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
4The 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.