Michelle Cameron v. Michelle Craig

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE CAMERON , No. 11-55927

Plaintiff-Appellant,

D.C. No.

v. 3:09-cv-02498-

AJB-WMC

MICHELLE CRAIG ; COUNTY OF SAN

DIEGO ,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted

January 11, 2013—Pasadena, California

Filed April 16, 2013

Before: M. Margaret McKeown and Milan D. Smith, Jr.,

Circuit Judges, and Robert Holmes Bell, District Judge.*

Opinion by Judge Milan D. Smith, Jr.

*

The Honorable Robert Holmes Bell, District Judge for the U.S. District

Court for the W estern District of Michigan, sitting by designation.

2 CAMERON V . CRAIG

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in a 42 U.S.C.

§ 1983 action in which plaintiff alleged that her Fourth

Amendment rights were violated when San Diego County

defendants conspired with the father of her children, a San

Diego County Sheriff’s Deputy, to obtain a warrant to search

her home without probable cause, used excessive force while

executing that warrant, and then arrested her.

The panel held that under the totality of circumstances

there was probable cause to search plaintiff’s residence and

to arrest her for fraudulently using the Deputy’s personal

credit card to obtain valuable property. The panel

nevertheless held that disputed issues of material fact

remained regarding plaintiff’s excessive force and conspiracy

claims, which alleged that six to ten Sheriff’s Deputies

entered her residence with guns drawn early in the morning,

pointed weapons at her, grabbed her by the arms and

shoulders, pushed her in the back down a hallway, and then

tightly handcuffed her. Viewing the evidence in the light most

favorable to plaintiff, who did not pose a threat to officer

safety and was not resisting arrest, and drawing all reasonable

inferences therefrom, the panel concluded that plaintiff’s

excessive force and conspiracy claims should go to the jury.

**

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

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

CAMERON V . CRAIG 3

COUNSEL

James Matthew Brown, Law Office of James Matthew

Brown, San Diego, California; Vanessa M. Ruggles (argued),

Palm Springs, California, for Plaintiff-Appellant.

David Axtmann, Senior Deputy County Counsel (argued),

San Diego, California, for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

Michelle Cameron appeals the district court’s order

granting summary judgment in favor of Defendants Michelle

Craig and the County of San Diego (collectively, the County

Defendants). Cameron alleges that her Fourth Amendment

rights were violated when the County Defendants obtained a

warrant to search her home without probable cause, used

excessive force while executing that warrant, and then

arrested her. She also brought related claims under California

law. Because there was probable cause to search Cameron’s

residence and to arrest Cameron, we affirm the district court’s

entry of judgment with respect to those claims. Because

disputed issues of material fact remain regarding Cameron’s

excessive force and conspiracy claims, however, we reverse

and remand those claims to the district court for further

proceedings consistent with this opinion.

4 CAMERON V . CRAIG

FACTUAL BACKGROUND1

Michelle Cameron worked as a yoga instructor in San

Diego. One of her students was San Diego County Sheriff’s

Deputy David Buether. The two began dating in 2004, and

eventually moved in together. Some months later, Cameron

became pregnant. Cameron gave birth to the couple’s first

child in October 2006.

Sometime afterwards, the couple agreed that Cameron

should quit her job in order to work as a full-time mother.

The couple opened a joint checking account, and because

Cameron had no independent source of income, she also

frequently used Buether’s credit card to make purchases for

herself and the family. Although Cameron and Buether were

never married, Cameron believed the couple’s finances were

completely intermingled.2

Cameron and Buether had a second child in March 2008,

but their relationship soured later that year when Cameron

learned that Buether was having affairs with multiple women.

After two alleged incidents of domestic violence, Buether

obtained an ex parte restraining and “kick out” order against

Cameron. She was removed from the family home by San

Diego County Sheriff’s Deputies the following day. As she

1

Because this case comes to us on summary judgment, we present the

facts in the light most favorable to Cameron. See Torres v. City of

Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

2

The evidence of financial intermingling is extensive. For instance, in

addition to their joint checking account, B uether and Cameron were co-

signers on a $125,000 home equity line to which Cameron had

unrestricted access, and were also co-signers on an auto loan for a vehicle

that was titled in both Buether’s and Cameron’s names.

CAMERON V . CRAIG 5

was leaving, Cameron asked Buether what she was supposed

to do without any belongings. Buether told her to “do what

you need to do.”

On October 9, 2008, Cameron moved into a friend’s

house. A few days later, she used Buether’s credit card to

purchase furniture and housewares for her new residence. In

total, Cameron purchased nearly $9,000 worth of beds, tables,

chairs, and other furnishings from Overstock.com for herself

and her (and Buether’s) children.

Toward the end of October 2008, Buether rescinded the

restraining order against Cameron, and the couple’s children

began splitting time between their parents. The couple also

entered mediation in the hope of resolving child custody

issues. While mediation was ongoing, Buether attempted to

reconcile with Cameron, and spent the night at Cameron’s

residence on two occasions. Commenting on the new

furniture, Buether told Cameron that once the couple got back

together, they would sell all of the duplicative items on eBay.

Cameron, however, refused to reconcile with Buether.

Buether, individually and through his lawyer, then demanded

that Cameron repay him for the furniture. Cameron refused.

On November 14, 2008, Buether filed a criminal

complaint with the San Diego County Sheriff’s Department,

claiming that an “unknown suspect” had used his credit card

without authorization to purchase items from Overstock.com.

Buether told the sheriffs that he thought Cameron might be

responsible for the disputed transactions. Buether further

indicated that he wanted to press charges should a suspect be

apprehended.

6 CAMERON V . CRAIG

San Diego County Sheriff’s Detective Michelle Craig was

assigned to investigate Buether’s claims. Craig and Buether

had attended the Sheriff’s Academy together, and had worked

on the same shift at the Vista Patrol Station for four years.

During that time, Craig and Buether responded to hundreds

of calls together, and Cameron alleges that Craig and Buether

were friends. Both Craig and Buether insist they did not

maintain a social relationship outside of work.

On November 17, 2008, Craig began investigating

Buether’s claims. First, Craig called Overstock.com, which

confirmed that it shipped the disputed items to Cameron at

her new address, and that Buether’s credit card was used for

payment. Second, Craig interviewed Buether. Buether

informed Craig that he and Cameron had lived together for

four years, that Cameron had recently moved out because she

was violent and unstable, and that he had seen some new

furniture and furniture boxes at Cameron’s residence when he

visited her there. Buether also informed Craig that while he

had given Cameron permission to use his credit card in the

past, he had always been present when the credit card was

used, and that he did not give Cameron permission to make

these specific purchases. Finally, Buether told Craig that he

had confronted Cameron about the disputed credit card

charges during one of the couple’s custody mediation

sessions. Buether told Craig that Cameron responded, “Oh,

you mean our joint credit card,” and then promptly changed

the subject. Craig then showed Buether pictures of some of

the items that had been charged to Buether’s credit card, and

Buether confirmed he had seen similar items inside

Cameron’s home.

CAMERON V . CRAIG 7

On December 15, 2008, Craig applied for a warrant to

search Cameron’s apartment for the purchased items. Craig’s

supporting affidavit read, in relevant part, as follows:

Michelle Cameron and the victim began

dating and living together approximately four

years ago. They have had two children

together, but were never married. Their

relationship deteriorated and in September

2008 there was an unreported domestic

violence incident . . . On 10/08/08, the victim

obtained a restraining order against Michelle

which also ordered her out of the residence

. . . The victim later rescinded the restraining

order, which is no longer valid. On 10/13/08,

Michelle Cameron placed three different

internet orders on Overstock.com purchasing

items totaling $8,969.39. Michelle used US

Bank Visa credit card number [] to pay for the

purchases. That credit card belongs solely to

the victim, her ex-boyfriend, who did not

authorize the transactions. Invoices obtained

from Overstock.com during this investigation

document the shipping address, phone

number, and e-mail addresses, which all

belong to Michelle Cameron. I showed the

victim photos of possible items purchased by

Michelle, and he stated he has seen the

following stolen items inside her residence as

of 3 to 4 weeks ago [] . . . Based on my

training and experience and the above

investigation, I believe there is a substantial

likelihood that stolen property will be present

when I execute this warrant because Michelle

8 CAMERON V . CRAIG

Cameron purchased those items in order to

furnish her new home after being ordered out

of her prior residence and some of the items,

such as beds, are being used for her and her

children to sleep on.

A deputy district attorney reviewed the warrant affidavit, and

certified his belief that it was legally sufficient. A San Diego

County Superior Court judge issued the warrant that same

day.

Soon after the search warrant issued, Buether provided

Craig with his custody schedule. One of the days Buether

indicated Cameron would have custody of the couple’s

children was December 18, 2008. Craig asked whether

Buether would be available to pick up his children if

Cameron were arrested. Buether indicated that he could pick

up the children at any time.

Craig also conducted background checks on all of the

known residents of Cameron’s apartment. Craig uncovered

no information indicating that any of the residents would be

armed, and had no reason to suspect that Cameron or any

other resident might pose a threat to officer safety. However,

Craig was unable to complete a background check on one

suspected resident.

At 7:00 a.m. on December 18, 2008—a time Craig knew

Cameron would have custody of her two young

children—Craig and six to ten other San Diego County

Sheriff’s Deputies executed the search warrant at Cameron’s

CAMERON V . CRAIG 9

residence.3 Upon arrival, the deputies knocked, announced

themselves, and demanded entry. One of Cameron’s

roommates admitted the deputies. The deputies were armed

and had their weapons drawn. They were dressed entirely in

black, with bulletproof vests and helmets. The deputies went

upstairs, where they encountered Cameron in a hallway

outside her bedroom. Multiple deputies aimed their weapons

at Cameron, who was trying to alert the officers to the

presence of her children in an adjacent bedroom. Cameron

repeatedly implored the deputies not to scare her small

children, and pointed toward the children’s bedroom. In

response, the deputies grabbed Cameron by the arms and

shoulders and pushed her in the back to force her out of the

hallway.4 The deputies pushed Cameron into the living room,

where her arms were pulled behind her back and she was

handcuffed. Cameron testified that the handcuffs were

applied tightly enough to leave a bruise that lasted for a few

days. Cameron was then seated on a couch while the

Sheriff’s Deputies conducted their search.

In the meantime, Craig phoned Buether to come and pick

up the children, which Buether did shortly thereafter. Craig

then interviewed Cameron, who explained that she believed

she was an authorized user on Buether’s credit card, that she

had used his credit card frequently in the past, and that she

thought Buether had given her permission to use the credit

3

Cal. Penal Code § 1533 dictates that 7:00 a.m. is the earliest a search

warrant can be executed without obtaining a judge’s special permission for

night service. See also Rodriguez v. Superior Court, 245 Cal. Rptr. 617,

624–25 (Ct. App. 1988) (describing the heightened standard for obtaining

nighttime service of a search warrant).

4

At her deposition, Cameron likened the experience to being “in a

tumbler.”

10 CAMERON V . CRAIG

card to purchase the disputed items. At the conclusion of the

interview, Cameron was arrested for identity theft, grand and

petty theft, and fraudulent use of an access card. She was

transported to county jail. That same day, Buether called the

mediator overseeing the couple’s custody dispute to inform

him that Cameron had been arrested. Cameron was released

from jail five days later. The District Attorney declined to

prosecute Cameron, and all charges were voluntarily

dismissed.

PROCEDURAL BACKGROUND

Cameron brought suit against Buether and the County

Defendants on November 6, 2009.5 Cameron complained that

Buether and the County Defendants conspired to violate, and

did violate, her Fourth and Fourteenth Amendment rights

when they unlawfully searched her home pursuant to an

invalid search warrant, used excessive force in the execution

of that warrant, and arrested her without probable cause.

Cameron also brought state law claims for negligence,

harassment, false arrest, and violation of California Civil

Code § 52.1.

After Cameron had twice amended her complaint, the

County Defendants moved to dismiss Cameron’s negligence

claim.6 The district court granted the County Defendants’

5

Buether is not a party to this appeal. In the district court, Buether did

not join any of the County Defendants’ dispositive motions. Buether’s

own motion for judgment on the pleadings—filed after summary judgment

had already been granted in favor of the County Defendants— was denied

as moot.

6

Cameron’s Third Amended Complaint (the operative complaint) no

longer contains a cause of action for harassment.

CAMERON V . CRAIG 11

motion with prejudice. On November 18, 2010, the County

Defendants moved for summary judgment with respect to

Cameron’s remaining claims. The County Defendants’

motion was granted on March 4, 2011, and final judgment

was entered on May 13, 2011. Cameron timely appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the district court’s entry of

judgment under 28 U.S.C. § 1291. We review a grant of

summary judgment de novo, “and must determine whether,

viewing the evidence in the light most favorable to the

nonmoving party, there are any genuine issues of material

fact and whether the district court correctly applied the

relevant substantive law.” Lopez v. Smith, 203 F.3d 1122,

1131 (9th Cir. 2000) (en banc).

DISCUSSION

I. Constitutionality of the Search

Cameron claims her home was unlawfully searched

pursuant to an invalid search warrant. To be valid, a search

warrant “must be supported by an affidavit establishing

probable cause.” United States v. Stanert, 762 F.2d 775, 778

(9th Cir. 1985). Probable cause exists where, under the

totality of the circumstances, a reasonable officer has

occasion to believe that the search will uncover evidence

relating to a suspected crime. See Illinois v. Gates, 462 U.S.

213, 230–31 (1983); Brinegar v. United States, 338 U.S. 160,

175–76 (1949). The test is an objective one, and the “actual

motivations of the individual officers involved . . . play no

role in” the Fourth Amendment analysis. Whren v. United

States, 517 U.S. 806, 813 (1996).

12 CAMERON V . CRAIG

The warrant to search Cameron’s home issued on the

basis of Detective Craig’s affidavit. Our review of that

affidavit confirms what the issuing judge previously

determined—that the totality of the circumstances described

therein provided probable cause to search Cameron’s

residence. Among other crimes, Cameron was suspected of

fraudulently using Buether’s credit card to obtain valuable

property. See Cal. Penal Code § 484g (anyone who “obtains

money, goods, services, or anything else of value by

representing without the consent of the cardholder that he or

she is the holder of an access card and the card has not in fact

been issued, is guilty of theft”); see also People v. Molina,

15 Cal. Rptr. 3d. 493, 495–96 (Ct. App. 2004) (a credit card

is an “access card” for the purposes of § 484). In her

affidavit, Craig averred that Buether did not authorize

Cameron to use his credit card and that Overstock.com

confirmed that Buether’s credit card was used to purchase

items worth nearly $9,000. On their own, these statements

were sufficient to establish probable cause to suspect that

Cameron had violated § 484g of the California Penal Code.

Craig’s further allegations—that Overstock.com shipped the

purchased items to Cameron’s home address, and that

Buether saw what he believed to be at least some of the

purchased items inside Cameron’s home—were sufficient to

establish probable cause to search Cameron’s home for

evidence of her suspected crime(s). Thus, the search warrant

was facially valid.

Cameron advances two alternative theories to explain

why the search, despite being conducted pursuant to a facially

valid warrant, nevertheless violated her constitutional rights.

First, Cameron argues that the search was unconstitutional

because Craig had a duty to investigate Cameron’s version of

events before obtaining the search warrant. If Craig had

CAMERON V . CRAIG 13

learned Cameron’s version of events (i.e., that Cameron

believed she was authorized to use Buether’s credit card), and

had included that story in the warrant application, Cameron

claims the search warrant would never have issued. We

cannot credit this argument. The fact that a suspect denies an

essential element of a crime does not automatically negate

probable cause. While best practices may dictate that the

police obtain both sides of a story where practicable, the law

simply does not mandate such diligence.7 Once probable

cause is established, “an officer is under no duty to

investigate further or to look for additional evidence which

may exculpate the accused.” Broam v. Bogan, 320 F.3d

1023, 1032 (9th Cir. 2003) (citation and quotations omitted).

Second, Cameron argues that Craig intentionally excluded

relevant information from her affidavit, such as Craig’s

working relationship with Buether, Buether and Cameron’s

ongoing custody dispute, and the extent of Buether and

Cameron’s financial intermingling. It is well established that

a police officer may not deliberately omit facts that would

otherwise negate a showing of probable cause. See Franks v.

Delaware, 438 U.S. 154, 171–72 (1978).

Unfortunately for Cameron, these are not such facts.

Even if the omitted material had been included, the warrant

would still be supported by probable cause. See id. at 155–56

(explaining that to establish a Fourth Amendment violation,

an alleged omission must be “necessary to the finding of

probable cause”) (emphasis added); see also United States v.

7

Cameron’s police practices expert, who was formerly the commanding

officer of the San Diego County Sheriff’s Department Internal Affairs

Unit, testified at his deposition that it was “neglect of duty” for Craig not

to interview Cameron before obtaining the search warrant.

14 CAMERON V . CRAIG

Martinez-Garcia, 397 F.3d 1205, 1214 (9th Cir. 2005). By

way of example, even had the affidavit referenced Cameron’s

prior authorized use of Buether’s credit card, it would not

necessarily undercut Buether’s claim that Cameron was not

authorized to use his credit card for these specific

purchases—purchases the merchant confirmed were made by

Cameron. Put differently, the facts “necessary to the finding

of probable cause” were the ones contained in the warrant

affidavit, not those omitted by Craig. Because the search of

Cameron’s home did not violate her Fourth Amendment

rights, the district court properly awarded summary judgment

to the County Defendants on these claims.8

II. Constitutionality of the Arrest

Cameron also claims the County Defendants lacked

probable cause to arrest her. Largely for the reasons

explained above, Part I, supra, we disagree.

When Cameron was arrested, Craig knew at least the

following: (1) Buether claimed that Cameron used his credit

card without authorization; (2) Overstock.com confirmed that

Cameron used Buether’s credit card; (3) items purchased

from Overstock.com were present in Cameron’s home; and

(4) Cameron claimed that she had frequently used Buether’s

credit card in the past, and thought she had permission to use

Buether’s credit card to make the relevant purchases. At

8

It is important to note that by rejecting Cameron’s search claims, the

panel in no way endorses Craig’s or Buether’s conduct here. Craig’s

failure to include clearly relevant— albeit legally “unnecessary”— details

in the search warrant affidavit demonstrates, at the very least, a significant

lack of professional judgment. At worst, it is evidence of a purposeful

attempt to aide Buether in his alleged vendetta against Cameron. See Part

IV, infra.

CAMERON V . CRAIG 15

bottom, Craig was faced with a classic “he said, she said”

situation: Buether claimed Cameron didn’t have his

permission to use his credit card, while Cameron claimed that

she did. Under the totality of these circumstances, an

objectively reasonable officer could have chosen to believe

Buether. Consequently, we cannot conclude that Cameron

was arrested without probable cause. The district court

properly ruled in favor of the County Defendants on

Cameron’s false arrest claims.

III. Constitutionality of the Use of Force

Cameron also brings claims regarding the amount of force

the County Defendants used to execute the search warrant

and Cameron’s arrest. Cameron alleges that the County

Defendants used “SWAT-like” tactics in order to intimidate

her, and that a jury could find that the level of force employed

was constitutionally excessive. The County Defendants

asserted that the amount of force used was reasonable and

that Craig is entitled to qualified immunity because no clearly

established law put her on notice that the force employed was

excessive. Because “historical facts material to the qualified

immunity determination are in dispute,” Connor v. Heiman,

672 F.3d 1126, 1131 (9th Cir. 2012) (internal quotation marks

omitted), the district court erred in granting summary

judgment to the defendants on the excessive force claim.

“[T]he Supreme Court set forth a two-part test for

qualified immunity in excessive force cases. First, we

examine whether a Fourth Amendment violation occurred;

second, we look to see whether the officers violated clearly

established law.” Santos v. Gates, 287 F.3d 846, 855 n.12

(9th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194 (2001)).

In Pearson v. Callahan, 555 U.S. 223 (2009), the Court held

16 CAMERON V . CRAIG

that lower courts may address the second step alone where it

proves dispositive.

It is clearly established that “[t]he Fourth Amendment

proscribes only ‘unreasonable’ searches and seizures.”

Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994). The

reasonableness of a search or seizure depends “not only on

when [it] is made, but also how it is carried out.” Tennessee

v. Garner, 471 U.S. 1, 8 (1985) (emphasis added). “In other

words, even when supported by probable cause, a search or

seizure may be invalid if carried out in an unreasonable

fashion.” Franklin, 31 F.3d at 875 (emphasis omitted).

We have repeatedly counseled that the reasonableness of

a particular search or seizure must be “assessed by carefully

considering the objective facts and circumstances that

confronted the [involved] officer or officers.” Chew v. Gates,

27 F.3d 1432, 1440 (9th Cir. 1994) (citing Graham v.

Connor, 490 U.S. 386, 396 (1989)). While a court (or jury)

may “look to whatever specific factors may be appropriate in

a particular case,” Franklin, 31 F.3d at 876, the Supreme

Court has articulated three factors that courts should typically

consider: (1) the severity of the crime at issue; (2) whether

the suspect poses an immediate threat to the safety of the

officers or others; and (3) whether the suspect is actively

resisting arrest or attempting to evade arrest by flight.

Graham, 490 U.S. at 396. Crucially, “[b]ecause questions of

reasonableness are not well-suited to precise legal

determination, the propriety of a particular use of force is

generally an issue for the jury.” Chew, 27 F.3d at 1440

(citations omitted); see also Coles v. Eagle, 704 F.3d 624,

628 (9th Cir. 2012). “[I]n excessive force cases . . . in

addition to the deference officers receive on the underlying

constitutional claim, qualified immunity can apply in the

CAMERON V . CRAIG 17

event [a] mistaken belief [about the amount of force required]

was reasonable.” Saucier, 533 U.S. at 206.

The factual record on the excessive force claim is not

fully developed. The parties, for example, agree that the

deputies entered Cameron’s residence with guns drawn, but

dispute whether deputies pointed their guns at Cameron’s

head. Although Cameron conceded that Craig is not

personally liable for her deputies pointing guns at Cameron’s

head, Cameron asserted at oral argument that Craig is liable

for directly participating in the raid and in organizing it to

take place at such a time and in such a manner as to be

maximally intimidating. “[W]hen the disputed facts and

inferences are treated in the manner required by law,” that is,

construed in Cameron’s favor, “a jury could properly find that

the force used [was] greater than was reasonable under the

circumstances.” Tekle v. United States, 511 F.3d 839, 846

(9th Cir. 2007) (internal quotation marks omitted and second

alteration in original). Cameron’s suspected crimes were

relatively minor and non-violent,9 the County Defendants had

no reason to suspect Cameron or any of her known

roommates would pose a threat to officer safety, and

9

That Cameron was suspected of relatively minor property crimes

significantly undercuts the County Defendants’ arguments that the level

of force used here was per se reasonable. A rational jury could easily

determine that the deployment of up to ten heavily armed officers is

unnecessary to execute a search warrant looking for stolen property. This

is particularly true where, as here, there is no concern that the property

might be moved or destroyed in the time it takes to secure the scene.

Unlike drug seizures, for instance, where a quick entry requiring multiple

officers may be desirable to prevent the destruction of evidence, see, e.g.,

Illinois v. McArthur, 531 U.S. 326, 332 (2001), the property at issue here

included a six-drawer dresser and a mattress.

18 CAMERON V . CRAIG

Cameron was not resisting arrest. The County Defendants

presented no evidence to the contrary.

Nevertheless, Craig led six to ten Sheriff’s Deputies into

Cameron’s residence with guns drawn early in the morning.

Those deputies pointed weapons at Cameron, grabbed

Cameron by the arms and shoulders, pushed her in the back

down a hallway, and then tightly handcuffed her. On this

view of the facts, a reasonable jury could find that the

deputies used excessive force. See, e.g., Robinson v. Solano

Cnty., 278 F.3d 1007, 1013–15 (9th Cir. 2002) (en banc)

(aiming weapons at a suspect may, in certain circumstances,

constitute excessive force); Baldwin v. Placer Cnty., 418 F.3d

966, 970 (9th Cir. 2005) (pointing weapons and pushing

plaintiff could constitute excessive force); LaLonde v. Cnty.

of Riverside, 204 F.3d 947, 960 (9th Cir. 2000) (tight

handcuffing can constitute excessive force); Clash v. Beatty,

77 F.3d 1045, 1048 (7th Cir. 1996) (“[P]olice officers do not

have the right to shove, push, or otherwise assault innocent

citizens without any provocation whatsoever.”).

The County Defendants’ arguments to the contrary are not

persuasive. For instance, the County Defendants argue that

Craig was unable to ascertain the identity—and consequently

the risk profile—of one of Cameron’s roommates before

conducting the search. Thus, the County Defendants argue

that Craig and her colleagues took reasonable precautions to

protect themselves against an “unknown threat.” Perhaps, but

that determination is for a jury to make, not us. Our only task

is to determine whether the evidence presented “permits only

one reasonable conclusion”—that the County Defendants did

not use excessive force. Santos, 287 F.3d at 851. That is

simply not the case here.

CAMERON V . CRAIG 19

The County Defendants are not entitled to qualified

immunity at this juncture as the record does not permit us to

decide whether they violated clearly established law.

“[W]hether the officers may be said to have made a

‘reasonable mistake’ of fact or law may depend on the jury’s

resolution of disputed facts and the inferences it draws

therefrom.” Id. at 855 n.12. And apart from the question of

qualified immunity on the federal claims, Cameron is entitled

to jury trial on her claim for excessive force under California

Civil Code § 52.1, which permits civil actions for interference

with rights under the United States or California Constitutions

by threats, intimidation, or coercion. See Cousins v. Lockyer,

568 F.3d 1063, 1072 (9th Cir. 2009) (quoting Venegas v.

Cnty. of L.A., 63 Cal. Rptr. 3d 741, 751 (Ct. App. 2007))

(“California law is clear that ‘[t]he doctrine of qualified

governmental immunity is a federal doctrine that does not

extend to state tort claims against government employees.’”).

Cameron asserts no California right different from the rights

guaranteed under the Fourth Amendment, so the elements of

the excessive force claim under § 52.1 are the same as under

§ 1983. See Reynolds v. Cnty. of San Diego, 84 F.3d 1162,

1170 (9th Cir.1996), overruled on other grounds, Acri v.

Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997)

(“Section 52.1 does not provide any substantive protections;

instead, it enables individuals to sue for damages as a result

of constitutional violations.”).

IV. Conspiracy

Cameron also brings a conspiracy claim. “Conspiracy to

violate a citizen’s rights under the Fourth Amendment . . . is

evidently as much a violation of an established constitutional

right as the [underlying constitutional violation] itself.”

Baldwin, 418 F.3d at 971. Cameron alleged that Craig and

20 CAMERON V . CRAIG

Buether conspired to obtain an invalid search warrant.

Because we conclude the search warrant was valid, there can

be no claim for conspiracy on this ground. See Lacey v.

Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012) (en banc)

(recognizing that conspiracy “does not enlarge the nature of

the claims asserted by the plaintiff, as there must always be

an underlying constitutional violation”). But Cameron also

alleged that Craig and Buether conspired regarding the timing

and execution of the search. The summary judgment record

reflects further facts regarding Buether’s potential

involvement in Craig’s decisions regarding the manner of the

search. The district court addressed and rejected the

conspiracy claim only with regard to the allegation that Craig

omitted relevant information from her search warrant

affidavit. We conclude that Cameron is entitled to jury trial

on the claim for conspiracy to use excessive force.

Cameron claims that the search warrant was executed in

such a way as to intimidate her, and to secure an unfair

advantage for Buether in the couple’s custody proceedings.

Viewing the evidence in the light most favorable to Cameron,

and drawing all reasonable inferences therefrom, we conclude

that Cameron’s conspiracy claim should go to the jury. A

rational jury could conclude that Craig and Buether conspired

to abuse their power as law enforcement officers to deprive

Cameron of her constitutional rights based on the evidence in

the record that: Craig and Buether were friends and close

colleagues; Craig knew Buether and Cameron were engaged

in mediation over custody of their children; Craig

purposefully chose to “raid” Cameron’s home on a day when

she knew Cameron’s children would be present; the level of

force used by Craig and the other County Defendants was

clearly intimidating; and Buether sought to exploit the raid by

immediately calling the couple’s mediator after Cameron was

CAMERON V . CRAIG 21

arrested. Cameron is entitled to an opportunity to prove these

serious allegations at trial.

V. Municipal Liability

Finally, we address the County’s potential liability for the

complained of acts of excessive force. Under federal law, the

County cannot be held vicariously liable for its deputies’ acts

of excessive force. The County may be held liable only if it

“has adopted an illegal or unconstitutional policy or custom”

that resulted in the excessive force. Robinson, 278 F.3d at

1016 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

690–91 (1978)). Cameron has not identified any custom or

policy of the County that guided the deputies’ use of force in

the search and arrest. The County is therefore entitled to

summary judgment on the § 1983 claim.

The result is different with regards to Cameron’s state law

claim for excessive force under California Civil Code § 52.1.

Because California has rejected the Monell rule, see Cal.

Gov’t Code § 815.2, state law “imposes liability on counties

under the doctrine of respondeat superior for acts of county

employees; it grants immunity to counties only where the

public employee would also be immune.” Robinson,

278 F.3d at 1016. The defendants do not raise any state

statutory immunities. Thus, should Cameron prevail on her

excessive force claim, liability could extend to the County.

CONCLUSION

The district court properly granted summary judgment on

Cameron’s unlawful search and arrest claims. But disputed

issues of material fact preclude an award of summary

judgment on Cameron’s excessive force and conspiracy

22 CAMERON V . CRAIG

claims. We therefore remand those portions of Cameron’s

case to the district court for proceedings consistent with this

opinion.

We award the costs of this appeal to Cameron. Fed. R.

App. P. 39(a)(4).

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.