Merritt Sharp, III v. County of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MERRITT L. SHARP III; CAROL No. 15-56146
SHARP,
Plaintiffs-Appellees, D.C. No.
8:14-cv-00331-
v. AG-JPR

COUNTY OF ORANGE; RYAN
ANDERSON; JEREMIAH PRESCOTT; OPINION
ALEXANDRA FLORES; JUSTIN
CHEVALIER; MARK VAN DE KREEKE;
ANTON PEREYRA,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding

Argued and Submitted April 3, 2017
Pasadena, California

Filed September 19, 2017
2 SHARP V. COUNTY OF ORANGE

Before: David M. Ebel, * Milan D. Smith, Jr., and N. Randy
Smith, Circuit Judges.

Opinion by Judge Ebel
Dissent by Judge N.R. Smith

SUMMARY **

Qualified Immunity / 42 U.S.C. § 1983

The panel affirmed the district court’s denial of qualified
immunity to sheriff deputies as to plaintiff Merritt L. Sharp
III’s retaliation claim, as well as the denial of state-law
immunities on plaintiffs’ state claims; reversed the denial of
qualified immunity on plaintiff Carol Sharp’s retaliation
claim and Sharp III’s claims for the seizure of his person, the
use of excessive force against him, and the search of his
person, as well as plaintiffs’ shared claim concerning the
search of their home; and remanded for further proceedings.

The case arose out of the execution of an arrest warrant
for plaintiffs’ son, Merritt L. Sharp IV, whom sheriff
deputies thought was residing in his parents’ home. The
sheriffs mistakenly arrested, searched and detained Sharp
III, and searched the entire house. Plaintiffs alleged

*
The Honorable David M. Ebel, Senior Judge for the United States
Court of Appeals for the Tenth Circuit, 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.
 SHARP V. COUNTY OF ORANGE 3

violations of their constitutional rights under 42 U.S.C. §
1983, and several pendent California state law claims.

First, the panel addressed Sharp III’s claims that the
deputies unlawfully seized him in violation of the Fourth
Amendment. Concerning the initial mistaken arrest of Sharp
III on the front lawn and initial transfer to the patrol vehicle,
the panel held that this initial arrest based on mistaken
identity was constitutionally unreasonable, and thus illegal,
but it did not violate clearly established law, and thus
qualified immunity was warranted. Concerning the
subsequent detention of Sharp III inside the patrol vehicle
after the deputies discovered that he was not the warrant
subject, the panel held that the categorical detention rule in
Michigan v. Summers, 452 U.S. 692 (1981), did not apply to
arrest warrants at issue in this case. Because there were no
particular circumstances justifying Sharp III’s detention
after learning he was not the arrest-warrant subject, the panel
concluded that detention was unconstitutional. The panel,
further held, however, that the detention did not violate
clearly established law because of the legal ambiguity
existing at the time of the arrest as to whether the categorical
Summers exception applied to arrest warrants. The panel
concluded that qualified immunity should have been
granted.

The panel next addressed Sharp III’s claims that Deputy
Anderson violated the Fourth Amendment by using
excessive force when Sharp III was arrested. The panel held
that while the degree of force here was significant, Deputy
Anderson was entitled to qualified immunity because
plaintiffs did not offer anything other than general legal
propositions which cannot clearly establish that Deputy
Anderson’s particular conduct was unlawful.
4 SHARP V. COUNTY OF ORANGE

Concerning Sharp III’s assertion of a Fourth Amendment
violation based on the search of his person during the initial
arrest, the panel held that since the arrest was not clearly
proscribed by established law, neither was the subsequent
search. Accordingly, qualified immunity should have been
granted.

The panel addressed the plaintiffs’ assertion that the
deputies’ search of their residence violated the Fourth
Amendment. The panel held that the officers reasonably
believed that Sharp IV resided in plaintiffs’ home. The panel
further held that Sharp IV’s probation condition requiring
him to submit his property to suspicionless searches defeated
plaintiffs’ claims that the deputies exceeded the scope of the
authorized search by looking in areas where Sharp IV would
not be found. The panel also held that there was no
established law clearly proscribing the deputies’ reliance
upon Sharp IV’s probation condition for their search of the
residence. For these two reasons, the panel concluded that
qualified immunity was warranted on this claim.

Concerning Sharp III’s First Amendment claim based on
the deputies’ alleged retaliation against him for being
argumentative, the panel held that Sharp III suffered
unconstitutional retaliation that was clearly proscribed by
established law. The panel concluded that qualified
immunity was properly denied.

The deputies asserted four immunities under California
state law to plaintiffs’ various state law claims. The panel
held that two immunities – “discretionary” immunity under
Cal. Gov. Code § 820.2 and “prosecutorial” immunity under
Cal. Gov. Code § 821.6 – did not apply as a matter of law.
The panel also held that the remaining two immunities –
arrest-warrant immunity under Cal. Gov. Code § 43.55(a)
and false-arrest immunity under Cal. Penal Code § 847(b) –
 SHARP V. COUNTY OF ORANGE 5

did not apply as a consequence of the panel’s determination
that the deputies’ actions here were unreasonable. The panel
concluded that the district court properly denied these
immunities.

The panel held that the district court did not err in
declining to award summary judgment to deputies not
implicated in certain claims where the district court
welcomed a motion to release specific defendants, but the
deputies neglected to make one.

Judge N.R. Smith dissented in part. Judge N.R. Smith
agreed with the majority that the deputies violated the
Constitution when the deputies seized Sharp III, when the
deputies used force against him, and when the deputies
searched his person. Judge N.R. Smith disagreed whether the
rights were “clearly established” at the time of the violation.
He wrote that the majority failed to view the facts in the light
most favorable to Sharp III when analyzing the Fourth
Amendment claims, and consequently the majority
improperly granted the deputies qualified immunity for their
initial arrest of Sharp III, their use of excessive force against
Sharp III, their subsequent search of Sharp III, and their
continued arrest of Sharp III. Judge N.R. Smith would hold
that Sharp III’s Fourth Amendment claims stemming from
these violations should go to trial along with Sharp III’s
claim of First Amendment retaliation.

COUNSEL

Michael J. Rossiter (argued), Zachary M. Schwartz, and
William L. Haluck, Koeller Nebeker Carlson & Haluck LLP,
Irvine, California, for Defendants-Appellants.
6 SHARP V. COUNTY OF ORANGE

Brenton Whitney Aitken Hands (argued) and Jerry L.
Steering, Law Office of Jerry L. Steering, Newport Beach,
California, for Plaintiffs-Appellees.

OPINION

EBEL, Circuit Judge:

This case arises out of the execution of an arrest warrant
gone wrong. Plaintiffs Merritt L. Sharp III (Sharp III) and
Carol Sharp (Carol) were in their home when several sheriff
deputies arrived. The deputies had an arrest warrant for
Plaintiffs’ son Merritt L. Sharp IV (Sharp IV), whom they
believed was residing in his parents’ home. During the
pursuit of Sharp IV, however, the deputies mistakenly
arrested his father Sharp III, believing him to be the subject
of the warrant. In the course of that arrest, one of the
deputies forcefully restrained Sharp III and searched his
person. After they discovered their mistake, the deputies
still kept Sharp III handcuffed and locked in a patrol car
while several of them searched Plaintiffs’ home for Sharp
IV, the true subject of the arrest warrant. They also removed
Carol from the house and forced her to wait during the home
search. Meanwhile, Sharp III was kept detained in the patrol
car after one of the deputies told him that he was being too
argumentative to be let out of the car during the search of his
home. Plaintiffs testified that when they returned to their
house, they discovered that the deputies had not just
searched for their son in the home, but also had searched
through bedroom drawers and kitchen cabinets without a
search warrant.

Plaintiffs brought this lawsuit asserting violations of
their constitutional rights under 42 U.S.C. § 1983, and also
 SHARP V. COUNTY OF ORANGE 7

raised several pendent claims under California law. On
motion for summary judgment, Defendants raised various
immunities from suit, including qualified immunity from the
§ 1983 claims and a handful of state-law immunities from
the state claims. 1 The district court denied all immunities.
In its view, the deputies violated clearly established law,
thereby precluding qualified immunity, and the district court
further held that the asserted state-law immunities were
inapplicable as a matter of law and fact.

We AFFIRM in part and REVERSE in part. The district
court properly denied qualified immunity on Sharp III’s
retaliation claim, and appropriately rejected all state-law
immunities. However, the deputies are entitled to qualified
immunity on Carol’s retaliation claim and Sharp III’s claims
for the seizure of his person, the use of excessive force
against him, and the search of his person, as well as
Plaintiffs’ shared claim concerning the search of their home.
Although we conclude that much of this conduct was
unconstitutional, we hold that qualified immunity was
nevertheless warranted on these claims. Our conclusions are
driven by recent Supreme Court pronouncements on
qualified immunity and rest principally on the failure by
Plaintiffs to identify sufficiently specific constitutional

1
Along with individual sheriff deputies, Plaintiffs sued the County
of Orange for allegedly maintaining constitutionally inadequate customs
and policies that resulted in the deputies’ unlawful conduct. See Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). The County sought
summary judgment because the undisputed record evidence did not
support liability under this theory. The district court agreed, awarded
summary judgment to the County, and the Plaintiffs do not cross-appeal.
Thus, the only issues on appeal concern the immunities asserted by the
deputy sheriffs.
8 SHARP V. COUNTY OF ORANGE

precedents to alert these deputies that some of their
particular conduct was unlawful.

I. BACKGROUND 2

In August 2013, Sharp IV was released from state prison
subject to conditions of probation. The conditions required
him to “[s]ubmit [his] person and property . . . to search and
seizure at any time of the day or night by any law
enforcement officer . . . with or without a warrant, probable
cause or reasonable suspicion.” ER at 121. With no place
to stay after his release, his parents, Sharp III and Carol,
agreed to let him live in their home at 408 Camino Bandera.
Thus, upon his release, Sharp IV informed the probation
office of this address as his place of residence. In mid-
September 2013, however, Sharp IV’s parents kicked him
out of their house. Carol then called their son’s probation
and parole officers and informed them that Sharp IV “no
longer lived in [their] home.” SER 255.

In September 2013, a California criminal court issued
two arrest warrants for Sharp IV. The deputies decided to
execute the warrants on the evening of October 2, 2013—a
date on which Sharp IV, coincidentally, was present at the
Camino Bandera residence to pick up some belongings.

Before executing the warrants, Deputy Prescott reviewed
Sharp IV’s two active arrest warrants, which indicated that
Sharp IV was male, white, fifty-one years old, 180 pounds,
between 5’11” and 6’ tall, and resided at 408 Camino
Bandera. He also reviewed Sharp IV’s DMV records and
2
Unless otherwise indicated, the following recited facts are not
materially disputed. To the extent that there are genuine disputes of
material fact in the record, we accept the facts most favorable to
Plaintiffs in the context of Defendants’ motion for summary judgment.
 SHARP V. COUNTY OF ORANGE 9

probation response form, which confirmed the same address
of residence. Finally, he checked Sharp IV’s criminal
records and learned that Sharp IV had previously committed
violent crimes, including kidnapping, assault with a deadly
weapon, and felony domestic violence. After reviewing
these materials, Deputy Prescott met Deputies Van De
Kreeke and Chevalier in a parking lot near the Camino
Bandera residence to formulate a plan. Deputy Prescott
showed them a packet of documents which included a
photograph of Sharp IV and the arrest warrant listing the
Camino Bandera residence as Sharp IV’s address of record.

At around 11:00 p.m., October 2, 2013, the deputies
arrived at the Camino Bandera residence. Deputy Chevalier
made his way to the backyard while Deputies Prescott and
Van De Kreeke went to the front door. At the front door,
they placed a piece of tape over the peephole opening and
knocked several times. Sharp III looked through the
peephole but could not see anything, so he flashed the front-
porch light and confirmed that something was covering the
peephole. Around that time, Deputy Prescott reported that
he saw a person in a black shirt peek through the blinds.

Deputy Chevalier then radioed that the subject was
fleeing out the backyard: “[H]e’s running out the back. Foot
pursuit . . . going to be heavily wooded bushes. Male[,]
white, 5’11”, 180, wearing a black shirt, tan pants, white
shoes.” ER 20 (emphasis added). Deputies Prescott and Van
De Kreeke rushed around the back of the residence to assist
in the pursuit, but nobody could locate the subject. Working
their way through dense brush to find Sharp IV, the deputies
arrived at a nearby golf course and spread out to cover more
ground. At 11:05 p.m., Deputy Prescott radioed to nearby
officers to cover the Camino Bandera residence in case the
subject doubled back to the house. Deputy Chevalier added
10 SHARP V. COUNTY OF ORANGE

a further warning shortly thereafter: “Be advised, he’s prone
to violence. Violent history towards law enforcement.”
ER 22. By this time Deputy Anderson, who was on patrol
nearby and had heard these radio transmissions, began
making his way to the Camino Bandera residence for back-
up support.

Meanwhile, the deputies continued their search for Sharp
IV on the golf course. While on the golf course, Deputy
Prescott saw a man in the backyard of the Camino Bandera
residence whom he believed may have been Sharp IV.
Deputy Prescott reported that the man he saw was bald, wore
a blue shirt, and had the same stature as Sharp III. According
to Deputy Prescott, the man yelled something at the deputies,
turned around, and re-entered the home through the
backdoor. 3

Deputy Prescott then radioed the group that the
“[s]uspect’s gonna be back in the house, just went in the back
door.” ER 31. Then he directed Deputy Anderson
specifically, “I need you to go to the front of the house.”
ER 32. Deputy Anderson responded that he was en route.
Believing that Sharp IV had re-entered the house, Deputies
Prescott, Chevalier, and Van De Kreeke began making their
way back to the residence.

3
Deputy Prescott claimed he heard the person in the backyard yell,
“You guys couldn’t catch a cold.” ER 23. The parties dispute the precise
content of the statement. They further dispute whether Deputy Prescott
could have even seen anyone in the backyard over the tall brush that
would have obscured his view from the golf course. These factual
disputes are not material to our review of the order denying summary
judgment.
 SHARP V. COUNTY OF ORANGE 11

At around 11:13 p.m. Deputy Anderson, accompanied
by Deputy Flores, arrived at the house. They had not seen a
photograph of the warrant subject, nor did they know the
subject’s name. Deputy Anderson did, however, recall from
an earlier radio transmission that “the suspect fleeing the
residence [was] described as a white male wearing a black
shirt and tan pants.” 4 SER 149 (emphasis added). The
deputies also knew that the suspect was “last seen in the area
of the house” and “may have r[u]n back into the house.”
SER 152.

As Deputies Anderson and Flores arrived at the scene,
Sharp III—the suspect’s father—walked out of the front
door wearing a light blue shirt and blue jeans. As Sharp III
walked off the front porch, Deputy Anderson admitted there
was enough light to be able to approximate Sharp III’s age.
Although Defendants dispute this, Sharp III claims he was
not yelling or acting belligerent at the time, but rather walked
calmly toward the deputies. Despite the mismatched
clothing and an alleged demeanor inconsistent with that of a
fleeing suspect, Deputies Anderson and Flores began
shouting commands with their weapons drawn: “Get down
on the ground!” and “put your hands up!” ER 32. 5

4
Later in his deposition, Deputy Anderson stated that all he
remembered was that the subject was “male” and “white”—nothing
about the clothing. SER 152. However, on summary judgment we adopt
the version of the facts most favorable to the non-moving parties, here
Plaintiffs. We thus credit his earlier statement that he heard the fleeing
suspect was wearing a black shirt and tan pants, rather than his later
contradictory statement of ignorance regarding the suspect’s clothing.
5
Defendants point out that, before arresting Sharp III, Deputy
Anderson asked Sharp III his name, to which he responded, “Merritt.”
ER 32. The warrant subject’s first name was also Merritt, so Defendants
12 SHARP V. COUNTY OF ORANGE

The deputies then placed Sharp III under arrest. In
explaining their rationale for the arrest, Deputy Anderson
stated: “I hadn’t identified who he was and believed he may
be the wanted person.” ER 178. Deputy Flores, who was
the supporting deputy on the scene rather than the deputy
who physically conducted the arrest, further explained: “I
didn’t know who was coming out of the house, to be
honest. . . . [I]t wasn’t secured, so we were trying to just
detain everybody[.]” SER 237. Nevertheless, despite their
uncertainty, the deputies proceeded to arrest Sharp III.

In doing so, Deputy Anderson grabbed Sharp III’s left
arm, put it behind his back, “shove[d] it” upward toward his
neck, and handcuffed his left wrist. ER 187. Deputy
Anderson then conducted a search of Sharp III’s person,
instructing him to empty out his pockets on the front lawn.
Finally, Deputy Anderson handcuffed Sharp III’s right wrist,
thereby fully restraining his arm movement. According to
Sharp III, the handcuffs were “so tight that [he] still ha[s]
scars on [his] wrists to this very day.” SER 273.

At 11:15 p.m., Deputy Anderson placed Sharp III in the
back of a patrol car. He asked for the arrestee’s full name
and birthday, to which Sharp III responded that his name was
Merritt Llewellyn Sharp and that he was born on August 6,
1940—thereby making him seventy-three years old. For the
next several minutes, Deputy Anderson attempted to match
Sharp III’s identity with outstanding warrants by running the

contend that the arresting deputies reasonably believed Sharp III was the
warrant subject. But the arresting deputies did not know the warrant
subject’s name, so learning that Sharp III’s first name was also Merritt
did not corroborate their suspicion that Sharp III was the warrant subject.
 SHARP V. COUNTY OF ORANGE 13

information through a mobile computer, but this effort was
delayed by low internet connectivity in the area.

At 11:19 p.m., several deputies went back to search the
house pursuant to Sharp IV’s probationary search condition.
At the front door, however, they confronted Sharp III’s wife,
Carol, who informed them that they had arrested the wrong
man, and that her son Sharp IV did not live there anymore.
Realizing their mistake, the deputies began to question Sharp
III about his son’s whereabouts. Sharp III was angry and
still restrained in the back of the patrol car, but he answered
their questions. He disclaimed any awareness of his son’s
location, but told the deputies that his son had been in the
house twenty minutes earlier.

At this time, the deputies did not release Sharp III.
Instead, they kept him handcuffed and locked in the patrol
car. Sharp III was furious and adamantly protested his
detention, loudly swearing at the deputies and threatening to
sue them. In response, Deputy Anderson told Sharp III: “If
you weren’t being so argumentative, I’d probably just put
you on the curb.” SER 280.

The home search began at 11:28 p.m., during which time
Carol was forced to wait on the front porch with Deputies
Flores and Hudson. Plaintiffs claim that the search
encompassed more than just a search for Sharp IV. Taking
the facts as stated by Plaintiffs, Deputies Prescott, Chevalier,
Van De Kreeke, and Pereyra entered the home and opened
kitchen cabinet and pantry doors, removed the air-
conditioning cover in the attic, and searched various drawers
in Carol’s own bedroom. When Carol was allowed back in
the house, she discovered clothing flung on the floor in her
bedroom closet. After the search concluded, Sharp III was
released from the patrol car at 11:39 p.m. That means, even
after the deputies discovered he was not the subject of the
14 SHARP V. COUNTY OF ORANGE

arrest warrant, Sharp III was detained for about twenty
minutes in the patrol car.

The morning after the incident, Plaintiffs went to an
urgent care facility for treatment of Sharp III’s shoulder,
which had been causing him pain after Deputy Anderson
yanked his left arm behind his back. Sharp III ultimately
needed surgery to repair a torn rotator cuff.

Plaintiffs now assert violations of their constitutional
rights under 42 U.S.C. § 1983, and several pendent claims
under California state law. As for the federal claims which
we address on appeal from denial of qualified immunity,
Sharp III asserts violations of the Fourth Amendment based
on the seizure of his person (including the initial mistaken
arrest and the continuing detention in the patrol car), the
search of his person, and the use of excessive force against
him. He also brings a First Amendment retaliation claim
based on the deputies’ refusal to release him on account of
his “argumentative” demeanor. Carol brings a similar
retaliation claim based on her verbal protests about the
deputies’ treatment of her husband. Finally, Plaintiffs
together bring a shared Fourth Amendment claim for the
search of their home. As for California state-law claims,
they assert various statutory and common-law violations
arising out of the same conduct that is the subject of the
federal claims. The deputies moved for summary judgment
on the grounds that they were entitled to qualified immunity
against the federal claims, and state-law immunities against
the state claims. The district court denied summary
judgment, thereby prompting this interlocutory appeal. 6

6
We have appellate jurisdiction because a district court’s denial of
qualified immunity is immediately appealable to the extent it turns on an
 SHARP V. COUNTY OF ORANGE 15

II. DISCUSSION

We review de novo a district court’s order on summary
judgment, and we evaluate the evidence in the light most
favorable to Plaintiffs, the non-movants. See, e.g., Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
Qualified immunity is proper unless Plaintiffs establish that
(1) the deputies committed a constitutional violation, and
(2) the deputies’ specific conduct violated “clearly
established” federal law. E.g., Kirkpatrick v. Cty. of
Washoe, 843 F.3d 784, 788 (9th Cir. 2016).

A. Seizure of Sharp III

Sharp III claims that the deputies unlawfully seized him
in violation of the Fourth Amendment. There are two
aspects to this seizure which we analyze separately: (1) the
initial mistaken arrest of Sharp III in the front lawn and
initial transfer to the patrol vehicle, and (2) his subsequent
detention inside the patrol vehicle after the deputies
discovered that he was not the warrant subject. These
separate phases of Sharp III’s allegedly unreasonable seizure
require separate treatment because they implicate different
Fourth Amendment principles.

The legality of the initial mistaken arrest—when the
deputies mistakenly believed they had correctly
apprehended the subject of the warrant—turns on the
objective reasonableness of their belief that the man they
arrested was in fact the warrant subject. There is no
categorical authority to commit such an unreasonable

issue of law, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and the
denial of a state-law immunity from suit is also immediately appealable,
Liberal v. Estrada, 632 F.3d 1064, 1075 (9th Cir. 2011).
16 SHARP V. COUNTY OF ORANGE

mistake, so we analyze only the specific facts that confronted
the deputies during the arrest. However, after the deputies
learned that Sharp III was not the true warrant subject, they
returned to search for Sharp IV in the Camino Bandera
residence. At that moment, a new Fourth Amendment
principle was potentially implicated for the continued
detention of Sharp III. Under Michigan v. Summers,
irrespective of the exigencies of the particular
circumstances, officers may categorically detain the
occupant of a home while executing a search warrant in that
home. 452 U.S. 692, 705 (1981). These deputies rely on
Summers to assert that they could continue to detain Sharp
III—even after they knew he was not the subject of the arrest
warrant—while they searched his home for Sharp IV, for the
purpose of executing the arrest warrant. The principal issue
as to the validity of this claimed defense is whether
Summers, which hinged critically on the distinct character of
search warrants, applies also to arrest warrants.

1. Initial Arrest of Sharp III Based on Mistaken Identity

Sharp III encountered Deputies Anderson and Flores
when he walked out of his front door. At gun point, the
deputies ordered him to the ground and placed him under
arrest because he “may” have been the subject of the
warrant. ER 178. But the deputies were wrong—Sharp III
was the suspect’s father. We conclude that this initial arrest
based on mistaken identity was constitutionally
unreasonable, and thus illegal, but it did not violate clearly
established law. Qualified immunity was therefore
warranted.

a. The Initial Arrest Was Unconstitutional

In a case of mistaken identity, “the question is whether
the arresting officers had a good faith, reasonable belief that
 SHARP V. COUNTY OF ORANGE 17

the arrestee was the subject of the warrant.” Rivera v. Cty.
of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014); accord
Hill v. California, 401 U.S. 797, 802 (1971) (“[W]hen the
police have probable cause to arrest one party, and when
they reasonably mistake a second party for the first party,
then the arrest of the second party is a valid arrest.” (internal
quotation marks omitted)). The constitutionality of the
arrest thus turns on the reasonableness of the deputies’
mistake.

In this case, the mistake of identity was unreasonable. At
the outset, it is not clear that Deputies Anderson and Flores
actually even formed a specific belief that Sharp III was the
warrant subject. Deputy Anderson testified that he “hadn’t
identified who [Sharp III] was and believed [Sharp III] may
be the wanted person.” ER 178. Deputy Flores said that she
“didn’t know who was coming out of the house, . . . so we
were trying to just detain everybody[.]” SER 237. However,
both deputies should have known that Sharp III was not the
subject they heard described on the radio transmissions.
They had not been privy to all the information known by the
other deputies who first encountered the fleeing suspect. All
they knew was what they heard from the other deputies on
the scene, who reported that the fleeing suspect (and reported
subject of the arrest warrant) was wearing a black shirt and
tan pants. But Sharp III was wearing completely different
clothing—a light blue shirt and blue jeans. What is more,
when they encountered Sharp III, he was walking toward
them, rather than fleeing like the described suspect.

Defendants counter that it was nighttime and the
situation was dynamic and evolving, but that does not give
officers the license to arrest anyone near the scene of a
fleeing suspect. It was thus unreasonable for Deputies
Anderson and Flores to conclude that Sharp III was the
18 SHARP V. COUNTY OF ORANGE

subject of the arrest warrant. The initial arrest of Sharp III
therefore violated the Fourth Amendment.

b. The Violation Was Not Clearly Established

Although unconstitutional, the arrest was not clearly
proscribed by established federal law. The Supreme Court
has repeatedly instructed that we examine “whether the
violative nature of particular conduct is clearly established”
by controlling precedent, not whether the conduct violates a
general principle of law. Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)). Therefore, while Hill v.
California, 401 U.S. 797, 802 (1971), and Rivera v. County
of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014), establish
a general rule that an unreasonable mistake of identity
renders an arrest unconstitutional, we cannot simply apply
that general rule to the facts of this case.

Except in the rare case of an “obvious” instance of
constitutional misconduct (which is not presented here),
Plaintiffs must “identify a case where an officer acting under
similar circumstances as [defendants] was held to have
violated the Fourth Amendment.” White v. Pauly, 137 S. Ct.
548, 552 (2017) (per curiam) (emphasis added). In other
words, Plaintiffs must point to prior case law that articulates
a constitutional rule specific enough to alert these deputies
in this case that their particular conduct was unlawful. To
achieve that kind of notice, the prior precedent must be
“controlling”—from the Ninth Circuit or Supreme Court—
or otherwise be embraced by a “consensus” of courts outside
the relevant jurisdiction. Wilson v. Layne, 526 U.S. 603, 617
(1999).

Plaintiffs offer only one controlling case that they
believe meets this standard, United States v. Delgadillo-
 SHARP V. COUNTY OF ORANGE 19

Velasquez, 856 F.2d 1292 (9th Cir. 1988), but we reject it as
too dissimilar on its facts. In that case, officers had an
“untested tip” about a known drug dealer, a printout of his
physical description, a twenty-year-old photograph of the
fugitive, and his apartment address. Id. at 1294, 1296. The
officers conducted surveillance of the apartment building
over two days and observed an apparent drug transaction
made outside the building by a Latin male whose appearance
did not match the photograph. Id. at 1294. The officers then
arrested that Latin male, but he ultimately was not the
suspect they were looking for. We concluded that the
officers lacked probable cause to make the arrest, and we
rejected the mistake-of-identity defense because “they had
no reason to believe” the arrestee was their suspect. Id. at
1297.

Our case differs materially from Delgadillo-Velasquez.
In particular, the deputies here arrived late on the scene and
understood the situation to be dynamic and evolving, with a
fleeing suspect who was prone to act violently against law
enforcement. The need to act quickly and decisively—even
if mistakenly—was thus greater here than it was in
Delgadillo-Velasquez. Further, in Delgadillo-Velasquez, the
arresting officers had a photograph of the suspect that did
not match the arrestee, whereas in our case Deputies
Anderson and Flores had never seen a picture of the warrant
subject and had only heard a general description of his
clothing which was received under fleeting and stressful
circumstances. Thus, Delgadillo-Velasquez does not clearly
establish that the deputies in our case violated the Fourth
Amendment.

It is true that in a sufficiently “obvious” case of
constitutional misconduct, we do not require a precise
factual analogue in our judicial precedents. Brosseau v.
20 SHARP V. COUNTY OF ORANGE

Haugen, 543 U.S. 194, 199 (2004) (per curiam) (“[I]n an
obvious case, [highly generalized] standards can ‘clearly
establish’ the answer, even without a body of relevant case
law.”); Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.”);
United States v. Lanier, 520 U.S. 259, 271 (1997) (“[I]n
[some] instances a general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question, even though the
very action in question has not previously been held
unlawful[.]” (internal quotation marks and alteration
omitted)). 7

But this obviousness principle, an exception to the
specific-case requirement, is especially problematic in the
Fourth-Amendment context. When a violation is obvious
enough to override the necessity of a specific factual
analogue, we mean to say that it is almost always wrong for
an officer in those circumstances to act as he did. But that
kind of categorical statement is particularly hard to make
when officers encounter suspects every day in never-before-
seen ways. There are countless confrontations involving
officers that yield endless permutations of outcomes and
responses. So the obviousness principle has real limits when
it comes to the Fourth Amendment. See Mullenix, 136 S. Ct.
at 308 (The legal rule’s “specificity is especially important

7
As one of our sibling circuits explained: “[S]ome things are so
obviously unlawful that they don't require detailed explanation and
sometimes the most obviously unlawful things happen so rarely that a
case on point is itself an unusual thing. Indeed, it would be remarkable
if the most obviously unconstitutional conduct should be the most
immune from liability only because it is so flagrantly unlawful that few
dare its attempt.” Browder v. City of Albuquerque, 787 F.3d 1076, 1082-
83 (10th Cir. 2015).
 SHARP V. COUNTY OF ORANGE 21

in the Fourth Amendment context, where the Court has
recognized that it is sometimes difficult for an officer to
determine how the relevant legal doctrine . . . will apply to
the factual situation the officer confronts.” (internal
quotation marks and alteration omitted)).

With these observations in mind, we find this is not “one
of those rare cases” in which a violation was so “obvious”
that qualified immunity does not apply “even without a case
directly on point.” A.D. v. Cal. Highway Patrol, 712 F.3d
446, 455 (9th Cir. 2013). After all, Deputy Prescott had
some basis to believe that Sharp III has reentered the house
and may have tried to exit the front door since he would have
known that the officers had the back exit covered. Thus,
Deputy Prescott’s instructions to Deputies Anderson and
Flores to “go to the front of the house” could be construed
by Deputy Anderson and Deputy Flores as an informed
advisement that Deputy Prescott thought the suspect Sharp
IV was at imminent risk of exiting the front of the house.
ER 32. Deputies Anderson and Flores also had heard on the
radio that the fleeing suspect had a history of violence
toward law enforcement. Further, the deputies may have felt
an acute need to apprehend the subject without verifying his
identity based on their perception that the suspect had fled
from the other deputies just minutes earlier. Finally, the
arresting deputies here had never seen a picture of the
warrant subject or even a detailed physical description of
him other than the generalized reference to the fleeing
suspect’s clothes, transmitted over the radio under fleeting
and stressful circumstances. These factors make this a non-
obvious constitutional violation, and thus we require a
specific precedent or principle that would have alerted
Deputies Anderson and Flores that their specific conduct, or
at least conduct more closely analogous to their own, was
unlawful. Finding none, we conclude they were entitled to
22 SHARP V. COUNTY OF ORANGE

qualified immunity as to the initial arrest based on mistaken
identity.

2. The Subsequent Detention of Sharp III in Patrol
Vehicle Was Unconstitutional

The deputies subsequently detained Sharp III’s in the
patrol car after they discovered that he was not the warrant
subject. Defendants contend that, under the rule of Michigan
v. Summers, 452 U.S. 692 (1981), officers have the
categorical authority to detain a home occupant in the
immediate vicinity of the home while executing an arrest
warrant for a different subject in the home. But Summers
involved a search warrant, which is meaningfully different
from an arrest warrant. We hold that the categorical
detention rule announced in Summers does not apply to
arrest warrants, and because there were no particular
circumstances justifying Sharp III’s detention after learning
he was not the arrest-warrant subject, we conclude that
detention was unconstitutional as well. However, once
again, it did not violate clearly established law because of
the legal ambiguity existing at the time of the arrest as to
whether the categorical Summers exception applied to arrest
warrants. Thus, qualified immunity should have been
granted.

a. Sharp III’s Detention Cannot Be Justified By
an Extension of Michigan v. Summers to
Arrest Warrants

We first analyze whether Summers gives law
enforcement the categorical authority to detain home
occupants incident to the execution of an arrest warrant.
After concluding that such categorical authority does not
extend to arrest warrants, we next examine whether, in the
particular circumstances of this case, it was constitutionally
 SHARP V. COUNTY OF ORANGE 23

reasonable to detain Sharp III after realizing he was not the
subject of the arrest warrant.

i. Categorical Detention Authority Under
Summers

It is established that a warrant to search a home
“implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is
conducted.” Summers, 452 U.S. at 705. As Justice Scalia
described it, the Summers detention authority “is not the
Government’s right; it is an exception—justified by
necessity—to a rule that would otherwise render the seizure
unlawful.” Bailey v. United States, 568 U.S. 186, 204 (2013)
(Scalia, J., concurring) (internal quotation marks and citation
omitted). Moreover, this exception is categorical—it does
not depend on the specific circumstances in a particular case,
see Muehler v. Mena, 544 U.S. 93, 98 (2005), although it is
“limited to the immediate vicinity of the premises” in
question, Bailey, 568 U.S. at 199; see id. at 194, 201 (finding
the Summers exception inapplicable because the occupant
was detained a mile away from the home and thus was not
within the immediate vicinity of the searched premises). We
hold that the Summers exception, which hinged critically on
the distinct nature of a search warrant, does not extend to
arrest warrants.

Search warrants and arrest warrants are meaningfully
different because they protect different Fourth Amendment
interests. See Steagald v. United States, 451 U.S. 204, 212–
13 (1981) (finding that an arrest warrant is not sufficient to
enter a third party’s home to arrest a subject, and that a
24 SHARP V. COUNTY OF ORANGE

separate search warrant must be obtained for that purpose). 8
So it is not appropriate to assume that the rules of search
warrants automatically apply to those of arrest warrants. We
therefore conduct an independent analysis to determine
whether the Summers rule encompasses arrest warrants.

In deciding the scope of this rule, we examine the
original justifications outlined by the Supreme Court in
announcing the rule in the first place. Those justifications
were three-fold: (1) the detention of occupants whose home
is already the subject of a search warrant only “minimally”
inflicts an “incremental” intrusion on their rights, Summers,
452 U.S. at 701–02; (2) the search warrant itself implies that
someone in the home may have committed a crime, thereby
making it constitutionally reasonable to detain the
occupants, id. at 703–04; and (3) the police have substantial
interests in detaining occupants while the search is
conducted, id. at 702–03. These reasons do not apply with
the same force to arrest warrants. We assess each in turn.

First, because an arrest warrant targets a person, rather
than a dwelling, detaining an occupant who is not the subject
of the warrant inflicts an entirely separate Fourth
Amendment injury on an entirely separate person—it is not
a minimal or “incremental” intrusion because the arrest
injured a different person than the subject of the warrant.

8
Search warrants safeguard the privacy interest in the home by
requiring officers to secure a judicial determination of probable cause
that incriminating evidence would be found therein. Steagald, 451 U.S.
at 212-13. By contrast, arrest warrants protect a person’s liberty
interest—the interest in not being unreasonably seized while in his
home—by subjecting the officers’ probable-cause determination to
judicial approval. Id.
 SHARP V. COUNTY OF ORANGE 25

Second, arrest warrants do not imply that someone other
than the subject of the warrant is guilty of a crime. In fact,
the Supreme Court recognized this very principle in
Maryland v. Buie: A “search warrant implie[s] a judicial
determination that police had probable cause to believe that
someone in the home was committing a crime[,]” whereas
“the existence of [an] arrest warrant implies nothing about
whether dangerous third parties will be found in the
arrestee’s house.” 494 U.S. 325, 334 n.2 (1990) (emphasis
added) (rejecting the State’s argument that an “arrest warrant
carrie[s] with it the authority to search for persons who could
interfere with the [in-home] arrest”).

Third, the interests of law enforcement in detaining
occupants during a search (mostly) do not apply to the
execution of an arrest warrant. The Summers Court
articulated three such interests: (1) “preventing flight in the
event that incriminating evidence is found”; (2) facilitating
“the orderly completion of the search” as detainees’ “self-
interest may induce them to open locked doors or locked
containers to avoid the use of force”; and (3) “minimizing
the risk of harm to the officers.” Summers, 452 U.S. at 702–
03. With the exception of the final factor, these
considerations simply do not apply with the same force to
arrest warrants.

The first interest—prevention of flight in the event that
incriminating evidence is found—is wholly inapplicable to
the arrest-warrant context. An occupant might be expected
to flee when the police find contraband during the execution
of a search warrant. By contrast, an occupant who is not the
subject of an arrest warrant is not likely to be arrested
himself when the warrant is executed. So there is no real
flight risk in the arrest-warrant context.
26 SHARP V. COUNTY OF ORANGE

The second interest—the orderly completion of the
search—is also inapposite. The essence of this rationale is
that the occupant can help the police conduct the search by
opening locked doors, but unless the subject of the arrest
warrant is behind a locked door and the co-occupant has a
key, this does not apply to arrest warrants.

The third interest—officer safety—is admittedly
sometimes present in the arrest-warrant context as well.
After all, co-occupants might frustrate the arrest of a family
member or retaliate against officers if not properly
restrained. But this lone interest cannot be enough to give
officers the categorical power to detain home occupants
during the execution of an arrest warrant irrespective of
whether such a threat actually exists. The Summers Court
relied on much more than that to give officers the “far-
reaching authority” they now have to execute search
warrants, Bailey v. United States, 133 S. Ct. 1031, 1039
(2013), so reliance on this factor alone is insufficient to
extend the Summers rule—a rule of categorical authority—
to arrest warrants.

Our decision in United States v. Enslin, 327 F.3d 788
(9th Cir. 2003), is not to the contrary. In that case, we upheld
a “de minimis” seizure of a home occupant (requiring only
that he show his hands to an officer) during the in-home
execution of an arrest warrant for a different person. Id. at
795–98. While we cited Summers for the general
proposition that risk to officer safety is minimized when
officers take control of a situation, our holding in Enslin was
predicated on a fact-specific reasonableness
determination—balancing the seriousness of the intrusion
against the interest in preserving officer safety in that
particular case. Id. at 796–97. Such a fact-bound inquiry
would not have been undertaken if the court had extended
 SHARP V. COUNTY OF ORANGE 27

the categorical Summers rule to the arrest-warrant context.
Thus, Enslin does not compel a contrary holding in this case.
Officers do not have the categorical authority to detain co-
occupants of a home incident to the in-home execution of an
arrest warrant.

That does not mean, however, that such a detention
would never be authorized under the particular
circumstances confronting an officer. Declining to extend
the categorical Summers rule to arrest warrants does not
leave officers defenseless when entering a home to execute
an arrest warrant. There will surely be circumstances when
detention of persons on, or immediately near, the premises
will be objectively reasonable. After all, entry into a home
for the purpose of arresting an occupant can be a dangerous
effort, and officers ought to have reasonable tools at their
disposal to take command of the situation to protect their
own safety and the safety of others. See Summers, 452 U.S.
at 702–03 (“The risk of harm to both the police and the
occupants is minimized if the officers routinely exercise
unquestioned command of the situation.”). Those tools
might include detention of occupants to stabilize the
situation while searching for the subject of an arrest warrant
or conducting a lawful protective sweep of the premises.

But as we explain, the deputies in this case were not
presented with anything remotely near the circumstances
needed to justify the detention of Sharp III.

ii. Whether the Detention of Sharp III Was
Reasonable Under the Specific
Circumstances Confronting the Deputies

Defendants contend that, in these particular
circumstances, Sharp III’s detention was reasonably
necessary to keep him from interfering with the search for
28 SHARP V. COUNTY OF ORANGE

Sharp IV in the house. But construing the facts in Plaintiffs’
favor, we find no evidence to support that inference other
than the unsupported speculation that an irritated father
might intervene in a police effort to apprehend his son. We
decline to indulge such naked conjecture, especially because
Sharp III was not engaged in any such disruptive activity at
the time of the arrest. He was walking toward the officers in
an apparently compliant manner. Sharp III’s subsequent
frustration is best understood as a reaction to the deputies’
mistake in arresting him and his ongoing confinement in a
patrol car. With no categorical authority to detain Sharp III
under Summers, and no circumstance-specific authority to
confine him either, the deputies have no more legal legs to
stand on. We thus find this patrol-car detention
unconstitutional.

b. The Violation Was Not Clearly Established

Although there was no constitutional authority to detain
Sharp III in the patrol car after discovering he was not the
subject of the warrant, that particular detention was not
clearly proscribed by established law. Except when there is
an “obvious” instance of constitutional misconduct,
Plaintiffs must “identify a case where an officer acting under
similar circumstances as [defendants] was held to have
violated the Fourth Amendment.” White v. Pauly, 137 S. Ct.
548, 552 (2017) (per curiam) (emphasis added). Simply put,
there is no such controlling case here that would alert these
officers to the proper scope of Summers.

In fact, non-binding case law could be perceived by a
reasonable officer to point in the other direction. We have
held in an unpublished decision that the Summers exception
does, in fact, extend to arrest warrants. Katzka v. Leong,
11 F. App’x 854, 855–56 (9th Cir. 2001) (unpublished).
Further, our published decision in Enslin, although it does
 SHARP V. COUNTY OF ORANGE 29

not go so far as to apply the Summers categorical exception
to arrest warrants, could nevertheless provide some support
to a reasonable officer in concluding that the Summers
categorical exception does apply to arrest warrants.
327 F.3d at 795–98. And finally, other federal courts of
appeals have also indicated that the Summers’ rationale
might apply in the arrest-warrant context. See Gomez v.
United States, 601 F. App’x 841, 846–49 (11th Cir. 2015)
(unpublished); Cherrington v. Skeeter, 344 F.3d 631, 638
(6th Cir. 2003).

To be sure, the Supreme Court limited the Summers
exception—and did so unequivocally—to the execution of
warrants in the “immediate premises” of a home, see Bailey,
568 U.S. at 194, 201 (finding that one mile away from the
searched premises did not qualify as within the immediate
vicinity), but that limitation does not answer the question
whether the Summers exception extends to arrest warrants—
and our case law on that question, as well as rulings from
several other federal circuit courts, could lead reasonable
persons to different conclusions. Neither is there any
contention here by Plaintiffs that Sharp III’s seizure was not
within the “immediate vicinity” of the Camino Bandera
residence.

Plaintiffs have also failed to identify a case that
pronounces a constitutional rule at a level of specificity
sufficient to alert these deputies here that their conduct was
unconstitutional in the specific circumstances they
confronted. Nor is this a sufficiently “obvious” case
justifying departure from our requirement that there be some
factually analogous judicial precedent. Thus, qualified
immunity should have been granted.
30 SHARP V. COUNTY OF ORANGE

B. Use of Excessive Force Against Sharp III

Sharp III claims that Deputy Anderson violated the
Fourth Amendment by using excessive force when Sharp III
was arrested. Taking the facts as offered by Plaintiffs,
Deputy Anderson yanked Sharp III’s left arm behind his
back—thereby causing a rotator-cuff tear which required
surgery—and then applied handcuffs that were tight enough
to break Sharp III’s skin. While the degree of force here was
significant, Deputy Anderson was entitled to qualified
immunity because Plaintiffs have not offered anything other
than general legal propositions which cannot clearly
establish that Deputy Anderson’s particular conduct was
unlawful.

Plaintiffs contend that the use of force is unlawful
because the arrest itself is unlawful. But that is not so. We
have expressly held that claims for false arrest and excessive
force are analytically distinct. See, e.g. Beier v. City of
Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (“Because the
excessive force and false arrest factual inquiries are distinct,
establishing a lack of probable cause to make an arrest does
not establish an excessive force claim, and vice-versa.”
(citing Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 921–22 (9th Cir. 2001)). That is consistent
with the Supreme Court’s recent decision in County of Los
Angeles v. Mendez, which instructed courts not to conflate
the analysis for excessive-force claims with related Fourth
Amendment claims. 137 S. Ct. 1539, 1547 (2017). Thus,
our conclusion that the arrest here was unconstitutional does
not predetermine the question of whether the quantum of
force used was excessive.

Turning to the degree of force used, Plaintiffs point only
to cases that establish the general framework for evaluating
how much force is constitutionally excessive. See, e.g.,
 SHARP V. COUNTY OF ORANGE 31

Graham v. Connor, 490 U.S. 386, 395 (1989). But that is
not enough to defeat a qualified-immunity defense. We are
aware of no controlling constitutional principle or judicial
precedent that is specific enough to alert Deputy Anderson
that the degree of force he used in these circumstances was
unreasonable. Thus, qualified immunity was warranted.

C. Search of Sharp III’s Person

Sharp III next asserts a Fourth Amendment violation
based on the search of his person during the initial arrest.
Police officers have the categorical authority to conduct a
search of an arrestee’s person incident to a lawful arrest. See
United States v. Robinson, 414 U.S. 218, 235 (1973).
Having concluded that the arrest was unconstitutional, the
search too must be deemed unlawful. But as we noted
earlier, the arrest was not clearly proscribed by established
law, and neither is the subsequent search. Plaintiffs do not
identify a single case that clearly establishes a search in these
circumstances would be unconstitutional. Accordingly,
qualified immunity should have been granted.

D. Search of Plaintiffs’ Home

Plaintiffs assert that the deputies’ search of the Camino
Bandera residence violated the Fourth Amendment for two
principal reasons: the deputies (1) unlawfully entered the
home to search for Sharp IV without a reasonable basis to
believe that Sharp IV resided and was actually present
therein; and (2) exceeded the scope of their authority to
search the home for Sharp IV by searching in some areas—
e.g., kitchen and bedroom drawers—wherein Sharp IV
would not reasonably be found. We address each argument
in turn.
32 SHARP V. COUNTY OF ORANGE

1. Unlawful Entry Into the Home

Plaintiffs first argue that the deputies unlawfully entered
the home because they could not have reasonably believed
that the subject of the arrest warrant, Sharp IV, resided in the
home. It is well settled that an arrest warrant authorizes the
police to enter the warrant subject’s home to execute the
arrest of that subject when there is reason to believe he is
within the home. See, e.g., Payton v. New York, 445 U.S.
573, 602–03 (1980). When the home is owned by a third
party, “an officer must have a reasonable belief that the
suspect named in the arrest warrant resides in the third
party’s home . . . .” Watts v. Cty. of Sacramento, 256 F.3d
886, 889–90 (9th Cir. 2001) (emphasis added); see also
Steagald v. United States, 451 U.S. 204, 205–06 (1981)
(absent consent or exigent circumstances, police officers
may not enter the home of a third party to execute an arrest
warrant for a non-resident).

We find the officers reasonably believed that Sharp IV
resided in Plaintiffs’ home, despite Carol’s statement on the
front porch that her son did not live there. Sharp IV’s
probation response form, DMV records, and arrest warrants
all confirmed that he lived at the Camino Bandera residence,
and it was not unreasonable to rely on those official
documents rather than Carol’s contrary statement, made in
the heat of a stressful moment, which could have reasonably
been discounted as an effort to protect her son from capture.

2. Scope of the Search for Sharp IV

Plaintiffs next contend that the scope of the search was
excessively broad because the deputies searched in areas
where Sharp IV could not reasonably be found. The
authority to search a home does not ordinarily extend to the
search of areas where the subject of a warrant would not be
 SHARP V. COUNTY OF ORANGE 33

found. See United States v. Ross, 456 U.S. 798, 820 (1982)
(“A lawful search of fixed premises generally extends to the
entire area in which the object of the search may be found.”).
But a condition of probation that requires an offender to
submit his property to suspicionless searches gives officers
more latitude in searching the offender’s property. See
Samson v. California, 547 U.S. 843, 846 (2006); United
States v. Knights, 534 U.S. 112, 121 (2001).

Sharp IV’s probation condition requiring him to submit
his property to suspicionless searches defeats Plaintiffs’
claim that the deputies exceeded the scope of the authorized
search by looking in areas where Sharp IV would not be
found. This is the deputies’ principal theory for why the
scope of the search was justified, but Plaintiffs make no
argument in response to this dispositive theory. In any
event, there is no established law clearly proscribing the
deputies’ reliance upon Sharp IV’s probation condition for
their search of the Camino Bandera residence. For these two
principal reasons, qualified immunity was warranted on this
claim.

In two cases, the Supreme Court has upheld the search
or seizure of a probationer or parolee against Fourth-
Amendment attack. In United States v. Knights, the Court
held that merely reasonable suspicion, and not probable
cause or even a warrant, was enough to search a dwelling
belonging to a probationer who has accepted conditions
similar those in this case. 534 U.S. at 121. More recently,
in Samson v. California, the Court held that no
individualized suspicion at all is required to search the
person of a parolee when he has accepted such conditions.
547 U.S. at 846. In both of these cases, the Court based its
conclusion on the fact that a probationer or parolee has a
diminished expectation of privacy, especially when he
34 SHARP V. COUNTY OF ORANGE

accepts probationary conditions that explicitly and
unambiguously inform him of a police officer’s authority to
search his property. Knights, 534 U.S. at 119–20; Samson,
547 U.S. at 851–52.

Reliance on this line of authority to justify the broad
search of Plaintiffs’ home admittedly poses some difficult
legal questions. For instance, does acceptance of a
probationary search condition constitute “consent” to search
the home; i.e., a complete waiver of Fourth Amendment
rights? 9 Can the search condition diminish a co-occupant’s
reasonable expectation of privacy in his home or otherwise
bind a co-occupant to the “consent” given by the
probationer? 10 Even if so, in this case, did Carol’s
contemporaneous objection to the search revoke any
“consent” that might have been attributed to her, or negate
the possible diminution of her privacy expectation brought
about by Sharp IV’s search condition? Established law does
not offer clear answers to these questions. Thus, we cannot
say that the deputies’ particular conduct here violated clearly
established law.

Further, while it might be argued that the deputies’
search in Plaintiffs’ personal bedroom drawers was itself

9
The Supreme Court has expressly left open this question in
Samson, 547 U.S. at 852 n.3, and Knights, 534 U.S. at 118, choosing
instead to resolve the issue on the ground that acceptance of a search
condition diminishes the offender’s reasonable expectation of privacy.

10
Ordinarily, when a person consents to the search of a home shared
by other residents, such consent authorizes the police to search common
areas of that home, even if doing so intrudes on the privacy rights of co-
residents who did not themselves consent to the search. See United
States v. Matlock, 415 U.S. 164, 170-71 (1974).
 SHARP V. COUNTY OF ORANGE 35

beyond the permissible scope of Sharp IV’s probationary
condition because those areas would not reasonably contain
Sharp IV’s “property,” Plaintiffs did not assert this
contention on appeal and so necessarily have failed to carry
their burden of showing a clearly established violation.
Nevertheless, we are skeptical of the argument. It is not
patently unreasonable for the police to expect probationers
to hide contraband in non-obvious places. For these reasons,
we cannot say that the scope of the deputies’ search
exceeded the lawful bounds of clearly established
precedent. 11

For these reasons, qualified immunity was warranted on
this claim.

E. First Amendment Retaliation

Sharp III asserts a First Amendment claim based on the
deputies’ alleged retaliation against him for being
argumentative. To establish a retaliation claim, the evidence
must show that (1) the officer’s conduct “would chill or

11
Plaintiffs argue that the search was unconstitutional under
Maryland v. Buie, which held that officers executing an in-home arrest
warrant can conduct a “protective sweep” without individualized
suspicion only in areas “immediately adjoining the place of arrest.”
494 U.S. 325, 333-34 (1990). For the purpose of protecting the safety of
the arresting officers, Buie permits officers to make a quick scan for
dangerous individuals that might be hiding in areas immediately next to
the place of the arrest, id. at 327, but holds that officers need reasonable
suspicion to search in spaces outside that immediately adjoining area.
However, when there is no actual arrest—as in the case before us
today—the issue of a home search incident to an arrest warrant under
Buie never arises. Further, and more importantly, Buie did not involve a
probationary search condition, so the single most important fact relied
upon here to justify the search of Plaintiffs’ home was not present in
Buie. Thus, Buie is not controlling.
36 SHARP V. COUNTY OF ORANGE

silence a person of ordinary firmness from future First
Amendment activities,” and (2) the officer’s desire to chill
speech was a “but-for cause” of the adverse action. Skoog v.
Cty. of Clackamas, 469 F.3d 1221, 1231–32 (9th Cir. 2006)
(internal quotation marks omitted). While in the patrol car,
Sharp III was visibly angry at the deputies, swore at them,
and threatened to sue them. In response, Deputy Anderson
told him, “If you weren’t being so argumentative, I’d
probably just put you on the curb.” SER 280 (emphasis
omitted). We conclude that Sharp III suffered
unconstitutional retaliation that was clearly proscribed by
established law.

Defendants do not take issue with the first prong of the
inquiry—that continued detention would “chill” someone
from engaging in protected speech. So we assume without
deciding that this element is satisfied. Instead, the deputies
stake their defense entirely on the second prong of causation.
They contend that Sharp III’s belligerent demeanor was not
a “but-for cause” of the continued detention. But Deputy
Anderson’s statement plainly belies that contention, as it is
quite literally a statement of but-for causation: “If you
weren’t [exercising your First Amendment rights], I’d
probably [change the current conditions of your detention].”
SER 280. The causation element is thus met and so Deputy
Anderson’s conduct amounted to unconstitutional
retaliation.

This violation was clearly established by Ford v. City of
Yakima, 706 F.3d 1188 (9th Cir. 2013). In that case, a police
officer pulled over a driver who was blasting loud music, and
because the driver would not stop “running [his] mouth” and
exhibited an uncooperative “attitude,” the officer arrested
him and booked him in jail—rather than merely issuing a
citation. Id. at 1190–91. The officer repeated that he was
 SHARP V. COUNTY OF ORANGE 37

arresting the man because the man would not “shut up” and
had “diarrhea of the mouth.” Id. at 1191. On these facts, we
found an unconstitutional retaliation. These facts are
sufficiently analogous to the case before us to conclude that
Deputy Anderson was on notice that his particular conduct
was unconstitutional. Thus, qualified immunity was
properly denied. 12

F. State-Law Immunities

In addition to their federal constitutional claims,
Plaintiffs brought a litany of state-law claims, including an
anti-retaliation claim under Cal. Civ. Code § 52.1, as well as
common-law claims for false imprisonment, assault and
battery, negligent infliction of emotional distress, and
trespass. In defense, the deputies assert the following
immunities under California state law: (1) “discretionary”
immunity under Cal. Gov. Code § 820.2; (2) “prosecutorial”
immunity under Cal. Gov. Code § 821.6; (3) arrest-warrant
immunity under Cal. Gov. Code § 43.55(a); and (4) false-
arrest immunity under Cal. Penal Code § 847(b). We hold
that the first two asserted immunities do not apply as a matter

12
In the district court, Carol (Sharp III’s wife) also asserted a
retaliation claim based on the deputies’ threat to handcuff her “because
of her verbal protests of their conduct toward her and her husband.”
ER 265. The district court found that Carol had offered evidence
sufficient to defeat summary judgment on this claim, citing a statement
that the deputies threatened to retaliate against Carol if Sharp III did not
stop “going off on the deputy.” SER 8. Putting aside whether Carol can
assert a free-speech claim grounded in someone else’s protected speech,
we find no record evidence that the deputies made this statement at all.
In any event, Plaintiffs do not argue this claim on behalf of Carol on
appeal. Instead they focus entirely on Sharp III’s experience in the patrol
car. We thus find that opposition to summary judgment on Carol’s
retaliation claim was waived.
38 SHARP V. COUNTY OF ORANGE

of law, and the latter two do not apply as a consequence of
our determination that the deputies’ actions here were
unreasonable. The district court therefore properly denied
these immunities.

1. Cal. Gov. Code § 820.2

“As a matter of law, section 820.2 [‘discretionary’]
immunity does not apply to an officer’s decision to detain or
arrest a suspect.” 13 Liberal v. Estrada, 632 F.3d 1064, 1084
(9th Cir. 2011). Nor would this immunity extend to any
other police action in this case because Cal. Gov. Code
§ 820.2 covers only “policy” decisions made by a
“coordinate branch[] of government,” not “operational
decision[s] by the police purporting to apply the law.” Id. at
1084–85 (internal quotation marks omitted). The district
court thus correctly denied discretionary immunity.

2. Cal. Gov. Code § 821.6

The “prosecutorial” immunity under Cal. Gov. Code
§ 821.6 does not apply because it is limited to malicious-
prosecution claims. 14 In 1974, the California Supreme Court
held that § 821.6 immunity does not extend beyond
malicious-prosecution claims. Sullivan v. Cty. of Los
Angeles, 527 P.2d 865, 870–71 (Cal. 1974). Since then,

13
Cal. Gov. Code § 820.2 provides: “[A] public employee is not
liable for an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in him,
whether or not such discretion be abused.”

14
Cal. Gov. Code § 821.6 provides: “A public employee is not liable
for injury caused by his instituting or prosecuting any judicial or
administrative proceeding within the scope of his employment, even if
he acts maliciously and without probable cause.”
 SHARP V. COUNTY OF ORANGE 39

intermediate appellate courts have expanded the immunity
to investigative steps taken prior to a judicial proceeding,
including action by police officers. E.g., Gillian v. City of
San Marino, 147 Cal. App. 4th 1033, 1048 (2007). But
“[w]hen interpreting state law, a federal court is bound by
the decision of the highest state court.” Hewitt v. Joyner,
940 F.2d 1561, 1565 (9th Cir. 1991) (emphasis added)
(internal quotation marks omitted). Thus, because
California’s highest court has not extended § 821.6
immunity to actions outside of malicious prosecution, this
immunity does not apply here.

3. Cal. Civ. Code § 43.55(a)

The arrest-warrant immunity under Cal. Gov. Code
§ 43.55(a) shields officers from suit when executing an
arrest warrant when they act with a “reasonable belief” that
the arrestee is the subject of the warrant. 15 As we have
already explained, however, the deputies unreasonably
assumed that Sharp III was the warrant subject. This
immunity therefore does not apply.

4. Cal. Penal Code § 847(b)(1)

The false-arrest immunity under Cal. Penal Code
§ 847(b)(1) protects officers from suit when they make an
arrest that they had “reasonable cause” to believe was

15
Cal. Civ. Code § 43.55(a) provides: “There shall be no liability on
the part of, and no cause of action shall arise against, any peace officer
who makes an arrest pursuant to a warrant of arrest regular upon its face
if the peace officer in making the arrest acts without malice and in the
reasonable belief that the person arrested is the one referred to in the
warrant.” (Emphasis added).
40 SHARP V. COUNTY OF ORANGE

lawful. 16 As with the previous immunity, our conclusion
that the arresting deputies lacked such a reasonable belief
precludes the application of state-law immunity under Cal.
Penal Code § 847(b)(1).

G. Summary Judgment as to Other Deputies

We finally address a contention made throughout
Defendants’ briefs that all deputies not implicated in certain
claims should be awarded summary judgment as to those
claims. The district court welcomed a motion to release
specific defendants on this ground, but the deputies
neglected to make one. We therefore do not fault the district
court for declining to award summary judgment to certain
defendants when it invited them to make a more
particularized claim that they were not involved in some of
the challenged actions. We thus find no error in the district
court’s decision on this subject.

III. CONCLUSION

We AFFIRM the district court’s denial of qualified
immunity as to Sharp III’s retaliation claim, as well as the
denial of state-law immunities on all Plaintiffs’ state claims.
However, we REVERSE the denial of qualified immunity
on Carol’s retaliation claim, and Sharp III’s claims for the
seizure of his person, the use of excessive force against him,
and the search of his person, as well as Plaintiffs’ shared
claim concerning the search of their home. We REMAND

16
Cal. Penal Code § 847(b)(1) provides: “There shall be no civil
liability on the part of, and no cause of action shall arise against, any
peace officer . . . for false arrest or false imprisonment arising out of any
arrest under any of the following circumstances: [] The arrest was lawful,
or the peace officer, at the time of the arrest, had reasonable cause to
believe the arrest was lawful.” (Emphasis added).
 SHARP V. COUNTY OF ORANGE 41

to the district court for further proceedings consistent with
this opinion.

N.R. SMITH, Circuit Judge, dissenting in part:

In resolving a claim of qualified immunity, “summary
judgment is improper if, resolving all disputes of fact and
credibility in favor of the party asserting the injury, (1) the
facts adduced show that the officer’s conduct violated a
constitutional right, and (2) that right was “clearly
established” at the time of the violation.” Kirkpatrick v. Cty.
of Washoe, 843 F.3d 784, 788 (9th Cir. 2016) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001)). Applying this
precedent here, we must first resolve all factual conflicts in
favor of Sharp III. We need not discuss the first prong
because the Majority concedes (and I agree) that the deputies
violated the Constitution (a) when the deputies seized Sharp
III, (b) when the deputies used force against him, and
(c) when the deputies searched his person. Thus, we need
only discuss the second prong of the analysis.

A right is clearly established if a reasonable officer
would know that the alleged conduct violated the
Constitution. Anderson v. Creighton, 483 U.S. 635, 640
(1987). An officer has fair warning that conduct violates the
Constitution if the conduct is an obvious violation of
constitutional principles or if a factually analogous case
prohibits the conduct. White v. Pauly, 137 S. Ct. 548, 552
(2017). Because the Majority fails to view the facts in the
light most favorable to Sharp III, they claim that the
deputies’ unconstitutional actions were not sufficiently
egregious for the deputies to have fair warning that they were
violating the Constitution. Resolving all disputes of fact and
42 SHARP V. COUNTY OF ORANGE

credibility in favor of Sharp III, I must dissent. Let me
explain.

I. Seizure of Sharp III

The parties and the Majority agree that the seizure of
Sharp III must be analyzed in two parts: (1) the initial arrest
of Sharp III, and (2) the continuation of the arrest in the
patrol vehicle after the deputies learned that he was not the
subject of the arrest warrant. I proceed accordingly.

A. The Initial Arrest of Sharp III was an Obvious
Constitutional Violation

It is axiomatic that a warrantless arrest requires probable
cause. E.g., Michigan v. Summers, 452 U.S. 692, 700 (1981).
Indeed, our court’s precedent makes it apparent to law
enforcement officers that a warrantless arrest can be made
only if probable cause exists. United States v. Lopez,
482 F.3d 1067, 1072 (9th Cir. 2007) (“Under the Fourth
Amendment, a warrantless arrest requires probable cause.”);
Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th
Cir. 1990) (“If there is one irreducible minimum in our
Fourth Amendment jurisprudence, it is that a police officer
may not detain an individual simply on the basis of suspicion
in the air.”). Similarly, the Summers Court made it
abundantly clear that there are virtually no exceptions to the
probable cause requirement when it comes to arrests:

The central importance of the probable-cause
requirement to the protection of a citizen’s
privacy afforded by the Fourth Amendment’s
guarantees cannot be compromised [by
removing the probable cause requirement for
arrests]. The requirement of probable cause
has roots that are deep in our history.
 SHARP V. COUNTY OF ORANGE 43

Hostility to seizures based on mere suspicion
was a prime motivation for the adoption of
the Fourth Amendment, and decisions
immediately after its adoption affirmed that
common rumor or report, suspicion, or even
‘strong reason to suspect’ was not adequate
to support a warrant for arrest. The familiar
threshold standard of probable cause for
Fourth Amendment seizures reflects the
benefit of extensive experience
accommodating the factors relevant to the
‘reasonableness’ requirement of the Fourth
Amendment, and provides the relative
simplicity and clarity necessary to the
implementation of a workable rule.

Although we refused in Dunaway to find an
exception that would swallow the general
rule, our opinion recognized that some
seizures significantly less intrusive than an
arrest have withstood scrutiny under the
reasonableness standard embodied in the
Fourth Amendment. In these cases the
intrusion on the citizen’s privacy was so
much less severe than that involved in a
traditional arrest that the opposing interests in
crime prevention and detection and in the
police officer's safety could support the
seizure as reasonable.

Summers, 452 U.S. at 697–98. (emphasis added) (quotation
marks and citations omitted). Following this reasoning, the
Supreme Court concluded that exceptions are permissible
only if they “are consistent with the general rule that every
arrest, and every seizure having the essential attributes of a
44 SHARP V. COUNTY OF ORANGE

formal arrest, is unreasonable unless it is supported by
probable cause.” Id. at 701. Thus, Michigan v. Summers
makes it apparent to law enforcement officers that a
warrantless arrest can be made only with probable cause.

Turning to the facts, the Majority writes that “it is not
clear that Deputies Anderson and Flores actually even
formed a specific belief that Sharp III was the warrant
subject.” I agree. In explaining the facts leading to Sharp
III’s arrest, Deputy Flores stated that she “didn’t know who
was coming out of the house, to be honest. . . . [I]t wasn't
secured, so we were trying to just detain everybody[.]” In
addition, Sharp III did not match the description of the
suspect. Sharp III was significantly older than the suspect,
was wearing different clothing than the suspect, and
displayed a demeanor inconsistent with a fleeing suspect.
Thus, it is not surprising that Deputy Anderson also admitted
that he “hadn’t identified who [Sharp III] was” and only
believed that Sharp III “may be” the wanted person. These
facts seem to make clear that the deputies did not actually
mistake Sharp III for the fleeing suspect. Further, even if the
facts are not clear, we must resolve any ambiguity in favor
of Sharp III. E.g., Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004). These facts then require us to
analyze this case based on the assumption that Deputies
Anderson and Flores did not form a specific belief that Sharp
III was the warrant subject, but arrested him simply because
he was present at the scene. As a result, the deputies made a
warrantless arrest.

Viewing the evidence in the light most favorable to
Sharp III, it is obvious that the deputies arrested Sharp III
without probable cause. The facts in this case do not come
close to meeting the probable cause standard. In an effort to
avoid that uncomfortable truth, the Majority ignores the
 SHARP V. COUNTY OF ORANGE 45

statements made by Deputies Anderson and Flores and
analyzes this case as one of mistaken identity. 1 But that
theory crumbles when we view the facts in the light most
favorable to Sharp III. Since the deputies had fair warning
that their conduct violated Sharp III’s Fourth Amendment
rights when they arrested him without probable cause, they
are not entitled to qualified immunity. The District Court
was right; this claim should go to trial.

B. The Continued Seizure of Sharp III was an Obvious
Constitutional Violation

As noted, it is obvious that, “[u]nder the Fourth
Amendment, a warrantless arrest requires probable cause.”
United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).
In addition, seizing a citizen without probable cause for
exercising their First Amendment rights is an obvious
violation of the Fourth Amendment. Duran v. City of
Douglas, Ariz., 904 F.2d 1372, 1377–78 (9th Cir. 1990).
Viewing the evidence in the light most favorable to Sharp
III, the deputies lacked probable cause to continue Sharp
III’s arrest; the deputies continued the arrest only because
Sharp III exercised his First Amendment rights. Since the
deputies had fair warning that this conduct violated Sharp
1
A case of mistaken identity is not an exception to the probable
cause requirement. “Probable cause to arrest 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) (emphasis added) (citing Beck v.
Ohio, 379 U.S. 89, 91 (1964)). Thus, an arrest warrant coupled with a
reasonable belief that the person being arrested is the subject of the arrest
warrant gives rise to probable cause to arrest that person. On the other
hand, an arrest based on an unreasonable belief that the person being
arrested is the subject of the arrest warrant offends the Fourth
Amendment.
46 SHARP V. COUNTY OF ORANGE

III’s Fourth Amendment rights, they are not entitled to
qualified immunity. The District Court was right; this claim
should go to trial. Again, let me explain.

1. Viewing the Evidence in the Light Most
Favorable to Sharp III, the Deputies Continued
Sharp III’s Arrest in Retaliation for Exercising
His First Amendment Rights

The Majority recites these facts related to Sharp III’s
seizure after the deputies realized he was not the subject of
the arrest warrant:

At this time, the deputies did not release
Sharp III. Instead, they kept him handcuffed
and locked in the patrol car. Sharp III was
furious and adamantly protested his
detention, loudly swearing at the deputies and
threatening to sue them. In response, Deputy
Anderson told Sharp III: “If you weren’t
being so argumentative, I’d probably just put
you on the curb.”

Based on Deputy Anderson’s statement, the Majority
concedes that the deputies failed to release Sharp III in
retaliation for exercising his First Amendment rights. In
contrast, when analyzing whether the continued detention
violated Sharp III’s Fourth Amendment rights, the Majority
inexplicably ignores Deputy Anderson’s statement. Instead,
the Majority improperly concludes that the deputies may
have reasonably but mistakenly believed that the exception
in Summers applied to arrest warrants. However, the
Majority’s conclusion is possible only if we view the
evidence in the light most favorable to the deputies. Thus,
viewing the facts in the light most favorable to Sharp III, the
 SHARP V. COUNTY OF ORANGE 47

deputies continued Sharp III’s arrest because he exercised
his First Amendment rights.

2. Continuing Sharp III’s Seizure for Exercising
His First Amendment Rights was an Obvious
Violation of Sharp III’s Fourth Amendment
Rights

Holding a suspect in custody for exercising his First
Amendment rights is an obvious violation of the Fourth
Amendment. Indeed, case law in our circuit compels this
conclusion. In Duran v. City of Douglas, Ariz., an officer
detained the defendant for “making obscene gestures toward
[the officer] and yelling profanities.” Duran v. City of
Douglas, Ariz., 904 F.2d 1372, 1377 (9th Cir. 1990). The
Duran court held that, “while police, no less than anyone
else, may resent having obscene words and gestures directed
at them, they may not exercise the awesome power at their
disposal to punish individuals for conduct that is not merely
lawful, but protected by the First Amendment.” Id. at 1378.
Consequently, the court held that detaining an individual
without probable cause for exercising First Amendment
rights was an obvious violation of the Fourth Amendment.
Id. The import of Duran is clear: the deputies committed a
clearly established violation of the Fourth Amendment when
they kept Sharp III in custody for exercising his First
Amendment rights. 2 As a result, the second prong of the
qualified immunity analysis does not provide immunity to
the deputies.

2
Duran provided sufficient notice to the deputies that their conduct
was a violation of the Fourth Amendment. Thus, in addition to being an
“obvious” violation, the violation was clearly established by a factually
analogous case.
48 SHARP V. COUNTY OF ORANGE

3. The Deputies Committed an Obvious Violation of
Sharp III’s Fourth Amendment Rights Even if
Summers Applied to Arrest Warrants

The deputies claim that they are entitled to qualified
immunity, because it was not clearly established (at the time
of Sharp III’s detention) that Summers did not apply to arrest
warrants. The Majority agrees that this legal principle was
not clearly established prior to this case. I disagree. 3
However, even if the deputies could have believed that the
Summers exception applied to arrest warrants, Summers
unequivocally proscribed the continuation of Sharp III’s
arrest.

The court in Summers concluded that a valid search
warrant “implicitly carries with it the limited authority to
detain the occupants of the premises while a proper search is
conducted.” Summers, 452 U.S. at 705. However, Summers
made it abundantly clear that this exception does not apply
to arrests. Id. at 697–98 “The central importance of the
probable-cause requirement to the protection of a citizen’s
privacy afforded by the Fourth Amendment’s guarantees
cannot be compromised [by removing the probable cause
3
Unless there is a specific exception, the general Fourth
Amendment rules apply. See Summers, 452 U.S. at 697-98. The
Summers Court created such an exception for brief detentions made
during the execution of a search warrant. However, by nature of being
an exception, it applies only to those specific circumstances. Otherwise,
the exception would swallow the general rule. Thus, a law enforcement
officer cannot commit a Fourth Amendment violation and hope that a
court will create or extend an exception covering that violation. The
Majority’s reasoning would lead to the conclusion that there can never
be a clearly established violation of the Fourth Amendment absent a
factually analogous case; officers could always argue that they thought a
court would create or extend an exception that covered their conduct.
 SHARP V. COUNTY OF ORANGE 49

requirement for arrests].” Id. at 697. In fact, the Court’s
reasoning was explicitly based on the fact that the detention
permitted under the exception would be “significantly less
intrusive than an arrest.” Id.

In this case, the Majority agrees Sharp III was arrested,
so the exception in Summers could never apply. While a
mere detention can turn into a de facto arrest, United States
v. Baron, 860 F.2d 911, 914 (9th Cir. 1988), the Majority
does not go there. Further, I am aware of no case in which
an arrest turned into a mere detention. 4 Consequently, Sharp
III continued to be under arrest during his subsequent seizure
in the patrol vehicle. Thus, Summers, even if it applied to
arrest warrants, could never justify Sharp III’s continued
seizure. Since the language in Summers is categorical and
clear, any reasonable officer would know this.

II. Search of Sharp III’s Person

“[E]xcept in certain carefully defined classes of cases, a
search of private property without proper consent is
‘unreasonable’ unless it has been authorized by a valid
search warrant.” Camara v. Mun. Court of City & Cty. of
San Francisco, 387 U.S. 523, 528–29 (1967). It is obvious
that no exception for a search made incident to an unlawful

4
I do not mean to say that an arrest could never turn into a detention.
However, the facts in this case do not support such a conclusion. Perhaps
if the deputies had taken Sharp III out of the patrol car and explicitly
informed him that he was not under arrest, the arrest would de-escalate
into a detention. As it stands, it is difficult to imagine a scenario where a
person is not under arrest when they are forcibly handcuffed and placed
into the back of a patrol vehicle. See United States v. Del Vizo, 918 F.2d
821, 824 (9th Cir. 1990) (“There has been an arrest if, under the
circumstances, a reasonable person would conclude that he was not free
to leave after brief questioning.”).
50 SHARP V. COUNTY OF ORANGE

arrest exists; therefore, the deputies had sufficient notice that
an unlawful arrest would result in an unlawful search. Thus,
the search made incident to Sharp III’s unlawful arrest was
an obvious violation of the Fourth Amendment’s prohibition
of unreasonable searches. Since the deputies had fair
warning that the search violated Sharp III’s Fourth
Amendment rights, they are not entitled to qualified
immunity. The District Court was right; this claim should go
to trial.

III. Use of Excessive Force Against Sharp III

The Majority claims they are “aware of no controlling
constitutional principle . . . that is specific enough to alert
Deputy Anderson that the degree of force he used in these
circumstances was unreasonable.” Let’s examine that
premise.

The use of force by a law enforcement officer violates
the Fourth Amendment if the force is unreasonable given all
the “relevant circumstances.” Hammer v. Gross, 932 F.2d
842, 846 (9th Cir. 1991). Analyzing whether the use of force
is unreasonable involves three steps. “First, we must assess
the severity of the intrusion on the individual’s Fourth
Amendment rights by evaluating ‘the type and amount of
force inflicted.’” Glenn v. Washington Cty., 673 F.3d 864,
871 (9th Cir. 2011) (quoting Espinosa v. City & Cnty. of
S.F., 598 F.3d 528, 537 (9th Cir. 2010)). “Second, we
evaluate the government’s interest in the use of force.” Id. In
doing so, we must consider “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.”
Graham v. Connor, 490 U.S. 386, 396 (1989). Third, “we
balance the gravity of the intrusion on the individual against
the government’s need for that intrusion.” Glenn, 678 F.3d
 SHARP V. COUNTY OF ORANGE 51

at 871 (quoting Miller v. Clark Cty., 340 F.3d 959, 964 (9th
Cir. 2003)). 5

Viewing the evidence in the light most favorable to
Sharp III, the deputies used considerable force against Sharp
III. The deputies arrested Sharp III at gun point and used
enough force to tear his rotator cuff. On the other hand, he
had committed no crime. Deputy Flores conceded that the
deputies arrested Sharp III because “we were trying to just
detain everybody[.]” Sharp III posed no immediate threat to
the safety of the officers or others. Sharp III walked calmly
toward the deputies and was fully compliant. He never
resisted or attempted to evade arrest by flight. No reasonable
officer would believe using force, let alone significant force,
was lawful under these circumstances. None of the Graham
factors were present. Since Deputy Anderson had fair
warning that his use of force violated Sharp III’s Fourth
Amendment rights, he is not entitled to qualified immunity.
The District Court was right; this claim should go to trial.

IV. Conclusion

Contrary to precedent regarding qualified immunity, the
Majority fails to view the facts in the light most favorable to
Sharp III when analyzing these Fourth Amendment claims.
Consequently, the Majority improperly grants the deputies
qualified immunity for their initial arrest of Sharp III, their
use of excessive force against Sharp III, their subsequent
search of Sharp III, and their continued arrest of Sharp III.
Instead, viewing the facts in the light most favorable to

5
The Supreme Court recently cautioned that Graham does not “by
[itself] create clearly established law outside ‘an obvious case.’” White,
137 S. Ct. at 552 (emphasis added) (quoting Brosseau v. Haugen,
543 U.S. 194, 199 (2004)). This is an obvious case.
52 SHARP V. COUNTY OF ORANGE

Sharp III, the deputies are not entitled to qualified immunity
for any of these constitutional violations. Thus, Sharp III’s
Fourth Amendment claims stemming from these violations
should go to trial right along with Sharp III’s claim of First
Amendment retaliation. I dissent.