Stephen Hill v. City of Fountain Valley

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN DOUGLAS HILL; No. 21-55867

TERESA ANN HILL; BENJAMIN

HILL, as guardian ad litem for his D.C. No.

minor children C.H. and A.H.; BRETT 8:20-cv-00705-

MICHAEL HILL, DOC-DFM

Plaintiffs-Appellants,

v. OPINION

CITY OF FOUNTAIN VALLEY;

STUART R. CHASE; GANNON P.

KELLY; JAMES CATALINE,

Defendants-Appellees,

and

DOES, 1-10, inclusive,

Defendant.

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted October 3, 2022

Pasadena, California

Filed June 1, 2023

2 HILL V. CITY OF FOUNTAIN VALLEY

Before: A. Wallace Tashima and Kenneth K. Lee, Circuit

Judges, and Nancy D. Freudenthal, * District Judge.

Opinion by Judge Lee;

Partial Concurrence and Partial Dissent by Judge Tashima

SUMMARY **

Civil Rights

The panel affirmed the district court’s summary

judgment for police officers in an action brought pursuant to

42 U.S.C. § 1983 alleging violations of plaintiffs’ Fourth

Amendment rights against warrantless arrests and excessive

force.

Police responded to a 911 call that a Ford Mustang was

darting erratically in the streets. Behind the wheel was a

young white male, along with a blindfolded female in the

car. With the aid of the car’s license plate number provided

by the caller, police officers figured out the home address of

the driver. In reality, the driver, Benjamin Hill, was taking

his wife for a “surprise” anniversary dinner. When officers

arrived at the home that Benjamin shared with his parents

and before the mix-up could be cleared, the officers ordered

Benjamin’s parents, Stephen and Teresa, and brother, Brett,

*

The Honorable Nancy D. Freudenthal, United States District Judge for

the District of Wyoming, sitting by designation.

**

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

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

HILL V. CITY OF FOUNTAIN VALLEY 3

out of their home for obstructing the police and pushed

Stephen to the ground as they handcuffed him.

The panel rejected plaintiffs’ contention that the police

officers violated their Fourth Amendment rights against

unreasonable seizure when the officers ordered them to exit

the home or face arrest for obstruction. The officers never

seized Brett or Teresa, who did not submit to the officers’

demand to leave the home. They therefore could not claim

that they were unlawfully arrested. The panel next held that

while the officers did not have probable cause to arrest

Stephen for obstruction of justice, they were nevertheless

shielded by qualified immunity. The panel noted that

although it is well established under California law that even

outright refusal to cooperate with police officers cannot

create adequate grounds for police intrusion without more,

here there was no clearly established law that the officers

could not arrest Stephen, given his evasive behavior that

appeared to interfere with an urgent investigation into a

potential kidnapping.

The panel held that Stephen’s excessive force claim

failed because he suffered only a minor injury when pushed

to the grassy lawn during a tense encounter. Finally,

Stephen’s First Amendment retaliation claim did not pass

muster because he presented no evidence that the officers

arrested him because of his mild questioning of the officers.

Concurring in part and dissenting in part, Judge Tashima

agreed with the majority’s decision to affirm the dismissal

of the excessive force and First Amendment retaliation

claims. Judge Tashima would reverse the dismissal of

Stephen’s unlawful seizure claim because clearly

established precedent prohibited the officers from making

the warrantless arrest at Stephen’s home, when they did not

4 HILL V. CITY OF FOUNTAIN VALLEY

have probable cause, there were no exigent circumstances

and it was clearly established, among other things, that at the

time “even an outright refusal to cooperate with police

officers” did not justify a warrantless arrest for a violation of

California Penal Code § 148.

COUNSEL

Brenton W. Aitken Hands (argued) and Jerry L. Steering,

Law Offices of Jerry L. Steering, Newport Beach,

California, for Plaintiffs-Appellants.

Colin R. Burns (argued), Harper & Burns LLP, Orange,

California, for Defendants-Appellees.

HILL V. CITY OF FOUNTAIN VALLEY 5

OPINION

LEE, Circuit Judge:

At around nine o’clock in the evening, a concerned

citizen called 911 to report a Ford Mustang darting

erratically in the streets. Behind the wheel was a young

white male, along with a blindfolded female in the car. With

the aid of the car’s license plate number provided by the

caller, Fountain Valley police officers figured out the home

address of the driver and raced to that house.

But this was not an ongoing kidnapping. In reality, the

driver, Benjamin Hill, was taking his wife for a “surprise”

anniversary dinner. And his parents would soon experience

a surprise of their own, as the police officers descended upon

the home that they shared with their son. Before this mix-up

could be cleared, the police officers ordered the Hills out of

their home for obstructing the police and pushed the father

to the ground as they handcuffed him. The Hills later sued,

alleging (among other things) violations of their Fourth

Amendment rights against warrantless arrests and excessive

force.

We affirm the district court’s summary judgment for the

police officers. First, while the officers did not have

probable cause to arrest Benjamin Hill’s father for

obstruction of justice, they are shielded by qualified

immunity. There was no clearly established law that they

could not arrest him, given his evasive behavior that

appeared to interfere with an urgent investigation into a

potential kidnapping. Second, his excessive force claim fails

because he suffered only a minor injury when pushed to the

grassy lawn during a tense encounter. Finally, his First

Amendment retaliation claim does not pass muster because

6 HILL V. CITY OF FOUNTAIN VALLEY

he presented no evidence that the officers arrested him

because of his mild questioning of the officers.

BACKGROUND

I. The events of April 30, 2019.

On the night of April 30, 2019, a comedy of errors

cascaded into an ordeal for the Hill family. That night,

Benjamin decided to take his wife for a “surprise”

anniversary dinner. 1 As he drove her to the restaurant,

someone called 911 to report a “dark grey Ford Mustang”

being driven “erratically” by a black-haired white male

between the age of twenty-five and thirty. The caller also

ominously noted a blindfolded female passenger.

Based on the license plate number provided by the 911

caller, Fountain Valley police officers learned that the car

belonged to Benjamin and obtained his home address.

Officers Stuart Chase and Gannon Kelly then drove to

Benjamin’s home to “check the well-being” of the

passenger.

Shortly after the officers arrived at the residence,

Teresa—Benjamin’s mother—pulled into the driveway.

The officers asked her whether Benjamin lived there and

drove a grey Mustang. Teresa answered yes to both

questions and told them that Benjamin was not home. But

when the officers asked for Benjamin’s phone number, she

balked. She later admitted that she stopped cooperating with

the police because she wanted to warn her son about the

officers before they had a chance to call him.

1

Because this case involves several members of the Hill family, we will

refer to the individuals by their first name for clarity’s sake.

HILL V. CITY OF FOUNTAIN VALLEY 7

While the officers talked to Teresa, Stephen—

Benjamin’s father—exited the home to help bring their

grandchildren into the house. The officers told the couple

that they were investigating a report of erratic driving, once

again asking for Benjamin’s phone number. Then Teresa

went inside with one of her granddaughters and tried to reach

Benjamin.

Skeptical that the officers were only investigating erratic

driving, Stephen demanded that the officers tell him “what

was really going on.” The officers told him that they wanted

to talk to Benjamin, citing the report of a blindfolded female

passenger in his car. Stephen responded that Benjamin was

out with his wife and offered to pass along the officers’

business cards. The officers told Stephen to take his other

granddaughter inside and to return with Benjamin’s phone

number.

While waiting outside, the officers noticed someone

moving inside the house by the bedroom window. Officer

Chase then walked across the lawn to investigate further and

saw a young male who matched Benjamin’s description.

Believing this person to be Benjamin, Officer Chase told him

to exit the house. But the young male walked into a hallway,

out of sight. Then Stephen entered the bedroom. Officer

Chase asked Stephen, “Who’s the other person here?” Not

hearing the question, Stephen closed the curtains, hoping to

keep the officers’ flashlights from disturbing his

granddaughter.

The officers would later learn that the young man inside

the house was not Benjamin but his brother, Brett. But at the

time, the officers suspected that Benjamin’s parents were

hiding him from law enforcement. Through a window on

the front door, the officers saw Teresa, Stephen, and an

8 HILL V. CITY OF FOUNTAIN VALLEY

unidentified male they suspected to be Benjamin. The

officers checked to see if the door was locked. At this point,

they told the unidentified male to exit the house. The

officers then threatened to arrest all of them for obstruction

if they did not leave the house, according to the Hills. The

officers, however, dispute that they threatened to arrest

Teresa.

Stephen stepped outside while Brett and Teresa

remained inside. Stephen closed the door behind him and

told the officers they could not come in. The parties dispute

what happened next: Officer Kelly claims that he placed his

foot in the doorjamb and Stephen closed the door on his foot;

Stephen, on the other hand, claims that he never closed the

door on Officer Kelly’s foot. In any event, the officers

immediately grabbed Stephen, led him to the front lawn, and

brought him to the ground. While being brought to the

grassy ground, Stephen’s glasses cut him on the forehead.

He also alleged neck and back injuries because Officer Kelly

held Stephen down by kneeling on him. Several seconds

after the officers led Stephen away from the front door, Brett

and Teresa left the house to check on Stephen.

II. The Hills’ lawsuit against Fountain Valley police

officers.

The Hills sued the officers under 42 U.S.C. § 1983 for

excessive force on behalf of Stephen, unreasonable seizure

on behalf of all the Hills (including the two grandchildren),

and First Amendment retaliation on behalf of Stephen. The

Hills also brought state-law claims for battery, assault, and a

violation of Cal. Civ. Code § 52.1 on behalf of Stephen,

along with state-law claims for false arrest and intentional

and negligent infliction of emotional distress on behalf of all

the Hills.

HILL V. CITY OF FOUNTAIN VALLEY 9

The officers moved for summary judgment. The district

court remanded the state law false arrest claim to state court

and granted summary judgment to the officers on all the

other claims.

The district court rejected Stephen’s Fourth Amendment

excessive force claim, concluding that the government’s

interest in using force outweighed the slight intrusion into

Stephen’s Fourth Amendment interests. This result also

meant that the battery, assault, and § 52.1 claims could not

survive summary judgment.

Next, the district court considered the Hills’ Fourth

Amendment unreasonable seizure claims. The district court

found that Stephen and Brett were the only ones seized.

Because they were seized in the home and without a warrant,

the police officers needed exigent circumstances and

probable cause to arrest them. The district court found that

the officers faced exigent circumstances and that they had

probable cause for Brett’s arrest. Although the district court

found no probable cause for Stephen’s arrest, it held that

qualified immunity applied. The district court remanded the

false arrest claim (which is coextensive with an unreasonable

seizure claim) because federal qualified immunity does not

apply to that state-law claim.

The district court also granted summary judgment on the

First Amendment retaliation claim because Stephen could

not show that retaliatory animus was the but-for cause of his

arrest. Finally, it granted summary judgment on the

intentional and negligent infliction of emotional distress

claims, ruling that the Hills did not suffer severe emotional

distress.

The Hills timely filed this appeal.

10 HILL V. CITY OF FOUNTAIN VALLEY

STANDARD OF REVIEW

We review de novo a district court's grant of summary

judgment. Weiner v. San Diego Cnty., 210 F.3d 1025, 1028

(9th Cir. 2000). Summary judgment is appropriate if,

viewing the evidence in the light most favorable to the non-

moving party, there are no genuine issues of material fact.

Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir.

1995).

DISCUSSION

I. The Hills fail to establish liability for their Fourth

Amendment unreasonable seizure claims.

Brett, Teresa, and Stephen maintain that the police

officers violated their Fourth Amendment right against

unreasonable seizure when the officers ordered them to exit

the home or face arrest for obstruction. See Gallegos v. City

of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002); United

States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1990). We

disagree. The officers never seized Brett or Teresa, so they

cannot claim that they were unlawfully arrested. And while

the officers likely lacked probable cause to arrest Stephen,

they are shielded by qualified immunity.2

A. The officers did not seize Brett or Teresa.

Before assessing whether an unlawful arrest occurred,

we must determine who—if anyone—the officers seized. A

seizure occurs when there is “either physical force . . . or,

2

The district court reasoned that the officers did not seize Teresa because

their order to exit the house was not directed at her. The district court

also held that Brett was seized but that the officers did not violate the

Fourth Amendment when they arrested him. As explained, we rely on

different grounds to find no Fourth Amendment violation.

HILL V. CITY OF FOUNTAIN VALLEY 11

where that is absent, submission to the assertion of

authority.” California v. Hodari D., 499 U.S. 621, 626

(1991) (alteration in original). Put another way, if a plaintiff

did not comply with an officer’s orders, then the officer did

not seize the plaintiff. Id. at 629. Indeed, the officer’s show

of authority must cause the plaintiff’s submission. See id. at

628 (citing Brower v. Inyo Cnty., 489 U.S. 593, 596 (1989)).

We hold that the officers did not seize Brett and Teresa

because they did not submit to the officers’ show of

authority. 3 Under the threat of arrest, the officers demanded

that “you guys” come out of the house. Stephen complied

and exited the home. See Hodari D., 499 U.S. at 626. In

contrast, Brett and Teresa stayed inside and locked the door

behind Stephen. It was not until after the officers restrained

Stephen and began leading him to the lawn that Brett and

Teresa left the home. In short, they did not submit to the

officers’ demand to leave the home and left the house only

in response to Stephen’s arrest. We thus conclude that Brett

and Teresa were not seized and they cannot pursue their

Fourth Amendment claims.

B. Assuming the officers seized Stephen, their

actions are protected by qualified immunity.

Turning to Stephen, we hold that the qualified immunity

applies to the officers’ alleged warrantless in-home arrest. 4

3

The Hills also argue that the two grandchildren were seized. But there

is no evidence that the grandchildren were ordered out of the home or

that they submitted to any show of authority.

4

The parties dispute whether the police officers arrested or merely

detained Stephen. We need not address this question because, even

assuming Stephen was arrested, the officers are not liable because of

qualified immunity.

12 HILL V. CITY OF FOUNTAIN VALLEY

Law enforcement can make a warrantless in-home arrest if

the officers faced exigent circumstances and had probable

cause supporting the arrest. Payton v. New York, 445 U.S.

573, 589–90 (1980). We hold that the officers likely did not

have probable cause to arrest Stephen for obstruction, even

if there were exigent circumstances. But qualified immunity

still shields the officers from liability because there was no

clearly established law at the time forbidding their actions.

A lawful arrest requires officers to have probable cause.

Probable cause exists where the “available facts suggest a

fair probability that the suspect has committed a crime.”

Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090,

1094 (9th Cir. 2006). When assessing probable cause, courts

must consider the totality of the circumstances known to the

officers at the time.

To start, we note that the officers waived the argument

that they had probable cause to arrest Stephen for kidnapping

or aiding and abetting a kidnapping. In re Mercury Int.

Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“We

apply a ‘general rule’ against entertaining arguments on

appeal that were not presented or developed before the

district court.” (quoting Peterson v. Highland Music, Inc.,

140 F.3d 1313, 1321 (9th Cir.1998))). Thus, the question is

whether the officers had probable cause to arrest him for

obstruction of justice under California state law. We hold

that they likely did not.

“[I]t is well established under California law that even an

outright refusal to cooperate with police officers cannot

create adequate grounds for police intrusion without more.”

Velazquez v. City of Long Beach, 793 F.3d 1010, 1023 (9th

Cir. 2015). Here, a jury could have reasonably found that

Stephen’s actions did not amount to an obstruction of justice.

HILL V. CITY OF FOUNTAIN VALLEY 13

California courts have held that passively blocking a door or

refusing to open a door after a proper police demand are

examples of permissible refusals to cooperate with police.

People v. Wetzel, 520 P.2d 416, 419 (Cal. 1974); People v.

Cressey, 471 P.2d 19, 23 n.6 (Cal. 1970). Because Stephen’s

actions resemble other lawful refusals to cooperate, the

officers likely did not have probable cause to arrest him for

obstruction of justice.

But that does not end our inquiry. Even if there is a

violation, qualified immunity “shields government actors

from civil liability . . . if ‘their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Castro v. County

of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (quoting

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

held that qualified immunity applies when it was objectively

reasonable for an officer to believe he or she had probable

cause to make the arrest. Rosenbaum v. Washoe Cnty., 663

F.3d 1071, 1076 (9th Cir. 2011). “Framing the

reasonableness question somewhat differently, the question

in determining whether qualified immunity applies is

whether all reasonable officers would agree that there was

no probable cause in this instance.” Id. at 1078 (citing

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

Here, qualified immunity applies because not all

reasonable police officers would believe that they lacked

probable cause to make the arrest, especially given the

urgency and unique facts here. True, this circuit has held

that a suspect’s refusal to cooperate—without more—can

undermine qualified immunity for officers who seized the

suspect. See, e.g., Mackinney v. Nielsen, 69 F.3d 1002, 1006

(9th Cir. 1995) (denying qualified immunity where the

alleged obstruction was underlining the last part of a chalk

14 HILL V. CITY OF FOUNTAIN VALLEY

message before complying with a police order to stop). But

those cases considered situations in which it was clear the

plaintiff’s action was not an obstruction, id., the refusal was

only verbal, Duran v. City of Douglas, 904 F.2d 1372, 1378

(9th Cir.1990), or the plaintiff was obstructing an unlawful

police act, Johnson v. Bay Area Rapid Transit, 724 F.3d

1159, 1178 (9th Cir. 2013). None of those facts apply here.

Our case presents a uniquely different situation. To

begin, we must acknowledge that the specter of an ongoing

kidnapping likely colored the officers’ belief of whether an

obstruction of justice occurred. The officers already had

probable cause to arrest Brett because he matched the

description of a suspect who appeared to have been engaging

in a crime. 5 See United States v. Brooks, 610 F.3d 1186 (9th

Cir. 2010) (probable cause when the plaintiff matched a

victim’s description of the perpetrator’s features, drove a

similar vehicle to the perpetrator, and was found at the

location where the perpetrator operated). And the officers

faced an exigent circumstance in investigating a potentially

kidnapped woman who may be hidden in the Hills’ home.

See United States v. Brooks, 367 F.3d 1128, 1133, n.5 (9th

5

The dissent lasers in on each piece of fact to argue that it alone cannot

establish probable cause. But we cannot view each fact in isolation, and

instead must analyze all the facts under a totality of the circumstances,

which means we must consider the “whole picture” that develops from

the combined effect of all the available facts. See District of Columbia

v. Wesby, 138 S. Ct. 577, 588 (2018) (citing United States v. Cortez, 449

U.S. 411, 417 (1981)). Every fact leading up to the arrest should serve

as a factor in the totality of the circumstances, recognizing that the whole

is often greater than the sum of the parts and that even seemingly

innocent facts can suggest a crime is afoot. Wesby, 138 S. Ct. at 588.

And here, the police had multiple and specific pieces of evidence for

probable cause (e.g., a 911 call identifying the license plate and

description of a driver with a blindfolded woman in the passenger seat).

HILL V. CITY OF FOUNTAIN VALLEY 15

Cir. 2004). The officers thus may have believed that

ordering the Hills outside would ensure the safety of a

potential kidnapping victim. See People v. Panah, 107 P.3d

790, 836–37 (Cal. 2005); see also Ryburn v. Huff, 565 U.S.

469, 474 (2012) (permitting entry into a home without

probable cause when there was concern about an armed

student and the police faced evasive behavior upon arriving

at the home).

Further, Stephen’s closing the curtains as Officer Chase

asked a question about an unidentified young male’s identity

could have suggested obstruction into an investigation of a

possible kidnapping. Even worse, shutting window curtains

can sometimes suggest that occupants are preparing “to do

battle.” United States v. Salvador, 740 F.2d 752, 758 (9th

Cir. 1984).

Given these unique facts and the urgency to act, we do

not believe that “all reasonable officers would agree that

there was no probable cause in this instance.” Rosenbaum,

663 F.3d at 1076. We generally want law enforcement to be

proactive and persistent in investigating a potential ongoing

kidnapping. Of course, it turned out that the police officers

here were mistaken. But we are wary of second-guessing the

split-second “judgments made by law enforcement officers

in the heat of their battle against crime” from the certainty

and comfort of our chambers. United States v. Valencia-

Amezcua, 278 F.3d 901, 906 (9th Cir. 2002); see also Hill v.

California, 401 U.S. 797, 804–05 (1971) (finding that

officers acted reasonably based on the totality of the

circumstances, including a good-faith, but ultimately

mistaken, belief that they were arresting the correct suspect).

In short, qualified immunity applies because the Hills have

not offered any factually analogous case “clearly

16 HILL V. CITY OF FOUNTAIN VALLEY

establishing” that the officers’ actions were unlawful under

these circumstances. 6 Castro, 833 F.3d at 1066.

II. The officers did not use excessive force to violate

Stephen’s Fourth Amendment right.

We review Stephen’s excessive force claim under the

Fourth Amendment’s objective reasonableness standard.

Graham v. Connor, 490 U.S. 386, 388 (1989). This

“requires a careful balancing of ‘the nature and quality of the

intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.’”

Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8

(1985)). The Supreme Court has provided an inexhaustive

list of government interests that might justify an officer’s use

of force, including “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety

of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. (citing

Garner, 471 U.S. at 8–9). We also recognize that “police

officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly

6

The dissent minimizes the unique nature of this case by saying that it is

clearly established precedent that a warrantless in-home arrest is illegal

when there is not probable cause and exigent circumstances. But the

Supreme Court has cautioned us, especially in the Fourth Amendment

context, from reciting a general rule and using it to deny qualified

immunity. City of Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019).

Rather, “clearly established law” usually means there is a case “where

an officer acting under similar circumstances was held to have violated

the Fourth Amendment.” Id. at 504 (quoting District of Columbia v.

Wesby, 138 S. Ct. 577, 581 (2018)). Stephen failed to cite such a case

and instead tried to distinguish cases that, in fact, support the officer’s

efforts to investigate a potential kidnapping. That cannot by itself deny

qualified immunity.

HILL V. CITY OF FOUNTAIN VALLEY 17

evolving—about the amount of force that is necessary in a

particular situation.” Id. at 396–97.

Jackson v. City of Bremerton, 268 F.3d 646 (9th Cir.

2001), highlights our fairly deferential review of law

enforcement’s use of force. In Jackson, this court held that

police officers did not use excessive force during an arrest

for obstruction involving a misdemeanor crime. Id. at 653.

The officers pepper sprayed the plaintiff, tackled her,

handcuffed her, and intentionally placed her in a hot patrol

car. Id. at 652. But the court held that these actions were

reasonable, given the government’s interest of safeguarding

the officers during a tense situation in which they were

outnumbered. Id. at 653.

Stephen experienced only an inadvertent cut on his head

from the take-down on the grassy lawn. These injuries are

minimal compared to being tackled, pepper sprayed, and

intentionally being held in a hot patrol car. See id. at 652.

Further, Stephen’s noncompliance occurred during an

investigation into a potential kidnapping, a more severe

offense than the misdemeanor in Jackson. See Graham, 490

U.S. at 396. Admittedly, while the situation at the Hills’

home was tense and escalating, it was not as dangerous as

that in Jackson. See Jackson, 268 F.3d at 653. Still, the

balance of interests favors the government. We thus

conclude that the officers did not violate Stephen’s Fourth

Amendment right against excessive force.

III. The officers did not violate Stephen’s First

Amendment right by retaliating against him.

A plaintiff can bring a First Amendment claim against

government officials who retaliate for engaging in protected

speech. Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)

(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). “To

18 HILL V. CITY OF FOUNTAIN VALLEY

prevail on such a claim, a plaintiff must establish a ‘causal

connection’ between the government defendant’s

‘retaliatory animus’ and the plaintiff’s ‘subsequent injury.’”

Id. (quoting Hartman, 547 U.S. at 259). Retaliatory animus

must be the “but-for” cause of the plaintiff’s injury. Put

differently, a plaintiff must show that the arrest would not

have happened without the retaliatory animus. Id. (citing

Hartman, 547 U.S. at 260).

The Supreme Court has held that retaliatory arrest cases

generally “present a tenuous connection between the

defendant’s alleged animus and the plaintiff’s injury.”

Reichle v. Howards, 566 U.S. 658, 668 (2018). The reason

is that an officer may bear animus toward a plaintiff’s

protected speech, but that same speech is often a legitimate

consideration for officers when deciding to make an arrest.

See Nieves, 139 S. Ct. at 1723–24 (citing Reichle, 566 U.S.

at 668). Given this reality, the Court in Nieves held that the

existence of probable cause defeats a retaliatory arrest claim.

Id. at 1725 (citing Hartman, 547 U.S. at 260). If, however,

the plaintiff establishes the lack of probable cause (like in

our case), “then the Mt. Healthy test governs: The plaintiff

must show that the retaliation was a substantial or motivating

factor behind the [arrest], and, if that showing is made, the

defendant can prevail only by showing that the [arrest]

would have been initiated without respect to retaliation.” Id.

(alterations in original) (quoting Lozman v. City of Riviera

Beach, 138 S. Ct. 1945, 1952–53 (2018)).

Stephen cannot overcome the Mt. Healthy requirement

because he cannot show that retaliatory animus was a

substantial factor behind his arrest. He maintains that asking

the officers “what was really going on” and saying that he

wanted to make sure “everything’s on the up and up” had

“perturbed the officers.” But he has offered no evidence to

HILL V. CITY OF FOUNTAIN VALLEY 19

show that the officers were in fact perturbed. Indeed, it

seems dubious that the officers would be upset because of

benign statements such as “what was really going on”; law

enforcement officers are routinely subjected to much more

vitriolic rhetoric. See Nieves, 139 S. Ct. at 1735 (Ginsburg,

J., concurring) (arguing that the plaintiff’s claims should

have been dismissed under Mt. Healthy because the only

evidence of retaliation was an officer saying, “Bet you wish

you would have talked to me now”). And even if the officers

were “perturbed,” no evidence suggests that they would not

have arrested him absent those statements. The record

suggests the officers arrested Stephen because they believed,

though mistakenly, that he was hiding a suspect in a potential

kidnapping case. Id.

IV. The district court did not err when it remanded

or dismissed the Hills’ state-law claims.

The district court did not err in dismissing Stephen’s

state-law claims for assault, battery, and a § 52.1 violation.

All these claims have similar requirements as an excessive

force claim. See, e.g., Cornell v. City & Cnty.. Of San

Francisco, 225 Cal. Rptr. 3d 356, 382 (Ct. App. 2017);

Koussaya v. City of Stockton, 268 Cal. Rptr. 3d 741, 760–61

(Ct. App. 2020). And because his excessive force claim

lacks merit, these state-law claims must fall by the wayside

as well.

The district court also did not err in dismissing the Hill’s

claims for intentional and negligent infliction of emotional

distress, which require “severe emotional distress.” Myung

Chang v. Lederman, 90 Cal. Rptr. 3d 758, 774 (Ct. App.

2009). The district court held that the Hills did not meet the

high bar of “emotional distress of such a substantial quality

or enduring quality that no reasonable person in civilized

20 HILL V. CITY OF FOUNTAIN VALLEY

society should be expected to endure it.” Hughes v. Pair,

209 P.3d 963, 976–77 (Cal. 2009) (holding that discomfort,

worry, anxiety, upset stomach, concern, and agitation did not

establish severe emotional distress).

Finally, the district court did not abuse its discretion in

declining to exercise supplemental jurisdiction over the false

arrest claim, which has similar requirements to an

unreasonable seizure claim. See Acri v. Varian Assocs., 114

F.3d 999, 1000 (9th Cir. 1997). As noted, we reject

Stephen’s Fourth Amendment unreasonable seizure claim

on qualified immunity grounds, but California has not

conferred a similar immunity for a false arrest claim. So

while Stephen may be able to pursue that claim, he must do

so in state court, as the district court did not abuse its

discretion in concluding that exercising supplemental

jurisdiction would not promote judicial economy,

convenience, fairness, and comity here. Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

CONCLUSION

The Hills are understandably aggrieved by what

happened to them. But the law protects good-faith mistakes

by the Fountain Valley police officers investigating a

potential kidnapping.

AFFIRMED.

HILL V. CITY OF FOUNTAIN VALLEY 21

TASHIMA, Circuit Judge, concurring in part and dissenting

in part:

I agree with the majority’s decision to affirm the

dismissal of the excessive force and First Amendment

retaliation claims. However, I would reverse the dismissal

of Stephen’s unlawful seizure claim because our clearly

established precedent prohibited the officers from making

the warrantless arrest at Stephen’s home, when they did not

have probable cause and there were no exigent

circumstances. Because this law was clearly established at

the time of the events here, the officers are not entitled to

qualified immunity. The majority elides the strict

requirements of the Fourth Amendment to protect the

sanctity of the home, ignoring the basic requirements of a

warrant and probable cause and relying on cases whose facts

present circumstances so different from those faced by the

officers here that they offer no support for the majority’s

grant of qualified immunity in the circumstances here. I

therefore respectfully dissent from that part of the majority

opinion.

This case is about a follow-up investigation of a citizen’s

report of seeing an erratically driven car on the freeway with

a blindfolded female in the front passenger seat. There was

no missing person report and no report that the woman

appeared to be in distress – nothing more than this reported

speculative observation. Thus, the purpose of the follow-up

investigation was to determine whether probable cause

existed that the crime of kidnapping was being committed.

Admittedly, during the officers’ investigation, there was no

probable cause to believe that the crime of kidnapping had

been or was being committed.

22 HILL V. CITY OF FOUNTAIN VALLEY

Even though the majority concludes that there was no

probable cause to arrest Stephen, the opinion concludes that

the officers are entitled to qualified immunity because the

“urgency and unique facts here” meant that the officers

reasonably believed they had probable cause to arrest

Stephen for interfering with their investigation under

California Penal Code § 148. However, it was clearly

established at the time of the events here that “even an

outright refusal to cooperate with police officers” does not

justify a warrantless arrest for a violation of § 148.

Mackinney v. Nielsen, 69 F.3d 1002, 1006 (9th Cir. 1995)

(quoting People v. Bower, 597 P.2d 115, 122 (Cal. 1979)).

It also was clearly established that, “in seeking to establish

probable cause, ‘officers may not solely rely on the claim of

a citizen witness . . . , but must independently investigate the

basis of the witness’ knowledge or interview other

witnesses.’” United States v. Struckman, 603 F.3d 731, 742

(9th Cir. 2010) (quoting Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 925 (9th Cir. 2001)). Moreover, the

record is devoid of any facts that would establish urgency or

exigent circumstances, as required by our precedent. Thus,

no reasonable officer could have believed they had probable

cause for the warrantless arrest of Stephen.

“It is axiomatic that the ‘physical entry of the home is the

chief evil against which the wording of the Fourth

Amendment is directed.” Welsh v. Wisconsin, 466 U.S. 740,

748 (1984) (quoting United States v. U.S. Dist. Ct., 407 U.S.

297, 313 (1972)). It is, therefore, “a ‘basic principle of

Fourth Amendment law[,]’ that searches and seizures inside

a home without a warrant are presumptively unreasonable.”

Id. at 749 (quoting Payton v. New York, 445 U.S. 573, 586

(1980)). Stephen’s arrest accordingly was presumptively

HILL V. CITY OF FOUNTAIN VALLEY 23

unreasonable, and the government bears the burden of

overcoming the presumption. Id. at 750.

“To make a lawful entry into a home in the absence of a

warrant, officers must have either probable cause and

exigent circumstances or an emergency sufficient to justify

the entry. These exceptions to the warrant requirement are

‘narrow and their boundaries are rigorously guarded.’”

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154,

1161 (9th Cir. 2014) (quoting Hopkins v. Bonvicino, 573

F.3d 752, 763 (9th Cir. 2009)). Both exceptions require the

police to “show that a warrant could not have been obtained

in time.” Id. (quoting Struckman, 603 F.3d at 738). Probable

cause “exists when officers have knowledge or reasonably

trustworthy information sufficient to lead a person of

reasonable caution to believe that an offense has been or is

being committed by the person being arrested.” Sialoi v.

City of San Diego, 823 F.3d 1223, 1232 (9th Cir. 2016)

(quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th

Cir. 2007)).

The majority’s conclusion that the officers are entitled to

qualified immunity fails on five independent grounds. First,

the majority concedes that there was no probable cause to

arrest Stephen, and probable cause is a requirement for a

warrantless entry into a home. Sandoval, 756 F.3d at 1161.

Second, the City has not met its “heavy burden” of showing

specific, articulable facts justifying exigent circumstances.

Struckman, 603 F.3d at 744; United States v. Reid, 226 F.3d

1020, 1028 (9th Cir. 2000). Nor has the City shown that a

warrant could not have been obtained in time. Sandoval, 756

F.3d at 1161. Moreover, in concluding that the officers are

entitled to qualified immunity, the majority turns our

summary judgment standard on its head, construing the facts

and drawing all inferences in favor of the officers. Finally,

24 HILL V. CITY OF FOUNTAIN VALLEY

our clearly established law prohibited the officers from

making a warrantless arrest in the circumstances here –

inside a home where there was no reasonably trustworthy

information establishing probable cause that a crime was

being committed nor any specific, articulable facts

establishing exigent circumstances. Sialoi, 823 F.3d at

1232; see Sandoval, 756 F.3d at 1161 (“Because it is ‘clearly

established Federal law that the warrantless search of a

dwelling must be supported by probable cause and the

existence of exigent circumstances’ or emergency, the

officers are not entitled to qualified immunity unless their

entry was justified by one of the two exceptions.” (quoting

Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001))).

I. Probable Cause

The City waived the argument that the officers had

probable cause to arrest Stephen for kidnapping or aiding

and abetting a kidnapping. The City thus argues that there

was probable cause to arrest Brett because he resembled the

description of Benjamin and that Stephen interfered in their

attempt to arrest Brett, resulting in probable cause to arrest

Stephen for obstructing an investigation in violation of

California Penal Code § 148. The majority concludes that

the officers “likely did not” have not probable cause to arrest

Stephen. Nonetheless, the majority concludes that the

officers are entitled to qualified immunity because “not all

reasonable police officers would believe that they lacked

probable cause to make the arrest” under § 148. This

conclusion is not supported by the record nor by our

precedent.

The majority reasons that “[t]he officers already had

probable cause to arrest Brett because he matched the

description of a suspect who appeared to have been engaging

HILL V. CITY OF FOUNTAIN VALLEY 25

in a crime.” The majority relies on Officer Chase’s report

that he saw Brett, who purportedly matched Benjamin’s

description, through the bedroom window, to find probable

cause. 1 This conclusion is problematic for several reasons.

First, there were no facts or circumstances to support the

conclusion that Benjamin “appeared to have been engaging

in a crime.” Probable cause requires “knowledge or

reasonably trustworthy information,” Sialoi, 823 F.3d at

1232, and an unconfirmed report that someone was driving

a car with a blindfolded passenger does not establish

probable cause that an offense was being committed. Our

precedent makes clear that such a vague, speculative

observation, without more, does not establish probable cause

for a warrantless arrest, especially inside a home. Because

there was no probable cause to arrest Benjamin, there was

no probable cause to arrest Brett and certainly none to arrest

Stephen.

Second, on summary judgment, the facts are construed

and all reasonable inferences are drawn in the non-moving

party’s favor. Mattos v. Agarano, 661 F.3d 433, 439 (9th

Cir. 2011) (en banc). The plaintiffs disputed whether Officer

Chase was able to see Brett sufficiently to know he

resembled the description of Benjamin, citing evidence that

the window was blocked by trees, Brett did not enter the

bedroom but merely passed by in the hallway, and Officer

Chase stated, “See if that’s a third person,” which indicated

that he could not see Brett sufficiently to conclude that he

resembled Benjamin. Thus, construing, as we must, the facts

in the plaintiffs’ favor, Officer Chase could not have seen

1

The district court relied on this report to support its finding of exigent

circumstances.

26 HILL V. CITY OF FOUNTAIN VALLEY

Brett sufficiently to know that he resembled Benjamin,

especially because his statement indicated that he was not

even sure if he saw a third person.

The majority relies on United States v. Brooks, 610 F.3d

1186 (9th Cir. 2010), to support its conclusion that the

officers had probable cause to arrest Brett, but in Brooks, the

officers observed a minor engaged in prostitution and

received specific descriptions of the suspects and their car

from the victims of child sex trafficking. The officers knew

that the suspects and their vehicle matched the descriptions

given by the victims. Thus, there was “substantial

correspondence between the officers’ observations at the

time of the arrest and the details that [the victim] had

provided to the police concerning the crime, the individuals

involved, their vehicle, and the location where the

perpetrators operated.” Id. at 1193. Unlike here, the officers

had both first-hand knowledge and “reasonably trustworthy

information sufficient to lead a person of reasonable caution

to believe that an offense” was committed by the arrestees.

Sialoi, 823 F.3d at 1232.

By contrast, the officers here received an unconfirmed

report of a person driving a car with a blindfolded woman in

the passenger seat, which is not a crime. There were no facts

or circumstances indicating that an offense was being

committed. Coupled with the fact that it is disputed whether

the officers even saw Brett, through a window blocked by

trees, it is clear that there was no reasonably trustworthy

information establishing probable cause to arrest Brett.

Thus, the record (and the case law) does not support the

majority’s statement that “[t]he officers . . . had probable

cause to arrest Brett because he matched the description of a

suspect who appeared to have been engaging in a crime.”

HILL V. CITY OF FOUNTAIN VALLEY 27

Our precedent establishes that an unconfirmed, vague

report that someone riding in the passenger seat of a car was

blindfolded is insufficient to establish probable cause. For

example, a neighbor’s “very general” report that a man threw

a backpack over a fence and climbed over the fence into the

backyard while the owners were not home did not establish

probable cause for arrest, even though the police confirmed

that a person who fit the description was in the backyard.

Struckman, 603 F.3d at 741–42.

Similarly, we found no probable cause for a warrantless

search in Hopkins, where a witness reported that “she had

been involved in an extremely minor car accident with” the

suspect, “that she smelled alcohol on his breath, and that he

appeared intoxicated.” Hopkins, 573 F.3d at 767. We

concluded that “these statements from a witness, without

further investigation by the police, are insufficient to support

probable cause,” reasoning that the officers did not, for

example, check to see if the car’s hood was still warm, to

corroborate the statement that the car had recently been

driven, nor did they inspect the vehicle for any evidence of

reckless driving or of alcohol consumption, such as open

containers or an alcoholic odor.” Id. “They did not ask [the

witness] any questions in order to gain information beyond

her cursory and conclusory statements . . . . In short, the

officers obtained no information whatsoever beyond [her]

brief statement.” Id.

In contravention of our court’s precedent, the officers

here relied solely “on the claim of a citizen witness” – a brief,

unverified report of a woman riding in a car blindfolded,

which – unlike burglary, the purported offense in Struckman,

and driving under the influence, the purported offense in

28 HILL V. CITY OF FOUNTAIN VALLEY

Hopkins – is not a crime. 2 Struckman, 603 F.3d at 742. Had

the officers investigated further, perhaps they would have

learned about Benjamin’s surprise anniversary dinner for his

wife. The vague, unverified report is not close to

constituting “knowledge or reasonably trustworthy

information” to establish probable cause. Sialoi, 823 F.3d at

1232; see Hopkins, 573 F.3d at 767 (“[S]tatements from a

witness, without further investigation by the police, are

insufficient to support probable cause.”). Even construing

the facts in the officers’ favor, which is erroneous, and

assuming they did see that Brett matched Benjamin’s

description, the circumstances faced by the officers fell far

short of even those in which we have found no probable

cause. There was no report of a missing person, nor did the

unverified report state that the blindfolded woman was in

any distress. In short, there was nothing but an unverified

claim of a citizen witness, which we have held may not be

relied upon to establish probable cause. 3 Struckman, 603

F.3d at 742.

2

Even if this unverified report were reasonably trustworthy, the officers

knew that Stephen was not the person involved in the report. There was

therefore no probable cause to arrest Stephen.

3

Contrary to the majority’s suggestion, I do not “laser[] in on each piece

of fact to argue that it alone cannot establish probable cause.” The

majority forgets that the government bears a heavy burden in justifying

a warrantless arrest in a home and that probable cause requires either

knowledge or reasonably trustworthy information that an offense is

being committed. The majority can point to no evidence of either. This

is not a difficult case with unusual facts. Examining the totality of the

circumstances and construing the facts in the plaintiffs’ favor, this is the

information the officers had. First, they received an unverified, vague

report of a blindfolded woman passenger in a car, which under our

precedent is insufficient to establish probable cause for arrest. There was

no outstanding missing person report. When the officers arrived at

HILL V. CITY OF FOUNTAIN VALLEY 29

The complete lack of either knowledge or reasonably

trustworthy information sufficient to lead a reasonably

cautious person to believe that Brett was committing the

offense of kidnapping means that there was no probable

cause to arrest Brett. Because there was no probable cause

to arrest Brett, there certainly was no probable cause to arrest

Stephen for violating § 148. See Velazquez v. City of Long

Beach, 793 F.3d 1010, 1018–19 (9th Cir. 2015) (explaining

that a defendant cannot be convicted under § 148 for

resisting or obstructing a police officer if the officer

unlawfully arrests someone without probable cause); see

also Johnson v. Bay Area Rapid Transit Dist., 724 F.3d

1159, 1178 (9th Cir. 2013) (“A suspect cannot be arrested

for violating § 148 because he evaded an officer’s attempt to

arrest him unlawfully.”).

II. Exigent Circumstances

Not only was there no probable cause, but the

circumstances here fall far short of establishing exigent

circumstances. “Before agents of the government may

invade the sanctity of the home, the burden is on the

government to demonstrate exigent circumstances that

overcome the presumption of unreasonableness that attaches

to all warrantless home entries.” Welsh, 466 U.S. at 750.

Benjamin’s home, his parents were reluctant to give them Benjamin’s

phone number until they confirmed that everything was “on the up and

up.” Stephen told the officers that his infant granddaughter was in his

truck, that he did not have Benjamin’s cell phone number on him, and

that he had left his own cell phone in the house. The officers told him to

take his granddaughter into the house. He did so and closed the curtains

in the bedroom. One officer thought he saw a third person in the house.

The “combined effect” of all these facts is not sufficient to establish

reasonably trustworthy information that an offense was being

committed.

30 HILL V. CITY OF FOUNTAIN VALLEY

“When the government’s interest is only to arrest for a minor

offense, that presumption of unreasonableness is difficult to

rebut, and the government usually should be allowed to

make such arrests only with a warrant issued upon probable

cause by a neutral and detached magistrate.” Id. (footnote

omitted).

“The exigent circumstances exception is premised on

‘few in number and carefully delineated’ circumstances, in

which ‘“the exigencies of the situation” make the needs of

law enforcement so compelling that the warrantless search is

objectively reasonable under the Fourth Amendment.’”

Struckman, 603 F.3d at 743 (first quoting U.S. Dist. Ct., 407

U.S. at 318; and then quoting Brigham City v. Stuart, 547

U.S. 398, 403 (2006)). Those circumstances are “(1) the

need to prevent physical harm to the officers or other

persons, (2) the need to prevent the imminent destruction of

relevant evidence, (3) the hot pursuit of a fleeing suspect;

and (4) the need to prevent the escape of a suspect.” Id.

“The government bears the burden of showing specific and

articulable facts to justify the finding of exigent

circumstances.” Id. (quoting United States v. Ojeda, 276

F.3d 486, 488 (9th Cir. 2002)). “[C]onjecture about ‘what

may or might have happened’ is insufficient to satisfy the

government’s ‘heavy burden’ of proving exigent

circumstances.” Id. at 744 (quoting United States v.

Howard, 828 F.2d 552, 555 (9th Cir. 1987)). The unverified

passing observation that a woman in a car appeared to be

blindfolded is even less trustworthy than the information in

our cases finding that there were no exigent circumstances.

The officers therefore were bound by the strict rules

governing the search of a home, its curtilage, and its

occupants, in the absence of a warrant.

HILL V. CITY OF FOUNTAIN VALLEY 31

In Struckman, the neighbor’s report of someone

climbing over the fence into a backyard was confirmed by

officers when they arrived and saw a person “exactly

matching the informant’s description – white man, black

jacket, red backpack” in the backyard. Sandoval, 756 F.3d

at 1162 (emphasis added). Yet, even with this confirmation,

we concluded that no exigent circumstances to justify the

warrantless arrest existed. Struckman, 603 F.3d at 746.

Struckman stated that there was no “hot pursuit,” nor any

evidence to support “the government’s suggestion that the

general public was in danger” because there was “no

evidence that anyone other than the officers and [the suspect]

was near the fully enclosed backyard.” Id. at 744. Nor did

the evidence that the suspect removed his jacket “support an

objectively reasonable basis for believing that the police

officers’ reaction – immediately drawing their firearms and

entering the enclosed backyard – was necessary to prevent

imminent physical harm to themselves.” Id. We rejected the

government’s reliance on the officer’s testimony that “once

[the suspect] shed his jacket, he believed that [the suspect]

intended to flee or fight the officers free of an

encumbrance,” stating that “an officer’s subjective

motivation for his actions is irrelevant in determining

whether his actions are reasonable under the Fourth

Amendment.” Id.

Similarly here, although the district court purported to

examine the officers’ conduct from the perspective of an

objectively reasonable officer, it relied on the officers’

subjective motivation when it concluded that the officers

believed that Stephen’s shutting the curtains meant the

occupants intended to “do battle.” The district court relied

on United States v. Salvador, 740 F.2d 752 (9th Cir. 1984),

but in Salvador, the officers had evidence that the occupants

32 HILL V. CITY OF FOUNTAIN VALLEY

of the home were armed and had just robbed a bank. The

majority repeats the error, relying on Salvador to speculate

that “shutting window curtains can sometimes suggest that

occupants are preparing ‘to do battle.’” This wild

speculation is unsupported by any evidence.

In Salvador, law enforcement was investigating the

armed robbery of a credit union a few hours after the robbery

occurred. An FBI agent tracked down the car used in the

robbery to the residence, knocked on the door, and

announced he was from the FBI. Someone asked who was

there, and the agent stated that he wanted to speak with the

occupants. He received no further response, so he knocked

again and announced he was from the FBI. When he “saw

the window curtains rapidly close and heard some

commotion from within the residence,” he “forced open the

front door, believing the occupants were getting ready to ‘do

battle.’” Id. at 756.

In Salvador, the FBI had confirmed evidence that the

occupants of the house were violent, armed, and had

committed a felony. There are no articulable facts here that

could possibly support the speculation that the occupants of

the home were preparing to “do battle.” The officers knew

that Stephen and Teresa had gone into the house in order to

take their grandchildren inside and get Benjamin’s phone

number.

Stephen’s act of closing the curtains does not indicate

that the warrantless arrest “was necessary to prevent

imminent physical harm” to the officers. Struckman, 603

F.3d at 744. The Hills were inside the house with their

grandchildren, and the officers were outside. There was no

evidence that the officers or the general public were in

danger. See United States v. Nora, 765 F.3d 1049, 1054–55

HILL V. CITY OF FOUNTAIN VALLEY 33

(9th Cir. 2014) (finding no immediate threat to the safety of

officers or others to support exigent circumstances even

though officers saw the suspect in possession of a handgun

before he went into his house, stating that the suspect “never

aimed the weapon at the officers or anyone else, and the

officers had no evidence that he had used or threatened to

use it” and had not “given any other indication that he was

in ‘an agitated and violent state’” (quoting United States v.

Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1985))). There was

no evidence here of a crime, a weapon, a violent threat, or

anything else that might signal danger to the officers or the

general public – merely a closed curtain.

At least in Struckman, the officers had confirmed the

neighbor’s report of someone climbing into the backyard.

Here, there were no facts at all to support the suspicion of a

possible kidnapping, merely “conjecture about ‘what may or

might have happened.’” Struckman, 603 F.3d at 744

(quoting Howard, 828 F.2d at 555).

The majority speculates that the officers “may have

believed that ordering the Hills outside would ensure the

safety of a potential kidnapping victim.” The majority relies

on People v. Panah, 107 P.3d 790 (Cal. 2005), in which the

officers knew that an eight-year-old girl had been missing

for five hours and that she had been seen talking to a man in

the defendant’s apartment when they conducted a

warrantless search of his apartment. Panah’s facts are so

different from those in this case that the opinion cannot

support a finding of exigent circumstances here.

In Panah, the facts supporting a finding of exigent

circumstances were that the girl “had been missing for

several hours,” “she had been seen talking to a male

occupant of defendant’s apartment, and a neighbor told [an

34 HILL V. CITY OF FOUNTAIN VALLEY

officer] a young male lived in defendant’s apartment.” Id. at

836. The California Supreme Court further noted that “the

fact that the person missing was a child . . . heightened the

exigency.” Id. at 837.

In Panah, there was a confirmed report of a child who

had been missing for numerous hours despite the police

search of the apartment complex, and there was evidence

that the defendant had been seen speaking to her. There were

therefore “specific and articulable facts” establishing

exigent circumstances to justify the warrantless search.

Struckman, 603 F.3d at 743. There were none here. Cf.

Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir.

1990) (finding no “legitimate, articulate reason” for a

detention where there was no warrant, “no evidence of a

danger to public safety,” and no evidence the arrestee “was

in possession of a controlled substance or had been or was

about to be engaged in criminal activity”).

The Supreme Court has explained that “[o]ur hesitation

in finding exigent circumstances, especially when

warrantless arrests in the home are at issue, is particularly

appropriate when the underlying offense for which there is

probable cause to arrest is relatively minor.” Welsh, 466

U.S. at 750. The underlying offense here was a purported

violation of § 148, which not only is minor but is not

sufficient on its own to justify a warrantless arrest. The City

thus has not met its heavy burden of rebutting the

presumption of unreasonableness.

III. Clearly Established Precedent

Despite concluding that the officers had no probable

cause to arrest Stephen, the majority concludes that qualified

immunity applies “because not all reasonable police officers

would believe that they lacked probable cause to make the

HILL V. CITY OF FOUNTAIN VALLEY 35

arrest, especially given the urgency and unique facts here.”

The majority reaches its conclusion by calling the facts

unique and thus concluding that we do not have any

precedent addressing the situation. But every home is

different, and every call to the police presents new

circumstances. If all that was needed to justify a warrantless

arrest was to call the situation unique, then every warrantless

arrest would be justified and qualified immunity would

always apply. The question is not whether we have

precedent addressing the same facts, but whether a

reasonable officer would know if the conduct was justified.

Here, clearly established precedent controlled every aspect

of the officers’ conduct. Probable cause cannot be

established by an unconfirmed report by a citizen witness,

but instead requires specific knowledge or reasonably

trustworthy information that an offense has been committed.

Sialoi, 823 F.3d at 1233; Struckman, 603 F.3d at 741-42;

Hopkins, 573 F.3d at 767. A warrantless arrest in a home is

presumptively unreasonable, and the government bears the

heavy burden of showing specific and articulable facts

establishing that exigent circumstances made the situation so

compelling that the warrantless arrest is reasonable. Welsh,

466 U.S. at 749; Struckman, 603 F.3d at 743. Refusal to

cooperate with the police, without more, does not justify

police intrusion. Velazquez, 793 F.3d at 1023; Mackinney,

69 F.3d at 1006. All of this was clearly established at the

time of the events here.

One need only examine our precedent to see the variety

of ways in which police officers encounter the public, and

yet the officers are required to know the bounds of

constitutional police conduct in each situation. For example,

in Sialoi, an apartment manager called 911 to report two

Black men, carrying guns and “ducking down around the

36 HILL V. CITY OF FOUNTAIN VALLEY

apartment complex, as if waiting for someone.” Sialoi, 823

F.3d at 1228. When officers arrived, they encountered a

Samoan family having a family birthday party, saw a

teenager who held something that appeared to the officers to

be a gun (although the officers were told it was a paintball

gun), approached with guns drawn, and handcuffed and

detained everyone at the party, including young teenagers.

Examining the facts in the plaintiffs’ favor, we held that

there was no probable cause for the warrantless arrests

because “[t]he police determined almost immediately” that

the gun was a toy and none of the teenagers matched the

description of the suspects. Id. at 1232. We rejected the

defendants’ argument that the warrantless arrests were

reasonable because “the officers found themselves in a

potentially dangerous situation,” explaining that “[w]here no

facts specific to the arrestees establish probable cause,

officers may not rely on general background facts to

immunize themselves from suit.” Id. at 1233.

Nor were the officers’ actions reasonable in Hopkins,

where someone reported to the police that she had been in a

hit-and-run accident, followed the driver to his house, and

suspected that the driver had been drinking. The officers

arrived at the driver’s house, interviewed the witness,

knocked loudly on the front door, and announced that they

were police officers. After receiving no response, the

officers speculated that the driver was in a diabetic coma

and, based on this “potential medical emergency,” broke into

the house, handcuffed, and arrested him. Hopkins, 573 F.3d

at 761. We held that the citizen witness statement, without

more, was insufficient to establish probable cause, and the

“investigation of a potential misdemeanor drunk-driving

incident” did not create an exigent circumstance to support

the warrantless entry. Id. at 767–69, 771. Because the

HILL V. CITY OF FOUNTAIN VALLEY 37

officers clearly violated the plaintiff’s Fourth Amendment

rights, the question was whether the contours of the

emergency or exigency exceptions to the warrant

requirement were clearly established at the time of the

events. Id. at 770–71. We “unhesitatingly conclude[d] that

a reasonable officer would indeed have known that the

emergency exception to the Fourth Amendment would not

encompass a warrantless entry into a home based solely on

statements from a third party that an individual inside the

home appeared inebriated prior to entering the residence.”

Id. at 771. There was “no doubt” that the law prohibiting the

warrantless arrest in the home similarly was clearly

established at the time and “thus should have been known by

a reasonable officer.” Id. at 774.

The majority criticizes me for relying on too general a

rule in finding clearly established precedent. However, as

illustrated by Sialoi and Hopkins, because of the variety of

factual situations police encounter, we do not require cases

with the same facts in order to find clearly established

precedent. See also, e.g., Sandoval, 756 F.3d at 1165

(officers who responded to report of two white males

jumping a fence and looking through windows of a house in

a neighborhood with recent burglaries, peered into a window

of a home, saw three young males, entered the home,

handcuffed, and detained them, were not entitled to qualified

immunity); Johnson, 724 F.3d at 1173–81 (where officers

responding to a report of a fight in a train encountered a

group of people fitting the description of the alleged

combatants, handcuffed, and arrested them, the district court

properly denied qualified immunity on unlawful arrest

claims); Rosenbaum v. Washoe County, 663 F.3d 1071,

1074–79 (9th Cir. 2011) (per curiam) (where police received

complaint that someone was selling free promotional tickets

38 HILL V. CITY OF FOUNTAIN VALLEY

to a state fair, and arrestee admitted to selling the tickets,

police unreasonably believed they had probable cause to

arrest him for obtaining money by fraud or for “collecting

for benefit without authority”); cf. Velazquez, 793 F.3d at

1023 (where officers received a call regarding a disturbance

at a home and found eight to ten people allegedly drinking

and being loud across the street, reversing district court’s

ruling that a reasonable jury could not have found the officer

lacked probable cause to arrest for a violation of California

Penal Code § 148).

Our caselaw thus does not require that clearly established

precedent address the same factual situation. To the

contrary, we consider whether clearly established precedent

established constitutional principles that the officers should

have known applied to the situation. See, e.g., Sandoval, 756

F.3d at 1165 (holding that officer was not entitled to

qualified immunity because “it was clearly established law

as of 2009 that the warrantless search of a dwelling must be

supported by either the exigency or the emergency aid

exception”); Gravelet-Blondin v. Shelton, 728 F.3d 1086,

1093 (9th Cir. 2013) (“The right to be free from the

application of non-trivial force for engaging in mere passive

resistance was clearly established prior to 2008.”); Maxwell

v. County of San Diego, 708 F.3d 1075, 1083–84 (9th Cir.

2013) (stating that, “[a]lthough detention of witnesses for

investigative purposes can be reasonable in certain

circumstances, such detentions must be minimally

intrusive,” and that sheriffs accordingly were “on notice”

that “they could not detain, separate, and interrogate”

witnesses for hours); Karl v. City of Mountlake Terrace, 678

F.3d 1062, 1074 (9th Cir. 2012) (“Although there is no case

in our circuit with the same facts as those presented here, a

reasonable official in [the assistant police chief’s] position

HILL V. CITY OF FOUNTAIN VALLEY 39

would have known that it was unlawful to retaliate against

an employee for providing subpoenaed deposition testimony

in connection with a civil rights lawsuit alleging government

misconduct.”). As the Supreme Court has explained,

“officials can still be on notice that their conduct violates

established law even in novel factual circumstances. Indeed,

in [United States v. Lanier, 520 U.S. 259 (1997)], we

expressly rejected a requirement that previous cases be

‘fundamentally similar.’” Hope v. Pelzer, 536 U.S. 730, 741

(2002). There can be “notable factual distinctions” between

the precedent and the case before the court, “so long as the

prior decisions gave reasonable warning that the conduct

then at issue violated constitutional rights.” Lanier, 520 U.S.

at 269; see Maxwell, 708 F.3d at 1083 (“‘[I]n an obvious

case, [general] standards can “clearly establish” the answer,

even without a body of relevant case law.’” (quoting

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

“This is not a case where courts disagree about the

contours of a constitutional right or where officers may be

confused about what is required of them under various

circumstances.” Rosenbaum, 663 F.3d at 1079. There is no

question that a warrantless arrest in a home requires either

probable cause and exigent circumstances or an emergency,

and that both these exceptions are narrow. No reasonable

officers could be confused about what is required of them

when they approach residents inside their home, based solely

on a vague, unconfirmed observation, and without a warrant.

This case is unlike District of Columbia v. Wesby, 138 S.

Ct. 577 (2018), in which the court of appeals denied the

officers qualified immunity for false arrest based on a rule

that “was not clearly established because it was not ‘settled

law.’” Id. at 591 (quoting Hunter v. Bryant, 502 U.S. 224,

228 (1991) (per curiam)). The Court reversed, reasoning

40 HILL V. CITY OF FOUNTAIN VALLEY

that the lower court “relied on a single decision” in an area

of unsettled law and that the officers therefore “could have

interpreted the law as permitting the arrests.” Id. at 591, 593.

By contrast, none of the circumstances here presented issues

of unsettled law. The rules governing warrantless arrests in

a home, for a violation of § 148, based solely on an

unconfirmed citizen report, clearly prohibited the officers’

conduct here.

Failure to cooperate with the officers’ investigation was

the only possible offense that the City offered as a

justification for Stephen’s warrantless arrest, and the

majority attempts to rely on this as well, stating that

Stephen’s “evasive behavior . . . appeared to interfere with a

urgent investigation.” However, as the majority

acknowledges, “[i]t is well established under California law

that even ‘an outright refusal to cooperate with police

officers cannot create adequate grounds for [police]

intrusion’ without more.” Velazquez, 793 F.3d at 1023

(quoting Mackinney, 69 F.3d at 1006). The majority

nonetheless concludes that a reasonable police officer could

believe there was probable cause to arrest Stephen for a

violation of § 148 because in several Ninth Circuit cases, “it

was clear the plaintiff’s action was not an obstruction,” “the

refusal was only verbal,” or “the plaintiff was obstructing an

unlawful police act,” and that these facts were not present

here. 4 But this is not the standard. See Mackinney, 69 F.3d

4

The record does not support the majority’s conclusion that those facts

were not present here. What did Stephen do? He told the officers he

wanted to ensure that everything was “on the up and up” before giving

them Benjamin’s phone number. He told them that his infant

granddaughter was in his truck, that he did not have Benjamin’s cell

phone number on him, and that he had left his own cell phone in the

house. The officers told him to take his granddaughter into the house.

HILL V. CITY OF FOUNTAIN VALLEY 41

at 1006 (explaining that, “in People v. Cressey, 2 Cal. 3d

836, 841 (1970), the California Supreme Court stated that

the refusal to open a door upon a proper police request, was

not a violation of § 148,” even though “the defendant never

did capitulate”). The law is clear that even an outright

refusal to cooperate is not sufficient, and, even if it were true

that these factual distinctions exist, the precedent was clearly

established at the time of the events here.

Nearly fifty years ago the California Supreme Court held

that a warrantless arrest in a person’s home for obstructing a

police investigation is unconstitutional. People v. Wetzel,

520 P.2d 416 (Cal. 1974). In Wetzel, the police officers

received confirmation of a citizen informant’s report of a

burglary, and the informant then provided them with fresh

information that proved to be reliable. Because the citizen’s

report had been confirmed, the officers were in hot pursuit

of the burglary suspect and thus did not need a search

warrant to enter an apartment they thought the burglar had

entered. However, the occupant of the apartment refused to

allow the officers to enter, telling “the officers to ‘Get the

hell out of here if you don’t have a damn warrant.’” Id. at

417. She stood in the doorway and “remained adamant,”

even though the officers threatened her “with arrest for

obstructing an officer in carrying out his duties.” Id. at 418.

The officers arrested her for obstruction of their

investigation. The California Supreme Court held that her

refusal to consent to the request to enter her apartment

“cannot constitute grounds for a lawful arrest or subsequent

search and seizure.” Id. at 419.

He did so and closed the curtains in the bedroom. None of this conduct

establishes probable cause to arrest Stephen for a violation of § 148.

42 HILL V. CITY OF FOUNTAIN VALLEY

In Wetzel, the police were in hot pursuit and thus “were

clearly correct in their assertion that they did not need a

search warrant” to enter the apartment. Id. at 418. Not only

that, but, unlike here, the officers had confirmation of the

citizen informant’s report. Also unlike here, the arrestee

expressly refused to cooperate with the police. Yet, the court

held that the arrest was unlawful. Id. at 420.

Thus, as early as 1974, it was clearly established in

California that the refusal to allow entry to police officers,

even in hot pursuit of a suspect in a confirmed report of an

offense, did not justify an arrest under § 148. See

Mackinney, 69 F.3d at 1005–06, 1010 (holding that officers

who arrested the suspect was not entitled to qualified

immunity because “the officers had no grounds on which to

arrest [him] other than his [purported] disobedience, which

is insufficient”). By contrast, here, there was no

confirmation of the citizen informant’s report, and the Hills

did not blatantly refuse to cooperate as in Wetzel. Wetzel

establishes that no reasonable officer could have believed

there was probable cause to arrest Stephen for a violation of

§ 148. See Cressey, 471 P.2d at 23 n.6 (“If refusal of

permission to enter could convert mere suspicion of crime

into probable cause to arrest the occupant and search his

home, such suspicion alone would become the test of the

right to enter, and the right to be free from unreasonable

police intrusions would be vitiated by its mere assertion.”

(quoting Tompkins v. Superior Ct., 378 P.2d 113, 115 (Cal.

1963)).

The majority relies on Rosenbaum for the proposition

that qualified immunity applies if “not all reasonable police

officers would believe that they lacked probable cause to

make the arrest.” However, the facts of Rosenbaum show

HILL V. CITY OF FOUNTAIN VALLEY 43

that it was unreasonable for the officers here to believe they

had probable cause to arrest Stephen.

In Rosenbaum, one of the statutes on which the arresting

officer relied had “no published authority, state or federal,

that construes the provision, nor . . . any legislative history

that clarifies its terms.” Rosenbaum, 663 F.3d at 1077.

Nonetheless, we concluded that the statute was

unambiguous and that no reasonable officer could have

believed the arrestee violated the statute. Id. at 1079.

Here, it has been clear since at least 1974 that California

law prohibits a warrantless arrest in a home for obstructing

a police investigation in violation of § 148. If we concluded

in Rosenbaum that a reasonable officer should have known

there was no probable cause to arrest under a statute which

no published authority had addressed, certainly any

reasonable officer should have known that California

prohibited arresting someone in their home without a

warrant solely for the minor offense of violating § 148.

The majority reasons that “the specter of an ongoing

kidnapping likely colored the officers’ belief of whether an

obstruction of justice occurred.” But a “specter” is not

“knowledge or reasonably trustworthy information.” 5

Sialoi, 823 F.3d at 1232; see Sandoval, 756 F.3d at 1165

(stating that “[t]he facts matter,” and concluding that, with

“no evidence of weapons, violence, or threats” at the home,

there were triable issues of fact as to whether the warrantless

entry was justified and that the officer was not entitled to

qualified immunity). Similar to Hopkins, in which neither a

5

In a similar persuasion-by-adjective attempt, the majority repeatedly

refers to a “potential” or “possible” kidnapping. But this does not aid,

advance, or replace the required probable cause analysis.

44 HILL V. CITY OF FOUNTAIN VALLEY

“potential medical emergency” nor the “investigation of a

potential misdemeanor drunk-driving incident,” based solely

on a third party’s statement, justified the warrantless entry

and arrest, Hopkins, 573 F.3d at 761, 771, the “specter” of a

“potential kidnapping victim,” based solely on a third party’s

vague observation of a blindfolded woman, does not justify

the warrantless arrest here.

As noted above, the facts are not unique. See supra,

footnote 3. The majority does not explain what makes the

facts so unique that the officers were justified in ignoring

such basic, well-established constitutional principles as the

requirements of a warrant, probable cause, and exigent

circumstances in arresting someone in their home. The

“salient question . . . is whether the state of the law” at the

time of these events gave the officers “fair warning” that

arresting Stephen in his home, without a warrant and without

probable cause, based solely on an unconfirmed citizen

report and for the minor offense of violating § 148, was

unconstitutional. Hope, 536 U.S. at 741. The answer clearly

is yes.

The protections of the Fourth Amendment cannot be

swept aside merely by proclaiming that there was urgency,

with no evidence to establish urgency, or by calling the facts

“unique.” Our clearly established precedent sets forth a

framework to determine the reasonableness of the officers’

actions, but the majority ignores this clear precedent. An

arrest in a home requires a warrant supported by probable

cause. A warrantless arrest is presumptively unreasonable.

Relying on exigent circumstances requires probable cause,

which they concededly did not have. Police officers may not

simply ignore these clearly-established Fourth Amendment

strictures. All of this law was clearly established at the time

of the events.

HILL V. CITY OF FOUNTAIN VALLEY 45

It further was clearly established at the time of the events

that an outright refusal to cooperate with police officers did

not permit a warrantless arrest in a home and that a

warrantless arrest in a home required probable cause.

Nonetheless, the record shows that the officers threatened

the Hills with arrest for obstructing their investigation and

did not acknowledge or investigate Stephen’s explanation

that Benjamin was out with his wife. Instead, they quickly

jumped to conclusions based on no evidence, escalating an

innocent situation into a warrantless arrest unsupported by

probable cause.

The majority does serious damage to the Fourth

Amendment, doing away with the requirement of probable

cause for a warrantless arrest in a home, and extending the

exigent circumstances far beyond the “‘few in number and

carefully delineated’ circumstances” we have described.

Struckman, 603 F.3d at 743. The majority also errs by

construing the facts in the officers’ favor, allowing them to

rely on conjecture and speculation, rather than showing

specific and articulable facts to establish exigent

circumstances, and failing to require them to show that a

warrant could not have been obtained in time. The majority

ignores our clearly established precedent, mistakenly

concluding there was no such precedent prohibiting the

arrest.

I respectfully dissent from the majority’s affirmance of

the dismissal of the unlawful seizure claim on qualified

immunity grounds. 6

6

I would also reverse the dismissal of the related state-law claims.