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Malek v. Green

United States District Court, N.D. California, San Jose Division

May 30, 2018

POURYA MALEK, Plaintiff,
JEFFERY GREEN, et al., Defendants.



         This case arises out of an incident that occurred between Plaintiff Pourya Malek (“Malek”) and three police officers from the California Department of Justice (“DOJ”) at Malek's home on February 4, 2016. Malek brought suit against Special Agents Jeffery Green, Lance Sandri, and Elisardo Favela (the “Officers”) for several violations of his civil rights pursuant to 42 U.S.C. § 1983 and related state law causes of action. See ECF 1 (“Compl.”). Defendants moved to dismiss the original complaint, which the Court granted in part with leave to amend and denied in part. See ECF 49 (“Prior Order”). Malek filed a First Amended Complaint on October 18, 2017. See ECF 52 (“FAC”). The Officers now move to dismiss the FAC, arguing that they are entitled to qualified immunity on Malek's amended § 1983 causes of action and that his state law claims also fail. See ECF 55 (“Mot.”).

         The Court held a hearing on the Officers' motion to dismiss the FAC on May 3, 2018. For the reasons that follow as well as those stated on the record at the hearing, the Officers' motion to dismiss is GRANTED IN PART WITHOUT LEAVE TO AMEND and DENIED IN PART.

         I. BACKGROUND[1]

         The facts of this case are familiar to the parties and the Court and are set forth at length in this Court's Prior Order. The Court summarizes the relevant facts here, focusing on Malek's amended allegations in the FAC.

         On October 22, 2012, Malek pleaded no contest in the California Superior Court for Santa Clara County to a misdemeanor charge of having violated California Penal Code § 417.4 (brandishing of a replica firearm). FAC ¶ 40. A no-contest plea to a § 417.4 charge does not prevent a person from possessing or owning firearms, because the operative statute-California Penal Code § 29805-does not list § 417.4 among the offenses for which a person may be convicted under § 29805. Id. ¶ 41. On or about February 4, 2016, the Officer Defendants reviewed a California Department of Justice-Bureau of Firearms Armed Prohibited Person System (“APPS”), Prohibited Person Report (“PPR”), which had been generated on November 12, 2015. Id. ¶ 42. The PPR stated that Malek had been convicted of Penal Code § 417.4 in 2012 and that he possessed seven registered firearms. Id. ¶¶ 43, 47. Malek alleges that he should not have been listed as a “prohibited person” because no criminal statute, including Penal Code § 29805, prohibits a person with a § 417.4 conviction from possessing or owning firearms. Id. ¶ 43.

         Based on two state audit reports finding that the DOJ failed to maintain the APPS database in connection with mental health-based firearm prohibitions, Malek alleges on information and belief that the database's criminal conviction-based firearms prohibitions were similarly inaccurate. Id. ¶¶ 17-30. Malek further alleges that the Officer Defendants recklessly disregarded their training and knowledge about the inaccuracies in the APPS database by not reviewing the Penal Code, and § 29805 in particular, to ensure that Malek was properly included on the PPR at issue. Id. ¶¶ 38, 44-45.

         Rather than ensuring that Malek's § 417.4 conviction made him eligible for inclusion on the PPR, Malek alleges that the Officers went to his home with the intention of getting him to voluntarily surrender his firearms and to cite and release him, but not to arrest him and take him to jail. Id. ¶ 48. Around 9:00 P.M., the Officers arrived at Malek's home and knocked on his door. Id. ¶ 50. Malek alleges that he partially opened the front door, while standing well within his home, some feet away from the front door's threshold. Id. ¶ 51. Officer Green told Malek that he was prohibited from owning firearms due to his 2012 conviction. Id. Malek responded that the Officers were mistaken, because his criminal defense attorney had told him that he could lawfully possess firearms. Id. ¶ 52. Officer Green told Malek that he needed to give up his firearms, and Malek asked if the Officers had a warrant. Id. ¶¶ 53-54. Malek alleges that his repeated assertions of his rights made the Officers “visibly irritated.” Id. ¶ 54.

         The Officer Defendants then told Malek that he had “options, ” and he could either give up his firearms voluntarily, in which case he would not be taken to jail, or Malek could wait for the Officers to obtain a search warrant for the firearms, in which case Malek would be arrested and taken to jail. Id. ¶ 54. In response, Malek closed the door slightly, stepped back further into his house, stated that he wanted to speak to his attorney, and again demanded to see a search warrant. Id. ¶ 55.

         Although the Officers had not planned to enter Malek's home or arrest him when they came to the house to confiscate the firearms, Malek alleges that the Officers decided to punish him for his “defiance” by not voluntarily surrendering his guns and asking to see a warrant. Id. ¶ 56. Specifically, Malek alleges that Officer Sandri barged into the house, crossing the threshold and forcing Malek back into his home. Id. ¶ 57. Officers Green and Favela followed behind Officer Sandri into the house, and all of the Officers stood in Malek's living room when Officer Sandri told Malek he was under arrest. Id. ¶¶ 57-58. Malek was handcuffed behind his back with only one set of handcuffs, even though Malek alleges that the Officers had been trained to handcuff a person of Malek's stature with two sets of handcuffs to avoid unnecessary pain. Id. ¶ 58.

         Before obtaining a search warrant, Malek alleges that Officers Green and Favela searched the house for the firearms that would eventually be the subject of the search warrant. Id. ¶ 60. The Officers located the gun safe and the shotgun in the bedroom that Malek had mentioned to them. Id. The pre-warrant search also included going into Malek's garage to take photographs of Malek's vehicles. Id. ¶ 61. When Malek asked why the Officers were searching his home without a warrant, the Officers replied that they did not need one. Id. The FAC adds allegations that Malek asked his wife, Fatemeh, to get the court documents from his § 417.4 case. Id. ¶ 62. When Fatemeh, who was not handcuffed, retrieved the court documents and Malek showed them to Officer Sandri, the Officers did not change their conclusion that Malek was prohibited from owning firearms because of the § 417.4 offense. Id.

         Malek alleges that the Officers gave him another opportunity to give up his firearms and avoid being taken to jail, but Malek insisted that they get a search warrant for the guns. Id. ¶¶ 65-66. Officer Sandri, who Malek alleges was the supervisor and leader of the operation, directed Officer Green to obtain a search warrant for the firearms. Id. ¶ 67. After Officer Green left the house to obtain the warrant, Officer Sandri continued to try to convince Malek to give up the firearms voluntarily, advising him that obtaining a warrant would take several hours. Id. ¶ 68. Malek refused again. Id. A few hours later, Malek told Officers Sandri and Favela that he was experiencing significant pain from the handcuffs, including that they were aggravating his preexisting back injury, and that the handcuffs were too tight on his wrists. Id. ¶ 71. Malek alleges that the Officers ignored his repeated complaints and refused his request to handcuff him in front, although Officer Sandri added a second pair of handcuffs after several hours. Id. ¶¶ 71-74.

         Meanwhile, Officer Green had authored a statement of probable cause in support of the search warrant that incorrectly stated: “[d]ue to the misdemeanor conviction, of 417.4 PC, MALEK is prohibited from owning or possessing firearms for a ten year period after the conviction date (through 10/23/2022) per section 29805 PC (Possession of Firearm by Misdemeanant), a felony violation.” Id. ¶ 77. Malek alleges that Officer Green violated his training and DOJ policy by not requesting that any attorney review his statement of probable cause of the search warrant before presenting them to the magistrate judge, who signed the search warrant at about 3:54 a.m. on February 5, 2016. Id. ¶¶ 78-79. Around 4:15 A.M. Officer Green called Officer Sandri and told him that he had obtained the search warrant. Id. ¶ 80. When Malek asked to see the search warrant, Officer Sandri was “frustrated” and told Malek that it was good enough that Officer Green had obtained it. Id.

         As previously alleged, Officer Sandri instructed Malek to open the gun safe or the Officers would have a locksmith come drill it open. Id. Because Malek remained handcuffed, he instructed his wife to open the gun safe. Id. ¶ 81. Officers Favela and Sandri seized the guns and ammunition in the safe as well as several knives on display near the safe. Id. At some point after opening the gun safe, Officer Green returned to the house and showed the search warrant to Malek. Id. One or more of the Officers also searched the house after opening the gun safe and took photographs. Id.

         At 6:00 A.M. on February 5, 2016, at which point Malek had been in handcuffs for approximately nine hours, Malek heard Officer Green tell Officer Sandri that they should put down 6:00 A.M. as the time for Malek's arrest. Id. ¶ 83. The Officers then transported Malek to Santa Clara County Jail where he was booked on charges for violations of two felonies: California Penal Code § 29805 and § 30305 (prohibiting possession of ammunition, based on a violation of § 29805). Id. ¶ 86. Malek remained in custody until 1:00 P.M. on February 5, 2016. Id. A few hours later, at 6:00 P.M. that evening, Officer Sandri left a voicemail for Malek stating that their “paperwork” had been incorrect and that Malek was not prohibited from owning or possessing firearms. Id. ¶ 87. The Officers returned Malek's firearms and ammunition at 9:00 p.m. on February 5, 2016. Id.

         In response to the Court's Prior Order, Malek filed the FAC. He reasserts the following federal claims pursuant to 42 U.S.C. § 1983 against the Officers for (1) unlawful entry into the home (“Count 1”); (2) unlawful arrest (“Count 2”); (3) unlawful searches (“Count 3”); (4) excessive force (“Count 4”); (5) violation of the Second Amendment (“Count 5”);[2] and (6) retaliation (“Count 6”). See FAC ¶¶ 96-116. Malek also realleges state law causes of action against the Officer Defendants for (7) violation of the Bane Act, California Civil Code § 52.1 (“Count 7”); (8) negligence and personal injuries (“Count 8”); (9) assault and battery (“Count 9”); and (10) false arrest or imprisonment (“Count 10”). FAC ¶¶ 117-137.


         A. Rule 12(b)(6)

         “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.'” Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not “accept as true allegations that contradict matters properly subject to judicial notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations omitted). While a complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Pursuant to Federal Rule of Civil Procedure 15(a), a court should grant leave to amend a complaint “when justice so requires, ” because “the purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). The Court may deny leave to amend, however, for a number of reasons, including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

         B. Qualified Immunity

         “The doctrine of qualified immunity protects government officials from liability for civil damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.'” Wood v. Moss, 134 S.Ct. 2056, 2066-67 (2014) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)). “[T]he Supreme Court has ‘repeatedly ... stressed the importance of resolving immunity questions at the earliest possible stage in litigation.'” Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Under the applicable pleading standard, the plaintiff must allege facts sufficient to make out a plausible claim that it would have been clear to the defendant officer that his conduct was unlawful in the situation he confronted. Id. at 2067. “Because qualified immunity is an affirmative defense from suit, not merely from liability, ‘[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.'” Doe By and Through Doe v. Petaluma City School Dist., 54 F.3d1447, 1449-50 (9th Cir. 1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

         In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-part approach for analyzing qualified immunity. The analysis contains both a constitutional inquiry and an immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003). The constitutional inquiry requires the court to determine this threshold question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Saucier, 533 U.S. at 201. If the Court determines that a constitutional violation could be made out based on the parties' submissions, the second step is to determine whether the right was clearly established. Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. The Supreme Court has clarified that the sequence of analysis set forth in Saucier is not mandatory and that a court may exercise its sound discretion in determining which of the two prongs of the qualified immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223, 241-42 (2009). Thus, in some cases, it may be unnecessary to reach the ultimate constitutional question when officers would be entitled to qualified immunity in any event, a result consistent with longstanding principles of judicial restraint.

         The Supreme Court recently reiterated the longstanding principle that a “clearly established” constitutional right “should not be defined ‘at a high level of generality.'” White v. Pauly, 137 S.Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). Rather, it must be “particularized” to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Defining the right at too high a level of generality “avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff v. Ricard, 134 S.Ct. 2012, 2023 (2014). “[A] defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it.” Id. “In other words, ‘existing precedent must have placed the statutory or constitutional question' confronted by the official ‘beyond debate.'” Id. (quoting al-Kidd, 563 U.S. at 741). “A right can be clearly established despite a lack of factually analogous preexisting case law, and officers can be on notice that their conduct is unlawful even in novel factual circumstances.” Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013). “The relevant inquiry is whether, at the time of the officers' action, the state of the law gave the officers fair warning that their conduct was unconstitutional.” Id.


         A. Section 1983 Claims

         To state a claim under § 1983, a plaintiff must allege that “(1) the defendants acting under color of state law (2) deprived plaintiff [ ] of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). As explained above, even if a plaintiff plausibly alleges the deprivation of a constitutional right under color of state law, government officials are protected from liability for civil damages by the doctrine of qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Wood, 134 S.Ct. at 2066-67 (quoting al-Kidd, 131 S.Ct. at 2080).

         The Officers move to dismiss each of Malek's § 1983 claims alleged in the FAC based on qualified immunity. See generally Mot. For the reasons that follow, as well as those stated on the record at the May 3, 2018 hearing, the Officers' motion to dismiss Malek's § 1983 claims is GRANTED IN PART WITHOUT LEAVE TO AMEND and DENIED IN PART.

         i. Arrest without Probable Cause

         Although it is the second count in the FAC, the Court begins by addressing Malek's § 1983 claim for an unlawful arrest.[3] An arrest made without probable cause is an unreasonable seizure under the Fourth Amendment. Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). Probable cause to arrest exists when, “under the totality of the circumstances known to the arresting officers ... a prudent person would believe the suspect had committed a crime.” Dubner, 266 F.3d at 966.

         The Court previously dismissed the unlawful arrest claim with leave to amend, finding that Malek failed to allege an unreasonable mistake of law by the Officers and further concluding that any alleged violation was not clearly established. See Prior Order at 10-18. The Officers argue that, even accepting Malek's amended allegations as true, the Officers remain shielded by qualified immunity under either prong of the test. Mot. at 6-12. The Court agrees, and finds that the Officers are entitled to qualified immunity under both prongs with respect to Malek's § 1983 claim for an unlawful arrest.

         Malek's unlawful arrest claim still boils down to whether the Officers were required to cross-check § 29805 once they reviewed the PPR in order to ensure that Malek's § 417.4 misdemeanor was a qualifying offense. Under the first prong of qualified immunity, Malek argues that he has alleged a constitutional violation because the Officers' reliance on the PPR was objectively unreasonable. Opp'n at 10-11, ECF 60 (“To the extent Defendants made a mistake of law, it was not a reasonable mistake, and probable cause therefore was lacking.”) Despite additional factual pleading, the Court finds that Malek has not plausibly alleged that it was objectively unreasonable for the Officers to rely on the PPR to provide an accurate representation of the law without checking the statute itself. Regardless, any alleged constitutional violation was not clearly established.

         The Court has reviewed Malek's allegations that the California State Auditor investigated the APPS database in 2013 and 2015 regarding firearms prohibitions for mentally ill individuals. See FAC ¶¶ 18-31. The Court need not change its previous determination that Malek fails to state a claim for an unlawful arrest because Malek's new allegations regarding the California State Auditor's reports on the APPS database are implausible. The allegations about the existence of errors concerning mental illness prohibitions do not inform the constitutional reasonableness inquiry in Malek's case.[4] In particular, the audit reports, which the Officers provided to the Court based on the incorporation by reference doctrine, primarily dealt with the issue of false negatives due to the underreporting from Superior Courts of individuals with mental health issues who possessed guns. See Declaration of Robert S. J. Rogoyski, Exh. A, ECF 55-1. This case undeniably deals with a false positive: Malek's inclusion on the PPR when, in fact, he never committed a qualifying offense. Accordingly, the Court gives no weight to Malek's allegations based on the State Auditor's reports because it is not plausible that the results would put any reasonable officer on notice of completely unrelated database flaws.

         In addition, Malek's allegations “on information and belief” that the DOJ and the Bureau of Firearms train their field officers to cross-check the statutes for every PPR lack the requisite factual support under Twombly and Iqbal, and require the Court to make an unreasonable inferential leap. Thus, even assuming that the Officers failed to check whether § 417.4 was a qualifying offense under § 29805, Malek has not plausibly alleged that it was objectively unreasonable for the Officers to rely on the PPR to conduct further fieldwork to confirm other information to support probable cause to arrest Malek. For the foregoing reasons, as well as those discussed at length in its Prior Order regarding the unlawful arrest claim, the Court finds that the Officers' alleged conduct meets the Fourth Amendment's reasonableness standard and Malek has failed to state a plausible claim that he was arrested without probable cause.

         Regardless of the constitutional violation, the unlawful arrest claim fails under the second prong of qualified immunity as well. The Ninth Circuit has recently emphasized that it is Malek's burden under the second prong of qualified immunity to identify a case indicating that the right allegedly violated was clearly established. “Except in the rare case of an ‘obvious' instance of constitutional misconduct (which is not presented here), Plaintiffs must identify a case where an officer acting under similar circumstances as [defendants] was held to have violated the Fourth Amendment.” Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original) (quoting White v. Pauly, 137 S.Ct. at 552). The preexisting law identified must also be “controlling-from the Ninth Circuit or Supreme Court-or otherwise be embraced by a consensus of courts outside the relevant jurisdiction.” Id. (internal citation and quotation omitted).

         The Supreme Court has “repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality.” City & Cnty. Of San Francisco v. Sheehan, 135 S.Ct. 1765, 1775-76 (2015) (citations omitted). The Ninth Circuit has responded: “We hear the Supreme Court loud and clear.” S.B. v. Cty. of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017). Accordingly, in order for the Court to impose liability on the Officers, there must be precedent as of February 4, 2016-the night of Malek's arrest-that put the Officers on notice that arresting Malek in these factual circumstances would run afoul of the Fourth Amendment. Id. Malek has failed for the second time to point the Court to such precedent, nor has the Court found any such case.

         In light of the particular circumstances alleged in the FAC, the question before the Court is whether it was clearly established on February 4, 2016 that officers who knew the APPS database contained errors related to mental health issues, and who ignored training and policy directing them to confirm whether § 417.4 is a qualifying offense under § 29805, could not rely on a DOJ-issued PPR identifying an individual illegally possessing firearms to support probable cause to arrest once the suspect identified himself and confirmed that he owned the guns.

         None of the cases cited by Malek present similar factual circumstances and thus they do not put the Officers on notice that Malek's arrest was unlawful. Malek mentions the following cases in his opposition: Willis v. Mullins, 517 F.Supp.2d 1206, 1226 (E.D. Cal. 2007), aff'd sub nom. Willis v. Mora, 314 Fed.Appx. 68 (9th Cir. 2009); United States v. Miguel, 368 F.3d 1150, 1154 (9th Cir. 2004) overruled on other grounds by United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017); Littlefield v. Viveros, No. 1:06-cv-1530 OWW-DLB, 2007 WL 4284864 (E.D. Cal. Dec. 4, 2007); Torres v. County of Madera, NO. 1:10-cv-00670 LJO SKO, 2011 WL 6141080 (E.D. Cal. Dec. 9, 2011); Torres v. City of Madera, 648 F.3d 1119, 1228-29 (9th Cir. 2011); and Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004). See Opp'n at 12-13, ECF 60.

         With respect to Willis, Littlefield, and Torres v. County of Madera, these district court decisions are not controlling Ninth Circuit or Supreme Court authority and the Court need not consider them in its analysis under the second prong of qualified immunity. Sharp, 871 F.3d at 911. Moreover, Malek does not demonstrate that these cases form a “consensus” with other court decisions amounting to clearly established preexisting law. Each of these cases is also factually dissimilar from Malek's arrest in this case.

         The Ninth Circuit did affirm the district court's denial of qualified immunity at the summary judgment stage in Willis, but in that case, the plaintiff's name erroneously appeared on a parole roster and the defendants did nothing further to confirm the mistaken factual information. 314 Fed.Appx. at 69. “Based solely on their belief that Plaintiff was a parolee subject to a search condition, ” the defendants entered Plaintiff's motel room without his consent. 517 F.Supp.2d at 1221. Here, Malek alleges that the Officers confirmed all of the relevant factual information in the PPR-Malek's conviction, his address, identity, and that he owned the registered firearms at issue-but instead Malek challenges the reasonableness of the Officers' failure to know that § 417.4 is not a qualifying offense for § 29805. Willis does not address the reasonableness of a mistake of law, as it was decided before the Supreme Court made clear in Heien v. North Carolina that the Court's Fourth Amendment inquiry must consider the objective reasonableness of a mistake of law. 135 S.Ct. 530, 539 (2014).[5]

         For similar reasons, United States v. Miguel also fails to clearly establish the constitutional violation in this case. 368 F.3d 1150, 1154 (9th Cir. 2004). Miguel was another pre-Heien case where two sheriff's deputies pulled over the defendant's car based on the mistaken belief that the car's registration had expired. Id. at 1151. Without conducting a further investigation, the deputies searched the car and found five illegal immigrants hiding in the back seat and trunk of the car. Id. at 1151-52. The Ninth Circuit held that “if the deputies were mistaken in believing that the vehicle registration had expired, their mistake was one of fact due to their reasonable reliance on the expiration date in a computer database.” Id. at 1152. Malek does not explain how a vehicle registration database is anything like the APPS database or the PPR in this case, or how Miguel is relevant given that those deputies “did not misapprehend the law.” Id. at 1154. Put simply, Miguel does not put a reasonable officer in Defendants' position on notice that failing to confirm whether § 417.4 is included in § 29805, even when Malek insisted that his possession of the firearms was permitted, violated clearly established law.

         In Littlefield, officers conducted a traffic stop of plaintiff for failing to stop at a stop sign. 2007 WL 4284864, at *1 (E.D. Cal. Dec. 5, 2007), report and recommendation adopted, No. 106-CV-1530-OWW-DLB, 2008 WL 598246 (E.D. Cal. Mar. 4, 2008). After the officers retrieved the plaintiff's driver's license, they called dispatch who erroneously told one of the officers that the plaintiff was on active felony probation and that he was open to search and seizure. Id. The officers searched the plaintiff's vehicle based on the information from dispatch, although an investigation later revealed that the plaintiff was not on probation at the time of the search. Id.

         In addition to being a district court decision that cannot clearly establish the law in this case, Littlefield actually recommended granting the officers' motion to dismiss because the allegations in the plaintiff's complaint-although they likely stated a constitutional violation- supported a finding that the officers were entitled to qualified immunity. 2007 WL 4284864, at *4 (E.D. Cal. Dec. 5, 2007). The Littlefield court held that the officers “were reasonable in relying on the erroneous dispatch report, despite Plaintiff's statements that he was not on parole or probation. If the Court found otherwise, it would essentially result in a requirement that law enforcement officials, when faced with conflicting information from a suspect, take additional affirmative steps to verify information. Given the situations in which officers often find themselves, they do not have the luxury of time or resources to confirm the information they receive during traffic stops.” Id. Thus, although the court applied the standard discussed above from Willis, Littlefield is not a case where an officer acting under similar circumstances as the Officer Defendants was found to have violated the Fourth Amendment. Sharp, 871 F.3d at 911. If anything, its conclusion supports that the Officers' reliance on the APPS and PPR to arrest Malek was reasonable.

         Torres v. County of Madera also fails to get Malek over the qualified immunity hurdle. In Torres, parole officials reviewed the plaintiff's case file and two state parolee databases and identified the plaintiff as an active parolee subject to “search and supervision.” 2011 WL 6141080 at *1 (E.D. Cal. Dec. 9, 2011). Based on that information, the officials conducted a parole search of the plaintiff's residence. Id. It turned out that the plaintiff was not on active parole at the time of the search. Id. at *4. Again, Malek does not even attempt to explain how cases involving the specific context of an erroneous parole search would notify these Officers in this case that reliance on the APPS and PPR in a firearms investigation was unreasonable.[6] As the Officers point out, parole rosters and PPRs are not comparable as they are compiled by different entities, use different data sources and serve different purposes. Reply at 3, ECF 61.

         Malek also cites, in passing, to the Ninth Circuit's decision in Torres v. City of Madera, 648 F.3d 1119, 1228-29 (9th Cir. 2011). Opp'n at 12. Malek cites to City of Madera for general propositions of law but he does not argue-nor could he-that its factual circumstances clearly establish the law in this case. City of Madera dealt with the tragic shooting of an individual who was handcuffed in the back seat of a patrol car based on the officer's mistaken belief that she was shooting with her taser when in fact she shot and killed the individual with a semiautomatic pistol. 648 F.3d at 1120. Given the material factual ...

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