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Spear v. County of San Diego

filed*fn*: October 22, 1992.

PEARL SPEAR; CHARLES SPEAR, PLAINTIFFS-APPELLEES,
v.
COUNTY OF SAN DIEGO; W.J. BORNEMAN; A. KENDALL; J. STINGLE; J. CLARK, DEFENDANTS, AND WALTER SETZER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-89-1922-GT. Gordon Thompson, Jr., District Judge, Presiding

Before: Wiggins, Kozinski, and Kleinfeld, Circuit Judges

MEMORANDUM

This interlocutory appeal arises out of a suit by Pearl Spear against Deputy United States Marshal Walter Setzer alleging claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983 for unlawful search and seizure and excessive use of force. Setzer moved for summary judgment, claiming that both causes of action were precluded based on qualified immunity. Setzer appeals the district court's denial of that motion. He argues that the district court applied the wrong standard for the granting of qualified immunity. We agree with Setzer and reverse.

JURISDICTION AND STANDARD OF REVIEW

When the defense of qualified immunity is denied at a preliminary stage in a proceeding, the district court's order is immediately appealable to this court under the collateral order doctrine, notwithstanding the absence of a final judgment under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Todd v. United States, 849 F.2d 365, 368 (9th Cir. 1988). It is immaterial to the appealability of Setzer's claim of qualified immunity that Setzer may face further district court action on the separate claims of Spear's grandson. See DiMartini v. Ferrin, 889 F.2d 922, 924 (9th Cir. 1989), amended, 906 F.2d 465 (1990), cert. denied, 111 S. Ct. 2796 (1991). We review de novo the denial of qualified immunity. Branch v. Tunnell, 937 F.2d 1382, 1385 (9th Cir. 1991); Todd, 849 F.2d at 368.

Discussion

Officers are entitled to qualified immunity from suits as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An officer may not be held liable unless the unlawfulness of his conduct was clear to the officer in light of the preexisting law and circumstances. Anderson v. Creighton, 483 U.S. 635, 640-41 (1987). The same qualified immunity protections apply under both § 1983 and Bivens. Butz v. Economou, 438 U.S. 478, 500-01 (1978); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989).

The district court's denial of qualified immunity because "it is plausible that a jury could find that" the officers actions were not justified, Appellant's ER at 49, misapplies the doctrine of qualified immunity. The standard for granting qualified immunity is not simply whether that officer's actions were "justified," but whether the officer's conduct violated clearly established constitutional or statutory rights. Harlow, 457 U.S. at 818. The test is based on the "objective reasonableness" of the officer's conduct, i.e. whether a reasonable officer would have known that the conduct was clearly illegal. See id.; Branch, 937 F.2d at 1385.

The detention of Spear and the search of her home did not violate clearly established constitutional or statutory rights. Prior to surrounding Spear's house, Deputy Setzer and the other officers were warned that Spear had threatened to use her shotgun to "blow away" the men who had previously visited her property. Appellant's ER at 16; Appellee's ER 5 at 27. Setzer was one of the men who had previously entered Spear's property to arrest her son, James Spear. Appellant's ER at 28. The officers may have overreacted to Spear's threat. However, under the facts and circumstances as the officers knew them, their actions were reasonable. Even if Setzer and the other officers could have taken steps that with the benefit of hindsight we can determine would have been more reasonable, their actions did not violate Spear's rights. See Hunter v. Bryant, 112 S. Ct. 534, 537 (1991) (In determining whether qualified immunity should be granted "the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact").

Moreover, it appears that the officers were justified in making a security sweep of Spear's home. Spear's reported threat indicates that both a weapon and a potential killer were on her premises. Spear's grandson's refusal to leave the house and his agitated behavior suggested that someone else might be present in the house, possibly armed with the shotgun that Spear had previously mentioned. Setzer could have reasonably concluded that these circumstances constituted "specific and articulable facts" that supported his belief that dangerous persons were in the house. See United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). The protective sweep of the house was justified and reasonable. See id.

We also reject Spear's claim that Deputy Setzer used excessive force in detaining her. Setzer had no physical contact with Spear. Appellant's ER at 33-34. The only officer who had contact with Spear was Deputy Don Vasquez. Id. We reject Spear's claim that Setzer is liable as Deputy Vasquez's supervisor because Spear makes no contention that Setzer knew or intended that Vasquez apply allegedly excessive force or that Setzer could stop its application. See Ting v. United States, 927 F.2d 1504, 1511-12 (9th Cir. 1991).

Therefore, the district court erred in failing to grant Setzer summary judgment on his claim of qualified immunity from Spear's allegations of unlawful search and seizure and excessive use of force. The judgment of the district court is hereby REVERSED and REMANDED. Spear's request for attorney's fees is also DENIED.

Disposition

The judgment of the district court is hereby REVERSED and REMANDED. Spear's request for ...


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