Edward Sialoi v. City of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EDWARD SIALOI; KELLI No. 14-55387
SIALOI; FOLENI SIALOI;
GAYLE PASI; LAGO SIALOI; D.C. No.
LIUA SIALOI; HARDY TEO 3:11-cv-02280-W-KSC
FALEALILI; TAPILI SOFA;
G. S., a minor, by his father
and guardian ad litem, Foleni OPINION
Sialoi; T. O. S., a minor, by
their father and guardian ad
litem, Lago Sialoi; T. A. S., a
minor, by their father and
guardian ad litem, Lago
Sialoi; T. R. S., a minor, by
their father and guardian ad
litem, Lago Sialoi; B.F., a
minor, by his father and
guardian ad litem, Hardy Teo
Falealili; ESTATE OF
SEPTEMBER SIALOI, by her
husband and successor in
interest, Sialoi Sialoi, Jr.,
Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO; ALLEN
SLUSS; BRADLEY PHELPS;
JOSEPH KRAWCZYK; DAVID
ROHOWITS; ANTHONY REESE;
2 SIALOI V. CITY OF SAN DIEGO

MICHAEL HALL; EDWARD
KASZYCKI; COREY STASCH;
MIGUEL GARCIA; MICHAEL
HAYES; WADE IRWIN; SCOTT
SMITH; KELVIN LUJAN; JOHN
CARROLL; WAYNE DOEDEN;
TAMMY CLENDENEN; TYLER
BIGBIE; RICHARD SLADE;
DAVID HWANG; JONATHAN
BAMBAD; SIGNORINO, Officer;
TENENBAUM, Officer; DOES,
1–30,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding

Argued and Submitted February 5, 2016
Pasadena, California

Filed May 24, 2016

Before: Stephen Reinhardt, Richard A. Paez,
and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt
 SIALOI V. CITY OF SAN DIEGO 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial, on summary
judgment, of a motion for qualified immunity brought by San
Diego police officers in an action under 42 U.S.C. § 1983 and
state law alleging, among other things, unlawful arrest and
detention, illegal search, and excessive force.

The panel first held that it has jurisdiction to consider this
appeal, but that its jurisdiction was limited to deciding only
the question whether, taking all the facts in the light most
favorable to the plaintiffs, the defendants were entitled to
qualified immunity as a matter of law.

The panel held that taking the facts in the light most
favorable to the plaintiffs, once officers discovered that an
item held by one of the suspects was a mere toy, rather than
a handgun, the officers violated clearly established law and
acted wholly unreasonably in using extreme force to disrupt
a peaceful birthday party for a seven-year-old girl, and in
searching the family’s apartment without a warrant or
consent. Accordingly, the panel affirmed the district court’s
denial of qualified immunity in all respects.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 SIALOI V. CITY OF SAN DIEGO

COUNSEL

John E. Riley (argued), Deputy City Attorney, Jan I.
Goldsmith, City Attorney, Office of the San Diego City
Attorney, San Diego, California, for Defendants-Appellants.

Michael R. Marrinan (argued), Law Offices of Michael R.
Marrinan, San Diego, California, for Plaintiffs-Appellees.

OPINION

REINHARDT, Circuit Judge:

In October of 2010, officers with the San Diego Police
Department responded to a report that two armed black males
had been seen in the parking lot of an apartment complex.
When they arrived, the officers, armed with assault rifles and
eventually numbering over twenty, encountered not two
armed black males but a large Samoan family celebrating the
birthday of a seven-year-old girl. The officers detained the
members of the family (handcuffing the vast majority of
them, including numerous adolescents) and then searched
each of them for weapons. Finding nothing incriminating, the
officers then searched the family’s apartment without a
warrant or consent. Again finding nothing incriminating, the
officers left without removing a single family member from
the scene or filing any charges.

The plaintiffs filed this action against the officers
involved in the incident, as well as the City of San Diego,
alleging various claims under 42 U.S.C. § 1983 and
California law, including unlawful arrest and detention,
illegal search, and excessive force. The defendants moved
 SIALOI V. CITY OF SAN DIEGO 5

for summary judgment on the ground of qualified immunity,
and the district court granted the motion with respect to the
City but denied it with respect to the officers. The officers
then appealed the denial of their motion for summary
judgment. We affirm the district court.

I

A

On Saturday, October 2, 2010, the Sialoi family gathered
in front of the apartment belonging to Sialoi Sialoi, Jr. and his
wife, September Sialoi, to celebrate the birthday of seven-
year-old plaintiff T.R.S. The family held a barbecue during
which no alcohol was served or consumed. Around 10:22pm
that evening, the manager of the apartment complex called
9-1-1 to report that two black or Samoan adult males had
been ducking down around the apartment complex, as if
waiting for someone. He reported that one carried a handgun,
the other a shotgun. Two minutes later, he called back to
provide additional information: the men were black, not
Samoan; one had bushy hair and was wearing a brown T-
shirt, and the other was wearing a long-sleeved shirt with a
hood.

Sergeant Sluss of the San Diego Police Department was
in charge of the response to the apartment manager’s 9-1-1
call. The sergeant assembled a contact team consisting of
“maybe six officers,” and assigned Officer Wayne Doeden a
team of four officers. The officers arrived on the scene four
6 SIALOI V. CITY OF SAN DIEGO

minutes after the second call from the apartment manager,
and, together, approached the Sialoi party.1

When the officers arrived, the Sialoi family was drinking
coffee, eating birthday cake, and singing songs. One of the
men was playing a guitar, and some of the women were
inside the apartment with the youngest children. Sergeant
Sluss and his team came around the corner of the apartment
building and saw three teenagers between the ages of 13 and
15, G.S., T.O.S., and B.F., playing in the parking lot near the
apartment. Sergeant Sluss reported to dispatch that one of the
teenagers had something in his hand that appeared to be a
handgun. Notably, however, the three teenage boys did not
otherwise fit the description provided by the apartment
manager: there were three of them, not two; all were Samoan,
not black; and none was wearing clothing that matched the
apartment manager’s description. The officers arrived with
their guns drawn at the parking lot where the boys were
playing. Some of the officers held AR-15 assault rifles,
which the officers pointed at the three teenagers. A police
helicopter circled overhead. The helicopter operator
informed the police that there were people having a barbecue
nearby.

Six or seven police officers first approached 13-year-old
B.F., who had nothing in his hands. They demanded that B.F.
get on the ground, and he complied. One officer put his knee

1
From this point on, the plaintiffs and defendants disagree on key facts.
When reviewing the denial of qualified immunity, we must take all facts
in the light most favorable to the plaintiffs. See George v. Edholm,
752 F.3d 1206, 1214 (9th Cir. 2014). For this reason, the following
statement of facts describes the incident as the plaintiffs contend it
transpired.
 SIALOI V. CITY OF SAN DIEGO 7

on B.F.’s neck to hold him down, while the others searched
him for weapons. After finding nothing, the officers next
approached 15-year-old T.O.S. Again, the officers pointed
their guns at him and ordered him to get on the ground.
T.O.S. complied, lying down next to B.F., where the officers
searched him for weapons while pointing their guns at his
head. Again, the officers found nothing. Finally, the officers
approached 15-year-old G.S., who was standing some
distance away between two parked cars in front of the Sialoi
apartment. G.S. was holding a plastic paintball gun in his
hand. When G.S. saw the officers, he immediately dropped
the paintball gun. The officers ordered him to get on the
ground, and G.S. replied that he could not fit on the ground
between the two cars, but he attempted to comply with the
officers’ orders anyway. He and several other plaintiffs
called out to the officers, attempting to explain to them that
the paintball gun was not in fact a real gun but merely a toy.
He was then told to crawl out from between the cars to the
driveway, where he was searched. Again, the officers found
nothing. Immediately after G.S. crawled out from between
the cars, an officer walked over and picked up the toy gun.
He held the gun in the air and confirmed that it was only a
toy. At this point, the officers handcuffed all three teenagers,
yanked them off the ground, and placed them in the back of
a police car.

The officers then approached the other members of the
Sialoi family, and began to detain, search, and handcuff them,
including two adult women and a thirteen-year-old girl,
T.A.S. By this time, other officers had arrived, increasing the
total number present at the scene to over twenty. The officers
ordered the plaintiffs one-by-one to keep their hands up and
walk to the middle of the parking lot, where they did a pat-
down search. Throughout this time, the laser sights on some
8 SIALOI V. CITY OF SAN DIEGO

of the officers’ guns projected red beams of light on the
plaintiffs’ bodies as they were searched. When the search
was complete, each plaintiff was handcuffed and ordered to
remain in the middle of the parking lot under armed guard.
The officers placed Sialoi Sialoi Jr. in the back of the police
car with the three teenagers because he initially refused to put
his hands in the air and pleaded with the officers to stop
pointing their weapons at the children. The officers also
pushed Liua Sialoi, who was pregnant at the time, onto the
ground. Edward Sialoi informed the officers that he had a
medical condition and recently had back surgery. Because of
this, he requested that the officers use two sets of handcuffs.
The officers did not comply, and instead, violently yanked his
arm behind him, tearing his rotator cuff, labrum, and biceps
tendon.

After everyone outside had been handcuffed and moved
to the middle of the parking lot (or placed in a police car), the
officers ordered anyone inside the apartment to vacate the
building. Kelli Sialoi, Gayle Pasi, T.R.S., and Pasi’s four-
year-old nephew exited the building. They were detained at
the curb with the other plaintiffs, but were not handcuffed.
Sergeant Sluss and several other officers then entered and
searched the Sialois’ apartment without a warrant or consent.
After the search of the apartment, a lieutenant arrived and
asked the officers if any of the handcuffed people were
“going downtown.” Receiving a negative response, the
lieutenant removed September Sialoi’s handcuffs and left.
The other officers then began removing the handcuffs from
the other plaintiffs. The plaintiffs contend that they had been
detained for approximately 30–40 minutes, although the
police’s computerized log of the incident indicates that the
search lasted only 17 minutes.
 SIALOI V. CITY OF SAN DIEGO 9

According to the computer-aided dispatch report and the
deposition of Sergeant Sluss, the officers were informed a
few minutes after they “started securing . . . the scene” that
the apartment manager had called to say that the people they
had detained were not the suspects that he reported in his
disturbance call. The officers did not attempt to contact the
apartment manager or locate the actual suspects. Later, the
plaintiffs learned that no report was ever written about the
seizures of the various plaintiffs, the injuries to Edward
Sialoi, the search of the Sialoi home, or indeed anything
about the incident.

B

After the plaintiffs filed suit, the defendants moved for
summary judgment both on the basis that the officers’ actions
did not violate the plaintiffs’ rights and that, in any case, the
officers were entitled to qualified immunity. The defendants
also sought summary judgment for the claims against the
City, asserting that the officers were not acting pursuant to a
“policy” within the meaning of Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978).
The district court granted the motion with respect to the City,
but denied it with respect to the officers. It reasoned that the
arguments in favor of the individual defendants’ qualified
immunity rested on disputed factual circumstances
appropriately left to a jury—namely, that the three teenaged
boys reasonably fit the description of the suspects in the
disturbance call and that the officers did not discover that
G.S.’s gun was a toy until after the searches had been
completed. The individual defendants filed a motion for
reconsideration, which the district court denied. They then
appealed the denial of qualified immunity with respect to the
10 SIALOI V. CITY OF SAN DIEGO

unlawful arrest and search claims, but did not appeal the
denial of qualified immunity as to the excessive force claims.

II

As a threshold matter, we must determine whether (and,
if so, to what extent) we have jurisdiction to consider the
individual defendants’ appeal. When reviewing a denial of
qualified immunity, it is well-established that we lack
jurisdiction to review a district court’s conclusion that
genuine factual disputes exist but that we have jurisdiction to
resolve legal questions raised in the appeal. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985); Huskey v. City of San
Jose, 204 F.3d 893, 896 (9th Cir. 2000). One such legal
question is whether, taking all the facts in the light most
favorable to the plaintiffs, those facts can sustain a claim that
“clearly established constitutional rights have been violated.”
Huskey, 204 F.3d at 896. The plaintiffs argue that we lack
jurisdiction to review the denial of qualified immunity
because, they contend, the defendants’ briefs on appeal
merely dispute the plaintiffs’ version of what happened.
Although it is true that most of the arguments in the
defendants’ briefs assume the officers’ version of what
happened, the defendants do also argue that they are entitled
to qualified immunity as a matter of a law even under the
plaintiffs’ version of the events.

We therefore have jurisdiction to consider this appeal, but
our jurisdiction is limited to deciding only the question
whether, taking all the facts in the light most favorable to the
plaintiffs, the defendants are entitled to qualified immunity as
a matter of law. In doing so, we must consider two questions.
First, “whether the facts, ‘[t]aken in the light most favorable
to the party asserting the injury,’ show that the officers
 SIALOI V. CITY OF SAN DIEGO 11

violated a constitutional right.’” George v. Edholm, 752 F.3d
1206, 1214 (9th Cir. 2014) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001), overruled in part on other grounds in
Pearson v. Callahan, 555 U.S. 223 (2009) (alteration in
original)). Second, if the officers did violate a right, “whether
federal rights asserted by [the] plaintiff were clearly
established at the time of the alleged violation.” Id. (internal
quotation marks omitted). A right is clearly established when
“[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). Put another way, an officer’s actions violate
clearly established law when “it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Torres v. City of Los Angeles, 548
F.3d 1197, 1211 (9th Cir. 2008). We review these questions
de novo. Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004).

III

Defendants argue that they are entitled to qualified
immunity for both the seizure and search of the plaintiffs, and
for the warrantless search of the plaintiffs’ apartment.
Because the officers’ actions are subject to several different
legal rules, we address the defendants’ arguments in the
following subparts: (1) whether the officers are entitled to
qualified immunity for the seizure of the three teenage boys,
G.S., T.O.S., and B.F.; (2) whether the officers are entitled to
qualified immunity for the seizure of Sialoi Sialoi Jr.;
(3) whether the officers are entitled to qualified immunity for
the seizure of the remaining plaintiffs; and (4) whether the
officers are entitled to qualified immunity for the warrantless
search of the Sialois’ apartment. Although the legal standard
may differ for each of the officers’ actions, the answer to the
12 SIALOI V. CITY OF SAN DIEGO

question of each action’s constitutionality is the same.
Taking the facts in the light most favorable to the plaintiffs,
once the officers discovered that the item in G.S.’s hand was
a mere toy, the officers violated clearly established law and
acted wholly unreasonably in using extreme force to disrupt
a peaceful birthday party for a seven-year-old girl, and in
searching the Sialoi apartment without a warrant or consent.
Accordingly, we affirm the district court’s denial of qualified
immunity in all respects.

A: The Officers’ Seizure of G.S., T.O.S., and B.F.

1. Whether the seizure violated the constitutional rights
of G.S., T.O.S., and B.F.

A group of six or seven officers approached the three
teenagers, ordered each of them onto the ground, handcuffed
them, searched them, and then placed them in the back of a
police car. Although the officers engaged in materially
indistinguishable conduct toward G.S., T.O.S., and B.F., the
defendants, oddly, admit that the officers arrested G.S. but
argue that the officers’ conduct toward T.O.S. and B.F.
amounted to mere investigatory detention. Accordingly, we
must first determine whether the officers arrested T.O.S. and
B.F. or merely detained them during an investigatory stop.

Although police generally need probable cause to search
or seize a person, there exists a limited exception for brief
investigatory stops “where a police officer observes unusual
conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot.” Terry v.
Ohio, 392 U.S. 1, 30 (1968). In contrast to a full-blown
arrest, an investigatory stop need only be justified by
reasonable suspicion. United States v. I.E.V., 705 F.3d 430,
 SIALOI V. CITY OF SAN DIEGO 13

434–35 (9th Cir. 2012). “There is no bright-line rule to
determine when an investigatory stop becomes an arrest.”
Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996).
Instead, we have set forth several factors to distinguish
between the two types of seizures, including whether the
suspect was handcuffed; whether the police drew their
weapons; “whether the police physically restrict the suspect’s
liberty,” including by placing the suspect in a police car;
whether “special circumstances” (such as an uncooperative
suspect or risk of violence) are present to justify the
“intrusive means of effecting a stop”; and whether the
officers are outnumbered. See id. at 1188–90. We need not
discuss these factors in detail, however, because Washington
answers the question whether the teenagers were arrested or
merely detained. In that case, we held that any reasonable
juror would be compelled to find an arrest where the officers
ordered the two plaintiffs from a car, shone a spotlight on
them, drew their weapons, handcuffed them, and then placed
them in separate police cars. Washington, 98 F.3d at 1184,
1192. Taking all the facts in the light most favorable to the
plaintiffs, the officers’ conduct toward T.O.S. and B.F. was,
if anything, more intrusive and thus amounted to an arrest.

“Under the Fourth Amendment, a warrantless arrest
requires probable cause,” which “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.” United States v. Lopez, 482 F.3d 1067, 1072 (9th
Cir. 2007). Whether probable cause exists depends “on the
totality of facts” available to the officers, who “may not
disregard facts tending to dissipate probable cause.” Id. at
1073 (internal quotation marks omitted). “In some instances
there may initially be probable cause justifying an arrest, but
14 SIALOI V. CITY OF SAN DIEGO

additional information obtained at the scene may indicate that
there is less than a fair probability that the [individual] has
committed or is committing a crime. In such cases, execution
of the arrest or continuation of the arrest is illegal.” Id.

Taking the facts in the light most favorable to the
plaintiffs, the officers did not have probable cause to arrest
the three teenagers. The defendants attempt to justify the
arrest on the basis of the fact that G.S. was initially holding
what appeared to be a weapon. We may assume that the
officers were justified in initiating an investigatory stop of the
teenagers after they spotted what they believed to be a gun in
G.S.’s hand. The police determined almost immediately after
approaching G.S., however, that the gun was, in fact, a toy,
and at that point any suspicion that the teenagers were
engaged in a crime dissipated.2 Not only did none of the
teenagers possess a gun, but none of them in any way
matched the apartment manager’s description of the suspects.
They were three Samoan teenagers, not two black adults, and
none of the boys was wearing either a brown shirt or a
hooded long-sleeved T-shirt. Nevertheless, the officers
handcuffed all three and placed them in the back of a police
car after learning that the item in G.S.’s hand was a toy. At
a minimum, then, the officers violated the Fourth Amendment
by continuing the seizure beyond the point at which they
determined that G.S. had not in fact had a weapon in his
hand. See Lopez, 482 F.3d at 1037.

In sum, once the officers determined that the item in
G.S.’s hand was a toy, no officer of “reasonable caution”
would have had any reason to believe that G.S., T.O.S., and

2
The defendants do not contend that it is a crime to possess a paintball
gun.
 SIALOI V. CITY OF SAN DIEGO 15

B.F. were the suspects the apartment manager described, or
were otherwise engaged in unlawful activity. Accordingly,
taking the facts in the light most favorable to the plaintiffs,
the officers violated the constitutional rights of G.S., T.O.S.,
and B.F. when they arrested them.

2. Whether the constitutional right was clearly
established

Because the standard for probable cause is well settled,
the question with respect to whether an unlawful arrest
violated clearly established law is “whether it is reasonably
arguable that there was probable cause for arrest—that is,
whether reasonable officers could disagree as to the legality
of the arrest such that the arresting officer is entitled to
qualified immunity.” Rosenbaum v. Washoe Cty., 663 F.3d
1071, 1076 (9th Cir. 2011). Here, the defendants argue that
detaining the three teenagers “until further investigation was
completed was not unreasonable conduct,” given the totality
of the circumstances. It is true, as the defendants argue, that
the officers found themselves in a potentially dangerous
situation: they were in a high-crime area responding to a
report of suspects with weapons. While these background
circumstances are no doubt relevant to the question whether
the officers’ conduct was reasonable, they do not render it
even “reasonably arguable” that probable cause existed for
the arrests of the young boys. Where no facts specific to the
arrestees establish probable cause, officers may not rely on
general background facts to immunize themselves from suit.
See Crowe v. Cty. of San Diego, 608 F.3d 406, 439 (9th Cir.
2010) (holding that it is clearly established that “[w]here the
standard is probable cause, a search or seizure of a person
must be supported by probable cause particularized with
respect to that person” (emphasis added) (quoting Ybarra v.
16 SIALOI V. CITY OF SAN DIEGO

Illinois, 444 U.S. 85, 91 (1979))). No such particularized
facts exist here. To repeat, the officers encountered not two
black individuals but instead three Samoans wearing clothing
that did not resemble the apartment manager’s description.
Before handcuffing the three boys and placing them in a
police car, the officers knew that the item in G.S.’s hand was
a mere toy, knew that none of the boys possessed a gun, and
were aware of no other even remotely suspicious activity in
which any of the boys had engaged or were engaging. For
these reasons, no reasonable officer would have concluded
that probable caused existed to arrest the teenagers, and we
affirm the district court’s denial of qualified immunity for
their arrest.

B: The Officers’ Seizure of Sialoi Sialoi Jr.

1. Whether the seizure violated Sialoi Sialoi Jr.’s
constitutional rights

The officers handcuffed Sialoi Sialoi Jr. and placed him
in the back of the police car after he pleaded with the officers
to stop pointing their weapons at the children. Sialoi Sialoi
Jr. did “raise his voice” and initially refused to raise his hands
when directed to do so by the police, but he calmed down
within a matter of minutes and complied with the officers’
requests when they approached him for the purpose of
handcuffing him. As with the three teenagers, the factors set
forth in Washington compel the conclusion that a rational jury
could find that the officers’ conduct with respect to Sialoi
Sialoi Jr. amounted to an arrest. See 98 F.3d at 1188–90.
Similarly to G.S., T.O.S., and B.F., the officers patted Sialoi
Sialoi Jr. down, handcuffed him, and placed him in the back
of a police car. By this time, over twenty officers had arrived
at the scene, many of whom had their weapons drawn and
 SIALOI V. CITY OF SAN DIEGO 17

trained on the plaintiffs. The defendants argue that the
seizure of Sialoi Sialoi Jr. was a mere detention because he
was initially uncooperative. We cannot say, however, as
defendants argue, that Sialoi Sialoi Jr.’s temporary refusal to
raise his hands and initial objection to the officers’ tactics
would as a matter of law prevent a rational jury from
concluding that he was arrested. To the contrary—in cases in
which we have relied on an individual’s non-compliance with
officers’ commands to hold as a matter of law that an arrest
did not occur, the individual demonstrated far greater, and far
more dangerous, defiance. See, e.g., Haynie v. Cty. of Los
Angeles, 339 F.3d 1071, 1073–74, 1077 (9th Cir. 2003)
(finding no arrest where the suspect initially refused to pull
over, made furtive movements with his hands inside his car,
refused to submit to a frisk, and continued yelling at the
officers after being handcuffed); Allen v. City of Los Angeles,
66 F.3d 1052, 1057 (9th Cir. 1995) (finding no arrest where
the suspects led officers on a long high-speed chase and,
when the suspects finally pulled over, one was “non-
compliant and combative” and the other drunk).
Accordingly, taking the facts in the light most favorable to
Sialoi Sialoi Jr., the officers’ conduct amounted to an arrest.

A rational jury could also conclude that this arrest was
unlawful. An individual’s temporary refusal to comply with
an officer’s commands is not in itself a valid basis for an
arrest. Mackinney v. Nielsen, 69 F.3d 1002, 1005–06 (9th
Cir. 1995). Nor is an individual’s peaceful, verbal challenge
to police action a valid basis. Id. at 1006–07 (noting that
“[t]he freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation
from a police state” (quoting City of Houston v. Hill, 482 U.S.
451, 462–63 (1987) (alteration in original)). Furthermore,
18 SIALOI V. CITY OF SAN DIEGO

once the officers confirmed that the item in G.S.’s hands was
a toy, they no longer had any reason to believe that Sialoi
Sialoi Jr.—or in fact any of the family members—was
engaged in the criminal activity that the apartment manager
reported. Accordingly, taking the facts in the light most
favorable to Sialoi Sialoi Jr., the officers arrested him without
probable cause, thereby violating his constitutional rights.

2. Whether the constitutional right was clearly
established

As with the three teenagers, the background
circumstances on which the defendants rely to establish
qualified immunity (the officers presence in a high-crime
area) do not make it even “reasonably arguable” that probable
cause existed to arrest Sialoi Sialoi Jr. Nor does Sialoi Sialoi
Jr.’s initial response to the officers’ instructions. See
Mackinney, 69 F.3d at 1005–07. We therefore hold that no
reasonable officer would have thought it lawful to arrest
Sialoi Sialoi Jr., and we affirm the district court’s denial of
qualified immunity for his arrest.

C: The Officers’ Seizure of the Remaining Plaintiffs

1. Whether the seizure violated the rights of the
remaining plaintiffs

The remaining plaintiffs were either patted down,
handcuffed, and ordered to stand in the middle of the
apartment complex’s parking lot, or, in the case of those
plaintiffs initially inside the apartment, seized when they
came outside but not handcuffed. Unlike the three teenagers
and Sialoi Sialoi Jr., none of the remaining plaintiffs was
placed in the back of a police car. Nevertheless, the officers’
 SIALOI V. CITY OF SAN DIEGO 19

conduct toward some, if not most, of these plaintiffs likely
amounted to an arrest. We need not decide, however, with
respect to each individual plaintiff whether the officers’
tactics were sufficiently intrusive to rise to that level of
seizure because we hold that the officers lacked even
reasonable suspicion to detain and search the remaining
plaintiffs.3

An investigatory detention is unlawful unless supported
by reasonable suspicion. Liberal v. Estrada, 632 F.3d 1064,
1077 (9th Cir. 2011). Although less stringent than probable
cause, reasonable suspicion nevertheless requires that officers
“have ‘specific, articulable facts which, together with
objective and reasonable inferences, form the basis for
suspecting that the particular person detained is engaged in
criminal activity.’” Id. (quoting United States v. Lopez-Soto,
205 F.3d 1101, 1105 (9th Cir. 2000)); see also United States
v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2001)
(“[R]easonable suspicion may not be ‘based on broad profiles
which cast suspicion on entire categories of people without
any individualized suspicion of the particular person to be
stopped.’”).

Taking the facts in the light most favorable to the
remaining plaintiffs, the officers had no “specific, articulable
facts” that would form the basis for reasonable suspicion to

3
Because the reasonable suspicion standard required to detain a suspect
is less stringent than the probable cause standard needed to justify an
arrest, see Alabama v. White, 496 U.S. 325, 330 (1990), our holding that
the facts do not establish reasonable suspicion necessarily means that they
are insufficient to establish probable cause as well. However, our
conclusion in this section in no way precludes the plaintiffs from arguing
to the jury, and prevailing on, the theory that the officers’ actions with
respect to the remaining plaintiffs amounted to an arrest.
20 SIALOI V. CITY OF SAN DIEGO

detain the other plaintiffs. In no way did the remaining
plaintiffs fit the description of the suspects in the apartment
manager’s report. None was a black adult male (in fact,
many of them were not even males), and none was wearing
a brown T-shirt or a long-sleeved T-shirt with a hood. They
were not ducking around the apartment complex suspiciously
but instead barbecuing, singing songs, and eating cake at a
young child’s birthday party. The defendants nonetheless
argue that the remaining plaintiffs’ presence “at night [in] an
area known for criminal activity” and their “proximity” to the
three teenagers offered a basis for detaining them. By the
time the officers detained the remaining plaintiffs, however,
the officers knew that their proximity to the three teenagers
was innocuous because the officers had already determined
that none of the boys possessed a weapon and had no reason
to suspect that they were otherwise engaged in any unlawful
conduct. Furthermore, the Sialoi family’s presence in a high-
crime area cannot serve as the basis for detaining them,
because it merely “cast[s] suspicion on entire categories of
people without any individualized suspicion of the particular
person to be stopped.” Sigmond-Ballesteros, 285 F.3d at
1121.

The officers also argue that the remaining plaintiffs were
“agitated” and “display[ed] growing hostility.” Not only is
this contention inconsistent with the plaintiffs’ version of the
events, it also conflicts with the officers’ own description of
the encounter. The officers in charge at the scene testified
that, aside from Sialoi Sialoi Jr.’s brief refusal, everyone
complied with the officers’ demands. (Sergeant Sluss
deposition: “Q. So everybody complied with your order? A.
Yes”); (Officer Doeden deposition: “Q. Was there anybody
that night that did not comply with the command of an officer
that you were aware of? A. Not that I saw.”). In fact, nothing
 SIALOI V. CITY OF SAN DIEGO 21

in the record as a whole—let alone when taking the facts in
the light most favorable to the non-moving parties—suggests
that the remaining plaintiffs acted aggressively toward the
officers so as to justify their detention.

In sum, the officers had no basis for concluding that the
gathered plaintiffs had anything to do with the events
portrayed in the apartment manager’s report, and nothing
the remaining plaintiffs did once the officers arrived offered
any basis for detaining them.

The remaining plaintiffs challenge not only the officers’
decision to detain them but also their decision to frisk them
for weapons. Incident to a valid investigatory stop, an officer
may, consistent with the Fourth Amendment, “conduct a brief
pat-down (or frisk) of an individual when the officer
reasonably believes that ‘the persons with whom he is dealing
may be armed and presently dangerous.’” I.E.V., 705 F.3d at
434 (quoting Terry, 392 U.S. at 30). This interest in the
safety of the officers and others nearby is the “sole
justification” for a Terry frisk. Id. at 435 (internal quotation
marks and emphasis omitted). Here, for the reasons set forth
in the previous paragraph, the officers’ detention of the
remaining plaintiffs was unlawful under the plaintiffs’
version of the events. For this reason, any search incident to
that detention necessarily is as well. See id.

We also hold that, taking the facts in the light most
favorable to the remaining plaintiffs, their search was
unlawful for another reason. Even if, contrary to our
conclusion, the officers did have reasonable suspicion to
initiate a detention of the remaining plaintiffs, the officers
still had no basis to search them for weapons. The defendants
attempt to justify these frisks on the basis that they were
22 SIALOI V. CITY OF SAN DIEGO

necessary to find and secure the “second” gun described in
the earlier report to the police. In so arguing, the defendants
fail to take the facts in the light most favorable to the
remaining plaintiffs. They ignore the fact that the officers
had no reason to suspect that they would find a “second” gun
amongst the Sialoi family because the item in G.S.’s hand
could not possibly have been the “first” gun; it was a mere
toy in the hands of someone who in no way matched the
description of the suspects. Moreover, even if, contrary to the
remaining plaintiffs’ version of the events, the officers had
not immediately discovered that the ostensible weapon was
a mere toy, the officers had no reasonable basis to expect to
find the “second” gun, which was a shotgun, hidden on the
body of one of the remaining family members.4 Because no
officer could have reasonably believed that any of the
remaining plaintiffs might have a concealed weapon, we hold
that the frisks violated the Fourth Amendment.

2. Whether the constitutional right was clearly
established

We hold that, taking the facts in the light most favorable
to the remaining plaintiffs, no reasonable officer would have
thought it lawful to detain and search them. The defendants
do not dispute that it has long been clearly established that it
is unlawful to conduct an investigatory stop and search
unsupported by reasonable suspicion. See, e.g., Ramirez v.
City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009).
Once the officers discovered that the item in G.S.’s hand was
a mere toy, the only fact that in any way suggested that the
Sialoi family was involved in criminal activity was the sole

4
One might wonder, for instance, where exactly on her body the officers
believed that thirteen-year-old T.A.S. was hiding a shotgun.
 SIALOI V. CITY OF SAN DIEGO 23

circumstance of their presence outside an apartment building
near which two armed suspects had earlier been spotted.
Were this sufficient to establish reasonable suspicion, the
police would be authorized to indiscriminately detain
individuals in areas of expected criminal activity without any
“basis for suspecting that the particular person detained is
engaged in criminal activity.” Liberal, 632 F.3d at 1077
(emphasis added). Accordingly, no reasonable officer would
think that the location of the encounter alone could serve as
the basis for reasonable suspicion. Furthermore, because the
officers do not “allege[] any specific facts” suggesting that
any of the remaining plaintiffs possessed a weapon, “we
conclude that it would have been clear to a reasonable officer
that [the] pat-down[s] . . . [were] unlawful in this situation.”
Ramirez, 560 F.3d at 1022–23. Accordingly, we affirm the
district court’s denial of qualified immunity for the officers’
seizure and search of the remaining plaintiffs.

D: The Search of the Sialois’ Apartment

1. Whether the search violated the Sialois’
constitutional rights

It is clear that “searches and seizures inside a home
without a warrant are presumptively unreasonable.” Groh v.
Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks
omitted). Here, the officers first attempt to justify the search
of the Sialois’ apartment on the theory that it was lawful
under Maryland v. Buie, 494 U.S. 325 (1990), as a
warrantless “protective sweep” of the Sialoi apartment
24 SIALOI V. CITY OF SAN DIEGO

incident to the arrest of G.S.5 Id. at 334. Buie is inapplicable,
however. There, officers possessed a valid arrest warrant that
authorized them to enter the suspect’s residence. 494 U.S. at
330. The issue in Buie was not whether the officers could
enter the residence but instead whether, having obtained
judicial authorization to enter the home, the officers were
justified in continuing to search it after they had arrested the
target of the arrest warrant. Id. Buie thus offers no
independent justification for entry of a residence, but only
addresses the question of what the police may do once
lawfully inside. See United States v. Flippin, 924 F.2d 163,
165 (9th Cir. 1991) (noting that the “protective search was
upheld in Buie because the police had a legitimate right to
enter the home”).

Moreover, even if Buie applied to the situation before us,
the facts in the light most favorable to the plaintiffs do not
suggest that the apartment “harbor[ed] an individual posing
a danger to those on the arrest scene.” Buie, 494 U.S. at 334.
This is so for the same reasons that we have stressed
repeatedly in this opinion. The officers had no basis for
believing that a dangerous individual was amongst the Sialois
because, at the time of the protective sweep, the officers had
already detained everyone present under heavily-armed police
guard, and had determined that no one at the birthday party
was engaged in any criminal activity at all.

5
Under Buie, officers can perform a “protective sweep” incident to an
arrest inside a residence if they possess “articulable facts which, taken
together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbor[ed]
an individual posing a danger to those on the arrest scene.’” 494 U.S. at
334.
 SIALOI V. CITY OF SAN DIEGO 25

Next, the defendants attempt to justify the search on the
basis of the exigency exception to the warrant requirement,
which permits “warrantless entry where officers ‘have both
probable cause to believe that a crime has been or is being
committed and a reasonable belief that their entry is
necessary to prevent . . . the destruction of relevant evidence,
the escape of the suspect, or some other consequence
improperly frustrating legitimate law enforcement efforts.’”
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)). The defendants argue that the
officers had probable cause to enter the Sialois’ apartment to
find that oft-referenced “second gun.” But this argument is
easily answered in the same manner as the defendants’
argument about the seizure and search of the assembled
members of the Sialoi family. No probable cause existed to
believe that anyone connected with the Sialois possessed the
“second gun” because the officers knew, before searching the
Sialois’ apartment, that G.S.’s toy could not have been the
“first gun” described in the call to the police, and there was
no other reason at that time to suspect that any of the Sialois
had taken part or were taking part in any unlawful activity.
We therefore hold that the search of the Sialoi apartment
violated their constitutional rights.

2. Whether the constitutional right was clearly
established

Finally, we conclude that no reasonable officer would
have thought it lawful to search the Sialois’ apartment. The
defendants argue that the “one to two minute[]” search of the
apartment was not unreasonable. It was clearly established at
the time of the incident, however, that when officers arrive at
a residence and find “no evidence of weapons, violence, or
26 SIALOI V. CITY OF SAN DIEGO

threats,” that warrantless entry into that residence is
unreasonable, regardless of the duration. Sandoval, 756 F.3d
at 1165.6 Accordingly, we affirm the denial of qualified
immunity for the officers’ entry and search of the Sialois’
apartment.

IV

Taking all the facts in the light most favorable to the
plaintiffs, the defendants are not entitled to qualified
immunity, and the district court properly denied their motion
for summary judgment.

AFFIRMED.

6
Although Sandoval was published in 2014, it addresses alleged civil
rights violations that occurred in October 2009, a year prior to the incident
at issue in this case. 756 F.3d at 1158. Thus, Sandoval’s discussion of
clearly established law applies equally here.