Sharp v. Cnty. of Orange, 15-56146.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation871 F.3d 901
Docket NumberNo. 15-56146.,15-56146.
Parties Merritt L. SHARP III; Carol Sharp, Plaintiffs–Appellees, v. COUNTY OF ORANGE; Ryan Anderson; Jeremiah Prescott; Alexandra Flores; Justin Chevalier; Mark Van De Kreeke; Anton Pereyra, Defendants–Appellants.
Decision Date19 September 2017

871 F.3d 901

Merritt L. SHARP III; Carol Sharp, Plaintiffs–Appellees,
COUNTY OF ORANGE; Ryan Anderson; Jeremiah Prescott; Alexandra Flores; Justin Chevalier; Mark Van De Kreeke; Anton Pereyra, Defendants–Appellants.

No. 15-56146.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2017—Pasadena, California
Filed September 19, 2017

COUNSEL Michael J. Rossiter (argued), Zachary M. Schwartz, and William L. Haluck, Koeller Nebeker Carlson & Haluck LLP, Irvine, California, for Defendants–Appellants.

Brenton Whitney Aitken Hands (argued) and Jerry L. Steering, Law Office of Jerry L. Steering, Newport Beach, California, for Plaintiffs–Appellees.

Before: David M. Ebel,* Milan D. Smith, Jr., and N. Randy Smith, Circuit Judges.

Dissent by Judge N.R. Smith

871 F.3d 905


EBEL, Circuit Judge:

This case arises out of the execution of an arrest warrant gone wrong. Plaintiffs Merritt L. Sharp III (Sharp III) and Carol Sharp (Carol) were in their home when several sheriff deputies arrived. The deputies had an arrest warrant for Plaintiffs' son Merritt L. Sharp IV (Sharp IV), whom they believed was residing in his parents' home. During the pursuit of Sharp IV, however, the deputies mistakenly arrested his father Sharp III, believing him to be the subject of the warrant. In the course of that arrest, one of the deputies forcefully restrained Sharp III and searched his person. After they discovered their mistake, the deputies still kept Sharp III handcuffed and locked in a patrol car while several of them searched Plaintiffs' home for Sharp IV, the true subject of the arrest warrant. They also removed Carol from the house and forced her to wait during the home search. Meanwhile, Sharp III was kept detained in the patrol car after one of the deputies told him that he was being too argumentative to be let out of the car during the search of his home. Plaintiffs testified that when they returned to their house, they discovered that the deputies had not just searched for their son in the home, but also had searched through bedroom drawers and kitchen cabinets without a search warrant.

Plaintiffs brought this lawsuit asserting violations of their constitutional rights under 42 U.S.C. § 1983, and also raised several pendent claims under California law. On motion for summary judgment, Defendants raised various immunities from suit, including qualified immunity from the § 1983 claims and a handful of state-law immunities from the state claims.1 The district court denied all immunities. In its view, the deputies violated clearly established law, thereby precluding qualified immunity, and the district court further held that the asserted state-law immunities were inapplicable as a matter of law and fact.

We AFFIRM in part and REVERSE in part. The district court properly denied qualified immunity on Sharp III's retaliation claim, and appropriately rejected all state-law immunities. However, the deputies are entitled to qualified immunity on Carol's retaliation claim and Sharp III's claims for the seizure of his person, the use of excessive force against him, and the search of his person, as well as Plaintiffs' shared claim concerning the search of their home. Although we conclude that much of this conduct was unconstitutional, we hold that qualified immunity was nevertheless warranted on these claims. Our conclusions are driven by recent Supreme Court pronouncements on qualified immunity and rest principally on the failure by Plaintiffs to identify sufficiently specific constitutional precedents to alert these deputies that some of their particular conduct was unlawful.


In August 2013, Sharp IV was released

871 F.3d 906

from state prison subject to conditions of probation. The conditions required him to "[s]ubmit [his] person and property ... to search and seizure at any time of the day or night by any law enforcement officer ... with or without a warrant, probable cause or reasonable suspicion." With no place to stay after his release, his parents, Sharp III and Carol, agreed to let him live in their home at 408 Camino Bandera. Thus, upon his release, Sharp IV informed the probation office of this address as his place of residence. In mid-September 2013, however, Sharp IV's parents kicked him out of their house. Carol then called their son's probation and parole officers and informed them that Sharp IV "no longer lived in [their] home."

In September 2013, a California criminal court issued two arrest warrants for Sharp IV. The deputies decided to execute the warrants on the evening of October 2, 2013—a date on which Sharp IV, coincidentally, was present at the Camino Bandera residence to pick up some belongings.

Before executing the warrants, Deputy Prescott reviewed Sharp IV's two active arrest warrants, which indicated that Sharp IV was male, white, fifty-one years old, 180 pounds, between 5'11" and 6' tall, and resided at 408 Camino Bandera. He also reviewed Sharp IV's DMV records and probation response form, which confirmed the same address of residence. Finally, he checked Sharp IV's criminal records and learned that Sharp IV had previously committed violent crimes, including kidnapping, assault with a deadly weapon, and felony domestic violence. After reviewing these materials, Deputy Prescott met Deputies Van De Kreeke and Chevalier in a parking lot near the Camino Bandera residence to formulate a plan. Deputy Prescott showed them a packet of documents which included a photograph of Sharp IV and the arrest warrant listing the Camino Bandera residence as Sharp IV's address of record.

At around 11:00 p.m., October 2, 2013, the deputies arrived at the Camino Bandera residence. Deputy Chevalier made his way to the backyard while Deputies Prescott and Van De Kreeke went to the front door. At the front door, they placed a piece of tape over the peephole opening and knocked several times. Sharp III looked through the peephole but could not see anything, so he flashed the front-porch light and confirmed that something was covering the peephole. Around that time, Deputy Prescott reported that he saw a person in a black shirt peek through the blinds.

Deputy Chevalier then radioed that the subject was fleeing out the backyard: "[H]e's running out the back. Foot pursuit ... going to be heavily wooded bushes. Male[,] white, 5'11", 180, wearing a black shirt , tan pants , white shoes." (emphasis added). Deputies Prescott and Van De Kreeke rushed around the back of the residence to assist in the pursuit, but nobody could locate the subject. Working their way through dense brush to find Sharp IV, the deputies arrived at a nearby golf course and spread out to cover more ground. At 11:05 p.m., Deputy Prescott radioed to nearby officers to cover the Camino Bandera residence in case the subject doubled back to the house. Deputy Chevalier added a further warning shortly thereafter: "Be advised, he's prone to violence. Violent history towards law enforcement." By this time Deputy Anderson, who was on patrol nearby and had heard these radio transmissions, began making his way to the Camino Bandera residence for back-up support.

Meanwhile, the deputies continued their search for Sharp IV on the golf course. While on the golf course, Deputy Prescott saw a man in the backyard of the Camino

871 F.3d 907

Bandera residence whom he believed may have been Sharp IV. Deputy Prescott reported that the man he saw was bald, wore a blue shirt, and had the same stature as Sharp III. According to Deputy Prescott, the man yelled something at the deputies, turned around, and re-entered the home through the backdoor.3

Deputy Prescott then radioed the group that the "[s]uspect's gonna be back in the house, just went in the back door." Then he directed Deputy Anderson specifically, "I need you to go to the front of the house." Deputy Anderson responded that he was en route. Believing that Sharp IV had re-entered the house, Deputies Prescott, Chevalier, and Van De Kreeke began making their way back to the residence.

At around 11:13 p.m. Deputy Anderson, accompanied by Deputy Flores, arrived at the house. They had not seen a photograph of the warrant subject, nor did they know the subject's name. Deputy Anderson did, however, recall from an earlier radio transmission that "the suspect fleeing the residence [was] described as a white male wearing a black shirt and tan pants ."4 (emphasis added). The deputies also knew that the suspect was "last seen in the area of the house" and "may have r[u]n back into the house."

As Deputies Anderson and Flores arrived at the scene, Sharp III—the suspect's father—walked out of the front door wearing a light blue shirt and blue jeans . As Sharp III walked off the front porch, Deputy Anderson admitted there was enough light to be able to approximate Sharp III's age. Although Defendants dispute this, Sharp III claims he was not yelling or acting belligerent at the time, but rather walked calmly toward the deputies. Despite the mismatched clothing and an alleged demeanor inconsistent with that of a fleeing suspect, Deputies Anderson and Flores began shouting commands with their weapons drawn: "Get down on the ground!" and "put your hands up!"5


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