveway, to which Jim responded, “You are

gonna have to shoot me, I’m going to see my wife!” Jim

started to walk toward the mobile home. Kneeshaw told Jim

to stop and tried to block his path. When Jim tried to continue

walking, Kneeshaw sprayed him three times with pepper

spray, struck him on the leg with his baton, and handcuffed

him with Knobbe’s help. Salazar and Reynolds were still at

the end of the driveway and did not intervene.

MAXWELL V . COUNTY OF SAN DIEGO 11

Jim was released from his handcuffs about half an hour

later. He was still kept separate from the rest of his family

until investigators finished interviewing Kay around 5:00

AM. Kay and the other family members did not learn about

Kristin’s death until then.

The Maxwells sued several parties after the night’s

events. These interlocutory appeals concern two sets of

claims. In the first, the Maxwells allege various constitutional

violations by Jackson, Reilly, Rodriguez, Voth, Kneeshaw,

Knobbe, Reynolds, and Salazar (the “Sheriff’s officers”)

pursuant to 42 U.S.C. § 1983. In the second, the Maxwells

seek tort damages under California law against the Viejas

Fire Department and its paramedics, Avi and Felber (the

“Viejas defendants”), pursuant to 28 U.S.C. § 1367(a).

After discovery, the Sheriff’s officers moved under

Federal Rule of Civil Procedure 56 for summary judgment on

the basis of qualified immunity. The Viejas defendants

moved under Federal Rule of Civil Procedure 12(b)(1) to

dismiss for lack of subject matter jurisdiction, arguing they

enjoyed tribal sovereign immunity. The district court denied

the former motion and granted the latter.

II

We review de novo the district court’s ruling on summary

judgment on the basis of qualified immunity. Rosenbaum v.

Washoe Cnty., 663 F.3d 1071, 1075 (9th Cir. 2011). “Our

jurisdiction in these matters generally is limited to questions

of law and does not extend to claims in which the

determination of qualified immunity depends on disputed

issues of material fact . . . . Where disputed facts exist,

however, we can determine whether the denial of qualified

12 MAXWELL V . COUNTY OF SAN DIEGO

immunity was appropriate by assuming that the version of the

material facts asserted by the non-moving party is correct.”

Jeffers v. Gomez, 267, F.3d 895, 903 (9th Cir. 2001). We also

review de novo the district court’s determination that it lacks

subject matter jurisdiction because of tribal sovereign

immunity. Linneen v. Gila River Indian Cmty., 276 F.3d 489,

492 (9th Cir. 2002).

III

We begin with the district court’s denial of summary

judgment to the Sheriff’s officers on the ground of qualified

immunity. Qualified immunity protects government officers

“from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

determine whether an officer is entitled to qualified

immunity, we ask, in the order we choose, (1) whether the

alleged misconduct violated a right and (2) whether the right

was clearly established at the time of the alleged misconduct.

Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). “For a

constitutional right to be clearly established, its contours must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks

omitted).

A

The Maxwells’ first claim alleges that the delay of

Kristin’s ambulance violated the Fourteenth Amendment’s

due process clause. The due process clause guarantees the

right to “bodily security.” Kennedy v. City of Ridgefield,

MAXWELL V . COUNTY OF SAN DIEGO 13

439 F.3d 1055, 1061 (9th Cir. 2006). The Maxwells contend

that the Sheriff’s officers violated Kristin’s right to bodily

security by delaying her ambulance and thus ensuring her

death.

Normally, the Sheriff’s officers could not be held liable

under § 1983 for an injury inflicted by a third party. L.W. v.

Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). There are,

however, “two exceptions [to this rule]: (1) the ‘special

relationship’ exception; and (2) the ‘danger creation’

exception.” Id. The Maxwells contend that either or both

exceptions apply.

We agree that the danger creation exception applies. As

of December 2006, it was well-established in this circuit that

the danger creation exception applies where government

officers “affirmatively placed the [victim] in a position of

danger.” Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir.

1989) (internal quotation marks omitted). Officers

affirmatively place a person in danger by leaving her “in a

situation that [is] more dangerous than the one in which they

found h[er].” Munger v. City of Glasgow Police Dep’t,

227 F.3d 1082, 1086 (9th Cir. 2000). Impeding access to

medical care amounts to leaving a victim in a more dangerous

situation. See Penilla v. City of Huntington Park, 115 F.3d

707, 710 (9th Cir. 1997).

The Sheriff’s officers found Kristin facing a preexisting

danger from her gunshot wound. There is evidence they

affirmatively increased that danger by preventing her

ambulance from leaving. This arguably left Kristin worse off

than if the ambulance had been allowed to bring her to an air

ambulance that had advanced medical capabilities and was

ready to fly her to a trauma center.

14 MAXWELL V . COUNTY OF SAN DIEGO

The Sheriff’s officers argue that our danger creation cases

are distinguishable because they did not involve first

responders securing a crime scene. But “officials can still be

on notice that their conduct violates established law even in

novel factual circumstances.” Hope, 536 U.S. at 741. The

existence of a crime scene does not change our analysis. It

was irrelevant to the delay of the ambulance. The ambulance

contained no witnesses or evidence apart from the victim

herself and her wounds. Lowell had confessed and was in

custody. The Sheriff’s officers had found the gun used in the

crime. The crime scene was sealed.

The Sheriff’s officers also argue they lacked the mens rea

to be held liable under § 1983, claiming the record does not

show “deliberate indifference . . . to known or obvious

dangers.” Nicholas v. Wallenstein, 266 F.3d 1083, 1087 (9th

Cir. 2001). We reject the argument. It was obvious that

delaying a bleeding gun shot victim’s ambulance increased

the risk of death.

Finally, the Sheriff’s officers appear to argue that the

Maxwells must show that they acted with a “purpose to

harm” Kristin since this case involved a medical emergency

calling for split-second decisions. See Porter v. Osborn,

546 F.3d 1131, 1139 (9th Cir. 2008). This contradicts their

earlier recognition that the appropriate standard is one of

deliberate indifference. It also nonsensically suggests that a

medical emergency faced by third parties justified the

decision to prevent those parties from responding to that

emergency.

MAXWELL V . COUNTY OF SAN DIEGO 15

B

The Maxwells next allege that their multi-hour detention

and separation violated the Fourth Amendment’s ban on

unreasonable seizures. We accept for the purpose of this

appeal the Maxwells’ allegation that they were subject to

seizure. The Sheriff’s officers did not challenge this

allegation in the district court or in their opening brief on

appeal. They therefore waived the argument raised in their

reply brief that there was no seizure. See Taniguchi v. Schultz,

303 F.3d 950, 958–59 (9th Cir. 2002); Eberle v. City of

Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).

The remaining question is whether, under our pre-

December 2006 precedent, the detention was reasonable.

Under the Maxwells’ version of the facts, they were seized

for over five hours solely because they were witnesses to a

crime. In deciding whether this was reasonable, we look to

“the gravity of the public concerns served by the seizure, the

degree to which the seizure advances the public interest, and

the severity of the interference with individual liberty.”

Brown v. Texas, 443 U.S. 47, 51 (1979).

We note there are few cases discussing the reasonability

of detaining witnesses solely for investigative purposes. In

most cases, the lack of on-point precedent would compel us

to grant qualified immunity. To apply a legal right at “a high

level of generality would allow plaintiffs ‘to convert the rule

of qualified immunity . . . into a rule of virtually unqualified

liability simply by alleging violation of extremely abstract

rights.’” Groh v. Ramirez, 540 U.S. 551, 578 (2004)

(Thomas, J., dissenting) (quoting Anderson v. Creighton,

483 U.S. 635, 639 (1987)) (alteration in original).

16 MAXWELL V . COUNTY OF SAN DIEGO

Nevertheless, “in an obvious case, [general] standards can

‘clearly establish’ the answer, even without a body of relevant

case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

This is an obvious case. Although detention of witnesses for

investigative purposes can be reasonable in certain

circumstances, such detentions must be minimally intrusive.

In United States v. Ward, 488 F.2d 162 (9th Cir. 1973)

(en banc), we held that FBI agents’ detention of a person

without “a founded suspicion of criminal activity” was

unconstitutional. Id. at 169. There was no suspicion that the

defendant had been involved in a particular crime. Id. Rather,

the stop was pursuant to a pre-existing criminal investigation

and was made for the purpose of questioning the defendant

about a third person. Id.

Ward has been read to prohibit involuntary detention of

witnesses to a crime. See Walker v. City of Orem, 451 F.3d

1139, 1148 (10th Cir. 2006). We do not read it quite so

broadly. Ward contained two caveats that left the door open

to investigatory witness detentions. First, it noted that the

detention did not involve an “emergency situation.” 488 F.2d

at 169. Second, it distinguished between federal agents—who

can enforce only federal statutes—and local law enforcement

officers—who have broader authority to detain as general

“guardians of the peace.” Id.

Nonetheless, Ward clearly restricts investigative witness

detentions by showing that in the hierarchy of state interests

justifying detention, the interest in detaining witnesses for

information is of relatively low value. Ward began its

analysis by comparing the challenged detention to the type of

investigative stop authorized by Terry v. Ohio, 392 U.S. 1

(1968). Ward noted that Terry made “suspicion that criminal

MAXWELL V . COUNTY OF SAN DIEGO 17

activity is afoot” the prerequisite for a lawful detention.

488 F.2d at 169. By using Terry as a starting point, Ward

made clear that detention without suspicion of criminal

activity involved a lesser state interest than a detention based

on such a suspicion.

The Supreme Court decision authorizing detentions solely

for the purpose of obtaining information confirms this

common sense rule. In Illinois v. Lidster, 540 U.S. 419

(2004), the Supreme Court considered a traffic checkpoint set

up so police could ask for information about a hit and run

incident. The Supreme Court applied its normal Fourth

Amendment reasonableness inquiry and determined the

detentions were reasonable. The “[m]ost important[]” reason,

it explained, was that “the stops interfered only minimally

with liberty of the sort the Fourth Amendment seeks to

protect.” Id. at 427. The overall delay was “a very few

minutes at most,” contact with the police “lasted only a few

seconds,” and the contact “consisted simply of a request for

information and the distribution of a flyer.” Id. at 427–28. By

focusing on the traffic stop’s minimal intrusion on personal

liberty, Lidster confirmed that the state interests justifying

investigative witness detentions are lower than those

justifying detention of suspected criminals.

We conclude that the Sheriff’s officers were on notice

that they could not detain, separate, and interrogate the

Maxwells for hours. The Sheriff’s officers have never

claimed they had probable cause to arrest the Maxwells or

reasonable suspicion for a temporary Terry detention. The

crime was solved, and even if it had not been, it is a “settled

principle that while the police have the right to request

citizens to answer voluntarily questions concerning unsolved

crimes they have no right to compel them to answer.” Davis

18 MAXWELL V . COUNTY OF SAN DIEGO

v. Mississippi, 394 U.S. 721, 727 n.6 (1969). Even in the

Terry stop context—which involves a suspicion of criminal

activity that is absent here—the Supreme Court has never

endorsed a detention longer than 90 minutes. See United

States v. Place, 462 U.S. 696, 709–10 (1983).

The Sheriff’s officers’ reliance on Walker v. City of

Orem, 451 F.3d 1139 (10th Cir. 2006), is unavailing. In

Walker, police officers shot a man and then forced his family

into their house and interrogated them for 90 minutes.

451 F.3d at 1145. The Tenth Circuit held the detention was

unconstitutional but granted qualified immunity because there

was no clear circuit precedent prohibiting such a detention.

Id. at 1151. This decision does not show the right was

uncertain in this case. Walker held a detention like the one

here unconstitutional six months before December 2006.

Walker also noted that our circuit has clearly established case

law on investigative witness detentions and strongly

suggested it would have ruled differently if our holding in

Ward governed. Id. at 1148. Further, Walker noted that the

events in question predated Lidster. Thus, unlike the Sheriff’s

officers, the officers in Walker were not necessarily on notice

that witness detention was subject to the Fourth Amendment

reasonableness test. See 451 F.3d at 1151.

We also reject the argument that various exigencies made

the detention reasonable as a matter of law. The Sheriff’s

officers cite Muehler v. Mena, 544 U.S. 93 (2005), which

held that “[a]n officer’s authority to detain incident to a

search is categorical.” Id. at 98. Muehler is inapposite. The

Maxwells’ detention was not incident to a search. The

Sheriff’s officers did not obtain a search warrant until more

than four hours after the detention began. The Maxwells were

MAXWELL V . COUNTY OF SAN DIEGO 19

not “occupant[s] of [their house] at the time of the search.”

Id. at 98.

The Sheriff’s officers also cite Illinois v. McArthur,

531 U.S. 326 (2001), which allows warrantless seizures to

prevent the destruction of evidence while law enforcement

obtains a search warrant. There is, however, ample evidence

that there was no such threat, and we have no jurisdiction in

this interlocutory appeal to weigh sufficiency of the evidence.

Mattos v. Angarano, 661 F.3d 433, 439 n.2 (2011) (en banc).

The perpetrator was in custody and the crime scene was

sealed. The Maxwells followed orders to leave their house.

Moreover, the Sheriff’s officers arguably could have

protected the integrity of the crime scene without detaining

witnesses there. See Walker, 451 F.3d at 1149.

Last, the Sheriff’s officers point to their need to secure the

crime scene. But there is evidence they did not perceive such

a need at the time. The Sheriff’s officers were on the scene

for over 20 minutes before Knobbe ordered the house

evacuated. By that time, Lowell had confessed and

voluntarily gone into custody. Jackson took Lowell into

custody without handcuffing him or frisking him for

weapons. We note again that weighing this evidence is

beyond our jurisdiction. Mattos, 661 F.3d at 439 n.2.

C

The Maxwells also claim that Jim’s treatment when he

tried to rejoin his family violated the Fourth Amendment.

When Jim tried to rejoin his family, he was pepper-sprayed,

struck with a baton, and handcuffed. The Maxwells allege

that these acts constituted an arrest (1) without probable cause

and (2) with excessive force. Either type of arrest is an

20 MAXWELL V . COUNTY OF SAN DIEGO

unreasonable seizure. Caballero v. City of Concord, 956 F.2d

204, 206 (9th Cir. 1992); White v. Pierce Cnty., 797 F.2d 812,

816 (9th Cir. 1986). We accept for the purposes of this appeal

the Maxwells’ allegation that Jim was arrested. Thus, the

questions are whether, under our pre-December 2006

precedent, probable cause existed or the degree of force was

excessive. We conclude that there was no probable cause and

the force was excessive.

Probable cause exists if the arresting officers “had

knowledge and reasonably trustworthy information of facts

and circumstances sufficient to lead a prudent person to

believe that [the arrestee] had committed or was committing

a crime.” United States v. Ricardo D., 912 F.2d 337, 342 (9th

Cir. 1990). The only crime identified by the Sheriff’s officers

is Jim’s refusal to obey Deputy Kneeshaw’s order not to

rejoin his family. They argue this was a violation of

California Penal Code § 148(a), which makes it a crime to

“willfully resist[], delay[], or obstruct[] any . . . peace

officer.” Section 148(a) does not make it a crime, however,

to resist unlawful orders. Smith v. City of Hemet, 394 F.3d

689, 695 (9th Cir. 2005) (en banc).

The test for whether force was excessive is “objective

reasonableness.” Graham v. Connor, 490 U.S. 386, 398

(1989). Graham sets out a non-exhaustive list of factors for

evaluating reasonability: (1) the severity of the crime at issue,

(2) whether the suspect posed an immediate threat to the

safety of the officers or others, and (3) whether the suspect

actively resisted arrest or attempted to escape. Id. at 396.

Because this inquiry is fact-sensitive, summary judgment

should be granted sparingly. Santos v. Gates, 287 F.3d 846,

853 (9th Cir. 2002).

MAXWELL V . COUNTY OF SAN DIEGO 21

This case is not an exception. If Jim did not resist

arrest—and the Sheriff’s officers point to no evidence that he

did—the use of pepper spray alone could constitute excessive

force. See Headwaters Forest Defense v. Cnty. of Humboldt,

276 F.3d 1125, 1129–30 (9th Cir. 2002).

D

We must decide whether to grant summary judgment to

Captain Reynolds and Lieutenant Salazar alone. Reynolds

and Salazar did not directly participate in any of the allegedly

unlawful acts. The Maxwells contend that summary judgment

is nonetheless inappropriate because a jury could reasonably

find Reynolds and Salazar liable as the ranking officers

present. We agree. A supervisor is liable under § 1983 for a

subordinate’s constitutional violations “if the supervisor

participated in or directed the violations, or knew of the

violations and failed to act to prevent them.” Taylor v. List,

880 F.2d 1040, 1045 (9th Cir. 1989). Reynolds and Salazar

testified that they were mere observers who stayed at the end

of the Maxwells’ driveway. But based on the Maxwells’

version of the facts, which we must accept as true in this

appeal, we draw the inference that Reynolds and Salazar

tacitly endorsed the other Sheriff’s officers’ actions by failing

to intervene. It is undisputed that Reynolds and Salazar were

aware of the Maxwells’ detention and witnessed at least part

of Jim’s arrest and beating. Reynolds testified that he heard

Kneeshaw yelling “stop, stop, stop” right before the latter

pepper-sprayed and struck Jim. Salazar testified that he heard

a “commotion” at that time. On this appeal we do not weigh

the evidence to determine whether Reynolds and Salazar’s

stated reasons for not intervening are plausible. Mattos,

661 F.3d at 439 n.2.

22 MAXWELL V . COUNTY OF SAN DIEGO

IV

We next consider whether the Viejas defendants are

immune from suit because of tribal sovereign immunity.

“Tribal sovereign immunity protects Indian tribes from suit

absent express authorization by Congress or clear waiver by

the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d

718, 725 (9th Cir. 2008). It also protects tribal employees in

certain circumstances. See id. at 727.

A

The Maxwells argue first that the Viejas defendants lack

tribal sovereign immunity because the Viejas Band waived it.

The Maxwells rely on California Health and Safety Code

§ 13863(b), which provides:

A [fire protection] district may . . . enter into

mutual aid agreements with [a] federally

recognized Indian tribe that maintains a full-

time fire department. The . . . federally

recognized Indian tribe, or any of its

employees, shall have the same immunity

from liability for civil damages on account of

personal injury to or death of any person . . .

resulting from acts or omissions of its fire

department personnel in the performance of

the provisions of the mutual aid agreement as

is provided by law for the district and its

employees, except when the act or omission

occurs on property under the control of the . . .

federally recognized Indian tribe.

MAXWELL V . COUNTY OF SAN DIEGO 23

The Maxwells attached to their complaint documents

showing the Viejas Fire paramedics came to the Maxwells’

house pursuant to an agreement between the Viejas Band and

the Alpine Fire Protection District. They argue these

agreements should be construed as mutual aid agreements

authorized by § 13863(b). They further argue that by entering

into mutual aid agreements, the Viejas Band agreed that its

fire department and fire department employees would have

“have the same immunity” as their California counterparts for

acts performed in California. Cal. Health & Safety Code

§ 13863(b). California firefighters are not immune for gross

negligence. Cal. Health & Safety Code §§ 1799.106,

1799.107. Thus, the Maxwells conclude, the Viejas Band

waived sovereign immunity for the Viejas defendants to the

extent the Maxwells have alleged gross negligence.

We reject the argument. Waivers of tribal sovereign

immunity must be explicit and unequivocal. See Burlington

N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1091 (9th

Cir. 2007). Each agreement identified by the Maxwells

explicitly retains the Viejas Band’s sovereign immunity.2

The Maxwells cite no authority for ignoring the clear

content of these agreements in favor of state statutory

language to which the Viejas Band never agreed. In each case

they cite, the Indian tribe explicitly subjected itself to the

authority of another sovereign’s courts. See, e.g., C & L

Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of

2

W e do not address the Viejas defendants’ argument that each

agreement predating December 2006 cannot be construed as falling under

§ 13863(b). W e need not determine how California or tribal law defines

these agreements because they do not satisfy the federal standard for

waivers of tribal sovereign immunity.

24 MAXWELL V . COUNTY OF SAN DIEGO

Okla., 532 U.S. 411, 422 (2001); Marceau v. Blackfeet Hous.

Auth., 455 F.3d 974, 981 (9th Cir. 2006). We will not infer

that the Viejas Band intended the exact opposite of what it

said simply because it acted in the shadow of another

sovereign’s law.

B

In addition to their waiver argument, the Maxwells claim

that the Viejas Fire paramedics lack tribal sovereign

immunity because (1) they have been sued as individuals (2)

for acts that did not involve a policy or discretionary function.

We agree with the Maxwells’ conclusion but for a different

reason. We conclude that the Viejas Fire paramedics do not

enjoy tribal sovereign immunity because a remedy would

operate against them, not the tribe. See Shermoen v. United

States, 982 F.2d 1312, 1320 (9th Cir. 1992).

Tribal sovereign immunity derives from the same

common law immunity principles that shape state and federal

sovereign immunity. See Santa Clara Pueblo v. Martinez,

436 U.S. 49, 58 (1978); Cook, 548 F.3d at 727. Normally, a

suit like this one—brought against individual officers in their

individual capacities—does not implicate sovereign

immunity. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1190

(9th Cir. 2003). The plaintiff seeks money damages “not from

the state treasury but from the officer[s] personally.” Alden v.

Maine, 527 U.S. 706, 757 (1999). Due to “the essential nature

and effect” of the relief sought, the sovereign is not “the real,

substantial party in interest.” Ford Motor Co. v. Dep’t of

Treasury of Ind., 323 U.S. 459, 464 (1945).

Our remedy-focused analysis is less categorical than the

Maxwells’ proposed rule. While individual capacity suits

MAXWELL V . COUNTY OF SAN DIEGO 25

against low-ranking officers typically will not operate against

the sovereign, we cannot say this will always be the case. In

any suit against tribal officers, we must be sensitive to

whether “the judgment sought would expend itself on the

public treasury or domain, or interfere with the public

administration, or if the effect of the judgment would be to

restrain the [sovereign] from acting, or to compel it to act.”

Shermoen, 982 F.2d at 1320 (internal citations and quotation

marks omitted).

The Viejas defendants point to language in many of our

cases stating that “[t]ribal sovereign immunity ‘extends to

tribal officials when acting in their official capacity and

within the scope of their authority.’” Cook, 548 F.3d at 727

(quoting Linneen, 276 F.3d at 492). Facially, this language

suggests the Viejas Fire paramedics enjoy tribal sovereign

immunity. Cook, for example, held low-ranking tribal

employees were immune from claims that they performed

their tribal duties in a grossly negligent way.3 Id.

Cook, however, is consistent with the remedy-focused

analysis discussed above. In Cook, the plaintiff had sued the

individual defendants in their official capacities in order to

establish vicarious liability for the tribe. 548 F.3d at 727.

Thus, when Cook invoked the “scope of authority” principle,

it was because the tribe was the “real, substantial party in

interest.” Id. The plaintiff could not “circumvent tribal

3

W e reject the Maxwells’ argument that the Viejas Fire paramedics

acted outside their authority by taking part in the unconstitutional

interference with Kristin’s medical care. See Evans v. McKay, 869 F.2d

1341, 1348 n.9 (9th Cir. 1989). The M axwells waived that argument by

suing the paramedics for state law torts only. W e have reviewed the

Maxwells’ complaint and find no allegations supporting § 1983 liability

for the paramedics.

26 MAXWELL V . COUNTY OF SAN DIEGO

immunity through ‘a mere pleading device.’” Id. (quoting

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70–71

(1989)). In short, Cook conflated the “scope of authority” and

“remedy sought” principles because they are coextensive in

official capacity suits.

This does not change the rule that individual capacity

suits related to an officer’s official duties are generally

permissible. As the Tenth Circuit has explained: “The general

bar against official-capacity claims . . . does not mean that

tribal officials are immunized from individual-capacity suits

arising out of actions they took in their official

capacities . . . .” Native Am. Distrib. Co. v. Seneca-Cayuga

Tobacco Co., 546 F.3d 1288, 1296 (10th Cir. 2008)

(emphasis in original). “Rather, it means that tribal officials

are immunized from suits brought against them because of

their official capacities—that is, because the powers they

possess in those capacities enable them to grant the plaintiffs

relief on behalf of the tribe.” Id. (emphasis in original).

Several of our cases have referred to the “scope of

authority” principle in individual capacity suits against tribal

officers. But in that context, the “scope of authority”

language refers to the principle that allegations of acts outside

an officer’s authority are by definition individual capacity

claims. See Chemehuevi Indian Tribe v. Cal. State Bd. of

Equalization, 757 F.2d 1047, 1051 (9th Cir. 1985) (overruled

on other grounds by Cal. State Bd. of Equalization v.

Chemehuevi Indian Tribe, 474 U.S. 9 (1985)). This does not

mean that the “scope of authority” and “remedy sought”

principles are coextensive in individual capacity claims. Such

a conclusion would be a major departure from the common

law immunity doctrine that shapes tribal sovereign immunity.

MAXWELL V . COUNTY OF SAN DIEGO 27

The Viejas defendants’ reliance on Hardin v. White

Mountain Apache Tribe, 779 F.2d 476 (1985), is misplaced.

In Hardin, a tribal council ordered tribal police to eject the

plaintiff from tribal land. Id. at 478. The plaintiff sued the

tribe, several tribal institutions, and various officials in their

individual capacities for declaratory and injunctive relief and

damages. Id. We concluded the alleged actions were within

the scope of the tribe’s powers and that the tribe and its

institutions were thus covered by sovereign immunity. Id. at

478–79. We then affirmed dismissal of the claims against the

tribal officials, noting simply that they had “act[ed] in their

representative capacity and within the scope of their

authority.” Id. at 479.

Hardin did not mention the “remedy sought” principle

when it granted sovereign immunity, but it did not need to do

so. Hardin was in reality an official capacity suit. Hardin did

not (1) identify which officials were sued in their individual

capacities or (2) the exact nature of the claims against them.

But the use of the word “officials” suggests the plaintiff had

sued high-ranking tribal council members for voting to eject

him. Holding the defendants liable for their legislative

functions would therefore have attacked “the very core of

tribal sovereignty.” Baugus v. Brunson, 890 F. Supp. 908, 911

(E.D. Cal. 1995).

Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989), also does

not affect our analysis. Evans denied sovereign immunity to

individual tribal defendants sued under § 1983 and alleged to

have acted in concert with state officers accused of

constitutional violations. Id. at 1348. In a footnote, Evans

suggested that Hardin displaced the “remedy sought”

principle by citing its “scope of authority” language. Id. at

1348 n.9. If Evans took the broadest possible reading of

28 MAXWELL V . COUNTY OF SAN DIEGO

Hardin, it was mistaken for the reasons discussed above. That

reading would also be dicta. The same footnote

acknowledged that suits over plainly unlawful acts are

individual capacity suits by definition and could have rested

on that ground. See id.

In short, our tribal sovereign immunity cases do not

question the general rule that individual officers are liable

when sued in their individual capacities. We see no reason to

give tribal officers broader sovereign immunity protections

than state or federal officers given that tribal sovereign

immunity is coextensive with other common law immunity

principles. See Santa Clara Pueblo, 436 U.S. at 58. We

therefore hold that sovereign immunity does not bar the suit

against the Viejas Fire paramedics as individuals. The Viejas

Band is not the real party in interest. The Maxwells have sued

the Viejas Fire paramedics in their individual capacities for

money damages. Any damages will come from their own

pockets, not the tribal treasury. See Alden, 527 U.S. at 757.

At oral argument, the Viejas defendants gave two reasons

why the Viejas Band could be the real party in interest in this

suit. First, they suggested that the Viejas Band might have

indemnified the paramedics and would thus have to pay for

any liability. But even if an indemnification agreement exists,

it would be “a purely intramural arrangement” between a

sovereign and its officers. Demery v. Kupperman, 735 F.2d

1139, 1148 (9th Cir. 1984) (internal quotation marks

omitted). The unilateral decision to insure a government

officer against liability does not make the officer immune

from that liability. See id. Second, they suggested that

liability would impact the Viejas Band’s ability to hire

paramedics. But this case concerns allegedly grossly

negligent acts committed outside tribal land pursuant to an

MAXWELL V . COUNTY OF SAN DIEGO 29

agreement with a non-tribal entity. In this context, denying

tribal sovereign immunity to individual employees sued as

individuals will have a minimal effect, if any, on the tribe’s

hiring ability.

V

We therefore affirm the district court’s denial of summary

judgment on the ground of qualified immunity to the Sheriff’s

officers with regards to the Maxwells’ Fourteenth

Amendment due process claim and Fourth Amendment

search and seizure claims, reverse the district court’s granting

of the Viejas defendants’ motion to dismiss for lack of

subject matter jurisdiction due to tribal sovereign immunity,

and remand for further proceedings. Costs are awarded to

plaintiffs-appellants.

AFFIRMED in part, REVERSED in part, and

REMANDED.

IKUTA, Circuit Judge, dissenting:

The facts of this case are undeniably tragic. But despite

the ill-fated sequence of events, the Sheriff’s deputies who

secured the crime scene did not “violate clearly established

statutory or constitutional rights of which a reasonable person

would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982), by delaying the ambulance’s departure for a few

minutes, if at all, or detaining the Maxwells while they

obtained and executed a search warrant for the Maxwells’

home. Accordingly, qualified immunity protects all the

deputies from suit for civil damages. See id.

30 MAXWELL V . COUNTY OF SAN DIEGO

In reaching the opposite conclusion, the majority draws

strained analogies to cases whose facts are not “even roughly

comparable to those present in this case,” Ryburn v. Huff,

132 S. Ct. 987, 990 (2012), and fails to heed the Supreme

Court’s instruction “not to define clearly established law at a

high level of generality,” Ashcroft v. Al-Kidd, 131 S. Ct.

2074, 2084 (2011). I therefore join Part IV of the majority

opinion but dissent with respect to Part III.

I

In holding that the Sheriff’s deputies were not entitled to

qualified immunity for allegedly violating Kristin’s due

process right to bodily security, the majority misconstrues

both the chronology of events and the applicable case law.

A

Kristin was shot inside her house shortly before 10:50 PM

on December 14, 2006. At that time, Kristin was able to call

911, to move about the house, to sit upright, and to

communicate effectively. At 10:53 PM, Deputy Sheriff

Jackson first arrived on the scene. At 10:58 PM, a nurse who

lived nearby arrived and found that Kristin was alert,

oriented, and able to answer questions appropriately.

At around 11:00 PM, the first ambulance and paramedics

arrived. At 11:03, the paramedics determined that Kristin’s

vital signs were within normal limits. Rather than transport

Kristin to the hospital immediately, the paramedics decided

to call an air ambulance, which would arrive in twenty-five

minutes at a landing site ten minutes from the Maxwells’

residence.

MAXWELL V . COUNTY OF SAN DIEGO 31

At 11:08, the second ambulance arrived. At 11:11 PM,

paramedics again determined that Kristin’s vital signs were

within normal limits.

At 11:16, Sergeant Michael Knobbe arrived and began the

process of securing the crime scene. As part of that process,

two Sheriff’s deputies took Jim and Kay Maxwell, Kay’s

father Fred Stevens, and Kristin’s two children out of the

house, and left Kay, Fred and the children in the family motor

home in the Maxwells’ driveway. Jim was told to remain in

the driveway outside the motor home. According to Jim

Maxwell, while he was on his way to the family’s motor

home he heard a deputy declare, “Nobody is leaving. This is

a crime scene.” This statement, and a statement subsequently

made by Jackson during a deposition that Knobbe was “so

concerned with the crime scene [he] didn’t want to let the

ambulance leave,” is the only evidence the Maxwells offer to

support their claim that the deputies caused a delay.

It was not until the paramedics first placed Kristin on a

gurney in the back of the Viejas Fire ambulance between

11:18 PM and 11:25 PM that she began exhibiting signs of

distress, expelling blood from her mouth. Knobbe testified

that he saw paramedics take Kristin back out of the

ambulance and place her in a sitting position at some time

between 11:23 PM and 11:26 PM.

The ambulance departed at around 11:30 PM and arrived

at the landing site at 11:41, approximately eleven minutes

after the air ambulance had arrived. Kristin was pronounced

dead at 11:42 PM.

Construing these facts in the light most favorable to the

Maxwells, as we must on summary judgment, see, e.g.,

32 MAXWELL V . COUNTY OF SAN DIEGO

Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009),

two things are clear. First, there is no evidence that the

Sheriff’s deputies were aware of the urgency of Kristin’s

situation when they allegedly delayed the ambulance. After

Kristin was shot, she was conscious, communicating

effectively, and her vital signs were normal. The County

Medical Examiner testified that Kristin’s injury was

“survivable and reparable.” The deputies knew that the

paramedics who were tending to her decided to wait the 25

minutes it would take for an air ambulance to arrive. Based

on multiple contemporaneous assessments of Kristin’s

condition in the aftermath of the shooting, the Sheriff’s

deputies could reasonably conclude that her condition was

stable and that a delay of a few minutes would not put her in

peril.

Second, any delay caused by the deputies could not have

lasted longer than seven minutes. The Maxwells’ evidence

shows that the ambulance was not even ready to depart until

11:23 PM at the earliest, when Kristin was placed inside the

ambulance a second time. The ambulance left at 11:30 PM,

at most seven minutes later.

B

Under these facts, the deputies are entitled to qualified

immunity. “Qualified immunity shields government officials

from civil damages liability unless the official violated a

statutory or constitutional right that was clearly established at

the time of the challenged conduct.” Reichle v. Howards,

132 S. Ct. 2088, 2093 (2012). A government official’s

conduct does not violate clearly established law unless, at the

time of the challenged conduct, the contours of a right were

“sufficiently clear ‘that every reasonable official would have

MAXWELL V . COUNTY OF SAN DIEGO 33

understood that what he is doing violates that right.’” Id.

(emphasis added) (alterations omitted) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

The right at issue here was Kristin’s due process right to

bodily security. The majority claims that the deputies should

have understood they were violating this right because they

delayed the ambulance from leaving, thus putting her in

danger. Maj. op. at 13. But under our case law, government

officials cannot be held liable for affirmatively placing the

plaintiff in a position of danger unless they acted with

“deliberate indifference to [a] known or obvious danger.”

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir.

2006) (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir.

1996)). This means that the plaintiffs must present evidence

that the government officials “recognize[d] the unreasonable

risk and actually intend[ed] to expose the [victim] to such

risks without regard to the consequences to the [victim].”

Grubbs, 92 F.3d at 899 (quoting Uhlrig v. Harder, 64 F.3d

567, 573 n.8 (10th Cir. 1995)).

There is no such evidence here. And there is no basis for

the majority’s conclusion otherwise. The only case from this

circuit holding state deputies liable for preventing a person

from receiving emergency medical care is not remotely close

to this case. See Penilla v. City of Huntington Park, 115 F.3d

707, 710 (9th Cir. 1997). In Penilla, the Ninth Circuit held

police officers liable for a due process violation where, after

finding a man “in grave need of medical care,” they

inexplicably cancelled a 911 call to paramedics, dragged the

man from his porch into his empty house, locked the door,

and left him there alone, where he died. Penilla, 115 F.3d at

708. The court found that the officers “took affirmative

actions that significantly increased the risk facing Penilla” by

34 MAXWELL V . COUNTY OF SAN DIEGO

“ma[king] it impossible for anyone to provide emergency

medical care to [him].” Id.

In Penilla, it should have been clear to any reasonable

officer that the victim would die without immediate medical

assistance. But there was no such evidence in this case. On

the contrary, Kristin’s vital signs were within normal limits

and her condition appeared to be stable until shortly before

her death. Instead of putting the victim beyond the reach of

any help, as in Penilla, the deputies at most delayed the

ambulance’s departure for a few minutes once paramedics

had already begun administering medical care. Finally, even

if the (at most) seven-minute delay before the ambulance left

the property could have placed Kristin in danger, there is no

evidence that the deputies actually recognized that risk.

This case is far more similar to Estate of Amos ex rel.

Amos v. City of Page, Arizona, 257 F.3d 1086 (9th Cir. 2001),

where we held that deputies were not liable even though they

interfered with third party rescue efforts. Id. at 1089. In

Estate of Amos, the police prevented civilian efforts to search

for the victim of a car accident, who had wandered off into

the desert. The police called off their own search efforts later

that night when their flashlights lost power. Id. Months later,

the victim was discovered dead at the bottom of a canyon. Id.

We rejected the plaintiff’s argument that the officers were

liable because “they greatly increased [the victim’s] risk of

danger when they called off civilian search efforts at the

accident site and did not provide adequate replacement

protection.” Id. at 1091. Although the plaintiffs described “a

bungled and ineffectual police search,” we held that the facts

did not demonstrate that the police officers “were aware of a

known and significant risk of death ‘yet consciously chose a

course of action that ignored the risk.’” Id. at 1092 (quoting

MAXWELL V . COUNTY OF SAN DIEGO 35

Ross v. United States, 910 F.2d 1422, 1433 (7th Cir. 1990)).

As in Estate of Amos, the Maxwells have described the

deputies’ emergency response as “bungled and ineffectual,”

but they have not established deliberate indifference. Id.

Instead of citing relevant case law, the majority makes the

unsupported and conclusory statement that “it was obvious”

that the deputies violated Kristin’s due process right to bodily

security. Maj. op. at 16. But only in retrospect is it

“obvious” that the brief delay may have raised the risk that

Kristin would die from her injuries. This very term, the

Supreme Court reprimanded the Ninth Circuit for judging the

reasonableness of officers’ conduct “with the 20/20 vision of

hindsight” rather than “from the perspective of a reasonable

officer on the scene.” Ryburn, 132 S. Ct. at 992 (quoting

Graham v. Connor, 490 U.S. 386, 396–97 (1989)). The

Court reaffirmed that “[t]he calculus of reasonableness must

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving.” Id. (quoting

Graham, 490 U.S. at 396–97). Contrary to the Court’s

direction, the majority’s eyes here are focused on the

rearview mirror. Given that Kristin’s medical condition

initially appeared stable and that paramedics were actively

tending to her at the time of the alleged delay, the danger was

not so obvious that a decision to briefly delay the ambulance

shows deliberate indifference.

II

The majority likewise errs in holding that the Sheriff’s

deputies were not entitled to qualified immunity with respect

to the Maxwells’ claim that they were unreasonably seized in

violation of the Fourth Amendment, and that one of the

36 MAXWELL V . COUNTY OF SAN DIEGO

deputies, Sergeant Kneeshaw, used excessive force against

Jim Maxwell when he attempted to see his wife. As before,

the majority’s conclusion is based on a misconstruction of

both the facts and the law.

A

After Knobbe began the process of securing the crime

scene, Kay and Fred Maxwell and the two children were told

to remain in the family’s motor home. The motor home was

equipped with a bathroom, running water, electricity, heat, a

bed, and a TV. Kay testified that although she could not get

the heat to work at first, a deputy was “nice enough to crawl

underneath” the motor home to turn the propane on. Kay put

the children in bed and turned on the TV. Kay’s father

eventually fell asleep in a chair.

Jim Maxwell remained outside the motor home; the

deputies wanted to restrict Jim and Kay (the two witnesses of

the crime) from communicating with each other before they

were interviewed so that the deputies could “obtain untainted

information related to the homicide.” The deputies also told

Jim and Kay that they could not follow their daughter in the

ambulance.

According to the undisputed facts, at some time after 1:00

AM, Kneeshaw told Jim Maxwell that Kristin had died.

Although Jim wanted to tell his wife, Kneeshaw told him he

had to stay in the driveway. Jim stated, “You will have to

shoot me, I am going to see my wife,” and continued walking

to the motor home. Kneeshaw stepped in front of Jim and

again told him to stop, but Jim attempted to continue walking.

At that point, Kneeshaw sprayed Jim with pepper spray and

struck him on the leg with his baton. Kneeshaw and Knobbe

MAXWELL V . COUNTY OF SAN DIEGO 37

then handcuffed Jim’s hands behind his back. They removed

the handcuffs shortly thereafter. Jim testified that a deputy

then asked him whether he was okay and allowed him to rinse

his eyes out at the faucet at the end of the street. Jim also

testified that the pepper spray did not cause him any pain or

discomfort, and that it was not the pepper spray or baton that

made him stop, but only the two deputies who handcuffed

him. He apologized to the deputies after the altercation.

Around two hours later, at 3:35 AM, a homicide detective

obtained a search warrant for the Maxwells’ home; the search

began at roughly 3:50 AM. Meanwhile, two detectives began

interviewing Jim Maxwell regarding the murder investigation

at 3:26 AM. The detectives interviewed Kay Maxwell

beginning at 4:50 AM, and they finished questioning her at

5:55 AM. The search of the house was ongoing during these

interviews.

The Maxwells claim they were unlawfully detained, in

violation of their Fourth Amendment rights, for over six

hours, from 11:16 PM until the detectives finished

interviewing Kay at 5:55 AM. The detectives testified (and

the Maxwells did not dispute) that they did not order Jim

Maxwell or Kay Maxwell to submit to being interviewed

against their will. Neither Jim nor Kay asked to leave during

their interviews, and both were cooperative. Sergeant Edward

Musgrove testified that Jim and Kay Maxwell were

interviewed “at the same time the residence was being

searched” in order to “reduce[] the time that the witnesses

were excluded from the residence, and restricted from

communicating with each other.”

38 MAXWELL V . COUNTY OF SAN DIEGO

B

No Supreme Court or Ninth Circuit decision establishes

that the deputies’ conduct in detaining, separating, and

questioning the Maxwells while they obtained and executed

a search warrant for the Maxwells’ home was unreasonable.

Rather, all the precedents point in the other direction.

First, it is well established that a search warrant “carries

with it the limited authority to detain the occupants of the

premises while a proper search is conducted.” Michigan v.

Summers, 452 U.S. 692, 705 (1981); see also Muehler v.

Mena, 544 U.S. 93, 98 (2005). Indeed, “[a]n officer’s

authority to detain incident to a search is categorical; it does

not depend on the ‘quantum of proof justifying detention or

the extent of the intrusion to be imposed by the seizure.’”

Mena, 544 U.S. at 98 (emphasis added) (quoting Summers,

452 U.S. at 705 n.19). It is irrelevant whether the detained

individual is suspected of criminal activity because “‘[t]he

connection of an occupant to [a] home’ alone ‘justifies a

detention of that occupant.’” Id. at 99 n.2 (quoting Summers,

452 U.S. at 703–04). Therefore, the deputies’ authority to

detain the Maxwells during the roughly two and a half hours

after the search warrant issued did not violate their Fourth

Amendment rights.

In fact, aggressive and prolonged detentions of the

residents of a house can be justified in connection with

executing a search warrant, even when the search does not

occur in the immediate aftermath of a violent crime. Thus, in

Mena, the Court held that it was “plainly permissible” for

officers executing a search warrant, which was based on

probable cause to believe that a gang member lived in the

target house, to enter the bedroom of a woman not suspected

MAXWELL V . COUNTY OF SAN DIEGO 39

of gang activity while she was asleep in bed, place her in

handcuffs at gunpoint, and detain her (along with three other

individuals) in the garage for two to three hours while the

search proceeded. Id. at 95–96, 98. Putting a non-suspect in

handcuffs for two to three hours was not an unreasonable

seizure because “[i]nherent in Summers’ authorization to

detain an occupant of the place to be searched is the authority

to use reasonable force to effectuate the detention.” Id. at

98–99. Similarly, in Dawson v. City of Seattle, 435 F.3d

1054 (9th Cir. 2006), we held that officers could reasonably

detain boardinghouse residents for two hours while executing

inspection warrants for evidence of rodent infestation, even

though the officers drew their weapons and screamed at the

residents, forced one resident outside without her shoes;

refused to allow the detainees to drink coffee, smoke

cigarettes, or go to the bathroom without an escort; and

questioned the detainees about whether they had drugs or

weapons in their rooms. Id. at 1058–60. We emphasized

that, if not detained, the residents “might have fled, rendering

themselves unavailable to answer questions pertinent to the

search,” or mistakenly “impaired the search rather than

assisted it.” Id. at 1066–67. The officers’ interrogation of the

detainees did not alter the Fourth Amendment analysis

because there was no evidence that the questioning prolonged

the detention or that “the police conditioned Plaintiffs’

release from detention on Plaintiffs’ willingness to submit to

an interrogation.” Id. at 1068–69.

Second, both Supreme Court and Ninth Circuit cases

support the deputies’ decision to detain the Maxwells while

seeking a search warrant based on probable cause to believe

that a violent crime had just occurred inside the Maxwells’

house. The Supreme Court has made clear that a search

warrant is not always necessary to justify detention of the

40 MAXWELL V . COUNTY OF SAN DIEGO

occupants of a targeted home. Thus, in upholding the

detention of an individual while officers executed a search

warrant for his home, Summers noted that the holding did not

“preclude the possibility that comparable police conduct may

be justified by exigent circumstances in the absence of a

warrant.” Summers, 452 U.S. at 703 n.17. As suggested by

Summers, the Court later held that exigent circumstances

justified officers in detaining a man outside his home for

roughly two hours while they obtained a search warrant for

the home. See Illinois v. McArthur, 531 U.S. 326, 328

(2001). McArthur explained that four factors made the

warrantless detention reasonable: (1) the officers “had

probable cause to believe that . . . [the] home contained

evidence of a crime and contraband,” (2) the officers “had

good reason to fear that, unless restrained, [the defendant]

would destroy evidence before they could return with a

warrant,” (3) the officers “made reasonable efforts to

reconcile their law enforcement needs with the demands of

personal privacy” by not searching the home or arresting the

resident before obtaining the warrant, and (4) the detention

was “no longer than reasonably necessary for the police,

acting with diligence, to obtain the warrant.” Id. at 331–33.

These cases fully support the conclusion that the

exigencies present in this case made it reasonable for the

deputies to detain the Maxwells while seeking a search

warrant. The deputies arrived minutes after a violent crime

had occurred, and it was their responsibility to assist the

victim and secure the crime scene. They realized that the

Maxwells’ home contained evidence necessary to prosecute

the perpetrator. See McArthur, 531 U.S. at 332. They also

had good reason to believe that allowing the Maxwells back

in the house could compromise the evidence. See Dawson,

435 F.3d at 1067; see also McArthur, 531 U.S. at 326, 332.

MAXWELL V . COUNTY OF SAN DIEGO 41

For example, Jim Maxwell admitted that in the immediate

aftermath of the shooting, he picked up the gun Bruce used to

shoot Kristin in a misguided attempt to assist the deputies by

bringing the weapon to them. Finally, they needed to get the

statements of witnesses, and they reasonably believed that if

they did not separate Jim and Kay, the two of them might

influence one another’s recollections, making their statements

vulnerable to challenge in court and jeopardizing the

prosecution.

Moreover, the deputies detained the Maxwells in a

reasonable manner. In fact, the Maxwells were treated far

more humanely than were the detainees in Mena or Dawson,

who also were not suspected of any crime. The deputies

allowed Kay, her father, and the children to wait in the

privacy of their family motor home for the duration of the

pre-warrant period. Deputy Kneeshaw’s brief use of force

against Jim, which Jim himself testified did not cause him

any memorable pain or discomfort, was fully justified in

order “to effectuate the detention.” Mena, 544 U.S. at 99.

And the four-hour period was no longer than reasonably

necessary for the police to obtain the warrant. All the

evidence in the record indicates that the deputies acted

diligently in obtaining the warrant as quickly as possible at a

time “when it is reasonable to assume that judicial officers

are not as readily available for consideration of warrant

requests.” Segura v. United States, 468 U.S. 796, 812–13

(1984) (holding that a 19-hour warrantless seizure of a

building, half of which occurred during the period between

10:00 PM and 10:00 AM the following day, was reasonable

under the circumstances). Based on these factors, the

deputies’ decision, “even if constitutionally deficient,

reasonably misapprehend[ed] the law governing the

42 MAXWELL V . COUNTY OF SAN DIEGO

circumstances.” Brosseau v. Haugen, 543 U.S. 194, 198

(2004).

The majority’s reliance on United States v. Ward,

488 F.2d 162 (9th Cir. 1973) (en banc), and Illinois v. Lidster,

540 U.S. 419 (2004), is puzzling, because these cases are far

afield from the issues before us. Both decisions consider

when the Fourth Amendment allows police to stop cars on the

road in order to investigate crimes committed by third parties.

In Lidster, the Court held that the Fourth Amendment allowed

police to stop motorists at a highway checkpoint to ask them

whether they had any information about a recent hit-and-run

accident. Lidster, 540 U.S. at 426–28. In Ward, we held that

FBI agents violated a driver’s right to travel the public roads

when they pulled him over to interview him regarding a

months-old investigation of a third-party fugitive. Ward,

488 F.2d at 169. Unlike Mena and Dawson, these cases

provide no guidance as to when a police officer acts

reasonably in securing a crime scene and detaining occupants

and witnesses. “Because ‘[t]he test of reasonableness under

the Fourth Amendment is not capable of precise definition or

mechanical application,’” the Court has explained, “its proper

application requires careful attention to the facts and

circumstances of each particular case.” Graham, 490 U.S. at

396 (internal quotation marks omitted) (quoting Bell v.

Wolfish, 441 U.S. 520, 559 (1979)). For instance, “[t]he

general proposition . . . that an unreasonable search or seizure

violates the Fourth Amendment is of little help in determining

whether the violative nature of particular conduct is clearly

established.” Al-Kidd, 131 S. Ct. 2084; see also Brosseau,

543 U.S. at 198 (emphasizing that the assessment of clearly

established law in the Fourth Amendment context “must be

undertaken in light of the specific context of the case, not as

a broad general proposition”) (quoting Saucier v. Katz,

MAXWELL V . COUNTY OF SAN DIEGO 43

533 U.S. 194, 201 (2001), overruled on other grounds by

Pearson v. Callahan, 555 U.S. 223 (2009)). Because the

facts and circumstances of Lidster and Ward shed no light on

whether the detention and separation of building occupants in

the immediate aftermath of a shooting is reasonable, these

cases do not support the majority’s determination that there

was clearly established law prohibiting the deputies’ conduct.

III

Finally, even if the majority were correct that the deputies

violated clearly established law, it is impossible to conclude

that Captain Gregory Reynolds and Lieutenant Anthony

Salazar could be held liable merely because they were

standing behind yellow crime tape at the scene.

We have long held that officers may not be held liable

“merely for being present at the scene of an alleged unlawful

act” or for being a member of the same team as the

wrongdoers. Jones v. Williams, 297 F.3d 930, 936–38 (9th

Cir. 2002) (emphasis added). More recently, Ashcroft v.

Iqbal, 556 U.S. 662 (2009), clarified that there is no

respondeat superior liability under § 1983. Rather, a

government official may be held liable only for the official’s

own conduct. Id. at 675–76. To bring a § 1983 action against

a supervisor, the plaintiff must show: (1) the supervisor

breached a legal duty to the plaintiff, see Starr v. Baca,

652 F.3d 1202, 1207–08 (9th Cir. 2011); (2) the breach of

duty was “the proximate cause” of the plaintiff’s

constitutional injury, id. at 1207, and (3) the supervisor had

at least the same level of mens rea in carrying out his

superintendent responsibilities as would be required for a

direct violation of the plaintiff’s constitutional rights, Iqbal,

129 S. Ct. at 1949; see also Starr, 652 F.3d at 1207.

44 MAXWELL V . COUNTY OF SAN DIEGO

Here the Maxwells do not allege that Reynolds and

Salazar took any affirmative acts to set in motion the

allegedly unconstitutional acts of their subordinates, nor do

they present any evidence that Reynolds and Salazar knew

about their subordinates’ conduct in delaying the ambulance

or detaining and separating the Maxwells. Moreover, they do

not dispute that neither Reynolds nor Salazar crossed the

yellow tape across the Maxwells’ driveway that restricted

entry to the crime scene. The Maxwells allege merely that

Reynolds and Salazar (1) were the highest ranking officials

at the scene, (2) could observe the crime scene from the

driveway, and (3) heard Kneeshaw yelling at Jim Maxwell to

“stop, stop” just before using pepper spray and striking Jim

with his baton.

These allegations are insufficient to create a genuine issue

of material fact that Reynolds and Salazar breached a legal

duty to the Maxwells, that they were the proximate cause of

the Maxwells’ constitutional injuries, or that they acted with

the requisite state of mind. First, the Maxwells do not allege

that the supervisors were even aware that the deputies

delayed Kristin’s departure, let alone that the supervisors

acted with deliberate indifference. Nor can we infer, solely

based on geographic proximity, that Reynolds and Salazar

knew or reasonably should have known that the other

Sheriff’s deputies had forcibly detained the Maxwells and

prevented them from seeing their daughter and each other,

and that there were no exigent circumstances to justify the

detention. This is especially true given that Reynolds and

Salazar never entered the crime scene. Nor is there any

evidence “of a specific policy implemented by the Defendants

or a specific event or events instigated by the Defendants that

led to these purportedly unconstitutional” seizures. Hydrick

v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). As in Hydrick,

MAXWELL V . COUNTY OF SAN DIEGO 45

“the factual allegations in Plaintiffs’ complaint resemble the

‘bald’ and ‘conclusory’ allegations in Iqbal, instead of the

detailed factual allegations in Starr.” Id. at 941. It is

therefore clear that Reynolds and Salazar cannot be held

liable for the alleged constitutional violations of other

deputies on the scene.

IV

It is a truism that “tragic facts make bad law.” Wyeth v.

Levine, 555 U.S. 555, 604 (2009) (Alito, J., dissenting).

Nevertheless, we may not furnish a cause of action where the

law does not supply one. See Whitmore v. Arkansas,

495 U.S. 149, 166 (1990); see also Gusman v. Marrero,

180 U.S. 81, 87 (1901). The deputies arriving at the

Maxwells’ residence faced a chaotic scene: a woman had

been shot in the jaw; the perpetrator was still in the house;

multiple ambulances and paramedics were responding to the

scene; and frantic relatives were milling about. From the

perspective of the deputies, it was more than merely

reasonable to take steps to secure the crime scene and

separate the witnesses—it was their duty. The majority has

not pointed to a single case that clearly establishes that the

deputies’ actions here violated the Maxwells’ constitutional

rights. Under existing case law, the deputies are entitled to

qualified immunity for their actions. I therefore respectfully

dissent.