Michelle Cameron v. Michelle Craig ( 2013 )

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.