Shaniz West v. City of Caldwell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHANIZ WEST, No. 18-35300
Plaintiff-Appellee,
D.C. No.
v. 1:16-cv-00359-
REB
CITY OF CALDWELL; CITY OF
CALDWELL POLICE DEPARTMENT;
FORMER CHIEF CHRIS ALLGOOD, OPINION
Defendants,

and

DOUG WINFIELD, Sergeant, in his
official and individual capacity;
ALAN SEEVERS; MATTHEW
RICHARDSON,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding

Argued and Submitted March 7, 2019
Portland, Oregon

Filed July 25, 2019
2 WEST V. CITY OF CALDWELL

Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and Eduardo C. Robreno,* District Judge.

Opinion by Judge Graber;
Dissent by Judge Berzon

SUMMARY**

Civil Rights

The panel reversed the district court’s order denying
qualified immunity to police officers in an action alleging the
officers violated plaintiff’s rights by coercing her consent to
enter her house to search for a suspect and then by shooting
tear gas canisters through the windows and causing extensive
damage to the house.

The panel assumed, without deciding, that plaintiff’s
consent to Officer Richardson was not voluntary. The panel
held that given the circumstances, including the amount of
time that passed between Richardson’s threat to arrest
plaintiff and his request for consent, the lack of voluntariness
was not so clearly established such that Richardson would
have known that plaintiff’s consent was not voluntary.
Richardson was therefore entitled to qualified immunity on
that claim.

*
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, 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.
 WEST V. CITY OF CALDWELL 3

The panel held that assuming the consent was voluntary
and defendants exceeded the scope of the consent by shooting
tear gas into the house, they were still entitled to qualified
immunity. The panel held that given that defendants thought
they had permission to enter plaintiff’s house to apprehend a
dangerous, potentially armed, and suicidal felon barricaded
inside, it was not obvious, in the absence of a controlling
precedent, that defendants exceeded the scope of plaintiff’s
consent by causing the tear gas canisters to enter the house in
an attempt to flush the suspect out into the open. Officers
Seevers and Winefield were therefore entitled to qualified
immunity on this claim.

Addressing the reasonableness of defendants’ search, the
panel held that given the unusual circumstances, the need for
specificity of precedent in the Fourth Amendment context,
and controlling cases establishing that officers can sometimes
damage a home during a search without violating the
occupant’s Fourth Amendment rights, this was not an obvious
case in which to deny qualified immunity without any
controlling precedent clearly establishing that defendants
violated plaintiff’s rights. Defendants were therefore entitled
to qualified immunity on this claim as well.

Dissenting in part, Judge Berzon stated that in her view
defendants Seevers and Winfield were not entitled to
qualified immunity on the scope of consent claim.
4 WEST V. CITY OF CALDWELL

COUNSEL

Landon S. Brown (argued) and Bruce J. Castleton, Naylor &
Hales P.C., Boise, Idaho, for Defendants-Appellants.

Jeremiah Hudson (argued), Rebecca A. Rainey, and Vaughn
Fisher, Fisher Rainey Hudson, Boise, Idaho, for Plaintiff-
Appellee.

OPINION

GRABER, Circuit Judge:

This appeal arises from a SWAT team’s search of
Plaintiff Shaniz West’s house to apprehend her former
boyfriend, a gang member who had outstanding felony arrest
warrants for violent crimes. Plaintiff sued for extensive
damage to her house that resulted from the search. The
district court denied qualified immunity to Defendants
Matthew Richardson, Alan Seevers, and Doug Winfield, who
are officers with the Caldwell, Idaho, police department. We
reverse.

FACTUAL AND PROCEDURAL BACKGROUND1

On a summer afternoon in August 2014, Plaintiff’s
grandmother called 911 to report that: Plaintiff’s former
boyfriend, Fabian Salinas, was in Plaintiff’s house and might
be threatening her with a BB gun; Plaintiff’s children also
were in the house; and Salinas was high on

1
The relevant facts are undisputed.
 WEST V. CITY OF CALDWELL 5

methamphetamine. The grandmother warned the dispatcher
that Plaintiff might tell the police that Salinas was not in the
house.

The police knew that Salinas was a gang member. At the
time, he had outstanding felony arrest warrants for several
violent crimes. His criminal record included convictions for
rioting, discharging a weapon, aggravated assault, and drug
crimes. In addition, during a recent high-speed car chase,
Salinas had driven his vehicle straight at a Caldwell patrol
car, forcing the officer to swerve off the road to avoid a
collision. The police also had information that Salinas
possessed a .32 caliber pistol.

Four officers, including Richardson, responded to the 911
call. Richardson was familiar with Salinas’ criminal history.
After arriving at Plaintiff’s house, Richardson called
Plaintiff’s cell phone several times, but she did not answer.
He then called Plaintiff’s grandmother, who repeated that
Salinas was in Plaintiff’s house. She also said that Salinas’
sister had been at the house but had left when Salinas arrived.
Richardson then called the sister, who confirmed that she had
seen Salinas in Plaintiff’s house within the last 30 minutes,
that he had a firearm that she thought was a BB gun, and that
he was high on drugs. Richardson knocked on the front door
of the house but received no response.

While the officers were discussing how to proceed,
Sergeant Joe Hoadley noticed Plaintiff walking down the
sidewalk toward her house. Hoadley and Richardson
approached Plaintiff. Richardson asked Plaintiff where
Salinas was; she responded that he “might be” inside her
house. Richardson followed up: “Might or yes?” He told
Plaintiff that Salinas had a felony arrest warrant, so if Salinas
6 WEST V. CITY OF CALDWELL

was in the house and she did not tell the police, she could “get
in trouble” for harboring a felon. “Is he in there?” At that
point, Plaintiff told Richardson that Salinas was inside her
house, even though she did not know if he was still there; she
had let Salinas into the house earlier in the day to retrieve his
belongings, but she left the house while he was still there.
Plaintiff felt threatened when Richardson told her that she
could get in trouble if she were harboring Salinas, because
Plaintiff’s mother had been arrested previously for harboring
him.

After Plaintiff told Richardson that Salinas was in the
house, Richardson walked away to confer with the other
officers. They discussed whether to contact the SWAT team,
but Plaintiff did not know that the SWAT team might become
involved. Richardson returned to Plaintiff about 45 seconds
later. He said: “Shaniz, let me ask you this. Do we have
permission to get inside your house and apprehend him?”
Plaintiff nodded affirmatively and gave Richardson the key
to her front door. Plaintiff knew that her key would not open
the door because the chain lock was engaged, but it is unclear
from the record whether Richardson also knew that. After
handing over the key, Plaintiff called a friend to pick her up,
and she left in the friend’s car.

Hoadley then called the local prosecutor’s office and
reported to the on-call prosecutor that Plaintiff consented to
having officers enter her house to arrest a person who was
subject to a felony arrest warrant. The prosecutor told
Hoadley that the officers did not need to obtain a search
warrant.

Hoadley next contacted Seevers, the SWAT Commander,
to request assistance in arresting a felon who was barricaded
 WEST V. CITY OF CALDWELL 7

inside a house and who might be armed and on drugs.
Seevers, in turn, notified Winfield, the SWAT Team Leader,
of the request. Seevers told Winfield that Salinas’ family
reported that he was in Plaintiff’s house with a firearm
(described as a BB gun) and that he was suicidal. Winfield
contacted Hoadley for more information. Hoadley told him
that Salinas had felony arrest warrants, that Salinas was a
suspect in a gun theft and that not all the stolen firearms had
been recovered, that Salinas was suicidal, and that all signs
indicated that Salinas was in Plaintiff’s house. Hoadley also
told Winfield that Plaintiff had given her consent for officers
to enter her house to effect an arrest and that the on-call
prosecutor had confirmed that the officers did not need a
warrant.

The SWAT team met at the local police station to retrieve
their tactical gear and establish a plan. Winfield, who created
the plan, hoped to get Salinas to come out of the house
without requiring an entry by members of the SWAT team.
The plan had three stages: (1) contain Plaintiff’s house and
issue oral commands for Salinas to come out; (2) if stage one
failed, introduce tear gas into the house to force Salinas out;
and (3) if stages one and two failed, enter and search the
house for Salinas after the tear gas dissipated. Seevers
reviewed and approved the plan, which conformed to
commonly accepted police practices.

While the SWAT team prepared at the station, the officers
at Plaintiff’s house continued to watch for Salinas and to
update the SWAT team over the radio. One officer reported
hearing movement in the house, and another said that he
heard the deadbolt latch while he was standing near the front
door.
8 WEST V. CITY OF CALDWELL

The SWAT team arrived at Plaintiff’s house late in the
afternoon. They made repeated announcements telling
Salinas to come out of the house, but he did not appear. After
waiting about 20 minutes, members of the team used 12-
gauge shotguns to inject tear gas into the house through the
windows and the garage door. After deploying the tear gas,
the SWAT team continued to make regular announcements
directing Salinas to come out of the house, but still he did not
appear. After about 90 minutes the team entered the house.
They used Plaintiff’s key to unlock the deadbolt on the front
door, but they could not enter because of the chain lock.
They then moved to the back door, which they opened by
reaching through the hole created earlier by shooting the tear
gas through the back door’s window. The SWAT team
searched the entire house without finding Salinas.

Plaintiff and her children could not live in the house for
two months because of the damage caused by the search,
including broken windows and tear-gas-saturated possessions.
The City of Caldwell paid for a hotel for Plaintiff and her
children for three weeks and paid her $900 for her damaged
personal property. Plaintiff then filed this action, seeking
damages and alleging claims for unreasonable search,
unreasonable seizure, and conversion.

As relevant here, Defendants moved for summary
judgment after the close of discovery, seeking qualified
immunity. The district court denied Seevers and Winfield’s
motion on the ground that it is “well-established that a search
or seizure may be invalid if carried out in an unreasonable
fashion.” The court denied Richardson’s motion on the
ground that, if he had not obtained Plaintiff’s voluntary
consent, the need for a warrant was clearly established.
Defendants timely appealed.
 WEST V. CITY OF CALDWELL 9

DISCUSSION2

A. Principles Governing Qualified Immunity

Police officers have qualified immunity for their official
conduct unless (1) they violate a federal statutory or
constitutional right and (2) that right was clearly established
at the time of the challenged conduct. District of Columbia
v. Wesby, 138 S. Ct. 577, 589 (2018). “Clearly established”
means that existing law “placed the constitutionality of the
officer’s conduct ‘beyond debate.’” Id. (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court has
emphasized, especially in the Fourth Amendment context,
that we may not “define clearly established law at a high level
of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam) (quoting City of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1776 (2015)). Rather, we must
locate a controlling case that “squarely governs the specific
facts at issue,” except in the “rare obvious case” in which a
general legal principle makes the unlawfulness of the
officer’s conduct clear despite a lack of precedent addressing
similar circumstances. City of Escondido v. Emmons, 139
S. Ct. 500, 503–04 (2019) (per curiam) (quoting Kisela, 138
S. Ct. at 1153, and Wesby, 138 S. Ct. at 590).3

2
We review de novo the district court’s denial of qualified immunity,
viewing the facts in the light most favorable to Plaintiff and drawing
reasonable inferences in her favor. Kramer v. Cullinan, 878 F.3d 1156,
1161–62 (9th Cir. 2018). We have jurisdiction to decide the legal
questions presented when we assume the truth of Plaintiff’s version of the
facts. Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per curiam).
3
See, e.g., Hope v. Pelzer, 536 U.S. 730, 738–41 (2002)
(characterizing prison guards’ violation of the Eighth Amendment as
“obvious” where, long after an emergency situation had ended, the guards
10 WEST V. CITY OF CALDWELL

We have discretion to decide which prong of the qualified
immunity analysis to address first. Pearson v. Callahan,
555 U.S. 223, 236 (2009). In our discussion below, we will
assume, without deciding, that Defendants violated Plaintiff’s
rights and will analyze only whether those rights were clearly
established as of August 2014.

B. Voluntariness of Consent

Plaintiff contends that her consent was not voluntary
because Richardson told her that, if Salinas was in the house
and she denied it, she could “get in trouble” for harboring a
wanted felon. Plaintiff asserts that she felt threatened. As
noted, we assume without deciding that her consent for the
police to “get inside [her] house” was not voluntary.

The remaining question is whether, in these
circumstances, the lack of voluntariness was clearly
established such that Richardson would have known that
Plaintiff’s consent was not voluntary. Those circumstances
included: time passed between his threat to arrest Plaintiff
for concealing Salinas’ whereabouts and his request for
consent, during which Richardson walked away from
Plaintiff; Plaintiff nodded her assent when Richardson
returned and asked her for “permission to get inside [her]
house” to arrest Salinas; Plaintiff handed Richardson her
house key without being asked for it; Plaintiff knew that
Salinas was a wanted felon; and Richardson did not threaten
to arrest Plaintiff for withholding consent for the officers to
enter her home.

placed a prisoner in leg irons, forced him to remove his shirt, and
handcuffed him to a hitching post in the hot sun for seven hours with little
water and no bathroom breaks).
 WEST V. CITY OF CALDWELL 11

In support of her argument, Plaintiff cites Calabretta v.
Floyd, 189 F.3d 808 (9th Cir. 1999); United States v.
Ocheltree, 622 F.2d 992 (9th Cir. 1980); and an unpublished
district court decision that is not precedential. See al-Kidd,
563 U.S. at 741 (holding that a district court decision is not
controlling authority in any jurisdiction). The cited cases are
clearly distinguishable. Indeed, the differences between the
situation that Richardson faced and these two opinions “leap
from the page,” Kisela, 138 S. Ct. at 1154 (quoting Sheehan,
135 S. Ct. at 1776).

In Calabretta, we denied qualified immunity to a police
officer and a social worker who entered a home to perform a
child welfare check. When the children’s mother opened the
front door, the police officer “told her that if she did not
admit them, then he would force their way in.” 189 F.3d
at 811. Thus, the mother did not give voluntary consent to
the entry. By contrast, Richardson was attempting to arrest
a dangerous felon, not to conduct a welfare check. More
importantly, Richardson spoke to Plaintiff away from her
house, not at the front door; he did not threaten to force his
way into the house against her will; and he did not threaten to
arrest Plaintiff if she refused consent to having the police
enter her home.

In Ocheltree, we ordered suppression of evidence that an
agent from the Drug Enforcement Administration obtained
after coercing a suspect into opening his briefcase. The agent
stopped the suspect at an airport, and the suspect agreed to
accompany the agent to his office, where the agent asked for
permission to search the briefcase. Even though the agent
lacked probable cause, he told the suspect that he would get
a search warrant if the suspect failed to consent. We held that
the agent’s promise to obtain a search warrant clearly
12 WEST V. CITY OF CALDWELL

conveyed that the suspect would remain in custody in the
meantime; that is, in effect the agent threatened an arrest and
detention without probable cause. 622 F.2d at 993–94. By
contrast, Richardson did not threaten to arrest Plaintiff if she
declined consent. Moreover, after Plaintiff confirmed that
Salinas was in the house, Richardson walked away for nearly
a minute before returning to ask for permission to enter the
house, clearly signaling a lack of intent to detain Plaintiff.
And Plaintiff felt comfortable leaving the scene in her
friend’s car, indicating that she well understood that she was
not threatened with detention. Finally, Richardson had
probable cause to believe that Salinas was in Plaintiff’s
house.

Our research has uncovered no controlling Supreme Court
or Ninth Circuit decision holding that “an officer acting under
similar circumstances as [Defendants] . . . violated the Fourth
Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(per curiam). Prior precedent must articulate “a constitutional
rule specific enough to alert these deputies in this case that
their particular conduct was unlawful.” Sharp v. County of
Orange, 871 F.3d 901, 911 (9th Cir. 2017). Given the factors
that suggested voluntary consent, we hold that a lack of
consent was not clearly established and that a lack of consent
was not so obvious that the requirement of similar precedent
can be overcome. Richardson is, therefore, entitled to
qualified immunity on this claim.

C. Scope of Consent

Plaintiff next argues that, even if she consented
voluntarily to entry into her house, Seevers and Winfield
exceeded the scope of her consent by having the SWAT team
shoot tear gas into the house. As noted, Plaintiff agreed that
 WEST V. CITY OF CALDWELL 13

officers could “get inside [her] house and apprehend” Salinas,
and she knew that Salinas was a wanted felon. Other than the
limitation concerning the reason for entry—to arrest
Salinas—Plaintiff expressed no limitation concerning, for
example, when officers could enter or where in her house the
officers would be allowed to look.

As with the other alleged constitutional violations, we
assume without deciding that Defendants exceeded the scope
of consent by employing tear gas canisters for their initial
entry, which is the entry that damaged Plaintiff’s house. The
dissent goes to great lengths to argue that Defendants violated
Plaintiff’s Fourth Amendment rights because no reasonable
person would have understood Plaintiff’s consent to
encompass shooting tear gas canisters into the house. But we
do not dispute that point here. And, contrary to the dissent’s
characterization, we do not hold “that a ‘typical reasonable
person’ consenting to an entry to look for a suspect could be
understood by a competent police officer as consenting to
damage to his or her home so extreme that [it] renders [the
home] uninhabitable for months.” Dissent at 25. Rather, we
assume that Defendants exceeded the scope of consent and
address only whether clearly established law, defined at an
appropriate level of specificity, “placed the constitutionality
of the officer’s conduct ‘beyond debate.’” Wesby, 138 S. Ct.
at 589 (quoting al-Kidd, 563 U.S. at 741). The dissent never
comes to grips with this legal standard.

Once again, we conclude that no Supreme Court or Ninth
Circuit case clearly established, as of August 2014, that
Defendants exceeded the scope of consent. Defendants did
“get inside” Plaintiff’s house, first with objects and later with
people. Plaintiff never expressed a limitation as to time,
place within the house, or manner of entry. Defendants did
14 WEST V. CITY OF CALDWELL

not, for instance, enter other buildings, exceed an expressed
time limit, or enter for a different purpose than apprehending
Salinas. To the extent that handing over the key implied that
Plaintiff expected Defendants to enter through the front door,4
Defendants did attempt to do that.

The dissent argues that Florida v. Jimeno, 500 U.S. 248,
251 (1991), “clearly established that general consent to search
is not without its limitations.” Dissent at 24. But in the
Fourth Amendment context, the Supreme Court has warned
us time and time again that we may not “define clearly
established law at a high level of generality.” Kisela, 138 S.
Ct. at 1152 (quoting Sheehan, 135 S. Ct. at 1776). Jimeno
held that it was “reasonable for an officer to consider a
suspect’s general consent to a search of his car to include
consent to examine a paper bag lying on the floor of the car.”
500 U.S. at 251. The Court also noted that it would be “very
likely unreasonable to think that a suspect, by consenting to
the search of his trunk, has agreed to the breaking open of a
locked briefcase within the trunk.” Id. at 251–52. That is the
phrase on which the dissent hangs its hat. Dissent at 24. But,
outside the context of a vehicle search, Jimeno provides
nothing more than a general principle for consent; it does not
articulate “a constitutional rule specific enough to alert these
deputies in this case that their particular conduct was
unlawful.” Sharp, 871 F.3d at 911.

The dissent also cites United States v. Ibarra, 965 F.2d
1354, 1357–58 (5th Cir. 1992) (en banc) (per curiam), for the
proposition that Defendants exceeded the scope of Plaintiff’s
consent by causing extensive damage to her home. In Ibarra,

4
Plaintiff knew, though, that the key would not open the front door
because of the chain lock.
 WEST V. CITY OF CALDWELL 15

an equally divided Fifth Circuit, sitting en banc, affirmed the
district court’s ruling that officers exceeded the scope of a
guest’s general consent to search a house when they used a
sledgehammer to break boards that sealed off the attic from
the rest of the house. Id. For three reasons, Ibarra does not
provide clearly established law here. First, Ibarra is not
precedential even in the Fifth Circuit. See United States v.
Yarbrough, 852 F.2d 1522, 1538 n.8 (9th Cir. 1988)
(“Opinions which are affirmed by an equally divided en banc
Court of Appeals have no precedential value.”); United States
v. Mendoza-Gonzalez, 318 F.3d 663, 667 n.5 (5th Cir. 2003)
(“Decisions by an equally divided en banc court have no
value as binding precedent.”). Second, because Ibarra is an
isolated Fifth Circuit case, it cannot provide clearly
established law in our circuit. See Sharp, 871 F.3d at 911
(“[T]he 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.”
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))). And
third, the factual differences between Ibarra and this case
“leap from the page.” Kisela, 138 S. Ct. at 1154 (quoting
Sheehan, 135 S. Ct. at 1776).

Given that Defendants thought they had permission to
enter Plaintiff’s house to apprehend a dangerous, potentially
armed, and suicidal felon barricaded inside, it is not obvious,
in the absence of a controlling precedent, that Defendants
exceeded the scope of Plaintiff’s consent by causing the tear
gas canisters to enter the house in an attempt to flush Salinas
out into the open. Seevers and Winfield are, therefore,
entitled to qualified immunity on this claim.
16 WEST V. CITY OF CALDWELL

The cases that Plaintiff cites in support of her scope-of-
consent theory pertain instead to the reasonableness of the
search. We turn, next, to that issue.

D. Reasonableness of Search and Seizure

The pivotal question is whether Seevers and Winfield’s
actions were reasonable. We assume without deciding that
Defendants used excessive force by shooting tear gas
canisters through the windows of Plaintiff’s house as the
initial means by which they “[got] inside” the house to search
for and arrest Salinas. That is the action that caused the
damage underlying Plaintiff’s complaint. We examine
whether the unreasonableness of Defendants’ actions was
clearly established as of August 2014.

Defendants reasonably believed that Salinas was in the
house, that he was high on meth, that he possessed what had
been described as a BB gun, that he was suicidal, and that he
owned a .32 caliber pistol. They also knew that he was a
gang member with outstanding felony arrest warrants for
violent crimes and that he had aggressively tried to run down
a patrol car during a recent high-speed chase. We have found
no Supreme Court or Ninth Circuit case clearly establishing
that the procedure Defendants followed, including the use of
tear gas and the resulting destruction, is unreasonable in those
circumstances.

Plaintiff cites three cases in support of her argument that
the unreasonableness of Defendants’ actions was clearly
established: Liston v. County of Riverside, 120 F.3d 965 (9th
Cir. 1997); Mena v. City of Simi Valley, 226 F.3d 1031 (9th
Cir. 2000); and an unpublished district court decision that is
not controlling authority. The stark factual differences
 WEST V. CITY OF CALDWELL 17

between the published cases and this case preclude a
conclusion that the unreasonableness of Defendants’ actions
was clearly established in August 2014.

In Liston, officers damaged property when they executed
a search warrant at the wrong house; the man for whom they
were searching had sold the house and a different family had
moved in. We noted expressly that “officers executing a
search warrant occasionally ‘must damage property in order
to perform their duty.’” 120 F.3d at 979 (quoting Dalia v.
United States, 441 U.S. 238, 258 (1979)). Thus, we
remanded for a determination of when the property damage
occurred because, until the officers learned that they had
entered the wrong house, they reasonably could have believed
“that the way they conducted the search was lawful.” Id.
at 979.

By contrast, Defendants here entered the right house
and—because of statements from Plaintiff, her grandmother,
and Salinas’ sister—they reasonably believed that Salinas
was barricaded inside. Defendants also knew that Salinas
was a violent, and likely armed, felon. Liston, in fact,
recognizes that (1) a mistaken but reasonable belief that the
object of the search is within the searched premises supports
qualified immunity and (2) property damage can occur
lawfully during a search.

In Mena, we affirmed the denial of qualified immunity for
officers who were “unnecessarily destructive” while
searching a home. 226 F.3d at 1041. The officers broke
down two doors that already were unlocked, and the occupant
of the home saw one officer kicking the open patio door
while declaring: “I like to destroy these kind of materials, it’s
cool.” Id. We noted that destroying property during a search
18 WEST V. CITY OF CALDWELL

“does not necessarily violate the Fourth Amendment,” but
“Defendants appear to have damaged Plaintiffs’ property in
a way that was ‘not reasonably necessary to execute the
search warrant.’” Id. (brackets omitted) (quoting United
States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991)).

Plaintiff does not claim, and the record does not suggest,
that Defendants damaged her house because they thought that
doing so was “cool.” Moreover, Mena simply does not
describe an acceptable amount of property damage that a
SWAT team may inflict while trying to flush a violent and
likely armed felon (who recently had threatened a police
officer’s life) out of a house.

Another precedent, Bravo v. City of Santa Maria, 665
F.3d 1076 (9th Cir. 2011), also bears on our analysis. There,
we held that a SWAT team’s nighttime incursion is a “far
more serious occurrence than an ordinary daytime intrusion”
and so requires exigent circumstances. Id. at 1085–86. But
the search in this case occurred on a summer afternoon,
during daylight hours; Defendants knew that Plaintiff was not
home and certainly was not asleep inside.

“[T]he ultimate touchstone of the Fourth Amendment is
reasonableness,” whether officers search a home with a
warrant or with the occupant’s consent. Fernandez v.
California, 571 U.S. 292, 298 (2014) (quoting Brigham City
v. Stuart, 547 U.S. 398, 403 (2006)). Given the unusual
circumstances of this case, the need for specificity of
precedent in the Fourth Amendment context, and controlling
cases establishing that officers can sometimes damage a
home during a search without violating the occupant’s Fourth
Amendment rights, this is not an obvious case in which to
deny qualified immunity without any controlling precedent
 WEST V. CITY OF CALDWELL 19

clearly establishing that Defendants violated Plaintiff’s rights.
See Sharp, 871 F.3d at 912 (explaining that “the obviousness
principle has real limits when it comes to the Fourth
Amendment,” because “officers encounter suspects every day
in never-before-seen ways”). Seevers and Winfield are,
therefore, entitled to qualified immunity on this claim as well.

CONCLUSION

Defendants are entitled to qualified immunity because,
assuming that their actions violated Plaintiff’s Fourth
Amendment rights, those rights were not clearly established,
at the appropriate level of specificity, in August 2014.

REVERSED.

BERZON, Circuit Judge, dissenting in part:

In my view, Defendants Seevers and Winfield are not
entitled to qualified immunity on the scope of consent claim.
I therefore dissent in part.

I

Shaniz West returned home to find her house surrounded
by the members of the Caldwell Police Department (“the
Department”). The Department sought to execute a warrant
for the felony arrest of her ex-boyfriend, Fabian Salinas.
When Defendant Officer Matthew Richardson asked West
whether Salinas was inside her home, she initially expressed
uncertainty. West explained that she had asked Salinas to
leave when he stopped by earlier to retrieve his belongings
20 WEST V. CITY OF CALDWELL

but was unsure whether he had actually left. Only after
Officer Richardson informed her that she could be arrested
for harboring a felon did West tell him that Salinas was inside
(which, it later turned out, he was not). Officer Richardson
then asked West, “Do we have permission to get inside your
house and apprehend him?” Consenting to the search with a
nod of her head, West provided a key to her home but left
before any search took place. The Department did not contact
her further.

After receiving West’s consent to “get inside [her] house
and apprehend him,” the Department sent a request for
assistance to the Special Weapons and Tactics (“SWAT”)
team. SWAT team leader Doug Winfield and Lieutenant Alan
Seevers, respectively, formulated and reviewed a tactical
plan. The plan consisted of three phases, all of which were
ultimately executed.

First, SWAT, over a public address system, instructed
Salinas to leave the house. Second, SWAT used a 12-gauge
shotgun to shoot tear gas canisters into the home, breaking
windows and extensively damaging the walls and ceiling in
the process. SWAT then waited 90 minutes for the tear gas to
spread and force Salinas outside. When Salinas did not come
out and the tear gas had dissipated, SWAT implemented the
final phase of the tactical plan, entering the residence to look
for Salinas. Before entering, SWAT attempted to enter
through the front door with the key West provided but could
not gain entry, as the chain lock was engaged. SWAT next
tried the back door, reaching through a window the tear gas
 WEST V. CITY OF CALDWELL 21

canisters had broken and unlocking the back door.1 The
subsequent search of West’s home revealed that Salinas was
not inside.

The fruitless police activity—primarily the use of tear gas
before entering the house—extensively damaged West’s
home. To put the extensive property injury in context: West’s
personal belongings and the home itself were saturated in tear
gas; broken glass littered the floor; and the walls and ceiling
had gaping holes from contact with the tear gas canisters. In
the aftermath of the destruction, West and her children could
not live in their home for several months.

West filed suit against the City of Caldwell, the Caldwell
Police Department, and the individual officers involved in the
search. Among other things, she alleged that Winfield and
Seevers exceeded the scope of her consent by designing and
executing a tactical plan that culminated in making her home
uninhabitable.

II

“The standard for measuring the scope of a suspect’s
consent under the Fourth Amendment is that of ‘objective’
reasonableness—what would the typical reasonable person
have understood by the exchange between the officer and the
suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).
Contrary to the majority’s reading of West’s consent—which
quite frankly, borders on the fantastic—no “typical
reasonable person [would] have understood . . . the exchange

1
West asserted that the key unlocked both the front and back door.
There is no indication in the record that the SWAT team ever tried the key
on the back door.
22 WEST V. CITY OF CALDWELL

between . . . [O]fficer [Richardson] and [West]” as permitting
the throwing of destructive tear gas canisters into her house
from the outside, before any officers even attempted to “get
inside [the] house and apprehend [Salinas].” (emphasis
added). Interpreting the exchange between West and Officer
Richardson as permitting the SWAT attack on West’s house
as performed is patently unreasonable. Any reasonable officer
would have known at the time that the search exceeded the
scope of West’s consent, for two principal reasons.

First, West’s consent quite obviously contemplated an
entry by live human beings, not the tossing of incendiary
objects into the house from the outside. That understanding
is confirmed by the framing of Officer Richardson’s consent
request. Officer Richardson asked, “Do we have permission
to get inside your house and apprehend him,” incorporating
the understanding that “we”—the officers—would be
entering the house. (emphasis added). Furthermore, in
providing Officer Richardson with a key to her home when
she consented to the search, West signaled that her consent
was for a peaceful entry by actual persons, not a destructive
assault on her home from the outside.

The majority adopts an entirely implausible contrary
reading of West’s consent, one a “typical reasonable person
[would not] have understood by the exchange between the
officer and the suspect.” Jimeno, 500 U.S. at 251. Because
West “never expressed a limitation as to time, place within
the house, or manner of entry,” the majority concludes that
her consent that officers could “get inside” permitted a
violent initial attack on her house with toxic objects. Maj. Op.
at 13. In so concluding, the majority supposes that someone
who permits law enforcement officers to “get inside [her]
house” while handing over a key consents to the officers not
 WEST V. CITY OF CALDWELL 23

entering the house but instead lobbing dangerous objects,
such as tear gas canisters—or stones or bombs, for other
examples—into the house from the outside. It further
presupposes that, in providing consent to entry, a resident
must preemptively forbid actions no one would guess are
contemplated by the commonsense understanding of the
articulated consent. That is not the law. See Jimeno, 500 U.S.
at 251.

That no “typical reasonable person” would have
understood West’s exchange with Officer Richardson as the
majority’s far-fetched reading suggests is further confirmed
by considering why the tear gas canisters were thrown into the
home. SWAT deployed the tear gas canisters to entice Salinas
to leave the house on his own volition. West’s consent
obviously did not contemplate that manner of apprehension.
West permitted officers (1) “to get inside [her] house and
[(2)] apprehend him,” in that order. That permission signifies
that officers were to “apprehend him” while still “inside” the
residence, not that foreign objects would be thrown into the
home to force Salinas to leave the house and that the officers
would then arrest him outside.

In short, despite the majority’s attempt to distort West’s
consent, any “typical reasonable person” would have
understood the exchange as permitting a physical entry by
actual persons only, in which officers would try to find
Salinas in the house and arrest him there.

Second, even if West consented to a plan that covered
attacks on her house from the outside with dangerous objects,
a reasonable officer would have known that, at some point,
the destruction of property could exceed the scope of West’s
consent. In Jimeno, the Supreme Court held that general
24 WEST V. CITY OF CALDWELL

consent to search the suspect’s vehicle, without any express
limitations on scope, permitted the officer to search the
vehicle as well as a paper bag on the vehicle’s floor. 500 U.S.
at 251. In so holding, Jimeno clearly established that general
consent to search is not without its limitations. As an example
of such inherent limits, Jimeno reasoned that “[i]t is very
likely unreasonable to think that a suspect, by consenting to
the search of his trunk, has agreed to the breaking open of a
locked briefcase within the trunk.” Id. at 251–52.

Applying Jimeno to the present case, it is clear that
extensive property destruction rendering a home
uninhabitable goes beyond the limitations inherent in a
general consent to search. Small personal property is not
afforded more Fourth Amendment protection than residential
properties. So if the “breaking open of a locked briefcase
within [a] trunk” is “very likely unreasonable” and exceeds
the scope of ordinary consent, it goes without saying that
assaulting a home with tear gas and making the residential
property uninhabitable for months is likewise unreasonable,
and exceeds the scope of consent. Id. A resident need not
expressly state, for example, that the officers could “get
inside [her] house and apprehend [Salinas],” but could not
attack it with incendiary objects that would make it
impossible to live in the house. As in the Jimeno hypothetical,
that limitation is inherent in the consent, and a reasonable
officer would have so understood.

Notably, I have found no federal case that holds—or
suggests—otherwise. Although some cases have held that
there are circumstances in which a general consent to search
 WEST V. CITY OF CALDWELL 25

allows for intentional damage to personal property,2 no
appellate decision, as far as I can tell, has approved massive
damage to a dwelling after a general consent to search. See
also United States v. Ibarra, 965 F.2d 1354, 1357–58 (5th
Cir. 1992) (en banc) (per curiam) (affirming by equally
divided court with seven judges determining that the officers
exceeded the scope of consent by using a sledgehammer to
break boards securing entry to the attic).

In concluding that the officers performed a search
consistent with West’s consent, the majority does what no
court has before—it holds that a “typical reasonable person”
consenting to an entry to look for a suspect could be
understood by a competent police officer as consenting to
damage to his or her home so extreme that renders it
uninhabitable for months. Aside from its complete
implausibility as a matter of common experience, the
majority’s holding is likely to hamper legitimate law

2
Four circuits have determined that general consent to search does
not permit intentional damage to personal property. See United States v.
Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004); United States v.
Torres, 32 F.3d 225, 231–32 (7th Cir. 1994); United States v. Zamora-
Garcia, 831 F.3d 979, 983 (8th Cir. 2016); United States v. Strickland,
902 F.2d 937, 942 (11th Cir. 1990). The Third, Tenth, and D.C. Circuits
have similarly suggested that although a general consent to search a place
or item may permit the police to dismantle or temporarily modify that
property, the consent does not give the police authorization to destroy that
property or otherwise “render it useless.” United States v. Kim, 27 F.3d
947, 956–57 (3d Cir. 1994) (quoting United States v. Springs, 936 F.2d
1330, 1334–35 (D.C. Cir. 1991)); see also United States v. Osage,
235 F.3d 518, 521, 522 n.2 (10th Cir. 2000). The Second Circuit allows
for intentional damage to personal property in the course of a general
consent search. See United States v. Mire, 51 F.3d 349, 351–52 (2d Cir.
1995).
26 WEST V. CITY OF CALDWELL

enforcement activity by making homeowners extremely
reluctant to agree to consensual searches.

III

The majority faults this dissent for not providing closely
similar cases to guide the clearly established law inquiry with
regard to the application of Jimeno’s “typical reasonable
person” standard. Maj. Op. at 13–15. But this case well
illustrates that some police actions are so clearly
unacceptable under the applicable standard that it is the
absence of closely similar cases that is most telling. See Hope
v. Pelzer, 536 U.S. 730, 741–46 (2002). Here, for example,
the likely reason there are no closely similar cases standing
for the proposition that officers may not use a general consent
to search to take actions that render a home uninhabitable for
months is that law enforcement officers well understand that,
and do not rely on consent alone to conduct home-destructive
activities.

Moreover, contrary to the majority’s assumption, the
scope of consent claim in this case is not akin to the various
excessive force cases which have triggered the Supreme
Court’s repeated admonitions regarding the need for closely
similar clearly established case law in qualified immunity
cases. Maj. at 13–14. Unlike the many cases in which officers
often face difficult split-second decisions and so need
detailed instructions if they are to be held liable for
constitutional violations, see, e.g., Stanton v. Sims, 571 U.S.
3, 10 (2013) (per curiam), the officers here had time to inform
West of the dangerous nature of their intended activities
before relying on her consent. The fact that they decided not
to inform her in more detail could suggest that they
anticipated that she would not agree to the search as
 WEST V. CITY OF CALDWELL 27

performed—as she probably would not have—but proceeded
anyway. Given the timing and extensive planning that went
into the destructive search of West’s home, the dynamic in a
case such as this one is entirely different from that in usual
excessive force cases, in which the Court has insisted on
closely analogous case law for qualified immunity purposes.

There will be, of course, cases in which it will not be clear
to law enforcement officers whether the consent obtained
reaches the activities undertaken, or in which the preplanned,
and consented to, scheme goes awry for reasons beyond the
officer’s control. In such situations, insistence on affirmative
guidance from closely similar cases makes sense before
requiring the law enforcement defendants to pay for the
plaintiff’s injuries.3 But here, the destructive activities
occurred at the outset of SWAT’s execution of its scheme and
as far as the tear gas itself was concerned, went exactly as
planned (although Salinas did not emerge). Where, as here,
there is simply no plausible possibility that a “typical
reasonable person” would have understood that West agreed
to the destruction, the absence of case law approving similar
actions on the grounds of general consent should be a
sufficient basis to deny qualified immunity.

For the foregoing reasons, I respectfully, but
emphatically, dissent.

3
More accurately, the governmental entity’s insurer will pay. See
Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885
(2014).