FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN DOUGLAS HILL; 

TERESA ANN HILL; BENJAMIN 

HILL, as guardian ad litem for his 

minor children C.H. and A.H.; BRETT 

MICHAEL HILL, 

Plaintiffs-Appellants,

 v. 

CITY OF FOUNTAIN VALLEY; 

STUART R. CHASE; GANNON P. 

KELLY; JAMES CATALINE, 

Defendants-Appellees,

and 

DOES, 1-10, inclusive, 

Defendant.

No. 21-55867 

D.C. No. 

8:20-cv-00705-

DOC-DFM 

OPINION

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted October 3, 2022

Pasadena, California

Filed June 1, 2023
2 HILL V. CITY OF FOUNTAIN VALLEY

Before: A. Wallace Tashima and Kenneth K. Lee, Circuit 

Judges, and Nancy D. Freudenthal,* District Judge.

Opinion by Judge Lee; 

Partial Concurrence and Partial Dissent by Judge Tashima

SUMMARY**

Civil Rights

The panel affirmed the district court’s summary 

judgment for police officers in an action brought pursuant to 

42 U.S.C. § 1983 alleging violations of plaintiffs’ Fourth 

Amendment rights against warrantless arrests and excessive 

force.

Police responded to a 911 call that a Ford Mustang was 

darting erratically in the streets. Behind the wheel was a 

young white male, along with a blindfolded female in the 

car. With the aid of the car’s license plate number provided 

by the caller, police officers figured out the home address of 

the driver. In reality, the driver, Benjamin Hill, was taking 

his wife for a “surprise” anniversary dinner. When officers 

arrived at the home that Benjamin shared with his parents 

and before the mix-up could be cleared, the officers ordered 

Benjamin’s parents, Stephen and Teresa, and brother, Brett, 

* The Honorable Nancy D. Freudenthal, United States District Judge for 

the District of Wyoming, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HILL V. CITY OF FOUNTAIN VALLEY 3

out of their home for obstructing the police and pushed 

Stephen to the ground as they handcuffed him.

The panel rejected plaintiffs’ contention that the police 

officers violated their Fourth Amendment rights against 

unreasonable seizure when the officers ordered them to exit 

the home or face arrest for obstruction. The officers never 

seized Brett or Teresa, who did not submit to the officers’ 

demand to leave the home. They therefore could not claim 

that they were unlawfully arrested. The panel next held that 

while the officers did not have probable cause to arrest 

Stephen for obstruction of justice, they were nevertheless 

shielded by qualified immunity. The panel noted that 

although it is well established under California law that even 

outright refusal to cooperate with police officers cannot 

create adequate grounds for police intrusion without more, 

here there was no clearly established law that the officers 

could not arrest Stephen, given his evasive behavior that 

appeared to interfere with an urgent investigation into a 

potential kidnapping. 

The panel held that Stephen’s excessive force claim 

failed because he suffered only a minor injury when pushed 

to the grassy lawn during a tense encounter. Finally, 

Stephen’s First Amendment retaliation claim did not pass 

muster because he presented no evidence that the officers 

arrested him because of his mild questioning of the officers. 

Concurring in part and dissenting in part, Judge Tashima 

agreed with the majority’s decision to affirm the dismissal 

of the excessive force and First Amendment retaliation 

claims. Judge Tashima would reverse the dismissal of 

Stephen’s unlawful seizure claim because clearly 

established precedent prohibited the officers from making 

the warrantless arrest at Stephen’s home, when they did not 
4 HILL V. CITY OF FOUNTAIN VALLEY

have probable cause, there were no exigent circumstances 

and it was clearly established, among other things, that at the 

time “even an outright refusal to cooperate with police 

officers” did not justify a warrantless arrest for a violation of 

California Penal Code § 148. 

COUNSEL

Brenton W. Aitken Hands (argued) and Jerry L. Steering, 

Law Offices of Jerry L. Steering, Newport Beach, 

California, for Plaintiffs-Appellants. 

Colin R. Burns (argued), Harper & Burns LLP, Orange, 

California, for Defendants-Appellees.
HILL V. CITY OF FOUNTAIN VALLEY 5

OPINION

LEE, Circuit Judge:

At around nine o’clock in the evening, a concerned 

citizen called 911 to report a Ford Mustang darting 

erratically in the streets. Behind the wheel was a young 

white male, along with a blindfolded female in the car. With 

the aid of the car’s license plate number provided by the 

caller, Fountain Valley police officers figured out the home 

address of the driver and raced to that house.

But this was not an ongoing kidnapping. In reality, the 

driver, Benjamin Hill, was taking his wife for a “surprise” 

anniversary dinner. And his parents would soon experience 

a surprise of their own, as the police officers descended upon

the home that they shared with their son. Before this mix-up 

could be cleared, the police officers ordered the Hills out of 

their home for obstructing the police and pushed the father

to the ground as they handcuffed him. The Hills later sued, 

alleging (among other things) violations of their Fourth 

Amendment rights against warrantless arrests and excessive 

force.

We affirm the district court’s summary judgment for the 

police officers. First, while the officers did not have 

probable cause to arrest Benjamin Hill’s father for 

obstruction of justice, they are shielded by qualified 

immunity. There was no clearly established law that they 

could not arrest him, given his evasive behavior that 

appeared to interfere with an urgent investigation into a 

potential kidnapping. Second, his excessive force claim fails 

because he suffered only a minor injury when pushed to the 

grassy lawn during a tense encounter. Finally, his First 

Amendment retaliation claim does not pass muster because 
6 HILL V. CITY OF FOUNTAIN VALLEY

he presented no evidence that the officers arrested him 

because of his mild questioning of the officers. 

BACKGROUND

I. The events of April 30, 2019. 

On the night of April 30, 2019, a comedy of errors 

cascaded into an ordeal for the Hill family. That night, 

Benjamin decided to take his wife for a “surprise” 

anniversary dinner.1 As he drove her to the restaurant, 

someone called 911 to report a “dark grey Ford Mustang” 

being driven “erratically” by a black-haired white male 

between the age of twenty-five and thirty. The caller also 

ominously noted a blindfolded female passenger. 

Based on the license plate number provided by the 911 

caller, Fountain Valley police officers learned that the car 

belonged to Benjamin and obtained his home address. 

Officers Stuart Chase and Gannon Kelly then drove to 

Benjamin’s home to “check the well-being” of the 

passenger. 

Shortly after the officers arrived at the residence, 

Teresa—Benjamin’s mother—pulled into the driveway. 

The officers asked her whether Benjamin lived there and 

drove a grey Mustang. Teresa answered yes to both 

questions and told them that Benjamin was not home. But 

when the officers asked for Benjamin’s phone number, she 

balked. She later admitted that she stopped cooperating with 

the police because she wanted to warn her son about the 

officers before they had a chance to call him. 

1 Because this case involves several members of the Hill family, we will 

refer to the individuals by their first name for clarity’s sake. 
HILL V. CITY OF FOUNTAIN VALLEY 7

While the officers talked to Teresa, Stephen—

Benjamin’s father—exited the home to help bring their 

grandchildren into the house. The officers told the couple

that they were investigating a report of erratic driving, once 

again asking for Benjamin’s phone number. Then Teresa 

went inside with one of her granddaughters and tried to reach

Benjamin.

Skeptical that the officers were only investigating erratic 

driving, Stephen demanded that the officers tell him “what 

was really going on.” The officers told him that they wanted 

to talk to Benjamin, citing the report of a blindfolded female 

passenger in his car. Stephen responded that Benjamin was 

out with his wife and offered to pass along the officers’ 

business cards. The officers told Stephen to take his other 

granddaughter inside and to return with Benjamin’s phone 

number.

While waiting outside, the officers noticed someone 

moving inside the house by the bedroom window. Officer 

Chase then walked across the lawn to investigate further and 

saw a young male who matched Benjamin’s description. 

Believing this person to be Benjamin, Officer Chase told him

to exit the house. But the young male walked into a hallway, 

out of sight. Then Stephen entered the bedroom. Officer 

Chase asked Stephen, “Who’s the other person here?” Not 

hearing the question, Stephen closed the curtains, hoping to 

keep the officers’ flashlights from disturbing his 

granddaughter. 

The officers would later learn that the young man inside 

the house was not Benjamin but his brother, Brett. But at the 

time, the officers suspected that Benjamin’s parents were 

hiding him from law enforcement. Through a window on 

the front door, the officers saw Teresa, Stephen, and an 
8 HILL V. CITY OF FOUNTAIN VALLEY

unidentified male they suspected to be Benjamin. The 

officers checked to see if the door was locked. At this point, 

they told the unidentified male to exit the house. The 

officers then threatened to arrest all of them for obstruction 

if they did not leave the house, according to the Hills. The 

officers, however, dispute that they threatened to arrest 

Teresa. 

Stephen stepped outside while Brett and Teresa 

remained inside. Stephen closed the door behind him and 

told the officers they could not come in. The parties dispute

what happened next: Officer Kelly claims that he placed his 

foot in the doorjamb and Stephen closed the door on his foot; 

Stephen, on the other hand, claims that he never closed the 

door on Officer Kelly’s foot. In any event, the officers 

immediately grabbed Stephen, led him to the front lawn, and 

brought him to the ground. While being brought to the 

grassy ground, Stephen’s glasses cut him on the forehead. 

He also alleged neck and back injuries because Officer Kelly 

held Stephen down by kneeling on him. Several seconds 

after the officers led Stephen away from the front door, Brett 

and Teresa left the house to check on Stephen. 

II. The Hills’ lawsuit against Fountain Valley police 

officers. 

The Hills sued the officers under 42 U.S.C. § 1983 for 

excessive force on behalf of Stephen, unreasonable seizure 

on behalf of all the Hills (including the two grandchildren), 

and First Amendment retaliation on behalf of Stephen. The 

Hills also brought state-law claims for battery, assault, and a 

violation of Cal. Civ. Code § 52.1 on behalf of Stephen, 

along with state-law claims for false arrest and intentional 

and negligent infliction of emotional distress on behalf of all

the Hills. 
HILL V. CITY OF FOUNTAIN VALLEY 9

The officers moved for summary judgment. The district 

court remanded the state law false arrest claim to state court

and granted summary judgment to the officers on all the 

other claims. 

The district court rejected Stephen’s Fourth Amendment 

excessive force claim, concluding that the government’s 

interest in using force outweighed the slight intrusion into 

Stephen’s Fourth Amendment interests. This result also 

meant that the battery, assault, and § 52.1 claims could not 

survive summary judgment. 

Next, the district court considered the Hills’ Fourth 

Amendment unreasonable seizure claims. The district court 

found that Stephen and Brett were the only ones seized.

Because they were seized in the home and without a warrant, 

the police officers needed exigent circumstances and 

probable cause to arrest them. The district court found that 

the officers faced exigent circumstances and that they had

probable cause for Brett’s arrest. Although the district court 

found no probable cause for Stephen’s arrest, it held that

qualified immunity applied. The district court remanded the 

false arrest claim (which is coextensive with an unreasonable 

seizure claim) because federal qualified immunity does not 

apply to that state-law claim.

The district court also granted summary judgment on the 

First Amendment retaliation claim because Stephen could 

not show that retaliatory animus was the but-for cause of his 

arrest. Finally, it granted summary judgment on the 

intentional and negligent infliction of emotional distress 

claims, ruling that the Hills did not suffer severe emotional 

distress.

The Hills timely filed this appeal. 
10 HILL V. CITY OF FOUNTAIN VALLEY

STANDARD OF REVIEW 

We review de novo a district court's grant of summary 

judgment. Weiner v. San Diego Cnty., 210 F.3d 1025, 1028 

(9th Cir. 2000). Summary judgment is appropriate if, 

viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact. 

Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir.

1995).

DISCUSSION

I. The Hills fail to establish liability for their Fourth 

Amendment unreasonable seizure claims.

Brett, Teresa, and Stephen maintain that the police 

officers violated their Fourth Amendment right against 

unreasonable seizure when the officers ordered them to exit 

the home or face arrest for obstruction. See Gallegos v. City 

of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002); United 

States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1990). We 

disagree. The officers never seized Brett or Teresa, so they 

cannot claim that they were unlawfully arrested. And while 

the officers likely lacked probable cause to arrest Stephen, 

they are shielded by qualified immunity.2

A. The officers did not seize Brett or Teresa. 

Before assessing whether an unlawful arrest occurred, 

we must determine who—if anyone—the officers seized. A 

seizure occurs when there is “either physical force . . . or, 

2 The district court reasoned that the officers did not seize Teresa because 

their order to exit the house was not directed at her. The district court 

also held that Brett was seized but that the officers did not violate the 

Fourth Amendment when they arrested him. As explained, we rely on 

different grounds to find no Fourth Amendment violation. 
HILL V. CITY OF FOUNTAIN VALLEY 11

where that is absent, submission to the assertion of 

authority.” California v. Hodari D., 499 U.S. 621, 626 

(1991) (alteration in original). Put another way, if a plaintiff 

did not comply with an officer’s orders, then the officer did 

not seize the plaintiff. Id. at 629. Indeed, the officer’s show 

of authority must cause the plaintiff’s submission. See id. at 

628 (citing Brower v. Inyo Cnty., 489 U.S. 593, 596 (1989)).

We hold that the officers did not seize Brett and Teresa 

because they did not submit to the officers’ show of 

authority.

3 Under the threat of arrest, the officers demanded 

that “you guys” come out of the house. Stephen complied

and exited the home. See Hodari D., 499 U.S. at 626. In 

contrast, Brett and Teresa stayed inside and locked the door 

behind Stephen. It was not until after the officers restrained

Stephen and began leading him to the lawn that Brett and 

Teresa left the home. In short, they did not submit to the 

officers’ demand to leave the home and left the house only 

in response to Stephen’s arrest. We thus conclude that Brett 

and Teresa were not seized and they cannot pursue their 

Fourth Amendment claims.

B. Assuming the officers seized Stephen, their 

actions are protected by qualified immunity. 

Turning to Stephen, we hold that the qualified immunity 

applies to the officers’ alleged warrantless in-home arrest.4

3 The Hills also argue that the two grandchildren were seized. But there 

is no evidence that the grandchildren were ordered out of the home or

that they submitted to any show of authority. 

4 The parties dispute whether the police officers arrested or merely 

detained Stephen. We need not address this question because, even 

assuming Stephen was arrested, the officers are not liable because of 

qualified immunity. 
12 HILL V. CITY OF FOUNTAIN VALLEY

Law enforcement can make a warrantless in-home arrest if 

the officers faced exigent circumstances and had probable 

cause supporting the arrest. Payton v. New York, 445 U.S. 

573, 589–90 (1980). We hold that the officers likely did not 

have probable cause to arrest Stephen for obstruction, even 

if there were exigent circumstances. But qualified immunity 

still shields the officers from liability because there was no 

clearly established law at the time forbidding their actions.

A lawful arrest requires officers to have probable cause.

Probable cause exists where the “available facts suggest a 

fair probability that the suspect has committed a crime.” 

Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 

1094 (9th Cir. 2006). When assessing probable cause, courts

must consider the totality of the circumstances known to the 

officers at the time. 

To start, we note that the officers waived the argument 

that they had probable cause to arrest Stephen for kidnapping 

or aiding and abetting a kidnapping. In re Mercury Int. 

Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“We 

apply a ‘general rule’ against entertaining arguments on 

appeal that were not presented or developed before the 

district court.” (quoting Peterson v. Highland Music, Inc., 

140 F.3d 1313, 1321 (9th Cir.1998))). Thus, the question is 

whether the officers had probable cause to arrest him for 

obstruction of justice under California state law. We hold 

that they likely did not. 

“[I]t is well established under California law that even an 

outright refusal to cooperate with police officers cannot 

create adequate grounds for police intrusion without more.” 

Velazquez v. City of Long Beach, 793 F.3d 1010, 1023 (9th

Cir. 2015). Here, a jury could have reasonably found that 

Stephen’s actions did not amount to an obstruction of justice. 
HILL V. CITY OF FOUNTAIN VALLEY 13

California courts have held that passively blocking a door or

refusing to open a door after a proper police demand are 

examples of permissible refusals to cooperate with police. 

People v. Wetzel, 520 P.2d 416, 419 (Cal. 1974); People v. 

Cressey, 471 P.2d 19, 23 n.6 (Cal. 1970). Because Stephen’s 

actions resemble other lawful refusals to cooperate, the 

officers likely did not have probable cause to arrest him for 

obstruction of justice.

But that does not end our inquiry. Even if there is a 

violation, qualified immunity “shields government actors 

from civil liability . . . if ‘their conduct does not violate 

clearly established statutory or constitutional rights of which 

a reasonable person would have known.’” Castro v. County 

of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (quoting 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We have 

held that qualified immunity applies when it was objectively 

reasonable for an officer to believe he or she had probable 

cause to make the arrest. Rosenbaum v. Washoe Cnty., 663 

F.3d 1071, 1076 (9th Cir. 2011). “Framing the 

reasonableness question somewhat differently, the question 

in determining whether qualified immunity applies is 

whether all reasonable officers would agree that there was 

no probable cause in this instance.” Id. at 1078 (citing 

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). 

Here, qualified immunity applies because not all 

reasonable police officers would believe that they lacked

probable cause to make the arrest, especially given the 

urgency and unique facts here. True, this circuit has held

that a suspect’s refusal to cooperate—without more—can 

undermine qualified immunity for officers who seized the

suspect. See, e.g., Mackinney v. Nielsen, 69 F.3d 1002, 1006 

(9th Cir. 1995) (denying qualified immunity where the 

alleged obstruction was underlining the last part of a chalk 
14 HILL V. CITY OF FOUNTAIN VALLEY

message before complying with a police order to stop). But

those cases considered situations in which it was clear the 

plaintiff’s action was not an obstruction, id., the refusal was 

only verbal, Duran v. City of Douglas, 904 F.2d 1372, 1378 

(9th Cir.1990), or the plaintiff was obstructing an unlawful 

police act, Johnson v. Bay Area Rapid Transit, 724 F.3d 

1159, 1178 (9th Cir. 2013). None of those facts apply here. 

Our case presents a uniquely different situation. To 

begin, we must acknowledge that the specter of an ongoing 

kidnapping likely colored the officers’ belief of whether an 

obstruction of justice occurred. The officers already had 

probable cause to arrest Brett because he matched the 

description of a suspect who appeared to have been engaging 

in a crime.5 See United States v. Brooks, 610 F.3d 1186 (9th

Cir. 2010) (probable cause when the plaintiff matched a 

victim’s description of the perpetrator’s features, drove a 

similar vehicle to the perpetrator, and was found at the 

location where the perpetrator operated). And the officers 

faced an exigent circumstance in investigating a potentially 

kidnapped woman who may be hidden in the Hills’ home.

See United States v. Brooks, 367 F.3d 1128, 1133, n.5 (9th

5 The dissent lasers in on each piece of fact to argue that it alone cannot 

establish probable cause. But we cannot view each fact in isolation, and 

instead must analyze all the facts under a totality of the circumstances, 

which means we must consider the “whole picture” that develops from 

the combined effect of all the available facts. See District of Columbia 

v. Wesby, 138 S. Ct. 577, 588 (2018) (citing United States v. Cortez, 449 

U.S. 411, 417 (1981)). Every fact leading up to the arrest should serve 

as a factor in the totality of the circumstances, recognizing that the whole 

is often greater than the sum of the parts and that even seemingly 

innocent facts can suggest a crime is afoot. Wesby, 138 S. Ct. at 588. 

And here, the police had multiple and specific pieces of evidence for 

probable cause (e.g., a 911 call identifying the license plate and 

description of a driver with a blindfolded woman in the passenger seat).
HILL V. CITY OF FOUNTAIN VALLEY 15

Cir. 2004). The officers thus may have believed that

ordering the Hills outside would ensure the safety of a 

potential kidnapping victim. See People v. Panah, 107 P.3d

790, 836–37 (Cal. 2005); see also Ryburn v. Huff, 565 U.S. 

469, 474 (2012) (permitting entry into a home without 

probable cause when there was concern about an armed 

student and the police faced evasive behavior upon arriving 

at the home).

Further, Stephen’s closing the curtains as Officer Chase 

asked a question about an unidentified young male’s identity 

could have suggested obstruction into an investigation of a 

possible kidnapping. Even worse, shutting window curtains 

can sometimes suggest that occupants are preparing “to do 

battle.” United States v. Salvador, 740 F.2d 752, 758 (9th

Cir. 1984). 

Given these unique facts and the urgency to act, we do 

not believe that “all reasonable officers would agree that 

there was no probable cause in this instance.” Rosenbaum, 

663 F.3d at 1076. We generally want law enforcement to be 

proactive and persistent in investigating a potential ongoing 

kidnapping. Of course, it turned out that the police officers 

here were mistaken. But we are wary of second-guessing the 

split-second “judgments made by law enforcement officers 

in the heat of their battle against crime” from the certainty 

and comfort of our chambers. United States v. ValenciaAmezcua, 278 F.3d 901, 906 (9th Cir. 2002); see also Hill v. 

California, 401 U.S. 797, 804–05 (1971) (finding that 

officers acted reasonably based on the totality of the 

circumstances, including a good-faith, but ultimately 

mistaken, belief that they were arresting the correct suspect). 

In short, qualified immunity applies because the Hills have 

not offered any factually analogous case “clearly 
16 HILL V. CITY OF FOUNTAIN VALLEY

establishing” that the officers’ actions were unlawful under 

these circumstances.

6 Castro, 833 F.3d at 1066.

II. The officers did not use excessive force to violate 

Stephen’s Fourth Amendment right.

We review Stephen’s excessive force claim under the 

Fourth Amendment’s objective reasonableness standard.

Graham v. Connor, 490 U.S. 386, 388 (1989). This

“requires a careful balancing of ‘the nature and quality of the 

intrusion on the individual’s Fourth Amendment interests 

against the countervailing governmental interests at stake.’” 

Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 

(1985)). The Supreme Court has provided an inexhaustive 

list of government interests that might justify an officer’s use 

of force, including “the severity of the crime at issue, 

whether the suspect poses an immediate threat to the safety 

of the officers or others, and whether he is actively resisting 

arrest or attempting to evade arrest by flight.” Id. (citing 

Garner, 471 U.S. at 8–9). We also recognize that “police 

officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly 

6 The dissent minimizes the unique nature of this case by saying that it is 

clearly established precedent that a warrantless in-home arrest is illegal 

when there is not probable cause and exigent circumstances. But the 

Supreme Court has cautioned us, especially in the Fourth Amendment 

context, from reciting a general rule and using it to deny qualified 

immunity. City of Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019). 

Rather, “clearly established law” usually means there is a case “where 

an officer acting under similar circumstances was held to have violated 

the Fourth Amendment.” Id. at 504 (quoting District of Columbia v. 

Wesby, 138 S. Ct. 577, 581 (2018)). Stephen failed to cite such a case

and instead tried to distinguish cases that, in fact, support the officer’s 

efforts to investigate a potential kidnapping. That cannot by itself deny

qualified immunity.
HILL V. CITY OF FOUNTAIN VALLEY 17

evolving—about the amount of force that is necessary in a 

particular situation.” Id. at 396–97.

Jackson v. City of Bremerton, 268 F.3d 646 (9th Cir. 

2001), highlights our fairly deferential review of law 

enforcement’s use of force. In Jackson, this court held that 

police officers did not use excessive force during an arrest 

for obstruction involving a misdemeanor crime. Id. at 653. 

The officers pepper sprayed the plaintiff, tackled her, 

handcuffed her, and intentionally placed her in a hot patrol 

car. Id. at 652. But the court held that these actions were 

reasonable, given the government’s interest of safeguarding 

the officers during a tense situation in which they were 

outnumbered. Id. at 653. 

Stephen experienced only an inadvertent cut on his head 

from the take-down on the grassy lawn. These injuries are

minimal compared to being tackled, pepper sprayed, and 

intentionally being held in a hot patrol car. See id. at 652. 

Further, Stephen’s noncompliance occurred during an 

investigation into a potential kidnapping, a more severe 

offense than the misdemeanor in Jackson. See Graham, 490 

U.S. at 396. Admittedly, while the situation at the Hills’ 

home was tense and escalating, it was not as dangerous as 

that in Jackson. See Jackson, 268 F.3d at 653. Still, the 

balance of interests favors the government. We thus 

conclude that the officers did not violate Stephen’s Fourth 

Amendment right against excessive force. 

III. The officers did not violate Stephen’s First 

Amendment right by retaliating against him. 

A plaintiff can bring a First Amendment claim against 

government officials who retaliate for engaging in protected 

speech. Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) 

(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). “To 
18 HILL V. CITY OF FOUNTAIN VALLEY

prevail on such a claim, a plaintiff must establish a ‘causal 

connection’ between the government defendant’s 

‘retaliatory animus’ and the plaintiff’s ‘subsequent injury.’” 

Id. (quoting Hartman, 547 U.S. at 259). Retaliatory animus 

must be the “but-for” cause of the plaintiff’s injury. Put 

differently, a plaintiff must show that the arrest would not 

have happened without the retaliatory animus. Id. (citing 

Hartman, 547 U.S. at 260).

The Supreme Court has held that retaliatory arrest cases 

generally “present a tenuous connection between the 

defendant’s alleged animus and the plaintiff’s injury.”

Reichle v. Howards, 566 U.S. 658, 668 (2018). The reason

is that an officer may bear animus toward a plaintiff’s 

protected speech, but that same speech is often a legitimate 

consideration for officers when deciding to make an arrest.

See Nieves, 139 S. Ct. at 1723–24 (citing Reichle, 566 U.S. 

at 668). Given this reality, the Court in Nieves held that the 

existence of probable cause defeats a retaliatory arrest claim. 

Id. at 1725 (citing Hartman, 547 U.S. at 260). If, however, 

the plaintiff establishes the lack of probable cause (like in 

our case), “then the Mt. Healthy test governs: The plaintiff 

must show that the retaliation was a substantial or motivating 

factor behind the [arrest], and, if that showing is made, the 

defendant can prevail only by showing that the [arrest] 

would have been initiated without respect to retaliation.” Id.

(alterations in original) (quoting Lozman v. City of Riviera 

Beach, 138 S. Ct. 1945, 1952–53 (2018)).

Stephen cannot overcome the Mt. Healthy requirement 

because he cannot show that retaliatory animus was a 

substantial factor behind his arrest. He maintains that asking 

the officers “what was really going on” and saying that he 

wanted to make sure “everything’s on the up and up” had 

“perturbed the officers.” But he has offered no evidence to 
HILL V. CITY OF FOUNTAIN VALLEY 19

show that the officers were in fact perturbed. Indeed, it 

seems dubious that the officers would be upset because of 

benign statements such as “what was really going on”; law 

enforcement officers are routinely subjected to much more 

vitriolic rhetoric. See Nieves, 139 S. Ct. at 1735 (Ginsburg, 

J., concurring) (arguing that the plaintiff’s claims should 

have been dismissed under Mt. Healthy because the only 

evidence of retaliation was an officer saying, “Bet you wish 

you would have talked to me now”). And even if the officers 

were “perturbed,” no evidence suggests that they would not 

have arrested him absent those statements. The record 

suggests the officers arrested Stephen because they believed, 

though mistakenly, that he was hiding a suspect in a potential 

kidnapping case. Id.

IV. The district court did not err when it remanded

or dismissed the Hills’ state-law claims. 

The district court did not err in dismissing Stephen’s 

state-law claims for assault, battery, and a § 52.1 violation. 

All these claims have similar requirements as an excessive 

force claim. See, e.g., Cornell v. City & Cnty.. Of San 

Francisco, 225 Cal. Rptr. 3d 356, 382 (Ct. App. 2017); 

Koussaya v. City of Stockton, 268 Cal. Rptr. 3d 741, 760–61 

(Ct. App. 2020). And because his excessive force claim 

lacks merit, these state-law claims must fall by the wayside 

as well. 

The district court also did not err in dismissing the Hill’s 

claims for intentional and negligent infliction of emotional 

distress, which require “severe emotional distress.” Myung 

Chang v. Lederman, 90 Cal. Rptr. 3d 758, 774 (Ct. App. 

2009). The district court held that the Hills did not meet the 

high bar of “emotional distress of such a substantial quality 

or enduring quality that no reasonable person in civilized 
20 HILL V. CITY OF FOUNTAIN VALLEY

society should be expected to endure it.” Hughes v. Pair, 

209 P.3d 963, 976–77 (Cal. 2009) (holding that discomfort, 

worry, anxiety, upset stomach, concern, and agitation did not 

establish severe emotional distress). 

Finally, the district court did not abuse its discretion in 

declining to exercise supplemental jurisdiction over the false 

arrest claim, which has similar requirements to an 

unreasonable seizure claim. See Acri v. Varian Assocs., 114 

F.3d 999, 1000 (9th Cir. 1997). As noted, we reject

Stephen’s Fourth Amendment unreasonable seizure claim 

on qualified immunity grounds, but California has not 

conferred a similar immunity for a false arrest claim. So 

while Stephen may be able to pursue that claim, he must do 

so in state court, as the district court did not abuse its 

discretion in concluding that exercising supplemental 

jurisdiction would not promote judicial economy, 

convenience, fairness, and comity here. Carnegie-Mellon 

Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

CONCLUSION

The Hills are understandably aggrieved by what 

happened to them. But the law protects good-faith mistakes 

by the Fountain Valley police officers investigating a 

potential kidnapping. 

AFFIRMED. 
HILL V. CITY OF FOUNTAIN VALLEY 21

TASHIMA, Circuit Judge, concurring in part and dissenting 

in part:

I agree with the majority’s decision to affirm the 

dismissal of the excessive force and First Amendment 

retaliation claims. However, I would reverse the dismissal 

of Stephen’s unlawful seizure claim because our clearly 

established precedent prohibited the officers from making 

the warrantless arrest at Stephen’s home, when they did not 

have probable cause and there were no exigent 

circumstances. Because this law was clearly established at 

the time of the events here, the officers are not entitled to 

qualified immunity. The majority elides the strict 

requirements of the Fourth Amendment to protect the 

sanctity of the home, ignoring the basic requirements of a 

warrant and probable cause and relying on cases whose facts 

present circumstances so different from those faced by the 

officers here that they offer no support for the majority’s 

grant of qualified immunity in the circumstances here. I 

therefore respectfully dissent from that part of the majority 

opinion.

This case is about a follow-up investigation of a citizen’s 

report of seeing an erratically driven car on the freeway with 

a blindfolded female in the front passenger seat. There was 

no missing person report and no report that the woman 

appeared to be in distress – nothing more than this reported 

speculative observation. Thus, the purpose of the follow-up 

investigation was to determine whether probable cause 

existed that the crime of kidnapping was being committed. 

Admittedly, during the officers’ investigation, there was no 

probable cause to believe that the crime of kidnapping had 

been or was being committed. 
22 HILL V. CITY OF FOUNTAIN VALLEY

Even though the majority concludes that there was no 

probable cause to arrest Stephen, the opinion concludes that 

the officers are entitled to qualified immunity because the 

“urgency and unique facts here” meant that the officers 

reasonably believed they had probable cause to arrest 

Stephen for interfering with their investigation under 

California Penal Code § 148. However, it was clearly 

established at the time of the events here that “even an 

outright refusal to cooperate with police officers” does not 

justify a warrantless arrest for a violation of § 148. 

Mackinney v. Nielsen, 69 F.3d 1002, 1006 (9th Cir. 1995) 

(quoting People v. Bower, 597 P.2d 115, 122 (Cal. 1979)). 

It also was clearly established that, “in seeking to establish 

probable cause, ‘officers may not solely rely on the claim of 

a citizen witness . . . , but must independently investigate the 

basis of the witness’ knowledge or interview other 

witnesses.’” United States v. Struckman, 603 F.3d 731, 742 

(9th Cir. 2010) (quoting Arpin v. Santa Clara Valley Transp. 

Agency, 261 F.3d 912, 925 (9th Cir. 2001)). Moreover, the 

record is devoid of any facts that would establish urgency or 

exigent circumstances, as required by our precedent. Thus, 

no reasonable officer could have believed they had probable 

cause for the warrantless arrest of Stephen.

“It is axiomatic that the ‘physical entry of the home is the 

chief evil against which the wording of the Fourth 

Amendment is directed.” Welsh v. Wisconsin, 466 U.S. 740, 

748 (1984) (quoting United States v. U.S. Dist. Ct., 407 U.S. 

297, 313 (1972)). It is, therefore, “a ‘basic principle of 

Fourth Amendment law[,]’ that searches and seizures inside 

a home without a warrant are presumptively unreasonable.” 

Id. at 749 (quoting Payton v. New York, 445 U.S. 573, 586 

(1980)). Stephen’s arrest accordingly was presumptively 
HILL V. CITY OF FOUNTAIN VALLEY 23

unreasonable, and the government bears the burden of 

overcoming the presumption. Id. at 750.

“To make a lawful entry into a home in the absence of a 

warrant, officers must have either probable cause and 

exigent circumstances or an emergency sufficient to justify 

the entry. These exceptions to the warrant requirement are 

‘narrow and their boundaries are rigorously guarded.’” 

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 

1161 (9th Cir. 2014) (quoting Hopkins v. Bonvicino, 573 

F.3d 752, 763 (9th Cir. 2009)). Both exceptions require the 

police to “show that a warrant could not have been obtained 

in time.” Id. (quoting Struckman, 603 F.3d at 738). Probable 

cause “exists when officers have knowledge or reasonably 

trustworthy information sufficient to lead a person of 

reasonable caution to believe that an offense has been or is 

being committed by the person being arrested.” Sialoi v. 

City of San Diego, 823 F.3d 1223, 1232 (9th Cir. 2016) 

(quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th 

Cir. 2007)).

The majority’s conclusion that the officers are entitled to 

qualified immunity fails on five independent grounds. First, 

the majority concedes that there was no probable cause to 

arrest Stephen, and probable cause is a requirement for a 

warrantless entry into a home. Sandoval, 756 F.3d at 1161. 

Second, the City has not met its “heavy burden” of showing 

specific, articulable facts justifying exigent circumstances. 

Struckman, 603 F.3d at 744; United States v. Reid, 226 F.3d 

1020, 1028 (9th Cir. 2000). Nor has the City shown that a 

warrant could not have been obtained in time. Sandoval, 756 

F.3d at 1161. Moreover, in concluding that the officers are 

entitled to qualified immunity, the majority turns our 

summary judgment standard on its head, construing the facts 

and drawing all inferences in favor of the officers. Finally, 
24 HILL V. CITY OF FOUNTAIN VALLEY

our clearly established law prohibited the officers from 

making a warrantless arrest in the circumstances here –

inside a home where there was no reasonably trustworthy 

information establishing probable cause that a crime was 

being committed nor any specific, articulable facts 

establishing exigent circumstances. Sialoi, 823 F.3d at 

1232; see Sandoval, 756 F.3d at 1161 (“Because it is ‘clearly 

established Federal law that the warrantless search of a 

dwelling must be supported by probable cause and the 

existence of exigent circumstances’ or emergency, the 

officers are not entitled to qualified immunity unless their 

entry was justified by one of the two exceptions.” (quoting 

Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001))).

I. Probable Cause

The City waived the argument that the officers had 

probable cause to arrest Stephen for kidnapping or aiding 

and abetting a kidnapping. The City thus argues that there 

was probable cause to arrest Brett because he resembled the 

description of Benjamin and that Stephen interfered in their 

attempt to arrest Brett, resulting in probable cause to arrest 

Stephen for obstructing an investigation in violation of 

California Penal Code § 148. The majority concludes that 

the officers “likely did not” have not probable cause to arrest 

Stephen. Nonetheless, the majority concludes that the 

officers are entitled to qualified immunity because “not all 

reasonable police officers would believe that they lacked 

probable cause to make the arrest” under § 148. This 

conclusion is not supported by the record nor by our 

precedent.

The majority reasons that “[t]he officers already had 

probable cause to arrest Brett because he matched the 

description of a suspect who appeared to have been engaging 
HILL V. CITY OF FOUNTAIN VALLEY 25

in a crime.” The majority relies on Officer Chase’s report 

that he saw Brett, who purportedly matched Benjamin’s 

description, through the bedroom window, to find probable 

cause.1 This conclusion is problematic for several reasons.

First, there were no facts or circumstances to support the 

conclusion that Benjamin “appeared to have been engaging 

in a crime.” Probable cause requires “knowledge or 

reasonably trustworthy information,” Sialoi, 823 F.3d at 

1232, and an unconfirmed report that someone was driving 

a car with a blindfolded passenger does not establish 

probable cause that an offense was being committed. Our 

precedent makes clear that such a vague, speculative 

observation, without more, does not establish probable cause 

for a warrantless arrest, especially inside a home. Because 

there was no probable cause to arrest Benjamin, there was 

no probable cause to arrest Brett and certainly none to arrest 

Stephen. 

Second, on summary judgment, the facts are construed 

and all reasonable inferences are drawn in the non-moving 

party’s favor. Mattos v. Agarano, 661 F.3d 433, 439 (9th 

Cir. 2011) (en banc). The plaintiffs disputed whether Officer 

Chase was able to see Brett sufficiently to know he 

resembled the description of Benjamin, citing evidence that 

the window was blocked by trees, Brett did not enter the 

bedroom but merely passed by in the hallway, and Officer 

Chase stated, “See if that’s a third person,” which indicated 

that he could not see Brett sufficiently to conclude that he 

resembled Benjamin. Thus, construing, as we must, the facts 

in the plaintiffs’ favor, Officer Chase could not have seen 

1 The district court relied on this report to support its finding of exigent 

circumstances.
26 HILL V. CITY OF FOUNTAIN VALLEY

Brett sufficiently to know that he resembled Benjamin, 

especially because his statement indicated that he was not 

even sure if he saw a third person.

The majority relies on United States v. Brooks, 610 F.3d 

1186 (9th Cir. 2010), to support its conclusion that the 

officers had probable cause to arrest Brett, but in Brooks, the 

officers observed a minor engaged in prostitution and 

received specific descriptions of the suspects and their car 

from the victims of child sex trafficking. The officers knew 

that the suspects and their vehicle matched the descriptions 

given by the victims. Thus, there was “substantial 

correspondence between the officers’ observations at the 

time of the arrest and the details that [the victim] had 

provided to the police concerning the crime, the individuals 

involved, their vehicle, and the location where the 

perpetrators operated.” Id. at 1193. Unlike here, the officers 

had both first-hand knowledge and “reasonably trustworthy 

information sufficient to lead a person of reasonable caution 

to believe that an offense” was committed by the arrestees. 

Sialoi, 823 F.3d at 1232.

By contrast, the officers here received an unconfirmed 

report of a person driving a car with a blindfolded woman in 

the passenger seat, which is not a crime. There were no facts 

or circumstances indicating that an offense was being 

committed. Coupled with the fact that it is disputed whether 

the officers even saw Brett, through a window blocked by 

trees, it is clear that there was no reasonably trustworthy 

information establishing probable cause to arrest Brett. 

Thus, the record (and the case law) does not support the 

majority’s statement that “[t]he officers . . . had probable 

cause to arrest Brett because he matched the description of a 

suspect who appeared to have been engaging in a crime.”
HILL V. CITY OF FOUNTAIN VALLEY 27

Our precedent establishes that an unconfirmed, vague 

report that someone riding in the passenger seat of a car was 

blindfolded is insufficient to establish probable cause. For 

example, a neighbor’s “very general” report that a man threw 

a backpack over a fence and climbed over the fence into the 

backyard while the owners were not home did not establish 

probable cause for arrest, even though the police confirmed 

that a person who fit the description was in the backyard. 

Struckman, 603 F.3d at 741–42. 

Similarly, we found no probable cause for a warrantless 

search in Hopkins, where a witness reported that “she had 

been involved in an extremely minor car accident with” the 

suspect, “that she smelled alcohol on his breath, and that he 

appeared intoxicated.” Hopkins, 573 F.3d at 767. We 

concluded that “these statements from a witness, without 

further investigation by the police, are insufficient to support 

probable cause,” reasoning that the officers did not, for 

example, check to see if the car’s hood was still warm, to 

corroborate the statement that the car had recently been 

driven, nor did they inspect the vehicle for any evidence of 

reckless driving or of alcohol consumption, such as open 

containers or an alcoholic odor.” Id. “They did not ask [the 

witness] any questions in order to gain information beyond 

her cursory and conclusory statements . . . . In short, the 

officers obtained no information whatsoever beyond [her] 

brief statement.” Id.

In contravention of our court’s precedent, the officers 

here relied solely “on the claim of a citizen witness” – a brief, 

unverified report of a woman riding in a car blindfolded, 

which – unlike burglary, the purported offense in Struckman, 

and driving under the influence, the purported offense in 
28 HILL V. CITY OF FOUNTAIN VALLEY

Hopkins – is not a crime.2 Struckman, 603 F.3d at 742. Had 

the officers investigated further, perhaps they would have 

learned about Benjamin’s surprise anniversary dinner for his 

wife. The vague, unverified report is not close to 

constituting “knowledge or reasonably trustworthy 

information” to establish probable cause. Sialoi, 823 F.3d at 

1232; see Hopkins, 573 F.3d at 767 (“[S]tatements from a 

witness, without further investigation by the police, are 

insufficient to support probable cause.”). Even construing 

the facts in the officers’ favor, which is erroneous, and 

assuming they did see that Brett matched Benjamin’s 

description, the circumstances faced by the officers fell far 

short of even those in which we have found no probable 

cause. There was no report of a missing person, nor did the 

unverified report state that the blindfolded woman was in 

any distress. In short, there was nothing but an unverified 

claim of a citizen witness, which we have held may not be 

relied upon to establish probable cause.3

 Struckman, 603 

F.3d at 742.

2 Even if this unverified report were reasonably trustworthy, the officers 

knew that Stephen was not the person involved in the report. There was 

therefore no probable cause to arrest Stephen.

3 Contrary to the majority’s suggestion, I do not “laser[] in on each piece 

of fact to argue that it alone cannot establish probable cause.” The 

majority forgets that the government bears a heavy burden in justifying 

a warrantless arrest in a home and that probable cause requires either 

knowledge or reasonably trustworthy information that an offense is 

being committed. The majority can point to no evidence of either. This 

is not a difficult case with unusual facts. Examining the totality of the 

circumstances and construing the facts in the plaintiffs’ favor, this is the 

information the officers had. First, they received an unverified, vague 

report of a blindfolded woman passenger in a car, which under our 

precedent is insufficient to establish probable cause for arrest. There was 

no outstanding missing person report. When the officers arrived at 
HILL V. CITY OF FOUNTAIN VALLEY 29

The complete lack of either knowledge or reasonably 

trustworthy information sufficient to lead a reasonably 

cautious person to believe that Brett was committing the 

offense of kidnapping means that there was no probable 

cause to arrest Brett. Because there was no probable cause 

to arrest Brett, there certainly was no probable cause to arrest 

Stephen for violating § 148. See Velazquez v. City of Long 

Beach, 793 F.3d 1010, 1018–19 (9th Cir. 2015) (explaining 

that a defendant cannot be convicted under § 148 for 

resisting or obstructing a police officer if the officer 

unlawfully arrests someone without probable cause); see 

also Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 

1159, 1178 (9th Cir. 2013) (“A suspect cannot be arrested 

for violating § 148 because he evaded an officer’s attempt to 

arrest him unlawfully.”).

II. Exigent Circumstances

Not only was there no probable cause, but the 

circumstances here fall far short of establishing exigent 

circumstances. “Before agents of the government may 

invade the sanctity of the home, the burden is on the 

government to demonstrate exigent circumstances that 

overcome the presumption of unreasonableness that attaches 

to all warrantless home entries.” Welsh, 466 U.S. at 750. 

Benjamin’s home, his parents were reluctant to give them Benjamin’s 

phone number until they confirmed that everything was “on the up and 

up.” Stephen told the officers that his infant granddaughter was in his 

truck, that he did not have Benjamin’s cell phone number on him, and 

that he had left his own cell phone in the house. The officers told him to 

take his granddaughter into the house. He did so and closed the curtains 

in the bedroom. One officer thought he saw a third person in the house. 

The “combined effect” of all these facts is not sufficient to establish 

reasonably trustworthy information that an offense was being 

committed.
30 HILL V. CITY OF FOUNTAIN VALLEY

“When the government’s interest is only to arrest for a minor 

offense, that presumption of unreasonableness is difficult to 

rebut, and the government usually should be allowed to 

make such arrests only with a warrant issued upon probable 

cause by a neutral and detached magistrate.” Id. (footnote 

omitted).

“The exigent circumstances exception is premised on 

‘few in number and carefully delineated’ circumstances, in 

which ‘“the exigencies of the situation” make the needs of 

law enforcement so compelling that the warrantless search is 

objectively reasonable under the Fourth Amendment.’” 

Struckman, 603 F.3d at 743 (first quoting U.S. Dist. Ct., 407 

U.S. at 318; and then quoting Brigham City v. Stuart, 547 

U.S. 398, 403 (2006)). Those circumstances are “(1) the 

need to prevent physical harm to the officers or other 

persons, (2) the need to prevent the imminent destruction of 

relevant evidence, (3) the hot pursuit of a fleeing suspect; 

and (4) the need to prevent the escape of a suspect.” Id. 

“The government bears the burden of showing specific and 

articulable facts to justify the finding of exigent 

circumstances.” Id. (quoting United States v. Ojeda, 276 

F.3d 486, 488 (9th Cir. 2002)). “[C]onjecture about ‘what 

may or might have happened’ is insufficient to satisfy the 

government’s ‘heavy burden’ of proving exigent 

circumstances.” Id. at 744 (quoting United States v. 

Howard, 828 F.2d 552, 555 (9th Cir. 1987)). The unverified 

passing observation that a woman in a car appeared to be 

blindfolded is even less trustworthy than the information in 

our cases finding that there were no exigent circumstances. 

The officers therefore were bound by the strict rules 

governing the search of a home, its curtilage, and its 

occupants, in the absence of a warrant.
HILL V. CITY OF FOUNTAIN VALLEY 31

In Struckman, the neighbor’s report of someone 

climbing over the fence into a backyard was confirmed by 

officers when they arrived and saw a person “exactly 

matching the informant’s description – white man, black 

jacket, red backpack” in the backyard. Sandoval, 756 F.3d 

at 1162 (emphasis added). Yet, even with this confirmation, 

we concluded that no exigent circumstances to justify the 

warrantless arrest existed. Struckman, 603 F.3d at 746. 

Struckman stated that there was no “hot pursuit,” nor any 

evidence to support “the government’s suggestion that the 

general public was in danger” because there was “no 

evidence that anyone other than the officers and [the suspect] 

was near the fully enclosed backyard.” Id. at 744. Nor did 

the evidence that the suspect removed his jacket “support an 

objectively reasonable basis for believing that the police 

officers’ reaction – immediately drawing their firearms and 

entering the enclosed backyard – was necessary to prevent 

imminent physical harm to themselves.” Id. We rejected the 

government’s reliance on the officer’s testimony that “once 

[the suspect] shed his jacket, he believed that [the suspect] 

intended to flee or fight the officers free of an 

encumbrance,” stating that “an officer’s subjective 

motivation for his actions is irrelevant in determining 

whether his actions are reasonable under the Fourth 

Amendment.” Id.

Similarly here, although the district court purported to 

examine the officers’ conduct from the perspective of an 

objectively reasonable officer, it relied on the officers’ 

subjective motivation when it concluded that the officers 

believed that Stephen’s shutting the curtains meant the 

occupants intended to “do battle.” The district court relied 

on United States v. Salvador, 740 F.2d 752 (9th Cir. 1984), 

but in Salvador, the officers had evidence that the occupants 
32 HILL V. CITY OF FOUNTAIN VALLEY

of the home were armed and had just robbed a bank. The 

majority repeats the error, relying on Salvador to speculate 

that “shutting window curtains can sometimes suggest that 

occupants are preparing ‘to do battle.’” This wild 

speculation is unsupported by any evidence.

In Salvador, law enforcement was investigating the 

armed robbery of a credit union a few hours after the robbery 

occurred. An FBI agent tracked down the car used in the 

robbery to the residence, knocked on the door, and 

announced he was from the FBI. Someone asked who was 

there, and the agent stated that he wanted to speak with the 

occupants. He received no further response, so he knocked 

again and announced he was from the FBI. When he “saw 

the window curtains rapidly close and heard some 

commotion from within the residence,” he “forced open the 

front door, believing the occupants were getting ready to ‘do 

battle.’” Id. at 756.

In Salvador, the FBI had confirmed evidence that the 

occupants of the house were violent, armed, and had 

committed a felony. There are no articulable facts here that 

could possibly support the speculation that the occupants of 

the home were preparing to “do battle.” The officers knew 

that Stephen and Teresa had gone into the house in order to 

take their grandchildren inside and get Benjamin’s phone 

number.

Stephen’s act of closing the curtains does not indicate 

that the warrantless arrest “was necessary to prevent 

imminent physical harm” to the officers. Struckman, 603 

F.3d at 744. The Hills were inside the house with their 

grandchildren, and the officers were outside. There was no 

evidence that the officers or the general public were in 

danger. See United States v. Nora, 765 F.3d 1049, 1054–55 
HILL V. CITY OF FOUNTAIN VALLEY 33

(9th Cir. 2014) (finding no immediate threat to the safety of 

officers or others to support exigent circumstances even 

though officers saw the suspect in possession of a handgun 

before he went into his house, stating that the suspect “never 

aimed the weapon at the officers or anyone else, and the 

officers had no evidence that he had used or threatened to 

use it” and had not “given any other indication that he was 

in ‘an agitated and violent state’” (quoting United States v. 

Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1985))). There was 

no evidence here of a crime, a weapon, a violent threat, or 

anything else that might signal danger to the officers or the 

general public – merely a closed curtain.

At least in Struckman, the officers had confirmed the 

neighbor’s report of someone climbing into the backyard. 

Here, there were no facts at all to support the suspicion of a 

possible kidnapping, merely “conjecture about ‘what may or 

might have happened.’” Struckman, 603 F.3d at 744 

(quoting Howard, 828 F.2d at 555).

The majority speculates that the officers “may have 

believed that ordering the Hills outside would ensure the 

safety of a potential kidnapping victim.” The majority relies 

on People v. Panah, 107 P.3d 790 (Cal. 2005), in which the 

officers knew that an eight-year-old girl had been missing 

for five hours and that she had been seen talking to a man in 

the defendant’s apartment when they conducted a 

warrantless search of his apartment. Panah’s facts are so 

different from those in this case that the opinion cannot 

support a finding of exigent circumstances here.

In Panah, the facts supporting a finding of exigent 

circumstances were that the girl “had been missing for 

several hours,” “she had been seen talking to a male 

occupant of defendant’s apartment, and a neighbor told [an 
34 HILL V. CITY OF FOUNTAIN VALLEY

officer] a young male lived in defendant’s apartment.” Id. at 

836. The California Supreme Court further noted that “the 

fact that the person missing was a child . . . heightened the 

exigency.” Id. at 837.

In Panah, there was a confirmed report of a child who 

had been missing for numerous hours despite the police 

search of the apartment complex, and there was evidence 

that the defendant had been seen speaking to her. There were 

therefore “specific and articulable facts” establishing 

exigent circumstances to justify the warrantless search. 

Struckman, 603 F.3d at 743. There were none here. Cf.

Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 

1990) (finding no “legitimate, articulate reason” for a 

detention where there was no warrant, “no evidence of a 

danger to public safety,” and no evidence the arrestee “was 

in possession of a controlled substance or had been or was 

about to be engaged in criminal activity”).

The Supreme Court has explained that “[o]ur hesitation 

in finding exigent circumstances, especially when 

warrantless arrests in the home are at issue, is particularly 

appropriate when the underlying offense for which there is 

probable cause to arrest is relatively minor.” Welsh, 466 

U.S. at 750. The underlying offense here was a purported 

violation of § 148, which not only is minor but is not 

sufficient on its own to justify a warrantless arrest. The City 

thus has not met its heavy burden of rebutting the 

presumption of unreasonableness.

III. Clearly Established Precedent

Despite concluding that the officers had no probable 

cause to arrest Stephen, the majority concludes that qualified 

immunity applies “because not all reasonable police officers 

would believe that they lacked probable cause to make the 
HILL V. CITY OF FOUNTAIN VALLEY 35

arrest, especially given the urgency and unique facts here.” 

The majority reaches its conclusion by calling the facts 

unique and thus concluding that we do not have any 

precedent addressing the situation. But every home is 

different, and every call to the police presents new 

circumstances. If all that was needed to justify a warrantless 

arrest was to call the situation unique, then every warrantless 

arrest would be justified and qualified immunity would 

always apply. The question is not whether we have 

precedent addressing the same facts, but whether a 

reasonable officer would know if the conduct was justified. 

Here, clearly established precedent controlled every aspect 

of the officers’ conduct. Probable cause cannot be 

established by an unconfirmed report by a citizen witness, 

but instead requires specific knowledge or reasonably 

trustworthy information that an offense has been committed. 

Sialoi, 823 F.3d at 1233; Struckman, 603 F.3d at 741-42; 

Hopkins, 573 F.3d at 767. A warrantless arrest in a home is 

presumptively unreasonable, and the government bears the 

heavy burden of showing specific and articulable facts 

establishing that exigent circumstances made the situation so 

compelling that the warrantless arrest is reasonable. Welsh, 

466 U.S. at 749; Struckman, 603 F.3d at 743. Refusal to 

cooperate with the police, without more, does not justify 

police intrusion. Velazquez, 793 F.3d at 1023; Mackinney, 

69 F.3d at 1006. All of this was clearly established at the 

time of the events here. 

One need only examine our precedent to see the variety 

of ways in which police officers encounter the public, and 

yet the officers are required to know the bounds of 

constitutional police conduct in each situation. For example, 

in Sialoi, an apartment manager called 911 to report two 

Black men, carrying guns and “ducking down around the 
36 HILL V. CITY OF FOUNTAIN VALLEY

apartment complex, as if waiting for someone.” Sialoi, 823 

F.3d at 1228. When officers arrived, they encountered a 

Samoan family having a family birthday party, saw a 

teenager who held something that appeared to the officers to 

be a gun (although the officers were told it was a paintball 

gun), approached with guns drawn, and handcuffed and 

detained everyone at the party, including young teenagers. 

Examining the facts in the plaintiffs’ favor, we held that 

there was no probable cause for the warrantless arrests 

because “[t]he police determined almost immediately” that 

the gun was a toy and none of the teenagers matched the 

description of the suspects. Id. at 1232. We rejected the 

defendants’ argument that the warrantless arrests were 

reasonable because “the officers found themselves in a 

potentially dangerous situation,” explaining that “[w]here no 

facts specific to the arrestees establish probable cause, 

officers may not rely on general background facts to 

immunize themselves from suit.” Id. at 1233. 

Nor were the officers’ actions reasonable in Hopkins, 

where someone reported to the police that she had been in a 

hit-and-run accident, followed the driver to his house, and 

suspected that the driver had been drinking. The officers 

arrived at the driver’s house, interviewed the witness, 

knocked loudly on the front door, and announced that they 

were police officers. After receiving no response, the 

officers speculated that the driver was in a diabetic coma 

and, based on this “potential medical emergency,” broke into 

the house, handcuffed, and arrested him. Hopkins, 573 F.3d 

at 761. We held that the citizen witness statement, without 

more, was insufficient to establish probable cause, and the 

“investigation of a potential misdemeanor drunk-driving 

incident” did not create an exigent circumstance to support 

the warrantless entry. Id. at 767–69, 771. Because the 
HILL V. CITY OF FOUNTAIN VALLEY 37

officers clearly violated the plaintiff’s Fourth Amendment 

rights, the question was whether the contours of the 

emergency or exigency exceptions to the warrant 

requirement were clearly established at the time of the 

events. Id. at 770–71. We “unhesitatingly conclude[d] that 

a reasonable officer would indeed have known that the 

emergency exception to the Fourth Amendment would not 

encompass a warrantless entry into a home based solely on 

statements from a third party that an individual inside the 

home appeared inebriated prior to entering the residence.” 

Id. at 771. There was “no doubt” that the law prohibiting the 

warrantless arrest in the home similarly was clearly 

established at the time and “thus should have been known by 

a reasonable officer.” Id. at 774. 

The majority criticizes me for relying on too general a 

rule in finding clearly established precedent. However, as 

illustrated by Sialoi and Hopkins, because of the variety of 

factual situations police encounter, we do not require cases 

with the same facts in order to find clearly established 

precedent. See also, e.g., Sandoval, 756 F.3d at 1165 

(officers who responded to report of two white males 

jumping a fence and looking through windows of a house in 

a neighborhood with recent burglaries, peered into a window 

of a home, saw three young males, entered the home, 

handcuffed, and detained them, were not entitled to qualified 

immunity); Johnson, 724 F.3d at 1173–81 (where officers 

responding to a report of a fight in a train encountered a 

group of people fitting the description of the alleged 

combatants, handcuffed, and arrested them, the district court 

properly denied qualified immunity on unlawful arrest 

claims); Rosenbaum v. Washoe County, 663 F.3d 1071, 

1074–79 (9th Cir. 2011) (per curiam) (where police received 

complaint that someone was selling free promotional tickets 
38 HILL V. CITY OF FOUNTAIN VALLEY

to a state fair, and arrestee admitted to selling the tickets, 

police unreasonably believed they had probable cause to 

arrest him for obtaining money by fraud or for “collecting 

for benefit without authority”); cf. Velazquez, 793 F.3d at 

1023 (where officers received a call regarding a disturbance 

at a home and found eight to ten people allegedly drinking 

and being loud across the street, reversing district court’s 

ruling that a reasonable jury could not have found the officer 

lacked probable cause to arrest for a violation of California 

Penal Code § 148).

Our caselaw thus does not require that clearly established 

precedent address the same factual situation. To the 

contrary, we consider whether clearly established precedent 

established constitutional principles that the officers should 

have known applied to the situation. See, e.g., Sandoval, 756 

F.3d at 1165 (holding that officer was not entitled to 

qualified immunity because “it was clearly established law 

as of 2009 that the warrantless search of a dwelling must be 

supported by either the exigency or the emergency aid 

exception”); Gravelet-Blondin v. Shelton, 728 F.3d 1086, 

1093 (9th Cir. 2013) (“The right to be free from the 

application of non-trivial force for engaging in mere passive 

resistance was clearly established prior to 2008.”); Maxwell 

v. County of San Diego, 708 F.3d 1075, 1083–84 (9th Cir. 

2013) (stating that, “[a]lthough detention of witnesses for 

investigative purposes can be reasonable in certain 

circumstances, such detentions must be minimally 

intrusive,” and that sheriffs accordingly were “on notice” 

that “they could not detain, separate, and interrogate” 

witnesses for hours); Karl v. City of Mountlake Terrace, 678 

F.3d 1062, 1074 (9th Cir. 2012) (“Although there is no case 

in our circuit with the same facts as those presented here, a 

reasonable official in [the assistant police chief’s] position 
HILL V. CITY OF FOUNTAIN VALLEY 39

would have known that it was unlawful to retaliate against 

an employee for providing subpoenaed deposition testimony 

in connection with a civil rights lawsuit alleging government 

misconduct.”). As the Supreme Court has explained, 

“officials can still be on notice that their conduct violates 

established law even in novel factual circumstances. Indeed, 

in [United States v. Lanier, 520 U.S. 259 (1997)], we 

expressly rejected a requirement that previous cases be 

‘fundamentally similar.’” Hope v. Pelzer, 536 U.S. 730, 741 

(2002). There can be “notable factual distinctions” between 

the precedent and the case before the court, “so long as the 

prior decisions gave reasonable warning that the conduct 

then at issue violated constitutional rights.” Lanier, 520 U.S. 

at 269; see Maxwell, 708 F.3d at 1083 (“‘[I]n an obvious 

case, [general] standards can “clearly establish” the answer, 

even without a body of relevant case law.’” (quoting 

Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).

“This is not a case where courts disagree about the 

contours of a constitutional right or where officers may be 

confused about what is required of them under various 

circumstances.” Rosenbaum, 663 F.3d at 1079. There is no 

question that a warrantless arrest in a home requires either 

probable cause and exigent circumstances or an emergency, 

and that both these exceptions are narrow. No reasonable 

officers could be confused about what is required of them 

when they approach residents inside their home, based solely 

on a vague, unconfirmed observation, and without a warrant. 

This case is unlike District of Columbia v. Wesby, 138 S. 

Ct. 577 (2018), in which the court of appeals denied the 

officers qualified immunity for false arrest based on a rule 

that “was not clearly established because it was not ‘settled 

law.’” Id. at 591 (quoting Hunter v. Bryant, 502 U.S. 224, 

228 (1991) (per curiam)). The Court reversed, reasoning 
40 HILL V. CITY OF FOUNTAIN VALLEY

that the lower court “relied on a single decision” in an area 

of unsettled law and that the officers therefore “could have 

interpreted the law as permitting the arrests.” Id. at 591, 593. 

By contrast, none of the circumstances here presented issues 

of unsettled law. The rules governing warrantless arrests in 

a home, for a violation of § 148, based solely on an 

unconfirmed citizen report, clearly prohibited the officers’ 

conduct here.

Failure to cooperate with the officers’ investigation was 

the only possible offense that the City offered as a 

justification for Stephen’s warrantless arrest, and the 

majority attempts to rely on this as well, stating that 

Stephen’s “evasive behavior . . . appeared to interfere with a 

urgent investigation.” However, as the majority 

acknowledges, “[i]t is well established under California law 

that even ‘an outright refusal to cooperate with police 

officers cannot create adequate grounds for [police] 

intrusion’ without more.” Velazquez, 793 F.3d at 1023 

(quoting Mackinney, 69 F.3d at 1006). The majority 

nonetheless concludes that a reasonable police officer could 

believe there was probable cause to arrest Stephen for a 

violation of § 148 because in several Ninth Circuit cases, “it 

was clear the plaintiff’s action was not an obstruction,” “the 

refusal was only verbal,” or “the plaintiff was obstructing an 

unlawful police act,” and that these facts were not present 

here.4 But this is not the standard. See Mackinney, 69 F.3d 

4 The record does not support the majority’s conclusion that those facts 

were not present here. What did Stephen do? He told the officers he 

wanted to ensure that everything was “on the up and up” before giving 

them Benjamin’s phone number. He told them that his infant 

granddaughter was in his truck, that he did not have Benjamin’s cell 

phone number on him, and that he had left his own cell phone in the 

house. The officers told him to take his granddaughter into the house. 
HILL V. CITY OF FOUNTAIN VALLEY 41

at 1006 (explaining that, “in People v. Cressey, 2 Cal. 3d 

836, 841 (1970), the California Supreme Court stated that 

the refusal to open a door upon a proper police request, was 

not a violation of § 148,” even though “the defendant never 

did capitulate”). The law is clear that even an outright 

refusal to cooperate is not sufficient, and, even if it were true 

that these factual distinctions exist, the precedent was clearly 

established at the time of the events here.

Nearly fifty years ago the California Supreme Court held 

that a warrantless arrest in a person’s home for obstructing a 

police investigation is unconstitutional. People v. Wetzel, 

520 P.2d 416 (Cal. 1974). In Wetzel, the police officers 

received confirmation of a citizen informant’s report of a 

burglary, and the informant then provided them with fresh 

information that proved to be reliable. Because the citizen’s 

report had been confirmed, the officers were in hot pursuit 

of the burglary suspect and thus did not need a search 

warrant to enter an apartment they thought the burglar had 

entered. However, the occupant of the apartment refused to 

allow the officers to enter, telling “the officers to ‘Get the 

hell out of here if you don’t have a damn warrant.’” Id. at 

417. She stood in the doorway and “remained adamant,” 

even though the officers threatened her “with arrest for 

obstructing an officer in carrying out his duties.” Id. at 418. 

The officers arrested her for obstruction of their 

investigation. The California Supreme Court held that her 

refusal to consent to the request to enter her apartment 

“cannot constitute grounds for a lawful arrest or subsequent 

search and seizure.” Id. at 419.

He did so and closed the curtains in the bedroom. None of this conduct 

establishes probable cause to arrest Stephen for a violation of § 148.
42 HILL V. CITY OF FOUNTAIN VALLEY

In Wetzel, the police were in hot pursuit and thus “were 

clearly correct in their assertion that they did not need a 

search warrant” to enter the apartment. Id. at 418. Not only 

that, but, unlike here, the officers had confirmation of the

citizen informant’s report. Also unlike here, the arrestee 

expressly refused to cooperate with the police. Yet, the court 

held that the arrest was unlawful. Id. at 420.

Thus, as early as 1974, it was clearly established in 

California that the refusal to allow entry to police officers, 

even in hot pursuit of a suspect in a confirmed report of an 

offense, did not justify an arrest under § 148. See

Mackinney, 69 F.3d at 1005–06, 1010 (holding that officers 

who arrested the suspect was not entitled to qualified 

immunity because “the officers had no grounds on which to 

arrest [him] other than his [purported] disobedience, which 

is insufficient”). By contrast, here, there was no 

confirmation of the citizen informant’s report, and the Hills 

did not blatantly refuse to cooperate as in Wetzel. Wetzel

establishes that no reasonable officer could have believed 

there was probable cause to arrest Stephen for a violation of 

§ 148. See Cressey, 471 P.2d at 23 n.6 (“If refusal of 

permission to enter could convert mere suspicion of crime 

into probable cause to arrest the occupant and search his 

home, such suspicion alone would become the test of the 

right to enter, and the right to be free from unreasonable 

police intrusions would be vitiated by its mere assertion.” 

(quoting Tompkins v. Superior Ct., 378 P.2d 113, 115 (Cal. 

1963)).

The majority relies on Rosenbaum for the proposition 

that qualified immunity applies if “not all reasonable police 

officers would believe that they lacked probable cause to 

make the arrest.” However, the facts of Rosenbaum show 
HILL V. CITY OF FOUNTAIN VALLEY 43

that it was unreasonable for the officers here to believe they 

had probable cause to arrest Stephen.

In Rosenbaum, one of the statutes on which the arresting 

officer relied had “no published authority, state or federal, 

that construes the provision, nor . . . any legislative history 

that clarifies its terms.” Rosenbaum, 663 F.3d at 1077. 

Nonetheless, we concluded that the statute was 

unambiguous and that no reasonable officer could have 

believed the arrestee violated the statute. Id. at 1079. 

Here, it has been clear since at least 1974 that California 

law prohibits a warrantless arrest in a home for obstructing 

a police investigation in violation of § 148. If we concluded 

in Rosenbaum that a reasonable officer should have known 

there was no probable cause to arrest under a statute which 

no published authority had addressed, certainly any 

reasonable officer should have known that California 

prohibited arresting someone in their home without a 

warrant solely for the minor offense of violating § 148.

The majority reasons that “the specter of an ongoing 

kidnapping likely colored the officers’ belief of whether an 

obstruction of justice occurred.” But a “specter” is not 

“knowledge or reasonably trustworthy information.”5 

Sialoi, 823 F.3d at 1232; see Sandoval, 756 F.3d at 1165 

(stating that “[t]he facts matter,” and concluding that, with 

“no evidence of weapons, violence, or threats” at the home, 

there were triable issues of fact as to whether the warrantless 

entry was justified and that the officer was not entitled to 

qualified immunity). Similar to Hopkins, in which neither a 

5 In a similar persuasion-by-adjective attempt, the majority repeatedly 

refers to a “potential” or “possible” kidnapping. But this does not aid, 

advance, or replace the required probable cause analysis.
44 HILL V. CITY OF FOUNTAIN VALLEY

“potential medical emergency” nor the “investigation of a 

potential misdemeanor drunk-driving incident,” based solely 

on a third party’s statement, justified the warrantless entry 

and arrest, Hopkins, 573 F.3d at 761, 771, the “specter” of a 

“potential kidnapping victim,” based solely on a third party’s 

vague observation of a blindfolded woman, does not justify 

the warrantless arrest here. 

As noted above, the facts are not unique. See supra, 

footnote 3. The majority does not explain what makes the 

facts so unique that the officers were justified in ignoring 

such basic, well-established constitutional principles as the 

requirements of a warrant, probable cause, and exigent 

circumstances in arresting someone in their home. The 

“salient question . . . is whether the state of the law” at the 

time of these events gave the officers “fair warning” that 

arresting Stephen in his home, without a warrant and without 

probable cause, based solely on an unconfirmed citizen 

report and for the minor offense of violating § 148, was 

unconstitutional. Hope, 536 U.S. at 741. The answer clearly 

is yes.

The protections of the Fourth Amendment cannot be 

swept aside merely by proclaiming that there was urgency, 

with no evidence to establish urgency, or by calling the facts 

“unique.” Our clearly established precedent sets forth a 

framework to determine the reasonableness of the officers’ 

actions, but the majority ignores this clear precedent. An 

arrest in a home requires a warrant supported by probable 

cause. A warrantless arrest is presumptively unreasonable. 

Relying on exigent circumstances requires probable cause, 

which they concededly did not have. Police officers may not 

simply ignore these clearly-established Fourth Amendment 

strictures. All of this law was clearly established at the time 

of the events. 
HILL V. CITY OF FOUNTAIN VALLEY 45

It further was clearly established at the time of the events 

that an outright refusal to cooperate with police officers did 

not permit a warrantless arrest in a home and that a 

warrantless arrest in a home required probable cause. 

Nonetheless, the record shows that the officers threatened 

the Hills with arrest for obstructing their investigation and 

did not acknowledge or investigate Stephen’s explanation 

that Benjamin was out with his wife. Instead, they quickly 

jumped to conclusions based on no evidence, escalating an 

innocent situation into a warrantless arrest unsupported by 

probable cause. 

The majority does serious damage to the Fourth 

Amendment, doing away with the requirement of probable 

cause for a warrantless arrest in a home, and extending the 

exigent circumstances far beyond the “‘few in number and 

carefully delineated’ circumstances” we have described. 

Struckman, 603 F.3d at 743. The majority also errs by 

construing the facts in the officers’ favor, allowing them to 

rely on conjecture and speculation, rather than showing 

specific and articulable facts to establish exigent 

circumstances, and failing to require them to show that a 

warrant could not have been obtained in time. The majority 

ignores our clearly established precedent, mistakenly 

concluding there was no such precedent prohibiting the 

arrest. 

I respectfully dissent from the majority’s affirmance of 

the dismissal of the unlawful seizure claim on qualified 

immunity grounds.6

6 I would also reverse the dismissal of the related state-law claims.