F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N G E L M E

N D E Z ; J E

N N I F E R L Y

N N G A R C I A , Plaintiffs-Appellees/

Cross-Appellants

,

v.

C O U N T Y O F L O S A

N G E L E S ; C O U

N T Y
O F L O S A

N G E L E S S H E R

I F F S D E P A R T M E N T , Defendants

,

and

C H R I S T O P H E R C O N L E Y , Deputy ; J E N N I F E R P E D E R S O N ,

Defendants-Appellants/ Cross-Appellees

. Nos. 13-56686 13-57072

D.C. No. 2:11-cv-04771- MW F -PJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California Michael W . F itz g erald, District J udg e, Presiding

Arg ued and Submitted December 8, 2015—Pasadena, California

F iled March 2, 2016M E N D E Z V

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B efore: Ronald M. Gould and Marsha S. B erz on, Circuit J udg es, and Georg e Caram Steeh I I I
, *

Senior District J u dg e.

O pinion by

J udg e Gould

SUMMARY * *

Civil Rights

The panel (1) affirmed the district court’s bench trial judg ment finding that L os A n g eles County Sheriff’s Department deputies were not entitled to qualified immunity for a warrantless e n try and were liable fo r t h e damag e s arising from the shooting that followed, (2) dismis sed a s moot plaintiffs’ cross-appeal, (3) reversed the district court’s d e t ermination that the deputies were not entitled qualifi e d immunity on plaintiffs’ k n ock-and-announce claim, a nd (4) remanded for the district c ourt to vacate the nomin al damag es for that claim.

W h i le participating in a warrantless raid of a house, the defendant deputies entered the backy ard, opened the door to

a wooden shack, and shot p laintiffs, a homeless c o u ple w ho resided in the shack.

* T h e Ho n o rab le Geo rg e Caram Steeh III, Sen io r District J u d g e f o r th e U.S. D istrict Co u rt f

o r th e Eastern District o f Mich ig an , sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M E N D E Z V

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The panel first held that the district court properly d e termined that the d eputies c onducted a search within t h e meaning of the F ourth Amendment under clearly e stablished law. The panel determined that the facts supported a finding that the shack was in the curtilag e adjacent to the home a n d that it was clearly established at the time that the deputies undertook a search by

entering the rear of the house throug h

a g ate and by further o pening the d oor to the shac k i n the curtilag e b ehind the house. The p anel a g reed with the district
court that the deputies did not demonstrate specific a nd articulable objective facts of an e x ig ency that would meaning fully differentiate this case f rom clearly e stablished law, or that would have demonstr a t e d t h a t the entry w as a lawful protective sweep. B ecause the officers violated the F ourth Amendment by searching the shack without a warrant, wh ich prox imately c aused the plaintiffs’ injuries, the panel held that the d istrict court’s award o f damag es under the provocation doctrine was proper.

The panel held that the deputies violated the knock-anda n nounce rule, but that the law in 2 010 w as n ot c lea r l y established in this r espect. To clearly establish the law g oing f o rward, the panel held that officers must knock an d r e

announce their p r esenc e w h en they know or should reasonably know that an a r e a within the curtilag e of a home is a separate r esidence from the m a i n house. F inally

, the panel held that ev en thoug h only one of the officers opened the d oor to the shack, both were liable as integ ral participants in the unlawful search.M E N D E Z V

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COUNSEL

Thomas C. Hurrel l

, Melinda Cantrall (arg ued), Hurrell C antrall L L P, L os Ang eles, California, for Defenda n t s

Appellants/Cross-Appellees.

Dav id Drex ler, Sherman Oaks, California, for PlaintiffsAppellees/Cross-Appellants.

OP INION

GOUL D, Circuit J udg e :

W hile participating in a warrantless raid of a house, L os Ang eles County Sheriff’s Department d e puties Christopher Conley and J ennifer Pederson entered the ba c k y ard, opened the door to a wooden shack, and shot Ang el a n d J ennifer Mendez , a homeless couple w ho resided in the shack. After

a bench trial, the district c o urt held that the deputies v iolated the F o u r t h A m e n d m e n t k n o c k -and-announce requirement a nd prohibition on warrantless searches, f i n d i ng that no e x ig ent circumstances applied. The district court denied the deputies’ bid for qualified immunity and awarded the Mendez e s damag es.

The deputies arg u e on appeal that the district court erred by deny ing their qualified immunity defense. The Mendez e s cross-appeal the district c ourt’s conclusi o n t hat the deputies had probable cause to b elieve that a wanted p a rol e e was hiding in the shack when the deputies searched it. W e affirm the district court’s conclusion t h a t the deputies were not entitled to qualified immunity for their warrantless entry , a nd

we hold that the district c ourt properly awarded damag e s forM E N D E Z V

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the shooting that followed. G iven this disposition, the crossappeal is dismissed as moot. W e reverse, however, the district court’s d e termination that the deputies w ere not entitled qualified immunity on the k nock-and-announce claim, and we remand for t h e d i s trict court to vacate the nominal damag es for that claim.

I

Because this case involves the deputies’ ren e w e d assertion of q

ualified immunity after judg ment, we recite the following facts in the lig ht most favorable to the nonmoving parties and the f

actfinder’s verdict. A.D. v. Cal. Highway Patrol , 712 F .3d 446, 452–53 (9th Cir. 2013).

I n O ctober 201 0
, Deputies Christopher Conley a nd J ennifer Pederson were part of a team of twelve police officers that r esponded to a call f rom a fellow officer w ho b e l ieved he h ad spotted a wanted parolee named Ronnie O’Dell e ntering a g rocery store. O’Dell h a d b een classified

as armed and dang erous by a local police team, althoug h that classification was “standard” for all p arolees-at-larg e without
reg ard to individual circumstances. B efore that day

, “Conley and Pederson did not have any information reg arding Mr. O’Dell.” Conley t e s t i f

i ed that at the time of the search he knew nothing about O’D e ll’s “criminal past” and that he didn’t r ecall being g iven information that O’Dell was armed and dang e rous, and Pederson testified t h a t the only information s h e was g iven about O ’Dell was that he was a parolee-at-larg e. 1 T he officers searched the g rocery store for

1 P ed erso n

also stated , in resp o n se to a l ead in g q u estio n , th at sh e w as sh o w n a “ f ly er o f s o r ts” co n tain in g a pictu re o f O’ Dell an d in f o rm atio n ab o u t O ’ D ell’ s crim in al h isto ry , b u t sh e did n o t testif y w h at th e f ly erM E N D E Z V

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O’Dell but did not find him. T h e officers then met behind the store to debrief.

During this debriefing

, another deputy

, Claudia Rissling

, received a tip f

rom a confidential informant that a man fitting O’Dell’s description w as riding a bicy cle in front of a residence owned by a woman named Paula Hug hes. The office r s “ d e veloped a plan” in w hich some officers would proceed to the Hug hes house, b u t because “the officers believed that there w as a possibility that Mr. O’Dell al ready had left the Hug hes residence, ” o t h ers would proceed to a different house on the same street. Conley and Pederson

w e r e “assig n ed to clear the rear of the H ug h es p roperty for the o fficers’ safety

. . . and cover the b ack door of the Hug hes residence for containment.” The officers were told th a t “a male named Ang el (Mendez ) lived in the backy ard of the Hug hes residence with a preg nant lady (Mrs. Mendez ).” 2 Pederson heard that a

nnouncement, b ut Conley testified that he did not recall it. 3

C onley and Pederson arrived at the Hug hes residen c e along with three other officers. The officers did not h ave a search warrant to ent e r H u ghes’s property

. Conley a nd Pederson were directed “to proceed to the back of the Hug hes residence throug h the south g ate.” Once in the backy ard, the

d escrib ed

.

2 Mr. Men d ez w as a h ig h sch o o l f rien d of Hu g h es, an d Hu g h es allo w ed h im to co n stru ct an d liv e in a sh ack in h er b ack y ard

. T h e Men d ezes h ad b een liv in g th ere f o r ab o u t ten m o n th s.

3 T he d istrict co u rt f

o u n d th at “ [e]ith er h e d id n o t recall th e

an n o u n cem en t at trial o r h e u n reaso n ab ly f

ailed t o p ay atten tio n w

h en th e

an n o u n cem en t w as m ad e.”M E N D E Z V

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deputies encountered three storag e sheds and opened each o f them, finding nothing

. During this time, other officers (led b y Serg eant Greg ory Minster) bang ed on the security screen outside Hug hes’s front door and asked Hug h es to o pen the d oor. Speaking throug h the d oor, Hug hes a s ked the officers w hether they had a warrant, and she refused to open the d oor after being told they did not. Minster then heard someone running in s ide the residenc e, who he assumed was O’Dell. The officers retrieved a pick and ram to bust open Hug hes’s door, at which point Hug hes opened the front door. H ug hes was pushed to the g round, handcuffed, a nd placed in the backseat of a p atrol car. The officers did not find any one in the house.

Pederson then met up with Mins ter and told him, “ I ’ m g oing [ to] g o ahead and clear the backy ard,” a nd Minster approved. Conley

and Pederson then proceeded throug h the b a c k y a rd toward a 7' x 7' x 7' shack made of wood a nd ply wood. The shack was surrounded by a n a i r conditioning unit, electric cord, water h ose, clot h e s locker (which may have been o pen), clothes, and other belong ing s. The deputies did not knock and announce their presence at the shack, and Conley “did not feel threatened.” Approaching the shack from the side, Co n l e y opened the wooden door and pulled back a blue blanket u sed as a curtain to insulate the shack. The deputies then saw the silhouette of an adult male holding what appeared to be a rifle p ointed at them. Conley y elled “Gun!” and b o th deputies fired fifteen shots in total. Other nearby o fficers ran b ack tow ar d t he shots, and o ne officer shot and killed a dog

.

The trag edy is that in fact, Mendez w a s holding only a B B g un tha t he kept by his bed to shoot rats that entered theM E N D E Z V

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shack; as the door was opening

, he was in t h e p r ocess o f

m o v i n g the B B g un so h e could sit up in bed. The distri ct court f ound that the B B g un was p ointed at the d e puties, althoug h the witnesses’ testimon y o n that point was conflicting and the court recog niz e d that Mendez may n o t h ave intended the g un to point that direction while h e w a s g et t i ng up. B oth Mendez es were injured by the shooting

. Mr. Mendez r equired amputat i o n of his rig ht leg below the knee, and Ms. Mendez was shot in the back.

Th e Mendez es sued Conley and Pederson under 4 2 U

. S .C. § 1983, alleg ing a violation o f their F our t h Amendment rig hts. After a bench trial, the district c ourt h eld that the deputies’ warrantless en t r y i nto the shack was a F ourth Amendment search and w as not justified b y e x ig ent ci r cumstances or another ex ception to the warrant requirement. The district court also held that the deput i e s violated the F ourth Amendment knock-and-announce rule. The court concluded that g iven Conley ’s reasonably mistaken fear upon seeing Mendez ’s B B g un, the deputies did not use

ex c e ssive force when shooting the Mendez es, see Graham v

. Connor
, 490 U.S. 386 ( 1 989), but the deputies w ere liable for the shooting under our cir c u i t ’ s provocation rule a rticulated in Alexander v. City & County of San Francisco
, 29 F .3d 1355 (9th Cir. 1994). The c o u rt also held that its conclusions in each r espect were supported by clearly established law a nd that the officers were not entitled to qualified immunity

. The Mendez es were awarded roug h ly $4 million in damag es for the shooting

, nominal d a m a g es of $1 each for the unreasonable search and the knock-and-announce v i o lation, and attorney s’ fees. The deputies f iled a notice of appeal, a s

w e l l as a motion to amend the judg ment arg uing that t h e district court erred in d e n y ing qualified immunity

. The district court denied th e m o t i on, a nd the d eputies f

iled aM E N D E Z V

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s e c o n d notice of appeal a s to that decision. The Mendez e s filed a cross-appeal challeng ing aspects of the district court’s factfinding in ca s e w e were inclined to g rant qualified immunity on the facts as found by

the district court. 4

II

W e review de novo the district court’s post-trial d enial o f qualified immunity

, construing the facts in the l i gh t most favorable to the factfinder’s verdict and the nonmov i n g pa rt i e s. Cal. Highway Patrol

, 712 F

. 3d at 452–53. The court’s factual finding s are reviewed for clear error. Resilient Floor Covering Pension Trust Fund Bd. of Trs. v. Michael’s Floor Covering, Inc. , 801 F

. 3d 1079, 1088 (9th Cir. 2015).

L a w e nforcement officers a re entitled to q u a lified immunity f

r om damag es unless they violate a constitutional rig ht that “ wa s clearly established at the time of the alleg ed misconduct.” Ford v. City of Y akima

, 7 0 6 F .3d 1188, 1192 (9th Cir. 2013) ( citations omitted). T h i s inquiry “must be undertaken in lig ht of the specific contex t of the case, not as

a broad g eneral proposition.” Saucier v. Katz
, 533 U.S. 194, 201 (2001). B ut “ o fficial s c a n s t i ll be on notice that their conduct violates established l a w even in novel f actual circumstances.” Hope v. Pelzer

, 5 3 6 U.S. 730, 741 (2002). “[ T] he salient question

. . . is whether the state of the law” at the time of the events (here, October 2010) g ave the deputies “fair warning ” that their conduct was u n constitutional. Id. I n other words, an o fficer is entitled to qualified i m munity unless ex isting case law “ sq uarely governs the case here.”

4 T h e Men d ezes state th at th ey w aiv e th eir cro s s- ap p eal if w e af f irm th e d istrict co u rt’ s aw ard o f

m o n etary d am ag es f

o r th e sh o o tin g

.M E N D E Z V

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Mullenix v. Luna
, 13 6 S. Ct. 305, 309 (2015) (per curiam) (quoting Brosseau v. Haugen , 543 U.S. 194, 201 (2004)).

III

A

W e start by analy

z ing the l e ga l i ty of the deputies’ entry into the wooden shack. The deputies f irst arg u e that they did
not “search” the shack within the meaning of the F ou r th Amendment when Conley opened the door.

I n 2010, the law was c l e a r ly established that a “search” under the F ourth Amendment occurs when the g overnment invades a

n area in whi c h a p erson has a “reasonable

ex p ectation of privacy

. ” United States v. Scott
, 450 F .3d 863, 867 ( 9th Cir. 2005) (citing Katz v. United State s , 3 8 9 U.S. 347, 361 (1967) (Harlan, J
., c o ncurring ) ). This includes the “area immediately adjacent to a home,” k nown as the “curtilag e.” U

nited States v. Struckman

, 603 F .3d 731, 739 (9th Cir. 2010) (citation omitted). F ou r f a ctors used to determine whether an a

rea lies w i t h i n t he curtilag e are “the
prox imity of the area c laimed to be c u rtilag e to the h ome, whether the area is included within an e n closure surrounding the home, the n ature of the uses to which the area is put, a nd the steps taken by the resident to protect the area from observation by people passing by .” Id. (quoting United States v. Dunn , 480 U.S. 294, 301 (1987)).

The deputies con t e n d that not e v e r y reasonable officer would have assumed that t h i s “dilapidated” shack was a dwelling

. T his assertion i s irrelevant, as it erroneously

assumes that the F ourth Amendment applies only to residences. See Dunn
, 480 U.S. a t 307–08 (“[ T] h e g e n e ra lM E N D E Z V

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rule is that the c u rtilag e includes a ll o utbuilding s used in connection w ith a residence, such as g arag es , sheds, a nd barns connected with and in close v icinity of the residence.”) (citation and internal alterations om i t ted); United States v

. Johnson

, 256 F. 3 d 895, 898 (9th Cir. 2001) (en banc) (holding t h a t a shed may b e protected under the F ourth Ame n d m e n t and remanding for district court to answer the question in first instance). I n Struckman

, we hel d that a “backy ard

— a s m a l l, enclosed y ard adjacent to a home in a residential neig hborhood—is unquestionably such a ‘clearly marked’ a r ea ‘ to which the a c tivity of home life ex tends.’” 603 F .3d at 739 (citation omitted).

I n this case, the trial court f ound that the shack was thirty feet from the house; it “was not within the fence that enclosed the g rassy b acky ard area” but “was located in the dirt-surface

area that was part of the r ear of the Hugh es p r o p e rty ” a nd could not be observed, let a lone entered, “without passing throug h the south g ate and entering the rear of the Hug hes property .” These facts support a finding t h a t the shack was in the curtilag e. Therefore, it was clearly e s t a b l i shed under St r u c kman and Dunn that the deputies undertook a search within the meaning of the F ourth Amendment b y entering the

rear of Hug h es ’ s p roperty throug h a g ate and by f urther opening the d oor to the shack in the curtila g e b ehind the house. T he deputies’ citations to cases involving “abandoned property ” are inapposite because even if the shac k w a s “dilapidated,” the o fficers knew that H ug hes li v e d in the house

, and the shack was very clearly in the c urtilag e of the house.

The district court correctly d etermined that the d e p u ties

c o n d ucted a search within the meaning o f the F ourth Amendment under clearly established law.M E N D E Z V

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B

The deputies nex t a

rg ue that they a

re entitled to qualified immunity because a reasonable officer could have t h o ug ht that ex ig ent circumstances justified the search.

A warrantless search “is reasonable o nly if it falls within

a specific ex cep t i o n to the warrant requirement.” Riley v

. California

, 134 S. Ct. 2 473, 2482 (2014) (citing Kentucky v

. King
, 563 U.S. 452, 459–62 (2011)). The e x i ge n t ci r c u mstances ex ception e ncompasses situations in which police enter without a warrant “to r e nder emerg ency

a s s i s t a nce to an injured occupant or to protect an occupant from imminent injury

, ” while “in h o t pursuit of a fleeing suspect,” or “to pr ev ent the imminent destruction o f evidence.” King
, 563 U.S. at 460 (citations omitted) (collecting cases).

The deputies primarily arg ue that “[ a] n officer may enter

a third party ’s home to effectuate an arrest warrant i f h e h a s probable cause or a r eason to believe t h e suspect is within, and ex ig ent circumstances support entry without a s earch warrant.” Althoug h the question is q uite debatable, we will

assume without deciding tha t the officers were not “plainly in c ompetent” in concluding they had probable cause to believe that O ’Dell was in the shack behind Hug hes’s house. Stanton v. Sims
, 134 S. Ct. 3, 5 (2013). 5 Even with probable

5 T o m en tio n j u st o n e co n sid erat i o n, O ’D ell w as su p p o sed ly sp o tted rid in g a b i cy cle in f

ro n t o f Hu g h es’ h o u s e. Un le s s h e w as rid in g in circles, h e w o u ld h av e p assed th e h o u se b ef

o re th e o f f i cers arriv ed . T h e

o rig in al g ro u

p o f of f i cers reco g n ized th is, as so m e o f th em w en t to an o th er h o u s e to lo o k f

o r O’ Dell. B u t w e h av e n o reaso n to f u rth er ad d r e s s t h e p ro b ab le cau se q u es t i o n , a s w e m ay af f irm w h ile assu m in g th e d istrict

co u rt’ s p ro b ab le cau se p red icate.M E N D E Z V

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cause, clearly es tablished law indicates the unlawfulness o f the deputies’ entry

into the shack in this case.

As the Supreme Court held in Steagald v. United States

, 451 U.S. 204 (1981), ex ig ent circumstances to enter a home do not ex ist merely be c au s e t he police know the location o f

a fug itive, even if t h e y p ossess a n arrest warrant for that
person. Id. at 211–12. I n Steagald

, the police received a tip from a confidential informant r e g arding the location of “a federal fu gi t i v e w a nted on drug charg es.” Id. at 206. The officers ex ecuted an arrest warrant at that locat i o n two day s late r , b u t the Court held that the search-warrantless entry could not be just i fied absent ex ig ent circumstances. Id. at 2 1 1 –12. The Court rejected the view that “a search warra n t is not required in such situations if the p olice have a n arrest warrant and reason to believe that the p erson to be arrested is within the home to b e searched.” Id. at 207 n .3

. S t e a g ald establishes that in this case, the fact that the deputies suspected O’Dell to be in the shack was no t , b y itself, sufficient to justify the warrantless search.

Althoug h the deputies do not use the phrase “hot pursuit,” the i r ex ig ency arg ument seems to be premised on that doctrine. 6 The hot pursuit ex ception ty pically encompasses situations in which police o fficers beg in an arrest in a public place but the suspect then e scapes to a private place. United States v. Santana , 427 U.S. 38, 42–43 (1976). I n W arden v. Hayden

, 387 U .S. 2 94 (1967), the S u p reme Court u pheld a

6 In d eed

, th e o th er th re e p o s s i b ilities listed in Kin g —th at o f f icers

en tered t o ren der em erg en cy assistan ce to an i n j u red o ccu

p an t, to p ro t ect

an occu p an t f ro m im m in en t in j u ry , o r to p rev en t t

h e im m in en t destru ctio n

o f ev id en ce, Kin g , 5 6 3 U.S. at 4 6 0 —d o n o t f it th e circu m s tan ces p resen ted h ere.M E N D E Z V

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warrantless entry into a home when “polic e were informed that an armed robbery had taken p l a c e, and that the suspect had entered [ the home] less than five minutes before they reached it.” I

d

. a t 2 98. B y contrast, the Court concluded in W elsh v. W isconsin
, 4 66 U.S. 740 (1984), that the state’s hot pursuit arg ument was “ u nconvinci n g because there was no immediate or continuous p ursuit o f the petitioner f r o m the scene of a crime.” Id. at 753.

As a preliminary matter, a police officer spotting O’Dell,

a wanted parole-violator, outside of a g rocery store does not appear to qualify as pursuit from “the scene of a crime” as in W arden or W

elsh

. B ut e ven assuming the hot pursuit doctrine applies, W

elsh ex plains why the d eputies here are not entitled
to qualified immunity

. I n W elsh

, a w itness “observed a c ar being d riven erratically

” and called the police, but the driver abandoned his c ar and “ walked a w ay from the scen e.” 466 U.S. at 742. Police a rrived “[ a] few minutes later” and, after determining that the owner of the car was W elsh, the police walked to W elsh’s residence “a short distance from the scene.” I

d

. a t 742–43. W ithout securing a warrant o r consent, the police entered and a rr es ted W elsh. Id. at 743. The Court held that the entry was not vali d u nder the hot pursuit doctrine because “there was n o immediate o r

c o n t i n u o us pursuit o f the petitioner from the scene of a crime.” Id. at 753.

Our court, sitting en banc, applied W elsh to a situation in which police officers broke into a fenced y ard in search of a

man who escaped while police were arresting him o n a n outstanding warrant. Johnson

, 256 F .3d at 898–900, 907–08. W e concluded that the search i n that case was not “continuous” because the o f f i c ers h ad seen the suspect run i n t o the woods b ut lost sig ht o f him for “over a half ho u r ”M E N D E Z V

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b e f o re they entered the property at issue. Id. at 907–08

. “[ A] ny other outcome,” we cautioned, “renders the concept of ‘hot pursuit’ meaning less and allows the police to conduct

wa r rantless searches while investig ating a suspect’s whereabouts.” Id. at 908.

W elsh and Johnson squarely g o vern this case and clearly establish that the hot pursuit doctrine do e s n o t justify the deputies’ search of the shack. Officer Z eko spotted a person he thoug ht was O’Dell outside the g rocery store, but that was the last time a

ny policeman saw him b efore the s e a r ch took place, which the record sug g ests was about one h o u r later. W h ile the deputies re c e i v ed additional information about O ’Dell’s possible location from the confidential informan t , the location identified was outside Hug hes’ home, not in the house o r the s h a c k behind it. A nd the officers still did not enter the shack until at least fifteen minutes after learning that O’Dell was outside H ug hes’ h ome. Mo r e over, the officers

were far f rom sure that O’Dell was still (or had ever been) inside Hug hes’s house—let alone in the shack—as evidenced by the fact that they simultaneously s earched a house down the street. As in W

elsh

, “there was no imme d i at e o r continu o us pursuit o f the [ suspect] from the scene of a crime.” 466 U.S. at 753. And as Johnson established, W elsh applies when the police enter the backy ard of a third-party to look for a suspect, even when th e s uspect has evaded prior attempt s a t arrest (as O’Dell apparently h ad). Johnson

, 256 F .3d at 899–900, 907.

The deputies also try to justify the warrantless e ntry based

on a threat to the officers’ safety

, urg ing that O’Dell had been categ oriz ed as armed and dang erous. B u t Steagald a nd Johnson both counsel that ex ig e n t circumstances do not ex ist just because the police are dealing with a fug itive, even if heM E N D E Z V

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is wanted on serious f

e d eral drug charg es. Steagald

, 4 5 1 U.S.
at 207; Johnson

, 256 F .3d at 9 00, 908. More o v e r , Conley testified that he was not aware of O’Dell’s categ oriz ation a nd did not have any information about O’Dell. Conley ex p lained that his g un was d

rawn during the search beca u s e he “intermittently ” used t h e l i ght on his g u n to “see what was inside of the sheds.” A search can n o t b e considered reasonable based on facts that “were unknown to the officer
at the time o f the intrusion.” Moreno v. Baca
, 431 F .3d 633, 639 (9th Cir. 2005). And eve n if we assume that Pederson knew about the characteriz ation, the district court found that “the deputies lacked any credible information that t he suspect, O’Dell, was in Plaintiffs’ shack,” w h i c h ex plains why Conley “did not feel t h r e a tened” before entering the shed. The deputies c orrectly assert that the e x ig ent circumstances inquiry is o b j e c tive, not subjective, see Anderson v. Creighton

, 483 U.S. 6 3 5
, 6 4 1 (1987), but the information they h ad at the time, as confirme d by the conclusions they reached on the scene, is certainly pertinent. W e a g ree with the district court that t h e s e facts support a conclusion based o n t h e o b jective “totality of the ci rcumstances” that the deputies “failed to demonstrate ‘specific and articulable facts’” of an ex ig ency

. 7

W hile the deputies’ brief urg es tha t “judg es should be cautious about second-g

uessing a police officer’s assessment, made o n the scene, of the d ange r p r esented by a particular si t u a t i o n ,” (emphasis in b rief) (quoting Ryburn v. Huff

, 132 S. Ct. 987, 991–92 (2012) (per curiam)), that ar gu m ent is

7 T h e d ep u ties’ b rief also co n ten ds th a t t h e r e w as a po ssib ility of

a m b u s h arisin g f

ro m o th er d eb ris in th e y ard

, in clu d in g p ark ed cars, b u t

ev en if so , a th r eat o f am b u sh f ro m o th er stru ctu res w o u ld n o t j u s tif y search in g th e sh ack

.M E N D E Z V

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inconsistent with the fact that the dep u t i e s here did not fear imminent vio l e n c e. W e ag r ee with the district court that on this r ecord the deputi es did n ot demonstrate specific a nd articulable objective fac ts of a n e x ig ency that would meaning fully differentiate this case f rom clearly e stablished law.

C

Nex t, the deputies arg ue that they could have reasonably assumed that Hug hes had c onsented to a search of the shack. The district court assumed for the sake of analy sis that Hug hes h ad authority to consent to a search of the shack, but i t reasoned that even if Hug hes had a llowed the officers t o enter her home after officers brou gh t a pick and r am from their patrol car and set th e pick ag ainst the door, any “consent” was “coerced and consequently invalid.” The deputies arg ue that because they spok e to another officer (Serg eant Minster) in the Hug hes residence b efore searching the shack, “the defendants would assume the officers were lawfully in the main residence,” and they “could reasonably believe the serg eant o btained c o n s e n t f o r the search” of the shack.

W e are n ot persuaded by this arg ument. Given the deputies’ position that they law f u l l y entered the backy ard pursuant to an ex ig ent circumst a n c e, i t is unclear why the deputies would have thoug ht that t h e o ther officers h ad
ga i n ed consent to search the house rather than having rel i e d

on ex ig e nt circumstances as well. And the deputies point to no facts in the record sug g esting that they knew Hug hes had consented to a search of the shack

. The district court correctly determined t hat the d eputies could not haveM E N D E Z V

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reasonably believed that thei r search of the shack was consensual.

D

F inally

, the deputies arg ue that their search of the shack

was a lawful protective sweep. W e note that there is both a split b e t w een the circuits and a split within our circuit as to whether a protective sweep may b e done “where officers
possess a reasonable suspicion that their safety is at risk, even in the absence of an arrest.” United States v. Torres-Castro
, 470 F .3d 992, 997 (10th Cir. 2006) (collecti n g c a s es, including United States v. Reid

, 226 F .3d 1020, 1027 (9th Cir. 2000), and U

nited States v

. Garcia
, 997 F .2d 1273, 1282 (9th Cir. 1993)). W e assume without deciding that the protective
sweep doctrine could apply here. And, althoug h the question is subject to debate, see n.5, supra , we further assume without deciding that the deputies’ entry int o Hug hes’s house was lawful a nd a p rotective sweep c o u ld be p r o p e r if all other requirements were met.

Th e district court determined that the officers did not conduct a lawful protective sweep b ecause, even ass uming that entry into the Hu gh es residence was constitutional, the deputies’ a

uthority to conduct a protective s w e ep did not

ex te nd to the shack. The court concluded that “there is clearly established law requiri n g a separate warrant for a

se p a r a te dwelling

, especially w hen officers a re a ware of the separate dwelling ’s ex istence,” so lawful presen c e i n the house did not justify

sweeping the shack.

W e need n ot decide whether the district court’s qualified immunity analy sis was cor r ect, as the deputies’ protective
sweep a rg ument fails for a

n other reason. To justify aM E N D E Z V

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protective sweep, p ol i ce must identify “specific a nd articulable facts w hi c h

, taken tog ether with the rational inferences from those facts, r easonably warranted the officer in believing that the area swept harbored an individual posing

a d a n ger to the officer or others.” Buie
, 494 U.S. a t 3 2 7 (internal citations, alterations, and quotation marks omitted). The deputies are in c o r re ct when arg uing that even if “there

were no e x ig ent circumstances to permit a search of the shed,

a reasonable officer could h a v e b e l ieved it was proper to search the shed as [part of a] protective sweep.” As we have

ex p lained, “ the protective sweep and ex ig ent ci rcumstances inquiries are related.” United States v. Furrow
, 229 F .3d 805, 811 (9th Cir. 2 000), overruled in part on oth e r grounds by Johnson

, 256 F .3d at 914. F or the same reasons that e x ig ent circumstances did not justify entry into the shack, see section I I I .B
., supra , the deputies did n o t have the requisite suspicion of dang er to justify

a protective sweep.

F or the for e go i n g reasons, we hold that the deputies violated clearly established F ourth Amendment law when entering the wooden shack without a warrant.

IV

The district court also c oncluded that the deputie s violated clearly

established law because they did not knockand-announce their presence at the shack before they entered it

. We hold that the deputies violated the knock-andannounce rule, but our law in 2010 wa s not clearly established in this respect. W e r e v e rse on this count a nd remand f o r t he district court to vacate the nominal damag e s on this claim.M E N D E Z V

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A

The F ourth Amendment knock-and-announce rule requires officers to announce their presence before they enter

a home. W

ilson v. Arkan s a s , 514 U.S. 927, 931–34 (1995). Police may be ex empt from the requirement, h o wever, when “ci r cumstances present[ ] a threat of phy sical v iolence.” Richar d s v

. W isconsin
, 520 U.S. 385, 3 91 (1997) (quoting W ilson

, 514 U.S. at 936). The district court determined here that because the shack was a separate r esidence, a fact that the officers knew or should have known, the officers were required to announce their presence a t the shack, and that no

ex c e ption applied f

or the same reasons that there was no

ex ig ency to enter for officer safety

.

F or the reasons stated above, the d istrict c o u r t correctly concluded that n o ex ig ency e x cep t ion applied. See also United States v. Granville

, 2 22 F .3d 1214, 1219 (9th Cir. 2000) (holding that a no-knock entry was not ju s t i f ied because the g overnment did not “ cite any specific facts”
sug g esting that Granville posed a threat to t he officers). I n Granville

, we ex plained, “The g overnment s i m p ly relies on g eneraliz ations and stereoty pes that apply to all drug dealers. Our cases have made clear that g en e r a l i z e d fears a bout h ow drug dealers usually a ct or the weapons that they usually keep is not enoug h to establish ex ig ency .” Id. Here, the deputies similarly r ely on a stereoty pical characteriz a t i o n of all parolees-at-larg e as a threat w ithout pointi n g to any specific facts known about O’Dell. W e conclude that the knock-andannounce ex ig ency

ex c eption does not apply

.

The officers d i d, however, announce their presence at H u gh e s ’ front door, and we disag ree with the district court that ex isting case law squarely g o verns the question whetherM E N D E Z V

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the deputies needed to announce their presence ag ain before entering the shack in the curtilag e. W e have stated that “officers are not required to announce at [ e] very place o f entry ,” United States v. Valenzuela

, 596 F .2d 1361
, 1 3 65 (1979) (citation omitted) (holding that there is no r equirement
to knock at a g arag e after properly entering home), a n d w e

are not aware of c a se law clearly establishing t hat officers
must re-announce their p resence a t a shack i n the c urtilag e , even if it was obvious that it was being used as a residence.

Concluding o therwise, the district court relied on United States v

. V

i l l anueva Magallon

, 43 F

. App’x 16 (9th Cir. 2002), which held that the knock-and-announce r ule was not violated dur i n g t h e search of a separate house (#784) on the

same property because “ V illanueva possessed a nd controlled both 792 and 784 and, in fact, 784 w as not b e ing u sed as a separate residence by some third, innocen t party .” Id. at 17–18. The district court r easoned that because the shack in this case was being used as a separate res i dence by a third party , a knock was required. B ut Vill a n ueva Magallon also stated that officers are not required to knock and announce “at each additional point of entry into struc t u r e s within the curtilag e .” I

d. at 1 8. B ecause th e s hack here was in the curtilag e , Villanueva M

a g a llon d oes not clearly prohibit the deputies’ actions here.

The district court also relied on the p roposition in United States v. Cannon
, 264 F .3d 8 7 5, 879 ( 9th Cir. 2 0 0 1 ), that entry into a separate dwelling (in Cannon
, a rental unit in the

rear of the h ouse) requires a separate warrant. This proposition is at t o o h ig h a level of g enerality to constitute clearly established law on the q uestion whether police a re required to separately knock and a nnounce their presence at

a shack in the curtilag e

. Mullenix

, 136 S. Ct. at 308 (“ W eM E N D E Z V

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have re p eatedly told courts

. . . not to define clearly established law at a hig h level of g enerality .” (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 742 (2011))).

I n the absence of clearly e s t a blished law that squarely
g overns the situation here, qualified immunity is appropriate

on the knock-and-announce c l a im. Id. at 309. We reverse and r em a n d for the district court to vacate the award o f nominal damag es on this claim.

B

To clearly e s t a b lish the law g oing forward, see Pearson

v. Callahan

, 5 55 U

. S. 223, 236 (2009), we hold that the deputies violated the F ourth Amendment when they failed to knock at the shack. W e do n o t r et reat from the g eneral principle that “officers a

re not required to announce at [ e] very p lace of entry ” within a residence. Valenzuela

, 596 F. 2 d at 1365. B ut we ag ree with the district c ourt that the d e p u t ies here should have been aware that the s h a c k i n the backy ard

was being used as a separate residenc e

. T he deputies were told that a couple was living b ehind the house, and the shack itself was surrounded by an ai r conditioning unit, electric cord, water hose, and clothes lock er

. A nd parallel to the district court’s reasoning that a knock should be required for

a separate residence just a s a warrant is, s e e Cannon
, 264 F .3d at 879, we hold that o fficers must kn o c k a n d rean n o u n ce their presence when they know or should reasonably k n o w that a

n area within the curtilag e of a home is a separate residence from the main house.

This rule is supported by the purposes o f the knock-anda nnounce rule, which is desig ned to protect our privacy a nd safety within our homes. U n i t e d States v. Becker

, 2 3 F .3dM E N D E Z V

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1537, 1540 (9th Cir. 1 994). W e have recog niz ed that when officers fail to knock a

nd announc e , they risk the “ violent confrontations that may occur if occupants o f the home mistake law enforcement f o r i n truders.” United States v

. Combs

, 394 F

. 3d 739, 744 (9th Cir. 2005). I ndeed, he r e an

announceme n t t hat police were e n tering the shack would almost certainly have ensu r e d that Mendez w as not holding his B B g un when the officers opened the do o r. Had this procedure been followed, the Mendez es would not have been shot.

V

Althoug h t he district court held that the deputies’ shooting of the Men d e z e s was not ex cessive force under Graham v. Connor
, 490 U.S. 386 (198 9 )

, the district court awarded damag es under the p rovocation doctrine. “[ W ] here

an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an i ndependent F ourth Amendment violation, he may be held liable for his otherwise defensive use o f deadly force.” Billington v. Smith

, 292 F .3d 1177, 1189 ( 9t h C i r. 2002) (citing Alexander v. City & County o f S a n Francisco
, 29 F .3d 1355 (9th Cir. 1994)). Here, the district court held that b ecause the officers v iolated th e Fo urth Amendment by searching the shack without a warrant, which prox imately caused the plaintiffs’ injuries, liability was proper. W e ag ree.

The deputies arg u e first that the provocation do c t r i n e is inapplicable because they did not “provoke a violent response by plaintiffs.” I n other words, they claim tha t b ecause Mr. Mendez did not intend to threaten the offi c e r s w i th his g un, he was not responding to the d eputies’ actions and they did
not “provoke” him. W e r ej ect this a r g ument. Our case lawM E N D E Z V

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does not indicate that liability may attach only if the p laintiff
acts violently ; we simply requir e t h at the deputies’ unconstitutional conduct “created a situation which led to the shooting and required the officers to use force that mig ht have otherwise been reasonabl e

. ” E spinosa v. City & County of San Francisco
, 5 98 F .3d 528, 539 (9th Cir. 2010). A n d the
consequences of the deputi e s ’ position make that position unpersuasive. On their theory

, Mendez would ostensibly be entitled to d a mag es if after entry he had intentionally pointed

a weapon at the police while shouting “I ’ll kill y ou,” but here he would be out o f luck because he w as merely holding a B B
g un and didn’t intend to threaten the police.

Moreover, t h i s c ase does not require us to ex tend the provocation doctrine; we have applied provocation liab i l i ty in a similar circumstance without requiring the plaintiff to show he acted violently

. I n Espinosa
, we found that liability under A lexander-Billington w as p ossible when officers entered an attic and shot a man because an officer “believed that he saw something black in [ the man’s] hand that looked like a g un,” even thoug h the suspect “ h a d n o t brandished a weapon, spoken of a weapon, or threatened to use a weapon” and “in fact, did not have a weapon.” 598 F .3d at 533, 538–39. Espinosa thus indicates that the prov o c ation doctrine can apply here even thoug h M e n d e z did not act violently in response to the deputies’ entry

.

The deputies also a

rg ue that they did not intentionally o r recklessly violate Mendez ’s rig hts, a prerequisite to provocation liability

. See Billington

, 292 F .3d at 1189. B ut because q

ualified i mmunity “protects all but the plainly i ncompetent or those who knowing ly violate the law

, ” Stanton
, 134 S. Ct. a t 5 (citation and internal quotation marks omitted), our determination that the deputies are not entitledM E N D E Z V

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to qualified immunity o n the warrantless entry claim

necess a r ily indicates that they acted recklessly o r intentionally with respect to Mendez ’s rig hts. And the record here bears out Conley a

nd Pederson’s r ecklessness—without

a reasonable belief of e x ig ent circumstances, the dep uties entered Hug h es’s property a n d proceeded to search a shack in

an attempt to ex ecute an arrest warrant for a p a r o l e e that, at most, may have been o n the property , contrary to S t e a gald

, 451 U

. S

. at 211–12, and J ohnson

, 256 F .3d at 907–08. I ndeed, the deputies appear to have been si m p l y “conduct[ ing ] w a rrantless searches while investig ating a suspect’s whereabouts,” id. at 908, w hich Johnson ex plicitly forbids, id.

, and W

elsh prohibits b y implication, 466 U.S. at 753.

F inally

, e ven without rely ing on our c ircuit’s provocation
t h eory , the deputies are liable for the shooting under ba s i c notions of prox imate cause. 8 The Supreme C o u r t has emphasiz ed that § 1983 “should be rea d a g ainst the backg round of tort liability that makes a man responsible for the natural consequences o f his actio n s.” Malley v. Briggs
, 475 U.S. 335, 344 n.7 (1986) ( q u o t ing Monroe v. Pape
, 365 U.S. 167, 1 8 7 (1961)). “Prox imat e c a u se is often

ex p licated in term s o f fo r e seeability or the scope of the risk created by the predicate conduct,” a n d the analy sis is desig ned to “preclude liability in situations where the causal link between conduct and result is so attenuat e d t hat the
consequence is more aptly described as mere fortuity

. ” Paroline v. United States
, 134 S. Ct. 1 7 1 0
, 1719 (2014) (citations omitted).

8 T h is co n clu sio n f

o l lo w s f ro m th e Men dezes’ arg u m en t o n cr o s s

a p p eal th at th e d istrict co u rt erred b y n o t aw ard in g “ reaso n a b l y f o reseeab le” d am ag es j o in t ly o n all claim s.M E N D E Z V

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The district court here, discussing District of Columbia v

. Heller

, 554 U.S. 570 (2008), recog ni z ed that when many Americans own firearms “ to protect their own homes[

, a]
st artling entry into a bedroom will result in trag edy .” The
court a lso c ited J ustice J a ckson’s decades-old admonition in a case involving

a warrantless entry :

[ T ] he method of e nforcing the law ex emplif i e d by this search is one which not only violates leg al rig hts of defendant but is certain to involve the pol i c e i n g rave troubles if continued.

. . . Many h o m e -owners in this c rime-beset city doubtless

are a rmed. W hen a woman sees a strang e man, in plain clothes, pry ing up her bedroom window and climbing in, her n atural i m pulse would be to

s h o o t

. . . . B ut an o fficer seeing a g un being drawn on him mig ht shoot first.

McDonald v. U

nited States
, 335 U.S. 451, 460–61 ( 1 948) (J ackson, J .,concurring ). Under these principles, the situation in this case, w here M e n dez was holding a g un when the officers barg ed into the shack unnannounced, was reasonably foreseeable. The deputies a re therefore liable for the shooting

as a foreseeable conse q uence o f their unconstitutional entry

even thoug h the shooting itself was not unconstitutionally

ex c e ssive fo r c e u

nder the F o urth Amendment. See Billington

, 292 F .3 d at 1190 (“[ I ] f an officer’s provocative actions a re objectively unreasonable under the F ourth Amendment, as in Alexander

, liability is established, and the question becomes the scope of lia b i l i t y , or what harms the constitutional violation prox imately

caused.”).M E N D E Z V

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VI

L a stly

, Pederson arg ues that she cannot be h e l d liable because she did not search the shack. Pederson testif i ed

, however, that after clearing the sheds on the south side of the property , she told Serg eant Minster that she w as “g oing to check the rest of the y ard,” including the shack. M inster testified similarly

. Pederson also approached the shack with her weapon drawn along side C o n l ey

. I t is inconsequential that o nly Conley opened the d oor and pulled the blanket back from the doorframe while Pederson stood by —under our case law, Pederson was an “integ ral participant” in the unlawful search because she was “aware of the d ecision” to search the shack, she “did not object to it,” and she “stood armed behind [ Conley ] while he” opened the shac k d oor. Boyd v. Benton County , 374 F .3d 773, 780 (9th Cir. 2004).

VII

B ecause we a ffirm the district court’s conclusion that the deputies a

re liable for the shoot i n g following their unconstitutional entry , the Mendez es’ cross-appeal is waived, and we d o not reach the issues therein. The district court judg ment is AF F I RMED insofar as it awards damag e s f or the shooting a

nd for the u nconstitutional entry

. The award of $1 nominal damag es for th e k n ock-and-announce violation is R E VERSED, and we remand for that nominal damag es a w a r d to be vacated.

1 3

- 5 6 686 is AF F IRMED IN P A RT and REVERSED IN P ART ; and 13-57072 is DISMISSED AS MOOT.