# Mena v. City of Simi Valley

> Court of Appeals for the Ninth Circuit · January 14, 2004 · 354 F.3d 1015

URL: https://www.frixlaw.com/law-library/cases/8408522

## Case

- **Full name:** Iris MENA, and Jose E. Mena v. CITY OF SIMI VALLEY Randy G. Adams Marvin Hodges Roy Jones Vincent Allegra Alan McCord Richard Thomas Ronald Chambers William Lappin Arnold Baynard Jeffrey Dominick Jack Greenburg Richard Lamb Frank Ahlvers John Adamczyk Tim Brown, and Darin L. Muehler Robert Brill
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 14, 2004
- **Citations:** 354 F.3d 1015; 2004 WL 57714
- **Precedential status:** Published
- **Opinion:** Dissent by Gould
- **Judges:** Archer, Bybee, Callahan, Gould, Kleinfeld, Kozinski, Pregerson, Reinhardt, Scannlain, Tallman, Whom
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GOULD, Circuit Judge,
with whom Circuit Judges KOZINSKI and TALLMAN join,
dissenting from denial of rehearing en banc:
I would have reheard this case en banc.
First, I disagree with the panel’s suggestion that the Constitution is offended by police officers asking Ms. Mena a ques *1020 tion about her citizenship. I would follow Martinez Camargo v. INS, 282 F.3d 487 (7th Cir.2002), holding that a question is not a seizure. Id. at 493 . Further, even if the Fourth Amendment can be invoked by a query, here the officers had a reasonable basis upon which to inquire, for Ms. Mena was found in a den of thieves, with a gang known by the law to be comprised largely of illegal immigrants. In law, as in life, a person to a degree may be judged by the company they keep, see, e.g., Maryland v. Pringle, — U.S. -, 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), and nothing in the Fourth Amendment contravenes this common observation of humankind.
Second, the issue of excessive force may be close because of the duration of time that the officers left handcuffs on Ms. Mena. But on this issue we cannot say that a reasonable officer should not have done so. We should instead be more alert to the officers’ legitimate concerns for safety. Given the arms anticipated at the locale of the search, and the need to avoid deadly surprise, we should not say that the Constitution precludes ensuring that any person found in potential proximity to weapons is restrained from finding and using a gun on the police. Law enforcement must confront certain unavoidable dangers, but the Constitution does not require that they face avoidable ones. 1
Third, because in this context there was no violation of the Constitution in regard to the questions posed to Ms. Mena on her citizenship, or in regard to the degree of force used to detain and restrain her, under Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), that is the end of the analysis, and we need not go further to assess qualified immunity. But were I to assume a violation of the Fourth Amendment rights that Ms. Mena asserts on either of the above grounds, 2 then I would agree with my colleague Judge Kle-infeld that qualified immunity would be required because no “clearly established” right has been violated.
For these reasons I respectfully dissent.
. The majority’s preoccupation with whether Ms. Mena was in pajamas when restrained is besides the point. She was not paraded naked or in humiliating pose. The officers were entitled to restrain her for their safety, whether she was wearing a formal gown or jeans, whether she was wearing pajamas or sweat pants, and without regard to the majority’s purported interest in her attire, which seems here to be a mere rhetorical device, wholly unrelated to the substance of the case.
. Ms. Mena did not assert that the inquiry on her citizenship status violated her rights. She challenged excessive force in restraint and challenged a search of her purse for papers. The idea that the question about her citizenship posed to Ms. Mena offended her constitutional rights, by analogy to our precedent prohibiting racial profiling as a basis for a car stop, see United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir.2000) (en banc); see also United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975), is extemporaneous, unbriefed, and unwise.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8408522. Public record. Not legal advice.