Pike v. Hester, 16-16764

• Decision Date: 06 June 2018
• Docket Number: No. 16-16764,16-16764
• Citation: 891 F.3d 1131
• Parties: Richard PIKE, Plaintiff-Appellee, v. J. Brad HESTER, in his official and individual capacities, Defendant-Appellant, and Sean Munson, in his official and individual capacities; Rick Keema, in his official and individual capacities; Jim Pitts, in his official and individual capacities; Elko County Sheriff’s Office, a government entity ; Elko County, Nevada, a government entity, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

891 F.3d 1131

Richard PIKE, Plaintiff-Appellee,

v. J. Brad HESTER, in his official and individual capacities, Defendant-Appellant,andSean Munson, in his official and individual capacities; Rick Keema, in his official and individual capacities; Jim Pitts, in his official and individual capacities; Elko County Sheriff’s Office, a government entity ; Elko County, Nevada, a government entity, Defendants.

No. 16-16764

United States Court of Appeals, Ninth Circuit.

Submitted October 10, 2017^* San Francisco, California

Filed June 6, 2018

Katherine F. Parks, Brian M. Brown, and Kevin A. Pick, Thorndal Armstrong Delk Balkenbush & Eisinger, Reno, Nevada, for Defendant-Appellant.

John Neil Stephenson, Stephenson Law PLLC, Reno, Nevada, for Plaintiff-Appellee.

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and Jay S. Bybee, Circuit Judges.

Dissent by Judge O’Scannlain

OPINION

TASHIMA, Circuit Judge:

In 2011, J. Brad Hester, a sheriff’s sergeant, conducted an after-hours dog search of Richard Pike’s locked office. Pike successfully petitioned a state court for an order of protection against Hester. Pike later sued Hester in federal district court, claiming that the search violated his Fourth Amendment rights. In district court, Pike moved to preclude from relitigation certain issues he said the state court had already decided. The district court granted the motion in part. Pike later moved for offensive summary judgment on his Fourth Amendment claim. The district court granted the motion, concluding that Hester’s search violated the Fourth Amendment and that Hester was not entitled to qualified immunity because Pike’s right to be free from such a search was clearly established. Hester appealed.

We too conclude that Hester violated Pike’s clearly established constitutional rights, although we depart from the district court’s analysis in some respects. First, we hold that the state justice court’s conclusion that Hester violated the Fourth Amendment is precluded from relitigation. Second, because it was clearly established at the time of the search that Hester’s conduct violated Pike’s rights, Hester is not entitled to qualified immunity. We affirm.

I. Factual Background

In 2011, Hester was a sergeant in the Elko County Sheriff’s Office. Pike was the Elko County recreation director and the assistant high school football coach in the Elko County unincorporated town of Jackpot, Nevada. In his role as recreation director, Pike worked out of an office—shared with his assistant—at the Jackpot Recreation Center (the "Center") in Jackpot. Pike and Hester did not have a friendly relationship, which Hester attributed to Pike’s alleged mistreatment of one of Hester’s sons in 2007. Hester and Pike’s relationship soured in October 2007, when, Hester alleges, Pike hit Hester’s son, a high school football player, during a football game that Pike was coaching. Hester’s son was then benched for the second half of the game and suspended for the following game for arguing with Pike.

A. The Search of Pike’s Office

In August or September 2011, Hester activated the sirens on his patrol car to pull over Lynn Forsberg, the county director of public works and Pike’s boss. Hester had a request for Forsberg. Hester told Forsberg that he believed that certain Center employees, including Pike, were "dealing drugs" out of the building.¹ Hester asked Forsberg if he "would care" if Hester searched the Center. Forsberg and Hester dispute how Forsberg responded. Forsberg says he told Hester that "if he wanted to search the recreation center, he could call me, I would come up and let him in." Hester says that Forsberg gave him unconditional permission to search the Center " ‘[a]nytime, day or night.’ " Hester also told Forsberg that he already had a key to the Center, which prompted Forsberg to change the Center’s locks.

Soon thereafter, and without further talking to Forsberg, Hester led a nighttime search of the Center.² Hester, who was off duty and in plainclothes, was accompanied by Deputy Sean Munson, K-9 Deputy Mike Moore, and Moore’s drug dog. Hester used his key to unlock the Center. The dog searched the entire building in about ten minutes. As part of the search, Hester unlocked the door to Pike’s office and entered with Moore and the dog. The dog did not alert to drugs anywhere in the office. The officers did not open any drawers or touch any items in the office. Hester asked Moore to have the dog sniff a file cabinet outside Pike’s office a second time because the dog had scratched it on the first pass, but the dog did not alert on the second pass. The officers did not take any notes during the search and did not file a report afterward.

The animosity between Pike and Hester escalated. Pike learned of the search a few weeks later and filed a grievance with the sheriff’s office. Some time after the search, Hester met with the high school athletic director, Kim Smith, to complain about Pike’s conduct as a football coach. Hester also told Smith that Pike was "one of the biggest potheads in town." When Pike learned about that conversation, he asked Smith to write a letter documenting her meeting with Hester. Pike then complained to a sheriff’s office lieutenant a second time.

In January 2012, after an internal affairs investigation, the sheriff’s office suspended Hester without pay for 30 hours because the search of Pike’s office was "conduct unbecoming" an officer. The letter informing Hester of the discipline did not mention the Smith meeting.

B. Justice Court Proceedings

On November 15, 2011, Pike petitioned the Elko County Justice Court for a temporary restraining order ("TRO") because, he alleged, Hester was stalking him in violation of state law. Nevada Revised Statutes § 200.575(1) provides:

A person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, and that actually causes the victim to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, commits the crime of stalking.

Among the bases for Pike’s TRO petition was Hester’s search of Pike’s office. Pike also claimed that after he had filed the second grievance, Hester "repeatedly drove by [Pike’s] residence and/or stopped and stared at him." Without holding a hearing, the justice court issued a TRO.

Pike then applied for a two-month extension of the protective order. The justice court held a hearing on December 12, 2011, at which Pike, Hester, Forsberg, and other witnesses testified. The court extended the protective order and explained its decision in an addendum. It was not disputed that Pike actually felt intimidated by Hester; thus, the court explained, "The issue ... is really whether Hester ‘without lawful authority’ willfully engaged in a course of conduct that would cause a reasonable person to feel intimidated." The justice court continued:

Neither party disputes that Hester directed a "dog sniff" search of the Jackpot Recreation Center without a warrant and outside the presence of Forsberg ....

Given Forsberg’s testimony, and especially given the animosity that existed between Pike and Hester at the time of the search, the court concludes that Hester did not have lawful authority to search Pike’s office.

In a footnote, the court elaborated:

The court certainly cannot conclude that there was probable cause to search Pike’s office on this record. On this record, the court concludes that Hester’s desire to search was colored by his animosity toward Pike. At this point, the court cannot conclude that the search was either lawful under the Fourth Amendment ... or done with NRS 200.571"lawful authority."

(Emphasis in original.)

The justice court extended the protective order once again in March 2012. Hester did not appeal from either justice court order.

C. District Court Proceedings

In May 2012, Pike sued Hester and other defendants in federal court, claiming, inter alia , that the office search violated the Fourth Amendment. Pike then moved the district court to apply issue preclusion based on the justice court’s conclusions that "Forsberg did not give Defendant Hester authority to search the Jackpot Recreation Center outside of Mr. Forsburg’s [sic] presence" and "Defendant Hester did not have lawful authority at the time of the search." The district court granted the motion in part, explaining, "The justice court also found that ... ‘Hester did not have lawful authority to search Pike’s office.’ ... These specific findings, except for the last finding insofar as it concerns an ultimate Fourth Amendment violation, are precluded from relitigation." In a footnote, the district court clarified why it was not granting preclusive effect to the justice court’s Fourth Amendment conclusions:

Although the alleged Fourth Amendment violation was not directly at issue in the justice court, the justice court does appear to have held that Hester exceeded his lawful authority as a Nevada peace officer to conduct the search. Still, because the ultimate issue (whether to issue an [extended protective order] ) did not require a finding of a Fourth Amendment violation, that issue was not necessarily determined.

Pike then moved for offensive summary judgment on his Fourth Amendment claim. Initially, the district court granted the motion without the benefit of responsive briefing, as the court had concluded that defendants failed to timely respond. On appeal, this court vacated the order because the district court had miscalculated the due date of defendants’ opposition and remanded for the district court to consider Pike’s motion in light of defendants’ brief. Pike v. Munson , 623 Fed.Appx. 887 (9th Cir. 2015).

On remand, the district court granted Pike’s motion for summary judgment against Hester. In so doing, the district court noted that in its earlier issue preclusion...