FILED

NOT FOR PUBLICATION

APR 04 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT SCOTT GILLEN, husband and No. 17-16617 VERONICA GILLEN, wife,

D.C. No. 2:15-cv-00460-ROS

Plaintiffs-Appellees, v. MEMORANDUM* TOWN OF HAYDEN, a political subdivision; et al.,

Defendants, and W. WHITE; et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted March 8, 2019

Phoenix, Arizona Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Weston White, Matthew Engwis, and Matthew Bowling (collectively, “defendants”) appeal the district court’s order denying their motion for summary judgment on Scott Gillen’s state and federal claims for false imprisonment and false arrest. We have jurisdiction under 28 U.S.C. § 1291. See Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th Cir. 2017).

Gillen has failed to “identify a case where an officer acting under similar circumstances” as defendants was found to have exceeded the categorical authority of officers announced in Michigan v. Summers, 452 U.S. 692 (1981), to detain incident to the execution of a search warrant. Sharp v. Cty. of Orange, 871 F.3d 901, 916 (9th Cir. 2017) (emphasis omitted) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). None of the cases cited by Gillen involved, let alone settled beyond debate, the question whether Summers and Muehler v. Mena, 544 U.S. 93 (2005), authorized officers to detain an individual returning to his residence, where (as here) law enforcement officers were surveilling the premises shortly before a SWAT team was to arrive to ensure that execution of the search warrant could take place when the individual was not present. Cf. Bailey v. United States, 568 U.S. 186 (2013); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983). Nor do any of the cases cited by Gillen clearly establish that officers who detain an individual at the premises to be searched are prohibited from transporting that

2 individual, for the duration of the search, to a nearby location. Cf. Bailey, 568 U.S. 186; Taylor, 716 F.2d 701.1

Given that defendants could have reasonably believed their actions were authorized under Summers, they are also entitled to qualified immunity on Gillen’s analogous state law claims. See Chamberlain v. Mathis, 729 P.2d 905, 912 (Ariz. 1986).2

REVERSED.

1

White’s mistaken belief that an arrest warrant existed is immaterial because the inquiry into whether officer action was permitted under the Fourth Amendment is objective. See Scott v. United States, 436 U.S. 128, 138 (1978).

2

Gillen does not argue that Arizona law confines the authority to detain incident to a search more narrowly than does Summers and its progeny.

3