NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY SIMS, No. 23-35545
Plaintiff-Appellee, D.C. No. 2:22-cv-00483-TL
v. MEMORANDUM* ROBERT BROWN, Officer of the Seattle Police Department; et al.,
Defendants-Appellants,
and
CITY OF SEATTLE, a municipal corporation,
Defendant.
Appeal from the United States District Court for the Western District of Washington Tana Lin, District Judge, Presiding
Argued and Submitted April 5, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Defendant police officers appeal the district court’s denial of qualified
immunity in a case arising from a vehicle stop of Plaintiff Anthony Sims. Based
on erroneous suspicion that Sims’s car was stolen, at least six officers surrounded
him with their guns drawn or pointed, frisked him, and opened his locked trunk.
Sims filed this 42 U.S.C. § 1983 action, alleging various constitutional violations.
Because this is an interlocutory appeal, our jurisdiction is limited to
resolving “whether the defendant[s] would be entitled to qualified immunity as a
matter of law, assuming all factual disputes are resolved, and all reasonable
inferences are drawn, in plaintiff’s favor.” Peck v. Montoya, 51 F.4th 877, 885
(9th Cir. 2022) (alteration in original) (quoting George v. Morris, 736 F.3d 829,
836 (9th Cir. 2013)). Because the district court’s grant of partial summary
judgment to Sims as to the trunk search is “inextricably intertwined” with its denial
of qualified immunity for that search, we have jurisdiction to review the grant.
Woodward v. City of Tucson, 870 F.3d 1154, 1159 (9th Cir. 2017) (quoting
Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000)); see also Mueller v.
Auker, 576 F.3d 979, 989-91 (9th Cir. 2009) (explaining that there is “pendent
appellate jurisdiction” over questions that are “inextricably intertwined” with
immediately appealable questions of qualified immunity). We review a grant or
denial of summary judgment on the ground of qualified immunity de novo.
Woodward, 870 F.3d at 1159. We must determine whether the officers’ conduct
2 (1) violated a constitutional right that (2) was clearly established at the time of the
violation. Hopson v. Alexander, 71 F.4th 692, 697 (9th Cir. 2023). We affirm in
part, reverse in part, and remand.
1. To start, the district court erred in failing to conduct an individualized
analysis of each officers’ conduct. See Cunningham, 229 F.3d at 1289. Given that
error, we could remand for the district court to conduct the necessary
individualized analysis. Although it would have been better if the district court
had done that analysis in the first instance, both parties agree that we may reach the
issues ourselves and “conduct the individualized analysis that the district court
failed to perform.” Id. at 1289. We exercise our discretion to do so to avoid
further delaying these proceedings.
2. Beginning with Lieutenant Robert Brown, the district court properly
denied qualified immunity for all of the alleged violations and did not err in
granting partial summary judgment to Sims as to the trunk search.
Crucially, given the district court’s holding that there was a genuine dispute
as to the reasonableness of suspecting that Sims’s vehicle was stolen, we must
assume in reviewing the district court’s denial of summary judgment that Brown’s
mistake of fact was unreasonable. See Est. of Anderson v. Marsh, 985 F.3d 726,
731 (9th Cir. 2021) (“A public official may not immediately appeal . . . whether or
not the evidence in the pretrial record was sufficient to show a genuine issue of fact
3 for trial.” (alteration and quotation marks omitted)); Torres v City of Madera, 648
F.3d 1119, 1125-27 (9th Cir. 2011) (holding that a jury could find that an officer’s
belief that she was holding her Taser instead of her gun was unreasonable). We
therefore conduct our analysis of the district court’s denial of summary judgment
as though the only proper basis for the stop was unilluminated headlights. With
that baseline, all of Brown’s challenged conduct was unlawful under clearly
established law.
Sims first challenges the scope of the stop, asserting that the intrusive tactics
used gave rise to a de facto arrest without probable cause. “Investigative stops
based upon suspicion short of probable cause are . . . constitutionally permissible
only where the means utilized are the least intrusive reasonably available.” Kraus
v. Pierce County, 793 F.2d 1105, 1108 (9th Cir. 1986). The parties agree that there
was not probable cause here for an arrest. Whether an investigative Terry stop has
risen to the level of an arrest without probable cause is a “highly fact-specific
inquiry that considers the intrusiveness of the methods used in light of whether
these methods were ‘reasonable given the specific circumstances.’” Green v. City
& County of San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014) (quoting
Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996)).
After weighing the relatively intrusive tactics used here against the
countervailing factors, we cannot conclude that the conduct was “reasonably
4 related in scope to the circumstances which justified the interference in the first
place,” Terry v. Ohio, 392 U.S. 1, 20 (1968), let alone that the “means utilized
[were] the least intrusive reasonably available,” Kraus, 793 F.2d at 1108. Sims
was compliant at all times, presented no sign of being dangerous or fleeing, and
was outnumbered at least six to one. Brown had no reason to believe that Sims
was armed, that the stop followed a violent crime, or that a violent crime was about
to occur. See Washington, 98 F.3d at 1185-87 (describing the relevant factors and
explaining that “even markedly less intrusive police action” than drawing weapons
and using handcuffs will violate the constitution where “the inherent danger of the
situation does not justify the intrusive police action”). Defendants’ position that
any individual pulled over for a minor traffic violation could be lawfully subjected
to the tactics used here is untenable. See id. at 1189 (“It would be a sad day for the
people of the United States if police had carte blanche to point a gun at each and
every person of whom they had an ‘articulable suspicion’ of engaging in criminal
activity.” (quoting United States v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir.
1988))).
At the time of the stop, it was clearly established that under these
circumstances, multiple officers surrounding a vehicle with weapons drawn and
issuing commands at gunpoint exceeded the scope of a proper investigative stop.
See United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974) (holding that an
5 investigatory stop became an arrest at the moment of “an armed approach to a
surrounded vehicle whose occupants have been commanded to raise their hands”);
United States v. Robertson, 833 F.2d 777, 781 (9th Cir. 1987) (holding that an
investigatory stop became an arrest “upon . . . encirclement by officers who gave
her orders at gunpoint”); United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th
Cir. 1975) (holding that investigatory stop became an arrest when “the agents at
gun point, under circumstances not suggesting fears for their personal safety,
ordered the [vehicle occupants] to stop and put up their hands”).
Relatedly, Sims brings a separate claim of excessive force for pointing a gun
at him. See Green, 751 F.3d at 1047-51 (analyzing unlawful arrest and excessive
force separately). “[P]ointing a loaded gun at a suspect, employing the threat of
deadly force, is use of a high level of force.” Espinosa v. City & County of San
Francisco, 598 F.3d 528, 537 (9th Cir. 2010).
At the time of the stop, it was clearly established that “pointing guns at
persons who are compliant and present no danger is a constitutional violation.”
Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (quoting Baird v. Renbarger,
576 F.3d 340, 346 (7th Cir. 2009)); see also Hopkins v. Bonvicino, 573 F.3d 752,
776 (9th Cir. 2009) (holding it was unconstitutional to point a gun at an individual
where “[t]he crime under investigation was at most a misdemeanor[,] the suspect
was apparently unarmed and approaching the officers in a peaceful way[,] [t]here
6 were no dangerous or exigent circumstances apparent at the time of the detention,
and the officers outnumbered the plaintiff” (alterations in original) (quoting
Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002) (en banc))). For
reasons already discussed, because we resolve any disputes in Sims’s favor, there
was no justification for pointing a gun at him. See Graham v. Connor, 490 U.S.
386, 396 (1989) (holding that any use of force must be weighed against the
severity of the crime, whether the suspect poses an immediate threat, and whether
the suspect is actively resisting arrest or attempting to flee); Green, 751 F.3d at
1049 (“Where these interests do not support a need for force, any force used is
constitutionally unreasonable.” (quotation marks omitted)).
Moving to the frisk, it was clearly established that a pat-down of a driver
during a traffic stop must be justified by “reasonable suspicion that the person
subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323,
327 (2009). Because a frisk is “justified by the concern for the safety of the
officer” as opposed to investigation of crime, “[a] lawful frisk does not always
flow from a justified stop.” Thomas v. Dillard, 818 F.3d 864, 875-76 (9th Cir.
2016). Other than suspicion of the stolen vehicle, which we must disregard for
purposes of this appeal as explained above, the officers have made no attempt to
point to “specific and articulable facts” that would support reasonable suspicion
that Sims was armed and dangerous. Id. at 876. Sims did not behave nervously or
7 suspiciously, made no “furtive movement,” and offered no other reason to think he
was armed. Cf. United States v. Garcia-Rivera, 353 F.3d 788, 789-90, 791 (9th
Cir. 2003) (holding that it was lawful to frisk a driver who leaned forward “as if
reaching for something or putting something down,” failed to produce vehicle
documentation, and said he had been convicted of armed robbery).
Finally, we agree with the district court that the prohibition on the trunk
search was clearly established under any version of the facts. Warrantless searches
are presumed unreasonable “subject only to a few specifically established and
well-delineated exceptions.” United States v. Ruckes, 586 F.3d 713, 716 (9th Cir.
2009) (alteration omitted) (quoting United States v. Caseres, 533 F.3d 1064, 1070
(9th Cir. 2008)); see also Knowles v. Iowa, 525 U.S. 113, 117 (1998) (holding that
“concern for officer safety [during a routine traffic stop] . . . does not by itself
justify” a vehicle search); Arizona v. Gant, 556 U.S. 332, 346-47 (2009) (listing
permitted exceptions to the warrant requirement for vehicles).1
Defendants characterize the search as a protective sweep, relying on
Michigan v. Long, 463 U.S. 1032 (1983). But Long extended Terry pat-downs
only to passenger compartments and cannot reasonably be interpreted as applying
1 Defendants do not argue that there was probable cause to believe the vehicle contained evidence of a crime. Thus, the search was not authorized under the “automobile exception.” See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010).
8 to a locked trunk that is inaccessible from the passenger compartment. Id. at
1048-49; see also Arizona, 556 U.S. at 346 (describing Long as “permit[ting] an
officer to search a vehicle’s passenger compartment” in certain circumstances).
Further, at the moment of the search, Sims was speaking with Brown a good
distance from the vehicle and the officers were in possession of the keys. No
reasonable officer could believe that Sims would have been able to grab a weapon
from the trunk in those circumstances.
Having established that all the conduct was unlawful under sufficiently
specific caselaw, we turn to Defendants’ argument that Brown did not directly
participate in the violative conduct. “Although there is no pure respondeat
superior liability under § 1983, a supervisor is liable for the acts of his
subordinates if the supervisor participated in or directed the violations, or knew of
the violations [of subordinates] and failed to act to prevent them.” Vazquez v.
County of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020) (alteration in original)
(quoting Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th
Cir. 2007)); see also Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022)
(explaining circumstances under which a supervisor may be held liable for the acts
of his reports). Similarly, an officer whose own conduct does not rise to the level
of a violation can be liable as an “integral participant” if the officer (1) “knew
about and acquiesced in the constitutionally defective conduct as part of a common
9 plan with those whose conduct constituted the violation,” or (2) “set in motion a
series of acts by others which the defendant knew or reasonably should have
known would cause others to inflict the constitutional injury.” Peck, 51 F.4th at
891.
Under either line of cases, Brown can be held liable for all of the asserted
violations. Brown testified that he was the supervising officer on the scene and
that he initiated a “high-risk” stop—a trained tactic for dealing with a suspect’s
potential escape or violence—knowing that numerous officers would arrive and
behave as if dealing with a dangerous situation, including by drawing weapons.
When Sims asked the officers why they were pointing guns at him, Brown did not
direct the officers to lower their guns; rather, he explained that they needed to have
their guns drawn for their safety. As to the frisk, the video belies Defendants’
position that Brown did not participate: Brown in fact directed the frisk, ordering
Sims to come closer so that officers could “makes sure [he had] no weapons.”
Finally, given that Sims yelled “excuse me” as officers opened his door to get his
keys, interrupting his conversation with Brown, there can be no genuine dispute
that Brown was aware of the other officers’ actions with respect to the car. Yet he
failed to communicate to the officers that dispatch had cleared the plates or call off
any search of the car. Whether framed as setting in motion a series of acts or as
10 acquiescence, Brown’s participation was sufficient for liability on all of the Fourth
Amendment claims. See Vazquez, 949 F.3d at 1166; Peck, 51 F.4th at 891.
3. Turning to the Officers Richardson, Nash, and Follette, “law enforcement
officers are generally entitled to rely on information obtained from fellow law
enforcement officers.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005) (en
banc), overruled on other grounds by United States v. King, 687 F.3d 1189 (9th
Cir. 2012) (en banc). “Where an officer has an objectively reasonable, good-faith
belief that he is acting pursuant to proper authority, he cannot be held liable if the
information supplied by other officers turns out to be erroneous.” Id. at 1082.
Here, it was reasonable as a matter of law for the officers to rely on Brown’s report
that he was stopping a possible stolen vehicle. See Torres v. City of Los Angeles,
548 F.3d 1197, 1212 (9th Cir. 2008) (concluding as a matter of law that a detective
reasonably relied on an allegedly false statement of another detective). We thus
assume in our analysis of the claims against the responding officer Defendants that
it was reasonable of them to suspect that Sims’s car was stolen.2
2 At oral argument, Sims asserted that under Green, there is at least a dispute of fact as to whether it was reasonable for the responding officer Defendants to suspect the vehicle was stolen. In Green, however, we analyzed whether the sergeant who pulled the vehicle over could reasonably rely on another officer’s unconfirmed license plate hit—without himself visually confirming the plate number and despite spending time stopped behind the suspect at a red light. 751 F.3d at 1042-43, 1045-46. The officer admitted that if he had read the full plate, he would not have had reasonable suspicion to stop the car. Id. at 1043. Unlike in
11 Because the officers who responded to the scene operated on reasonable
suspicion that the vehicle was stolen, they are protected by qualified immunity on
Sims’s claim that the scope of the stop was unconstitutional. There is no clearly
established law that the tactics used during this “high-risk” stop were unlawful on
suspicion of a stolen vehicle. Although some of the facts in Green are similar to
those here, there the tactics used were more intrusive: the officers handcuffed the
suspect, forced her to her knees, detained her for up to twenty minutes, and
continued to point their guns at her after she was handcuffed and secured.3 751
F.3d at 1041, 1050.
As to the remaining claims, starting with Officer Richardson (who opened
Sims’s trunk), he is not entitled to qualified immunity on the trunk search given
our conclusion that the search was unlawful under clearly established law even on
reasonable suspicion that the car was stolen. But because Richardson did not
participate in the frisk and did not point his gun at Sims, he was not an “integral
Green, here it would not have been reasonable to expect each responding officer Defendant to independently verify the plate number. See United States v. Hensley, 469 U.S. 221, 231 (1985) (noting that “effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information” (quotation marks omitted)). 3 Importantly, Green did not clearly establish whether “the existence of a stolen vehicle, in and of itself, [was] enough” to justify the tactics used, stating it was “a conclusion over which reasonable jurors could disagree.” 751 F.3d at 1048.
12 participant” in those violations and may not be held liable for them. See Peck, 51
F.4th at 891.
Similarly, Officer Nash is not entitled to qualified immunity on the trunk
search. As he testified and is audible in the video, Nash discussed “popping the
trunk” with Richardson and then checked the vehicle identification number as
Richardson opened the trunk. As such, Nash “knew about and acquiesced in the
constitutionally defective conduct as part of a common plan” under the integral
participant doctrine. Id.
Because Nash had reasonable suspicion that Sims’s vehicle was stolen,
however, Nash is entitled to qualified immunity for the excessive force claim for
pointing his gun at Sims for lack of clearly established law. Although we are
skeptical of the propriety of pointing a gun in these circumstances, there is no case
that “squarely governs” whether an officer may briefly point a gun at a suspect
believed to have stolen a vehicle in the context of a traffic stop on the side of the
road, before the officer has confirmed that the suspect is unarmed as the suspect
approaches. See Hopson, 71 F.4th at 698, 704-05; Hopkins, 573 F.3d at 777
(reasoning that a gunpoint was unconstitutional in part because officer was
investigating a misdemeanor); Robinson, 278 F.3d at 1014 (same); Thompson, 885
F.3d at 586-87 (holding a gunpoint was unlawful in a felony stop where the
officers had already confirmed the suspect was unarmed).
13 And like Officer Richardson, Nash did not participate in the frisk and was
thus not an integral participant in that violation. See Peck, 51 F.4th at 891.
Finally, Officer Follette is entitled to qualified immunity for all of the
asserted violations given his limited participation at the scene. Follette simply
arrived, momentarily took cover behind a patrol car with his gun unholstered, and
walked around Sims’s car after checking its vehicle identification number through
the windshield. Follette did not point his gun at Sims, participate in the frisk, or
plan or execute the trunk search. Follette was thus not an integral participant in
any of the violative conduct. See id. at 889 (noting that “simply being present at
the scene does not demonstrate that an officer has acted as part of a common
plan”).
In sum, we hold as follows on the Fourth Amendment claims: (1) Brown is
not entitled to qualified immunity for any of the asserted violations; (2) Richardson
is not entitled to qualified immunity for the trunk search, but he is entitled to
qualified immunity for the remaining asserted violations; (3) Nash is not entitled to
qualified immunity for the trunk search, but he is entitled to qualified immunity for
the remaining asserted violations; (4) Follette is entitled to qualified immunity for
all asserted violations. And we hold that as to Brown, Richardson, and Nash, the
district court did not err in granting partial summary judgment to Sims.
14 4. Regarding Sims’s equal protection claim for race discrimination, we do
not have jurisdiction to review the district court’s determination that there was a
genuine dispute of fact as to whether race was a motivating factor for Brown’s
decision to escalate tactics during the stop. See Est. of Anderson, 985 F.3d at 731;
Bey v. Falk, 946 F.3d 304, 319 (6th Cir. 2019) (“Our limited jurisdiction over the
officers’ appeal from the denial of qualified immunity severely restricts our review
of [plaintiff’s] equal protection claim. . . . What we may think of the sufficiency of
the statistics to show discriminatory effect is no matter for this appeal.”). This is
not a case where Sims relied on pure conclusory allegations of bad motive,
contrary to Brown’s assertion. Cf. Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir.
2001).
Nor did the district court err in failing to require a comparator—Sims’s
claim is based on Brown’s escalation of tactics, not selective enforcement. See
Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir. 2003) (noting
that to avoid summary judgment on an equal protection claim, a plaintiff must
“produce evidence sufficient to permit a reasonable trier of fact to find by a
preponderance of the evidence that [the] decision . . . was racially motivated”
(alterations in original) (quotation marks omitted)), overruled on other grounds by
Edgerly v. City & County of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir.
2010).
15 But, again, the district court failed to conduct an individualized analysis of
each officer’s conduct in evaluating whether the officers were entitled to qualified
immunity on this claim. See Cunningham, 229 F.3d at 1289; Bey, 946 F.3d at 321
(“The district court grouped [the officers] when discussing [plaintiff’s] equal
protection claim. That was legal error.”). Sims’s equal protection claim is based
on Brown’s decision to proceed with a high-risk stop and escalate tactics—
accordingly, all of Sims’s evidence regarding a race-based motivation at summary
judgment concerned only Brown. Because there is no evidence in this record that
would raise a genuine dispute as to the motive of Officers Richardson, Nash, and
Follette, we hold that they are entitled to qualified immunity on this claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.