United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART WITHOUT LEAVE TO AMEND AND
DENYING IN PART THE OFFICER DEFENDANTS' OMNIBUS MOTION TO
DISMISS THE FIRST AMENDED COMPLAINT [Re: ECF 55]
LAB S ON FREEMAN UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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,
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.
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.
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.
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
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.
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.
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.
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.
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”); 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
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.
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)).
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)).
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.
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.
Section 1983 Claims
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).
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.
Arrest without Probable Cause
it is the second count in the FAC, the Court begins by
addressing Malek's § 1983 claim for an unlawful
arrest. 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.
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.
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.
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. 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
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.
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).
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
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.
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.
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.
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).
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.
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.
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.
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. 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.
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