NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALAISHA TYSHARI BROWDER, No. 22-55846 individually; DORISTEEN COLEMAN, as guardian ad litem for minor children, D.K.A. D.C. No. and M.K.T., 5:19-cv-02306-JGB-SP
Plaintiffs-Appellants, v. MEMORANDUM*
COUNTY OF SAN BERNARDINO; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding
Argued and Submitted February 9, 2024 Pasadena, California
Before: SCHROEDER, BUMATAY, and MENDOZA, Circuit Judges. Partial Dissent by Judge BUMATAY.
Plaintiffs Alaisha Tyshari Browder and Doristeen Coleman, guardian ad
litem for Browder’s two minor children, sued the County of San Bernadino and
two of its officers—Deputy Jeremiah Cornett and Detective Thomas Boydston—
for violations of Plaintiffs’ constitutional rights pursuant to 42 U.S.C. § 1983 and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. their rights under California law. Plaintiffs appeal from the district court’s grant of
summary judgment in favor of Defendants on all eight of Plaintiffs’ claims. We
have jurisdiction under 28 U.S.C. § 1291, and in reviewing the district court’s
grant of summary judgment de novo, we view the evidence in the light most
favorable to the non-moving parties. U.S. Sec. & Exch. Comm’n v. Husain, 70
F.4th 1173, 1180 (9th Cir. 2023). We AFFIRM in part, REVERSE in part,
VACATE the judgment in part, and REMAND for further proceedings.
1. The district court erred in granting summary judgment in favor of
Cornett on Browder’s claim for malicious prosecution.1 A plaintiff may bring a
malicious prosecution claim “not only against prosecutors but also against others—
including police officers[]—who wrongfully caused [her] prosecution.” Smith v.
Almada, 640 F.3d 931, 938 (9th Cir. 2011). To prevail, “a plaintiff must show that
‘the defendants prosecuted her with malice and without probable cause, and that
they did so for the purpose of denying her [a] specific constitutional right.’” Id.
(quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)).
The district court found as a matter of law that Cornett had probable cause to
arrest Browder for child endangerment under California Penal Code § 273a(a), and
that Cornett therefore had an absolute defense to malicious prosecution. See
1 Because Browder failed to raise a triable issue of material fact as to Boydston’s alleged liability for malicious prosecution, we affirm the district court’s grant of summary judgment in favor of Boydston.
2 Lassiter v. City of Bremerton, 556 F.3d 1049, 1054–55 (9th Cir. 2009). This was
error. Genuine disputes of material fact remain as to whether Cornett’s arrest was
supported by probable cause.
“Generally, ‘the existence of probable cause is a question for the jury,’
though summary judgment is appropriate when there is no genuine issue of fact
and if ‘no reasonable jury could find an absence of probable cause under the
facts.’” Johnson v. Barr, 79 F.4th 996, 1003 (9th Cir. 2023) (quoting Gasho v.
United States, 39 F.3d 1420, 1428 (9th Cir. 1994)). Probable cause analysis cannot
be reduced to “a neat set of legal rules.” United States v. Willy, 40 F.4th 1074,
1080 (9th Cir. 2022) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Instead,
we “must ‘examine whether the facts and circumstances within the officer’s
knowledge are sufficient to warrant a prudent person to believe a suspect has
committed, is committing, or is about to commit a crime.’” Id. (quoting United
States v. Valencia, 24 F.3d 1106, 1108 (9th Cir. 1994)).
California Penal Code § 273a(a), the charge for which Cornett arrested
Browder, provides:
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four,
3 or six years.
Cal. Pen. Code § 273a(a).2 The district court found the following facts established
probable cause to arrest Browder as a matter of law:
Here, while searching Browder’s residence [for evidence of forgery] pursuant to a warrant, Cornett noticed rotten food on the floor, a trash bin filled with trash and rotten food, knives and other eating utensils throughout the residence, knives between couch cushions, a nearly empty fridge, and boxes and bags scattered throughout the residence. []Cornett also smelled a foul odor, which he assumed came from the rotting food. []From these conditions, Cornett determined the residence was uninhabitable and posed a safety and health risk to Browder’s children. []Browder herself told Cornett the residence was uninhabitable, though she claimed it was because she was in the process of moving due to her eviction.3
While some of these facts support probable cause, some cut both ways, and other
undisputed facts cut against a finding of probable cause. For instance, the fact that
Browder “was moving out of the apartment” at the time of the search, her
explanation that “the residence was in disarray because she was packing,” and her
2 Section 273a(b), the charge that the County ultimately brought against Browder, makes it a misdemeanor to engage in the same conduct in instances where a likelihood of “great bodily harm of death” is lacking. Cal. Pen. Code § 273a(b). 3 The dissent notes that multiple pill bottles were strewn about the floor of Browder’s home and accessible to Browder’s children, and finds this fact supports a finding of probable cause. Allowing children access to dangerous pills is certainly dangerous. But neither the district court, nor the parties’ briefing, nor Cornett’s report mention these pill bottles, and there is no indication of what kind of pill bottles they were or whether they were empty or full. Absent some indication that the pill bottles contained dangerous pills, this fact has little bearing on the probable cause analysis.
4 statement that “she knew the residence was currently not in a habitable condition,”
as recounted in Cornett’s report, plausibly support opposite inferences: either that
Browder’s home was not habitable in general, or that Browder’s home was not
presently habitable at the time of the arrest because Browder and her children were
in the midst of a move. Indeed, one of Browder’s minor children reported to
Cornett that “the residence was typically clean[;] however, for the past two or three
days they had been packing items to move out.”
Cornett’s report also contained a misrepresentation about the knives that he
observed at Browder’s home on the day of the arrest. He wrote: “Steak knives and
other eating utensils were found throughout the residence. Some of the steak
knives were found between the couch cushions.” These statements are untrue.
During Browder’s subsequent trial for child endangerment, Cornett testified under
oath that he found only one steak knife at the residence; it was on a kitchen
counter. And the knives that Cornett reported finding in the couch were two butter
knives. Although butter knives on the couch may weigh in favor of a finding of
probable cause, the notion that the presence of steak knife on a kitchen counter
placed Browder’s then seven- and eleven-year-old children in a situation “likely to
produce great bodily harm or death,” Cal. Pen. Code § 273a(a), strains credulity.
So too with the report’s mention of “other eating utensils.” The report, and the
district court’s order, leave us guessing whether these other utensils were plastic
5 spoons or meat cleavers; they do not demonstrate probable cause for child
endangerment as a matter of law.
Moreover, when Browder was ultimately tried for child endangerment under
California Penal Code § 273a(b), the trial judge dismissed the case at the close of
the prosecution’s case-in-chief “based on the state of the evidence at [that] time.”
Although the trial judge’s determination that the prosecutor could not prove child
endangerment under section 273a(b) beyond a reasonable doubt is not dispositive
of whether Cornett had probable cause to arrest Browder for the more serious
charge under section 273a(a), the finding of insufficient evidence to convict under
section 273a(b) cuts against a finding that Cornett had probable cause to arrest
under section 273a(a).
Because the evidence points both ways on probable cause, and viewing that
evidence in the light most favorable to Browder, we hold that the district court
erred in resolving the probable cause inquiry on summary judgment. See Johnson,
79 F.4th at 1003 (reversing district court’s determination that officers had probable
cause to arrest plaintiff for child endangerment where facts cut both ways because
“whether officers had probable cause to arrest [plaintiff] presents a jury question”).
Our dissenting colleague cites California case law for the proposition that
probable cause for child endangerment arises whenever a house is “extremely
filthy” or presents “unsanitary condition[s],” and asserts that standard is plainly
6 met here. Dissent at 2 (citing People v. Odom, 226 Cal. App. 3d 1028, 1033
(1991); People v. Little, 115 Cal. App. 4th 766, 772 (2004)). But that reading of
the case law lowers the bar for child endangerment far beyond that contemplated
by those courts or the decisions upon which they rely. These cases did not find
child endangerment based on filthy or unsanitary conditions alone; and the
conditions in Browder’s home at the time of her arrest do not hold a candle to the
homes those courts considered. See People v. Harris, 239 Cal. App. 2d 393, 395
(1966) (“There was a sickening odor of defecation everywhere. . . . On the
bedroom floor there was dried defecation which had been stepped in. . . . A child
. . . had what appeared to be dried defecation on his legs. . . . A neighbor testified
that . . . he saw a little girl playing with a little boy’s privates. The boy was
screaming with pain and no adult seemed to be about, so the witness called the
police.”); Odom, 226 Cal. App. 3d at 1031, 1037 (finding child endangerment
where, in addition to the children’s easy access to electrical wires, loaded guns,
dogs, and explosive chemicals used in the production of methamphetamine, “feces
from two adult dogs . . . and numerous puppies were all over the home”); Little,
115 Cal. App. 4th at 770–72 (finding misdemeanor child endangerment under
section 273a(b) where, in addition to a “stench from rotten food and feces, piles of
garbage, [and] loose animals” in the home, the defendant’s infant child was left
unrestrained on a three-foot-high bed without guardrails, “dirt, cobwebs, insects,
7 and cockroaches [were] everywhere,” and the defendant and others in the home
“possessed and used drugs in the residence”). Genuine disputes of material fact
remain as to whether the conditions in Browder’s home gave rise to probable cause
for a violation of section 273a(a).
2. We otherwise affirm the district court’s grant of summary judgment.
On Browder’s claim for fabrication of evidence, she failed to raise a genuine
dispute of material fact as to causation. See Spencer v. Peters, 857 F.3d 789, 798
(9th Cir. 2017). And we discern no error in the district court’s grant of summary
judgment on Browder’s claim that Cornett misled the judge who issued the search
warrant for forgery by omitting or misrepresenting certain details, because the
record does not show that he intentionally or recklessly omitted or misrepresented
the information. See Frimmel Mgmt., LLC v. United States, 897 F.3d 1045, 1052
(9th Cir. 2018). Nor did the district court err in rejecting Plaintiffs’ claim for
unreasonable force arising from Cornett and Browder’s act of training their guns
on Plaintiffs for somewhere between 5 and 20 seconds in the course of conducting
a protective sweep in an enclosed space pursuant to a valid search warrant. See
Los Angeles Cnty. v. Rettele, 550 U.S. 609, 614 (2007) (“In executing a search
warrant officers may take reasonable action to secure the premises and to ensure
their own safety and the efficacy of the search.”). The district court did not err in
granting summary judgment on the familial interference claim because the officers
8 were justified in removing Browder’s children from the home, where the children
would have been left without adult supervision for an indeterminate amount of
time. See United States v. Bradley, 321 F.3d 1212, 1225 (9th Cir. 2003).
3. Finally, because Cornett and Boydston conducted the search of
Browder’s home pursuant to a valid warrant and in a reasonable manner, and had
probable cause to arrest Browder for forgery, we affirm the district court’s grant of
summary judgment on Plaintiffs’ remaining claims.
4. In accordance with the foregoing, we REVERSE the district court’s
grant of summary judgment on Browder’s claim for malicious prosecution as to
Defendant Cornett, VACATE the judgment as to that claim, and REMAND for
further proceedings. We otherwise AFFIRM the district court’s grant of summary
judgement as to all Defendants on Plaintiffs’ remaining claims.
9 FILED MAR 28 2024 Browder v. County of San Bernardino, No. 22-55846 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
Because the officers here had probable cause to arrest Alaisha Browder for
child endangerment, I respectfully dissent.
The district court properly granted summary judgment to Defendant-
Appellees. “The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Here, the majority wrongly finds the
characterization of two knives presents a genuine dispute of a material fact. And it
believes Browder’s pending move overrides the dangerous conditions in the
residence. As a matter of law, probable cause existed to arrest Browder for child
endangerment regardless of the knives’ characterization or whether Browder
planned to move.
To start, the probable cause standard “is not a high bar.” Kaley v. United
States, 134 S.Ct. 1090, 1103 (2014). Based on the totality of circumstances, we
assess if probable cause existed for an arrest by “examin[ing] the events leading up
to the arrest, and then decid[ing] whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to probable cause.”
See District of Columbia v. Wesby, 583 U.S. 48, 56–57 (2018) (simplified). At base,
the inquiry merely requires “a reasonable ground for belief of guilt.” Maryland v.
Pringle, 540 U.S. 366, 371 (2003). 1 Here, we must determine whether the officers possessed a “reasonable ground
for belief” that Browder’s residence constituted child endangerment as defined by
California state law. See Pringle, 540 U.S. at 371. California defines child
endangerment as subjecting one to liability “who, under circumstances or conditions
likely to produce great bodily harm or death . . . willfully causes or permits [a] child
to be placed in a situation where his . . . person or health is endangered.” Cal. Penal
Code § 273a(a). Under California law, “extremely filthy . . . and unsanitary
condition[s] in [a] home constitute child endangerment.” People v. Odom, 226 Cal.
App. 3d 1028, 1033 (1991) (citing People v. Harris, 239 Cal. App. 393 (1966)); see
also People v. Little, 115 Cal. App. 4th 766, 772 (2004) (finding child endangerment
where residence contained “stench from rotten food and feces” and “piles of
garbage”). That standard is plainly met here. The officers possessed a reasonable
belief upon entering the residence that Browder subjected her two children to a
situation where their health was endangered.
Even viewing the facts here in the light most favorable to Browder, the officers
had probable cause for child endangerment. Photos of the residence evidence that
much.
2 Multiple pill bottles were scattered across the floor.
Trash and debris covered most rooms in the house.
3 Rotted food was piled up in the kitchen and littered across countertops.
4 A foul odor filled the residence, presumably from the rotted food. And there
was little edible food for the children to eat. At one point, Browder even volunteered
that “we’re not in a habitable situation.” In addition to all these conditions, two
knives were on the couch. 5 None of these facts are contested. The majority negates these facts and solely
focuses on the knives’ characterization—were they steak or butter knives? But that
misses the “central teaching” of probable cause—it is a “totality of the circumstances
approach” that employs a “practical, nontechnical conception.” See Brinegar v.
United States, 338 U.S. 160, 176 (1949) (simplified). Based on the totality of these
hazardous circumstances, the officers had sufficient reason to believe Browder
subjected her children—who were seven and eleven years old—to a situation
endangering their health.
The majority further dismisses the perilous condition of the house because
Browder said she was moving. But the officers didn’t have to credit Browder’s
6 purported excuse for the state of the house in their probable cause determination.
See Wesby, 583 U.S. at 61 (“[P]robable cause does not require officers to rule out a
suspect’s innocent explanation of suspicious facts.”). And even temporary
endangerment may constitute child endangerment under § 273a(a). Odom, 226 Cal.
App. 3d at 1035 (“We also disagree with [the] suggestion that the situation was only
temporary and thus not sufficiently dangerous to create the likelihood of great bodily
injury. The dangers created in the home were so hazardous that . . . the existence of
the hazards even for a short time sufficiently endangered the well-being of the
children to be a violation of” § 273a(a).).
Moreover, the officers recognized and documented that Browder was moving
in the police report: “Browder stated she was moving out of the apartment because
she was being evicted. She explained the residence was in disarray because she was
packing.” So the majority injecting an already-known fact here shouldn’t disturb the
district court decision.
Lastly, the majority claims this case falls short of probable cause because
violations of child endangerment under California law included additional facts
beyond filthy or unsanitary conditions. Majority at 7 (“These cases did not find
child endangerment based on filthy or unsanitary conditions alone.”). But the
officers here didn’t base their probable cause determination on unsanitary or filthy
conditions alone. The only apparent difference the majority highlights is the
7 presence of feces in those cases. But the majority can’t possibly be suggesting that
there is a “feces requirement” to child endangerment.
Under California law, the question is not whether the house contained each
condition present in previous cases (including feces), but whether, under the totality
of circumstances, an officer had a reasonable belief that the house endangered the
children. See Odom, 226 Cal. App. 3d at 1033 (finding violation of child
endangerment based on “totality of circumstances” where “probability of serious
injury is great”). Little, Odom, and Harris demonstrate that unsanitary living
conditions, which may include feces and other conditions, can constitute violations
of § 273a(a). But an officer doesn’t have to find each danger present in those cases
to form a reasonable belief that a house constitutes child endangerment. See Wesby,
583 U.S. at 57 (Probable cause “requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” (simplified)). Mere
illustrations of a violation do not sub silentio alter the statutory standard for
conviction. See Cal. Penal Code § 4 (“All [Code] provisions are to be construed
according to the fair import of their terms.”). The standard is probable cause, not
certainty of a legal violation.
The perils present here—extreme unsanitary conditions including rotted food,
an emanating stench, an apparent lack of edible food, accessible pill bottles, knives
8 on a couch, and an admission that “we’re not in a habitable situation here”—support
a reasonable belief the house endangered the children’s health.
Because the officers had probable cause to make the arrest, Browder’s
malicious prosecution claim should fail. So I would affirm the district court order.
I respectfully dissent.