NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF COLTON PETERSON; et al., No. 14-35682
Plaintiffs - Appellees, D.C. No. 2:09-cv-00123-DLC
v.
MEMORANDUM*
DAVID KRUEGER, Missoula Police
Detective,
Defendant - Appellant,
and
CITY OF MISSOULA, Montana; et al.,
Defendants.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted March 6, 2017
Portland, Oregon
Before: FISHER and FRIEDLAND, Circuit Judges, and MAHAN,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
Detective David Krueger challenges the district court’s denial of his motion
for summary judgment based on qualified immunity. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We reverse the district court’s decision denying
qualified immunity and hold that Krueger is entitled to qualified immunity because
the law was not clearly established at the time of the violation.
1. The district court denied Krueger’s motion for summary judgment based
on qualified immunity, finding that the contours of the law were sufficiently clear
that Krueger may be said to have been on notice that his conduct was unlawful.
The United States Supreme Court recently reiterated “the longstanding principle
that ‘clearly established law’ should not be defined ‘at a high level of generality.’”
White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (citing Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)). “[T]he clearly established law must be ‘particularized’
to the facts of the case.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640
(1987)). The district court erred in failing to identify a case where an officer acting
under similar circumstances as Krueger was held to have violated the Fourteenth
Amendment. Instead, the district court relied on Munger v. City of Glasgow Police
Department, 227 F.3d 1082 (9th Cir. 2000), Kennedy v. City of Ridgefield, 439
F.3d 1055 (9th Cir. 2006), and Patel v. Kent School District, 648 F.3d 965 (9th Cir.
2011), which lay out the state-created danger exception in markedly different
circumstances and are applicable to this case only at a high level of generality.
2
Accordingly, we conclude that summary judgment based on qualified immunity
was warranted because the law was not clearly established at the time of the
alleged conduct. See White, 137 S. Ct. at 552.
2. Because we hold that Krueger is entitled to qualified immunity, we do
not consider whether the alleged conduct constituted a constitutional violation.
REVERSED.
3