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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

POURYA MALEK,

Plaintiff,

v.

JEFFERY GREEN, et al.,

Defendants.

Case No. 17-cv-00263-BLF 

ORDER GRANTING IN PART 

WITHOUT LEAVE TO AMEND AND 

DENYING IN PART THE OFFICER 

DEFENDANTS’ OMNIBUS MOTION 

TO DISMISS THE FIRST AMENDED 

COMPLAINT

[Re: ECF 55]

This case arises out of an incident that occurred between Plaintiff Pourya Malek (“Malek”) 

and three police officers from the California Department of Justice (“DOJ”) at Malek’s home on 

February 4, 2016. Malek brought suit against Special Agents Jeffery Green, Lance Sandri, and 

Elisardo Favela (the “Officers”) for several violations of his civil rights pursuant to 42 U.S.C. 

§ 1983 and related state law causes of action. See ECF 1 (“Compl.”). Defendants moved to 

dismiss the original complaint, which the Court granted in part with leave to amend and denied in 

part. See ECF 49 (“Prior Order”). Malek filed a First Amended Complaint on October 18, 2017. 

See ECF 52 (“FAC”). The Officers now move to dismiss the FAC, arguing that they are entitled 

to qualified immunity on Malek’s amended § 1983 causes of action and that his state law claims 

also fail. See ECF 55 (“Mot.”). 

The Court held a hearing on the Officers’ motion to dismiss the FAC on May 3, 2018. For 

the reasons that follow as well as those stated on the record at the hearing, the Officers’ motion to 

dismiss is GRANTED IN PART WITHOUT LEAVE TO AMEND and DENIED IN PART. 
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I. BACKGROUND1

The facts of this case are familiar to the parties and the Court and are set forth at length in 

this Court’s Prior Order. The Court summarizes the relevant facts here, focusing on Malek’s 

amended allegations in the FAC. 

On October 22, 2012, Malek pleaded no contest in the California Superior Court for Santa 

Clara County to a misdemeanor charge of having violated California Penal Code § 417.4 

(brandishing of a replica firearm). FAC ¶ 40. A no-contest plea to a § 417.4 charge does not 

prevent a person from possessing or owning firearms, because the operative statute—California

Penal Code § 29805—does not list § 417.4 among the offenses for which a person may be 

convicted under § 29805. Id. ¶ 41. On or about February 4, 2016, the Officer Defendants 

reviewed a California Department of Justice-Bureau of Firearms Armed Prohibited Person System 

(“APPS”), Prohibited Person Report (“PPR”), which had been generated on November 12, 2015. 

Id. ¶ 42. The PPR stated that Malek had been convicted of Penal Code § 417.4 in 2012 and that 

he possessed seven registered firearms. Id. ¶¶ 43, 47. Malek alleges that he should not have been 

listed as a “prohibited person” because no criminal statute, including Penal Code § 29805, 

prohibits a person with a § 417.4 conviction from possessing or owning firearms. Id. ¶ 43. 

Based on two state audit reports finding that the DOJ failed to maintain the APPS database 

in connection with mental health-based firearm prohibitions, Malek alleges on information and 

belief that the database’s criminal conviction-based firearms prohibitions were similarly 

inaccurate. Id. ¶¶ 17-30. Malek further alleges that the Officer Defendants recklessly disregarded 

their training and knowledge about the inaccuracies in the APPS database by not reviewing the 

Penal Code, and § 29805 in particular, to ensure that Malek was properly included on the PPR at 

issue. Id. ¶¶ 38, 44-45. 

Rather than ensuring that Malek’s § 417.4 conviction made him eligible for inclusion on 

the PPR, Malek alleges that the Officers went to his home with the intention of getting him to 

 

1

The well-pled factual allegations in the FAC are construed in the light most favorable to Malek

for the purposes of this motion to dismiss. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 

690 (9th Cir. 2011).
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voluntarily surrender his firearms and to cite and release him, but not to arrest him and take him to 

jail. Id. ¶ 48. Around 9:00 P.M., the Officers arrived at Malek’s home and knocked on his door. 

Id. ¶ 50. Malek alleges that he partially opened the front door, while standing well within his 

home, some feet away from the front door’s threshold. Id. ¶ 51. Officer Green told Malek that he 

was prohibited from owning firearms due to his 2012 conviction. Id. Malek responded that the 

Officers were mistaken, because his criminal defense attorney had told him that he could lawfully 

possess firearms. Id. ¶ 52. Officer Green told Malek that he needed to give up his firearms, and 

Malek asked if the Officers had a warrant. Id. ¶¶ 53-54. Malek alleges that his repeated assertions 

of his rights made the Officers “visibly irritated.” Id. ¶ 54.

The Officer Defendants then told Malek that he had “options,” and he could either give up 

his firearms voluntarily, in which case he would not be taken to jail, or Malek could wait for the 

Officers to obtain a search warrant for the firearms, in which case Malek would be arrested and 

taken to jail. Id. ¶ 54. In response, Malek closed the door slightly, stepped back further into his 

house, stated that he wanted to speak to his attorney, and again demanded to see a search warrant. 

Id. ¶ 55. 

Although the Officers had not planned to enter Malek’s home or arrest him when they 

came to the house to confiscate the firearms, Malek alleges that the Officers decided to punish him 

for his “defiance” by not voluntarily surrendering his guns and asking to see a warrant. Id. ¶ 56. 

Specifically, Malek alleges that Officer Sandri barged into the house, crossing the threshold and 

forcing Malek back into his home. Id. ¶ 57. Officers Green and Favela followed behind Officer 

Sandri into the house, and all of the Officers stood in Malek’s living room when Officer Sandri 

told Malek he was under arrest. Id. ¶¶ 57-58. Malek was handcuffed behind his back with only 

one set of handcuffs, even though Malek alleges that the Officers had been trained to handcuff a 

person of Malek’s stature with two sets of handcuffs to avoid unnecessary pain. Id. ¶ 58. 

Before obtaining a search warrant, Malek alleges that Officers Green and Favela searched 

the house for the firearms that would eventually be the subject of the search warrant. Id. ¶ 60. 

The Officers located the gun safe and the shotgun in the bedroom that Malek had mentioned to 

them. Id. The pre-warrant search also included going into Malek’s garage to take photographs of 
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Malek’s vehicles. Id. ¶ 61. When Malek asked why the Officers were searching his home without 

a warrant, the Officers replied that they did not need one. Id. The FAC adds allegations that 

Malek asked his wife, Fatemeh, to get the court documents from his § 417.4 case. Id. ¶ 62. When 

Fatemeh, who was not handcuffed, retrieved the court documents and Malek showed them to 

Officer Sandri, the Officers did not change their conclusion that Malek was prohibited from 

owning firearms because of the § 417.4 offense. Id. 

Malek alleges that the Officers gave him another opportunity to give up his firearms and 

avoid being taken to jail, but Malek insisted that they get a search warrant for the guns. Id. ¶¶ 65-

66. Officer Sandri, who Malek alleges was the supervisor and leader of the operation, directed 

Officer Green to obtain a search warrant for the firearms. Id. ¶ 67. After Officer Green left the 

house to obtain the warrant, Officer Sandri continued to try to convince Malek to give up the 

firearms voluntarily, advising him that obtaining a warrant would take several hours. Id. ¶ 68. 

Malek refused again. Id. A few hours later, Malek told Officers Sandri and Favela that he was 

experiencing significant pain from the handcuffs, including that they were aggravating his preexisting back injury, and that the handcuffs were too tight on his wrists. Id. ¶ 71. Malek alleges 

that the Officers ignored his repeated complaints and refused his request to handcuff him in front, 

although Officer Sandri added a second pair of handcuffs after several hours. Id. ¶¶ 71-74. 

Meanwhile, Officer Green had authored a statement of probable cause in support of the 

search warrant that incorrectly stated: “[d]ue to the misdemeanor conviction, of 417.4 PC, 

MALEK is prohibited from owning or possessing firearms for a ten year period after the 

conviction date (through 10/23/2022) per section 29805 PC (Possession of Firearm by 

Misdemeanant), a felony violation.” Id. ¶ 77. Malek alleges that Officer Green violated his 

training and DOJ policy by not requesting that any attorney review his statement of probable cause 

of the search warrant before presenting them to the magistrate judge, who signed the search 

warrant at about 3:54 a.m. on February 5, 2016. Id. ¶¶ 78-79. Around 4:15 A.M. Officer Green 

called Officer Sandri and told him that he had obtained the search warrant. Id. ¶ 80. When Malek 

asked to see the search warrant, Officer Sandri was “frustrated” and told Malek that it was good 

enough that Officer Green had obtained it. Id. 
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As previously alleged, Officer Sandri instructed Malek to open the gun safe or the Officers 

would have a locksmith come drill it open. Id. Because Malek remained handcuffed, he 

instructed his wife to open the gun safe. Id. ¶ 81. Officers Favela and Sandri seized the guns and 

ammunition in the safe as well as several knives on display near the safe. Id. At some point after 

opening the gun safe, Officer Green returned to the house and showed the search warrant to 

Malek. Id. One or more of the Officers also searched the house after opening the gun safe and 

took photographs. Id.

At 6:00 A.M. on February 5, 2016, at which point Malek had been in handcuffs for 

approximately nine hours, Malek heard Officer Green tell Officer Sandri that they should put 

down 6:00 A.M. as the time for Malek’s arrest. Id. ¶ 83. The Officers then transported Malek to 

Santa Clara County Jail where he was booked on charges for violations of two felonies: California 

Penal Code § 29805 and § 30305 (prohibiting possession of ammunition, based on a violation of 

§ 29805). Id. ¶ 86. Malek remained in custody until 1:00 P.M. on February 5, 2016. Id. A few 

hours later, at 6:00 P.M. that evening, Officer Sandri left a voicemail for Malek stating that their 

“paperwork” had been incorrect and that Malek was not prohibited from owning or possessing 

firearms. Id. ¶ 87. The Officers returned Malek’s firearms and ammunition at 9:00 p.m. on 

February 5, 2016. Id.

In response to the Court’s Prior Order, Malek filed the FAC. He reasserts the following 

federal claims pursuant to 42 U.S.C. § 1983 against the Officers for (1) unlawful entry into the 

home (“Count 1”); (2) unlawful arrest (“Count 2”); (3) unlawful searches (“Count 3”); 

(4) excessive force (“Count 4”); (5) violation of the Second Amendment (“Count 5”);2and (6) 

retaliation (“Count 6”). See FAC ¶¶ 96-116. Malek also realleges state law causes of action 

against the Officer Defendants for (7) violation of the Bane Act, California Civil Code § 52.1 

(“Count 7”); (8) negligence and personal injuries (“Count 8”); (9) assault and battery (“Count 9”); 

and (10) false arrest or imprisonment (“Count 10”). FAC ¶¶ 117-137.

 

2 At the May 3, 2018 hearing on the Officers’ motion to dismiss the FAC, Malek voluntarily 

dismissed Count 5 based on a violation of the Second Amendment. Accordingly, the Officers’ 

motion to dismiss Count 5 of the FAC is GRANTED WITHOUT LEAVE TO AMEND. 
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II. LEGAL STANDARD

A. Rule 12(b)(6)

“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 

claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 

Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 

729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 

as true all well-pled factual allegations and construes them in the light most favorable to the 

plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the 

Court need not “accept as true allegations that contradict matters properly subject to judicial 

notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or 

unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 

(internal quotation marks and citations omitted). While a complaint need not contain detailed 

factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

Pursuant to Federal Rule of Civil Procedure 15(a), a court should grant leave to amend a 

complaint “when justice so requires,” because “the purpose of Rule 15 ... [is] to facilitate decision 

on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 

(9th Cir. 2000) (en banc). The Court may deny leave to amend, however, for a number of reasons, 

including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 

virtue of allowance of the amendment, [and] futility of amendment.” Eminence Capital, LLC v. 

Aspeon, Inc., 316 F.3d 1048, 1052 (2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

B. Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil 

damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
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conduct.’” Wood v. Moss, 134 S.Ct. 2056, 2066–67 (2014) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 

2074, 2080 (2011)). “[T]he Supreme Court has ‘repeatedly ... stressed the importance of resolving 

immunity questions at the earliest possible stage in litigation.’” Dunn v. Castro, 621 F.3d 1196, 

1199 (9th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Under the applicable 

pleading standard, the plaintiff must allege facts sufficient to make out a plausible claim that it 

would have been clear to the defendant officer that his conduct was unlawful in the situation he 

confronted. Id. at 2067. “Because qualified immunity is an affirmative defense from suit, not 

merely from liability, ‘[u]nless the plaintiff’s allegations state a claim of violation of clearly 

established law, a defendant pleading qualified immunity is entitled to dismissal before the 

commencement of discovery.’” Doe By and Through Doe v. Petaluma City School Dist., 54 

F.3d1447, 1449–50 (9th Cir. 1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). 

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-part approach 

for analyzing qualified immunity. The analysis contains both a constitutional inquiry and an 

immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003). The 

constitutional inquiry requires the court to determine this threshold question: “Taken in the light 

most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct 

violated a constitutional right?” Saucier, 533 U.S. at 201. If the Court determines that a 

constitutional violation could be made out based on the parties’ submissions, the second step is to 

determine whether the right was clearly established. Id. “The relevant, dispositive inquiry in 

determining whether a right is clearly established is whether it would be clear to a reasonable 

officer that his conduct was unlawful in the situation he confronted.” Id. at 202. The Supreme 

Court has clarified that the sequence of analysis set forth in Saucier is not mandatory and that a 

court may exercise its sound discretion in determining which of the two prongs of the qualified 

immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223, 241-42 (2009). Thus, in 

some cases, it may be unnecessary to reach the ultimate constitutional question when officers 

would be entitled to qualified immunity in any event, a result consistent with longstanding 

principles of judicial restraint. 
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The Supreme Court recently reiterated the longstanding principle that a “clearly 

established” constitutional right “should not be defined ‘at a high level of generality.’” White v. 

Pauly, 137 S. Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). Rather, it must be 

“particularized” to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 

(1987)). Defining the right at too high a level of generality “avoids the crucial question whether 

the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff v. 

Ricard, 134 S.Ct. 2012, 2023 (2014). “[A] defendant cannot be said to have violated a clearly 

established right unless the right’s contours were sufficiently definite that any reasonable official 

in the defendant’s shoes would have understood that he was violating it.” Id. “In other words, 

‘existing precedent must have placed the statutory or constitutional question’ confronted by the 

official ‘beyond debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). “A right can be clearly 

established despite a lack of factually analogous preexisting case law, and officers can be on 

notice that their conduct is unlawful even in novel factual circumstances.” Ford v. City of Yakima, 

706 F.3d 1188, 1195 (9th Cir. 2013). “The relevant inquiry is whether, at the time of the officers’ 

action, the state of the law gave the officers fair warning that their conduct was unconstitutional.” 

Id.

III. DISCUSSION

A. Section 1983 Claims

To state a claim under § 1983, a plaintiff must allege that “(1) the defendants acting under 

color of state law (2) deprived plaintiff [ ] of rights secured by the Constitution or federal statutes.” 

Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). As explained above, even if a 

plaintiff plausibly alleges the deprivation of a constitutional right under color of state law, 

government officials are protected from liability for civil damages by the doctrine of qualified 

immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged 

conduct.” Wood, 134 S.Ct. at 2066–67 (quoting al-Kidd, 131 S.Ct. at 2080). 

The Officers move to dismiss each of Malek’s § 1983 claims alleged in the FAC based on 

qualified immunity. See generally Mot. For the reasons that follow, as well as those stated on the 
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record at the May 3, 2018 hearing, the Officers’ motion to dismiss Malek’s § 1983 claims is 

GRANTED IN PART WITHOUT LEAVE TO AMEND and DENIED IN PART. 

i. Arrest without Probable Cause

Although it is the second count in the FAC, the Court begins by addressing Malek’s § 1983 

claim for an unlawful arrest.

3

 An arrest made without probable cause is an unreasonable seizure 

under the Fourth Amendment. Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th 

Cir. 2001). Probable cause to arrest exists when, “under the totality of the circumstances known to 

the arresting officers ... a prudent person would believe the suspect had committed a crime.” 

Dubner, 266 F.3d at 966.

The Court previously dismissed the unlawful arrest claim with leave to amend, finding that 

Malek failed to allege an unreasonable mistake of law by the Officers and further concluding that 

any alleged violation was not clearly established. See Prior Order at 10-18. The Officers argue 

that, even accepting Malek’s amended allegations as true, the Officers remain shielded by 

qualified immunity under either prong of the test. Mot. at 6-12. The Court agrees, and finds that 

the Officers are entitled to qualified immunity under both prongs with respect to Malek’s § 1983

claim for an unlawful arrest.

Malek’s unlawful arrest claim still boils down to whether the Officers were required to 

cross-check § 29805 once they reviewed the PPR in order to ensure that Malek’s § 417.4 

misdemeanor was a qualifying offense. Under the first prong of qualified immunity, Malek argues 

that he has alleged a constitutional violation because the Officers’ reliance on the PPR was 

objectively unreasonable. Opp’n at 10-11, ECF 60 (“To the extent Defendants made a mistake of 

law, it was not a reasonable mistake, and probable cause therefore was lacking.”) Despite 

additional factual pleading, the Court finds that Malek has not plausibly alleged that it was 

objectively unreasonable for the Officers to rely on the PPR to provide an accurate representation 

of the law without checking the statute itself. Regardless, any alleged constitutional violation was 

not clearly established. 

 

3 As discussed below, the unlawful arrest claim is entirely distinct from Malek’s claim for 

unlawful entry into the home (Count 1). 
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The Court has reviewed Malek’s allegations that the California State Auditor investigated 

the APPS database in 2013 and 2015 regarding firearms prohibitions for mentally ill individuals. 

See FAC ¶¶ 18-31. The Court need not change its previous determination that Malek fails to state 

a claim for an unlawful arrest because Malek’s new allegations regarding the California State 

Auditor’s reports on the APPS database are implausible. The allegations about the existence of 

errors concerning mental illness prohibitions do not inform the constitutional reasonableness 

inquiry in Malek’s case.

4

 In particular, the audit reports, which the Officers provided to the Court 

based on the incorporation by reference doctrine, primarily dealt with the issue of false negatives 

due to the underreporting from Superior Courts of individuals with mental health issues who 

possessed guns. See Declaration of Robert S. J. Rogoyski, Exh. A, ECF 55-1. This case 

undeniably deals with a false positive: Malek’s inclusion on the PPR when, in fact, he never 

committed a qualifying offense. Accordingly, the Court gives no weight to Malek’s allegations 

based on the State Auditor’s reports because it is not plausible that the results would put any 

reasonable officer on notice of completely unrelated database flaws.

In addition, Malek’s allegations “on information and belief” that the DOJ and the Bureau 

of Firearms train their field officers to cross-check the statutes for every PPR lack the requisite 

factual support under Twombly and Iqbal, and require the Court to make an unreasonable 

inferential leap. Thus, even assuming that the Officers failed to check whether § 417.4 was a 

qualifying offense under § 29805, Malek has not plausibly alleged that it was objectively 

unreasonable for the Officers to rely on the PPR to conduct further fieldwork to confirm other 

information to support probable cause to arrest Malek. For the foregoing reasons, as well as those 

discussed at length in its Prior Order regarding the unlawful arrest claim, the Court finds that the 

Officers’ alleged conduct meets the Fourth Amendment’s reasonableness standard and Malek has 

failed to state a plausible claim that he was arrested without probable cause.

 

4 Malek does not allege that he suffers from any mental illness. Rather, his theory, alleged on 

information and belief, is that although the prohibitions related to criminal convictions were not 

the subject of the State Auditor’s review of the APPS database, those prohibitions suffered from the 

same inaccuracies as the prohibitions related to mental health. See FAC ¶ 26.
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Regardless of the constitutional violation, the unlawful arrest claim fails under the second 

prong of qualified immunity as well. The Ninth Circuit has recently emphasized that it is Malek’s 

burden under the second prong of qualified immunity to identify a case indicating that the right 

allegedly violated was clearly established. “Except in the rare case of an ‘obvious’ instance of 

constitutional misconduct (which is not presented here), Plaintiffs must identify a case where an 

officer acting under similar circumstances as [defendants] was held to have violated the Fourth 

Amendment.” Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in 

original) (quoting White v. Pauly, 137 S.Ct. at 552). The preexisting law identified must also be 

“controlling—from the Ninth Circuit or Supreme Court—or otherwise be embraced by a 

consensus of courts outside the relevant jurisdiction.” Id. (internal citation and quotation omitted). 

The Supreme Court has “repeatedly told courts—and the Ninth Circuit in particular—not 

to define clearly established law at a high level of generality.” City & Cnty. Of San Francisco v. 

Sheehan, 135 S.Ct. 1765, 1775–76 (2015) (citations omitted). The Ninth Circuit has responded: 

“We hear the Supreme Court loud and clear.” S.B. v. Cty. of San Diego, 864 F.3d 1010, 1015 (9th 

Cir. 2017). Accordingly, in order for the Court to impose liability on the Officers, there must be 

precedent as of February 4, 2016—the night of Malek’s arrest—that put the Officers on notice that 

arresting Malek in these factual circumstances would run afoul of the Fourth Amendment. Id. 

Malek has failed for the second time to point the Court to such precedent, nor has the Court found 

any such case. 

In light of the particular circumstances alleged in the FAC, the question before the Court is 

whether it was clearly established on February 4, 2016 that officers who knew the APPS database 

contained errors related to mental health issues, and who ignored training and policy directing 

them to confirm whether § 417.4 is a qualifying offense under § 29805, could not rely on a DOJissued PPR identifying an individual illegally possessing firearms to support probable cause to 

arrest once the suspect identified himself and confirmed that he owned the guns. 

None of the cases cited by Malek present similar factual circumstances and thus they do 

not put the Officers on notice that Malek’s arrest was unlawful. Malek mentions the following 

cases in his opposition: Willis v. Mullins, 517 F.Supp.2d 1206, 1226 (E.D. Cal. 2007), aff’d sub 
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nom. Willis v. Mora, 314 F. App’x 68 (9th Cir. 2009); United States v. Miguel, 368 F.3d 1150, 

1154 (9th Cir. 2004) overruled on other grounds by United States v. Gasca-Ruiz, 852 F.3d 1167 

(9th Cir. 2017); Littlefield v. Viveros, No. 1:06-cv-1530 OWW-DLB, 2007 WL 4284864 (E.D. 

Cal. Dec. 4, 2007); Torres v. County of Madera, NO. 1:10-cv-00670 LJO SKO, 2011 WL 

6141080 (E.D. Cal. Dec. 9, 2011); Torres v. City of Madera, 648 F.3d 1119, 1228-29 (9th Cir. 

2011); and Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004). See Opp’n at 12-13, 

ECF 60. 

With respect to Willis, Littlefield, and Torres v. County of Madera, these district court 

decisions are not controlling Ninth Circuit or Supreme Court authority and the Court need not 

consider them in its analysis under the second prong of qualified immunity. Sharp, 871 F.3d at 

911. Moreover, Malek does not demonstrate that these cases form a “consensus” with other court

decisions amounting to clearly established preexisting law. Each of these cases is also factually 

dissimilar from Malek’s arrest in this case. 

The Ninth Circuit did affirm the district court’s denial of qualified immunity at the 

summary judgment stage in Willis, but in that case, the plaintiff’s name erroneously appeared on a 

parole roster and the defendants did nothing further to confirm the mistaken factual information. 

314 F. App’x at 69. “Based solely on their belief that Plaintiff was a parolee subject to a search 

condition,” the defendants entered Plaintiff’s motel room without his consent. 517 F. Supp. 2d at

1221. Here, Malek alleges that the Officers confirmed all of the relevant factual information in the 

PPR—Malek’s conviction, his address, identity, and that he owned the registered firearms at 

issue—but instead Malek challenges the reasonableness of the Officers’ failure to know that 

§ 417.4 is not a qualifying offense for § 29805. Willis does not address the reasonableness of a

mistake of law, as it was decided before the Supreme Court made clear in Heien v. North Carolina 

that the Court’s Fourth Amendment inquiry must consider the objective reasonableness of a 

mistake of law. 135 S.Ct. 530, 539 (2014).5 

 

5

In Heien, an officer stopped a vehicle because one of its two brake lights was out, but it was later 

determined that the law only required a single working brake light. 135 S.Ct. at 534. In other 

words, the defendant was pulled over despite the fact that his conduct did not actually violate any 

law. The defendant was then charged with drug possession based on the post-arrest search of his 
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For similar reasons, United States v. Miguel also fails to clearly establish the constitutional 

violation in this case. 368 F.3d 1150, 1154 (9th Cir. 2004). Miguel was another pre-Heien case 

where two sheriff’s deputies pulled over the defendant’s car based on the mistaken belief that the 

car’s registration had expired. Id. at 1151. Without conducting a further investigation, the 

deputies searched the car and found five illegal immigrants hiding in the back seat and trunk of the 

car. Id. at 1151-52. The Ninth Circuit held that “if the deputies were mistaken in believing that 

the vehicle registration had expired, their mistake was one of fact due to their reasonable reliance 

on the expiration date in a computer database.” Id. at 1152. Malek does not explain how a vehicle 

registration database is anything like the APPS database or the PPR in this case, or how Miguel is 

relevant given that those deputies “did not misapprehend the law.” Id. at 1154. Put simply, Miguel 

does not put a reasonable officer in Defendants’ position on notice that failing to confirm whether 

§ 417.4 is included in § 29805, even when Malek insisted that his possession of the firearms was 

permitted, violated clearly established law. 

In Littlefield, officers conducted a traffic stop of plaintiff for failing to stop at a stop sign. 

2007 WL 4284864, at *1 (E.D. Cal. Dec. 5, 2007), report and recommendation adopted, No. 106-

CV-1530-OWW-DLB, 2008 WL 598246 (E.D. Cal. Mar. 4, 2008). After the officers retrieved the 

plaintiff’s driver’s license, they called dispatch who erroneously told one of the officers that the 

plaintiff was on active felony probation and that he was open to search and seizure. Id. The 

officers searched the plaintiff’s vehicle based on the information from dispatch, although an 

investigation later revealed that the plaintiff was not on probation at the time of the search. Id. 

In addition to being a district court decision that cannot clearly establish the law in this 

case, Littlefield actually recommended granting the officers’ motion to dismiss because the 

allegations in the plaintiff’s complaint—although they likely stated a constitutional violation—

supported a finding that the officers were entitled to qualified immunity. 2007 WL 4284864, at *4 

(E.D. Cal. Dec. 5, 2007). The Littlefield court held that the officers “were reasonable in relying on 

 

car. The defendant moved to suppress evidence seized from his car on the grounds that the stop 

and search were invalid under the Fourth Amendment. The Supreme Court held that the officer’s 

mistake about the brake-light law was reasonable, and such a reasonable mistake of law rendered 

the seizure lawful under the Fourth Amendment. Id. at 534.
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the erroneous dispatch report, despite Plaintiff’s statements that he was not on parole or probation. 

If the Court found otherwise, it would essentially result in a requirement that law enforcement 

officials, when faced with conflicting information from a suspect, take additional affirmative steps 

to verify information. Given the situations in which officers often find themselves, they do not 

have the luxury of time or resources to confirm the information they receive during traffic stops.” 

Id. Thus, although the court applied the standard discussed above from Willis, Littlefield is not a 

case where an officer acting under similar circumstances as the Officer Defendants was found to 

have violated the Fourth Amendment. Sharp, 871 F.3d at 911. If anything, its conclusion 

supports that the Officers’ reliance on the APPS and PPR to arrest Malek was reasonable. 

Torres v. County of Madera also fails to get Malek over the qualified immunity hurdle. In 

Torres, parole officials reviewed the plaintiff’s case file and two state parolee databases and 

identified the plaintiff as an active parolee subject to “search and supervision.” 2011 WL 6141080

at *1 (E.D. Cal. Dec. 9, 2011). Based on that information, the officials conducted a parole search 

of the plaintiff’s residence. Id. It turned out that the plaintiff was not on active parole at the time 

of the search. Id. at *4. Again, Malek does not even attempt to explain how cases involving the 

specific context of an erroneous parole search would notify these Officers in this case that reliance 

on the APPS and PPR in a firearms investigation was unreasonable.6 As the Officers point out, 

parole rosters and PPRs are not comparable as they are compiled by different entities, use different 

data sources and serve different purposes. Reply at 3, ECF 61. 

Malek also cites, in passing, to the Ninth Circuit’s decision in Torres v. City of Madera, 

648 F.3d 1119, 1228-29 (9th Cir. 2011). Opp’n at 12. Malek cites to City of Madera for general 

propositions of law but he does not argue—nor could he—that its factual circumstances clearly 

establish the law in this case. City of Madera dealt with the tragic shooting of an individual who 

was handcuffed in the back seat of a patrol car based on the officer’s mistaken belief that she was 

 

6

The Torres court acknowledged that parole cases are unique in that where a parolee has signed a 

condition of parole allowing searches by law enforcement without a warrant, an officer may 

conduct a warrantless search of the parolee and his residence without offending the Fourth 

Amendment. No. 1:10-CV-00670 LJO, 2011 WL 6141080, at *4 (E.D. Cal. Dec. 9, 2011).
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shooting with her taser when in fact she shot and killed the individual with a semiautomatic pistol. 

648 F.3d at 1120. Given the material factual differences to the circumstances confronted by the 

Officers in this case, City of Madera does not clearly establish that Malek’s arrest violated the 

Fourth Amendment.

Finally, the amended allegations in the FAC do not convince the Court to change its prior 

conclusion that Beier v. City of Lewiston, 354 F.3d 1058 (9th Cir. 2004) does not demonstrate that 

the Officers’ conduct violated “clearly established” federal law. See Prior Order at 15-16. Malek 

repeats his previously rejected argument that Beier satisfies the second prong of qualified 

immunity because the Ninth Circuit denied qualified immunity where officers simply relied on 

incorrect information conveyed by their dispatcher and did not read the protective order. Opp’n at 

13. Malek argues that Beier cited to “precisely analogous” cases clearly establishing that officers 

have a duty to read a search warrant before executing it. Id. 

In Beier, the officers relied on the statement of an ordinary citizen, Susan, to arrest the 

plaintiff after Susan called the police to report that the plaintiff was violating a restraining order 

she had in place against him. 354 F.3d at 1063. The officers “knew nothing about the terms of the 

order other than what, if anything, Susan told them.” Id. It turned out that none of the plaintiff’s 

actions were a violation of the protective order. Id. at 1067. The Ninth Circuit concluded that the 

officers lacked probable cause to arrest the plaintiff and that “[a]ny reasonably competent officer 

would have ascertained the terms of the protection order before arresting Beier for failing to 

comply with it.” Id. at 1072. As the Court explained in its Prior Order, in stark contrast to Beier, 

Malek’s case does not involve an unsubstantiated legal conclusion by an ordinary citizen that 

Malek had violated a law. Here, the Complaint alleges that the Officers reviewed an official 

Prohibited Persons Report, generated by personnel at the California Department of Justice, that 

contained a mistake but nevertheless indicated to the Officers that Malek possessed seven firearms 

in violation of § 29805. See Prior Order at 15. 

The Ninth Circuit in Beier confirmed that “when there is a conflict between legal 

information obtainable from official channels and legal information obtained from lay citizens, 

police officers may reasonably rely upon officially-obtained information.” 354 F.3d at 1070. 
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Malek does not address the Court’s previous concerns with using Beier to clearly establish the 

alleged unlawful arrest in this case. Beier is not sufficiently analogous to notify the Officers that it 

was objectively unreasonable to rely on the information contained in the DOJ-issued PPR.

Malek also argues that the Officers’ training and standards placed them on notice of clearly 

established law. Opp’n at 12-13 (citing Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th 

Cir. 2003); Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002); 

Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1162, n. 7, 1168, n.9 (9th Cir. 2011)). Other than 

mere citations to these factually dissimilar cases, Malek does not explain how these cases clearly

establish the unlawfulness of his arrest. Like the cases above, the Court finds that Drummond, 

Headwaters, and Young do not clearly establish that the Officers’ conduct was unconstitutional. 

The Court also rejects Malek’s argument that the Penal Code gave the Officers fair 

warning of the constitutional violation. Opp’n at 13 (“Statutory law, including the California 

Penal Code, can place officers on notice of clearly established law.”) (citing Hardwick v. Cty. of 

Orange, 844 F.3d 1112, 1120 (9th Cir. 2017)). In Hardwick, a child brought a § 1983 action 

against county social workers, alleging that the social workers maliciously used perjured 

testimony and fabricated evidence to secure the child’s removal from her mother. 844 F.3d at 

1114. Not only are the facts of Hardwick completely irrelevant to the case at hand, but the Ninth 

Circuit identified a pertinent state statute that warned the social worker defendants “in 

unmistakable language of the personal consequences of lies, perjury, and deception: the loss of 

immunity for such conduct.” Id. at 1120. Malek’s argument that the entire Penal Code gave the 

Officers fair warning of the unlawfulness of their conduct stretches Hardwick too far, as it applies 

only to an “obvious” case of unconstitutional conduct. Id. (“We believe this is the kind of case the 

Supreme Court had in mind in Hope when it talked about conduct so clearly and obviously wrong 

that the conduct itself unmistakably ‘should have provided [defendants] with some notice’ that 

their alleged conduct violated their targets’ constitutional rights.”)

For the foregoing reasons, as well as those stated in the Court’s Prior Order, the Officers 

are shielded by qualified immunity on Malek’s claim for an unlawful arrest (Count 2). Malek fails 

to allege a constitutional violation and further fails to “point to prior case law that articulates a 
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constitutional rule specific enough to alert these [Officers] in this case that their particular 

conduct was unlawful.” 871 F.3d at 911 (emphasis in original). Without precedent that would 

have alerted the Officers that their conduct was unlawful, or a showing that the alleged 

constitutional violation was so “obvious” that a specific case on point is not required, qualified 

immunity applies. The Officers’ motion to dismiss Malek’s second cause of action in the FAC for 

unlawful arrest is GRANTED WITHOUT LEAVE TO AMEND. 

ii. Unlawful Entry to Arrest

The FAC now clarifies that Malek brings a § 1983 claim against the Officers for unlawful 

entry into the home in violation of the Fourth Amendment as a separate cause of action from his 

unlawful arrest claim. See FAC ¶¶ 96-101. Even if the Officers had probable cause to arrest 

Malek, the arrest in this case may have violated the Fourth Amendment if the Officers’ entry into 

Malek’s home to affect the arrest in his living room was unlawful. 

At the very core of the Fourth Amendment “stands the right of a man to retreat into his 

own home and there be free from unreasonable governmental intrusion.” Silverman v. United 

States, 365 U.S. 505, 511 (1961). In fact, “physical entry of the home is the chief evil against 

which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Court for E. 

Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972). Based on the right to be secure inside one’s 

home, the Supreme Court held in Payton v. New York that the Fourth Amendment “prohibits the 

police from making a warrantless and nonconsensual entry into a suspect’s home in order to make 

a routine felony arrest.”445 U.S. 573, 576 (1980). Therefore, “searches and seizures inside a 

home without a warrant are presumptively unreasonable.” United States v. Martinez, 406 F.3d 

1160, 1163 (9th Cir. 2005) (internal quotation marks omitted) (quoting Payton, 445 U.S. at 586). 

“With few exceptions, the question whether a warrantless search of a home is reasonable and 

hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31 (2001). But 

exceptions to the warrant requirement do exist, and officers can rebut the presumption of 

unreasonableness by showing some exception to the warrant requirement excused them from 

getting a warrant. See Fisher v. City of San Jose, 557 F.3d 1069, 1074-75 (9th Cir. 2009).

Here, the Officers argue that two exceptions excused their undisputedly warrantless entry 
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into Malek’s home: (1) the “doorway” exception; and (2) exigent circumstances. Mot. at 12-14. 

The Court disagrees, and finds that the FAC adequately pleads that the Officers violated the 

Fourth Amendment by crossing the threshold of the doorway into Malek’s home to arrest him 

without a warrant, without consent, and absent exigent circumstances, while he stood in his living 

room. Moreover, Malek’s right to be free from such an unlawful entry was clearly established as 

of February 4, 2016. The qualified immunity analysis on this claim may look different at 

summary judgment once the factual record has been developed. However, as pled, the Officers 

are not entitled to qualified immunity for their alleged unlawful entry into the home. The motion 

to dismiss Count 1 of the FAC is DENIED. 

a. The Doorway Exception

First, the Officers argue that the unlawful entry claim should be dismissed because the case 

law is clear that a suspect may not thwart an otherwise proper arrest by retreating into the home, 

even if the arresting officer must follow the individual into the home to affect the arrest. Mot. at 

12-13 (citing United States v. Santana, 427 U.S. 38, 42 (1976) and United States v. Botero, 589 

F.2d 430, 432 (9th Cir. 1978)). Malek argues that the new allegations in the FAC make clear that 

he never stood in the doorway to his home, and therefore he was never in a public place and the 

doorway exception does not apply. See Opp’n at 14 (citing FAC ¶¶ 51, 55, 57-58). In its Prior 

Order, the Court found that the Officers were entitled to qualified immunity under the second 

prong. See Prior Order at 18-25. The Court now finds that the FAC pleads around qualified 

immunity and this cause of action may proceed to discovery. 

1. Constitutional Violation

The Officers argue that the new allegations in the FAC should not change the Court’s prior

qualified immunity analysis because under United States v. Santana, 427 U.S. 38, 42 (1976), and 

United States v. Botero, 589 F.2d 430, 432 (9th Cir. 1978), a suspect may not thwart an otherwise 

proper arrest by retreating into the home, even if the arresting officer must follow the individual 

into the home to affect the arrest. See Mot. at 13. Because Malek has now pled that he was never 

in the doorway and was not arrested “at the door,” the Court finds that the Santana and Botero line 

of authority is inapplicable to the constitutional analysis. 
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In Santana, the Supreme Court established that the open doorway of a private residence is 

a public place where an individual does not have any expectation of privacy. 427 U.S. at 42 

(relying on prior precedent from United States v. Watson, 423 U.S. 411 (1976) holding that 

warrantless arrest of an individual in a public place does not violate the Fourth Amendment). In 

Santana, undercover officers investigating a drug conspiracy pulled up in front of the defendant’s 

house, where she was “standing in the doorway of the house,” with a brown paper bag in her hand. 

427 U.S. at 40. One of the officers testified that Santana was “directly in the doorway,” meaning 

that “one step forward would have put her outside, one step backward would have put her in the 

vestibule of her residence.” Id. at 40 n.1. “As the officers approached, Santana retreated into the 

vestibule of her house.” Id. at 40. The officers followed her through the open door and arrested 

her inside of her home. Id. 

In holding that the warrantless arrest in Santana was lawful, the Supreme Court reasoned 

that “[w]hat a person knowingly exposes to the public, even in his own house or office, is not a 

subject of Fourth Amendment protection.” 427 U.S. at 42 (citing Katz v. United States, 389 U.S. 

347, 351 (1967)). Santana therefore had no expectation of privacy when she stood in the doorway 

because she “was exposed to public view, speech, hearing, and touch as if she had been standing 

completely outside her house.” 427 U.S. at 42. The Supreme Court explained that Santana’s 

retreat into her house could not thwart an otherwise proper arrest. Id. at 43 (“We thus conclude 

that a suspect may not defeat an arrest which has been set in motion in a public place, and is 

therefore proper under Watson, by the expedient of escaping to a private place.”) The Supreme 

Court also found that the warrantless entry into Santana’s home was justified as a “hot pursuit,” 

permitting them to cross the threshold to arrest her inside the vestibule. Id. 

In contrast, Malek alleges that he never stood in a public place. FAC ¶ 51. Rather, he 

alleges that when the Officers knocked on his door, Malek “partially opened the front door while 

standing well within his home, some feet away from the front door’s threshold.” Id. The FAC 

never alleges that Malek moved into public view at the doorway or outside of his house, and 

ultimately alleges that Malek “closed the door slightly, stepped back further into his house, stated 

that he wanted to speak to his attorney, and he again demanded to see Defendants’ search 
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warrant.” Id. ¶ 55. After Malek closed the door, Officer Sandri “barged into [Malek’s] home, 

crossing the threshold, pushing open the front door, and forcing [Malek] to walk backwards 

further into his home so that [Officer Sandri] would not walk into him.” Id. ¶ 57. The other 

Officers followed Officer Sandri into the house, and Malek clearly conveyed his lack of consent to 

the entry by firmly asking something to the effect of: “what were they doing coming into his 

house?” Id. Based on these allegations, the Court cannot infer that Malek was ever “exposed to 

public view, speech, hearing, and touch” as if he had been standing completely outside of his 

home. Santana, 427 U.S. at 42. The Court draws the plausible inference from the FAC that while 

Malek conferred with the police, he stood at least an arm’s length from the doorway, inside the 

vestibule of his private home. 

Malek also alleges that at the time of his arrest—meaning when the Officers actually told 

him he was under arrest and handcuffed him behind his back—all of the Officers and Malek were 

standing in his living room. FAC ¶ 58. Therefore, it is clear for purposes of this motion to 

dismiss that the actual arrest occurred inside the vestibule of Malek’s home and not in the 

doorway. See, e.g., United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980) (“[I]t is the 

location of the arrested person, and not the arresting agents, that determines whether an arrest 

occurs within a home.”). 

These allegations bring this case outside the realm of Santana, as well as Botero and 

United States v. Vaneaton, 49 F.3d 1423 (9th Cir. 1995), which involved suspects who were

arrested at the doorway. In Vaneaton, at the moment of arrest, the suspect “was standing at the 

doorway [to his motel room] but just inside the threshold.” 49 F.3d at 1425. The police did not 

enter Vaneaton’s room until after they formally placed him under arrest. Id. at 1427. In Botero, 

the Ninth Circuit applied Santana to uphold the legality of a warrantless arrest of a defendant 

standing in the doorway of his home. 589 F.2d 430. Botero, who was under surveillance, opened 

his door in response to a knock by police and was arrested while he stood “in the doorway.” Id. at 

431. None of these cases speaks to the situation alleged in the FAC where Malek never exposed 
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himself to a public place and was placed under arrest in his living room. FAC ¶¶ 55-58.7

The Court agrees with Malek that the “at the door” exception to the warrant requirement 

does not apply to arrests made beyond the doorway. See Opp’n at 14 (citing LaLonde v. Cnty. of 

Riverside, 204 F.3d 947, 955 (9th Cir. 2000)). In LaLonde, the Ninth Circuit interpreted Santana 

and Vaneaton to mean that “[t]he Fourth Amendment’s prohibition on warrantless entry into an 

individual’s home does not apply to arrests made at the doorway, because the doorway is 

considered a public place.” 204 F.3d 947, 955 (9th Cir. 2000). However, the arrest in LaLonde, 

like Malek’s arrest alleged in the FAC, was not made at the doorway. Rather, when LaLonde’s 

roommate opened the door in response to the police, LaLonde came into view but “remained 

inside the apartment and did not at any time reach the doorway.” Id. at 951. LaLonde spoke to the 

police from inside the apartment about a disturbing the peace complaint that had been made by his 

neighbor. Id. at 955. Ultimately, the officers “crossed the threshold of the door and entered 

LaLonde’s apartment” to pepper spray and arrest him. Id. The Ninth Circuit held that “the 

present case does not fall under the doorway exception,” and reversed the district court’s finding 

of qualified immunity on LaLonde’s claim for illegal entry. Id. 

The Officers attempt to distinguish this case from LaLonde because it was Malek, and not 

his wife or roommate, who opened the door to the house in response to a noncoercive police 

knock. See Reply at 8-9. Unlike LaLonde, the Officers argue, Malek exposed himself to a 

warrantless arrest by opening the door at all, and his retreat “further” into the home could not 

thwart an otherwise proper arrest. Id. at 9 (citing Santana, 427 U.S. at 42). But as discussed 

above, the arrestees in Santana, Vaneaton, and Botero all stood in a public place when the Officers 

sought to arrest them. The Court finds, drawing all reasonable inferences in favor of Malek at this 

stage, that Malek was never in the doorway and the arrest did not take place in the doorway. 

Therefore, at this stage, the doorway exception does not justify the Officers’ warrantless entry to 

arrest Malek in his living room. 

 

7 Moreover, the Court found that exigent circumstances existed in both Santana and Botero, 

whereas no exigent circumstances are alleged in this case, as discussed below. 
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2. Clearly Established

Regardless of the existence of a constitutional violation, Malek’s unlawful entry claim only 

survives the Officers’ assertion of qualified immunity if that right was clearly established at the 

time of the incident. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court acknowledges 

that it previously held that based on the original complaint, the unlawful entry was not clearly 

established at the time of the challenged conduct. See Prior Order at 19. This is because in 

defending his original complaint, Malek did not meet his burden to identify a case that would have 

alerted a reasonable officer under the circumstances that entering Malek’s home was unlawful. 

Based on the amended allegations in the FAC, the Court finds that Malek has now met his

burden under the second prong of qualified immunity to “identify a case where an officer acting 

under similar circumstances as [defendants] was held to have violated the Fourth Amendment.” 

Sharp, 871 F.3d at 911 (emphasis in original) (quoting White v. Pauly, 137 S.Ct. at 552). Malek 

argues that LaLonde clearly establishes that law enforcement officers cannot break the threshold 

of a home to detain or arrest an individual who is standing inside his home. 204 F.3d 947, 955 (9th 

Cir. 2000); see Opp’n at 15. The Court agrees that the Ninth Circuit was clear in LaLonde that the 

doorway exception does not extend to circumstances where the officers did not attempt to arrest 

the suspect at the doorway, but rather asked the suspect questions while the suspect stood “a few 

feet inside the apartment.” 204 F.3d at 955. If the arrest takes place only after the officers have 

crossed the threshold of the door and entered the home, the Ninth Circuit clearly established that 

such a case “does not fall under the doorway exception.” Id. Thus, LaLonde put the constitutional 

question confronting the Officers in Malek’s case “beyond debate.” Sheehan, 135 S.Ct. at 1774.

Malek also cites to Quintero v. City of Escondido, No. 15-CV-2638-BTM-BLM, 2017 WL 

4005345, at *6–7 (S.D. Cal. Sept. 11, 2017). Opp’n at 15. Quintero itself cannot clearly establish 

the law in this case because it is from a district court and it post-dates the alleged incident. 

However, Quintero relies on controlling precedent from the Ninth Circuit in United States v. 

Quaempts, 411 F.3d 1046, 1048 (9th Cir. 2005), which the Court finds is adequately particularized 

to the facts of this case. See White v. Pauly, 137 S.Ct. at 552.

In Quaempts, the Ninth Circuit began by explaining: “Darrell Quaempts’ trailer home was 
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so small that he could open the front door while lying in his bed. His doing so on one unfortunate 

occasion, in response to the knock of Yakima Nation police officers, resulted in his warrantless 

arrest for sexual assault.” 411 F.3d at 1047. The Ninth Circuit affirmed the district court’s grant 

of Quaempts’ motion to suppress statements made immediately following the arrest, because the 

court held that the government required a warrant before arresting Quaempts at home. Id. The 

government argued in Quaempts that the suspect waived any expectation of privacy when he 

opened the door to the police. The Ninth Circuit clearly held that the doorway exception did not 

apply because “Quaempts was not standing in the doorway of his home, however, he was in his 

bed. By reaching over and opening the door he did not waive the expectation of privacy expressly 

guaranteed by the Fourth Amendment to all persons to be secure in their houses.” Id.

Although Malek’s home was not so small that he could open the front door from his bed, 

he does allege that he was a large-statured man, over 6 feet tall, who could plausibly remain “well 

within his home” when he partially opened the front door to police. FAC ¶¶ 51, 58. The question 

before the Ninth Circuit in Quaempts was whether the suspect waived any expectation of privacy 

in his house by knowingly opening the door to the police knock while he remained in bed. 411 

F.3d at 1048. The Ninth Circuit answered that question with a resounding “no,” and explained 

that extending the holding of Vaneaton “beyond the threshold into the interior of the home would 

do violence to the principles laid down in Payton that established a zone of privacy inside the 

physical dimensions of one’s home.” Id. (citing Payton, 445 U.S. at 589). As in Quaempts, the 

Court must infer from the FAC that Malek “did not take himself outside the physical zone of 

privacy of the house by going to the threshold of his house or to any other public place.” 411 F.3d 

at 1048–49. Thus, as alleged, it was clearly established that the Officers could not break the 

threshold of Malek’s home under the doorway exception to arrest him without a warrant or exigent 

circumstances. LaLonde and Quaempts involve similar factual circumstances to those alleged in 

the FAC sufficient to give the Officers fair warning that entering Malek’s home was 

unconstitutional. 

b. Exigent Circumstances 

Aside from the “doorway” exception, the Officers argue that exigent circumstances existed 
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to justify the warrantless entry into Malek’s house. See Mot. at 13. The Court did not resolve the 

exigent circumstances issue in its Prior Order because the unlawful entry claim was dismissed

with leave to amend under the doorway exception. Prior Order at 25-26. Now, without qualified 

immunity on the doorway exception or consent to enter, the Officers needed either a warrant or 

exigent circumstances to lawfully cross the threshold into the house. As pled in the FAC, they had 

neither. Thus, although the Court agrees that the Officers are entitled to qualified immunity with 

respect to whether the arrest was supported by probable cause, their warrantless entry into the 

vestibule of Malek’s home to arrest him in the alleged circumstances was unconstitutional. 

“The Fourth Amendment prohibits police officers from making a warrantless entry into a 

person’s home, unless the officers have probable cause and are presented with exigent 

circumstances.” LaLonde, 204 F.3d at 954 (citing United States v. Prescott, 581 F.2d 1343, 1350 

(9th Cir. 1978) (“[A]bsent exigent circumstances, police who have probable cause to arrest a 

felony suspect must obtain a warrant before entering a dwelling to carry out the arrest.”)). Exigent 

circumstances can include, in relevant part to this case, “(1) the need to prevent physical harm to 

the officers or other persons, [and] (2) the need to prevent the imminent destruction of relevant 

evidence.” United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010).

The Officers argue that the FAC pleads exigent circumstances on its face. Mot. at 13-14. 

Specifically, once Malek confirmed the information in the PPR, refused to surrender his registered 

firearms, and closed the door (FAC ¶¶ 51-53), the Officers argue that they were entitled to make a 

split-second decision to enter the home to prevent Malek—a suspect with a prior misdemeanor 

conviction—from destroying or concealing evidence of gun ownership, or arming himself for 

violent resistance. Mot. at 14. The Officers’ reliance on Santana and United States v. Lindsey, 

877 F.2d 777, 781 (9th Cir. 1989) to demonstrate that exigent circumstances exist on the face of 

the FAC is unavailing. Santana was undeniably a “hot pursuit” case, and Lindsey involved the 

officers’ reasonable belief that guns and bombs were inside a house in a densely populated 

residential neighborhood. 877 F.2d at 781. 

Here, the FAC pleads only that Malek confirmed he had a misdemeanor conviction and 

several registered firearms. Under the facts alleged, it was clearly established that the warrantless 
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entry was not justified by exigent circumstances. LaLonde, 204 F.3d at 958 n. 16 (“The mere fact 

that a person owns a rifle and does not like law enforcement officials does not in itself allow 

police officers to enter the person’s home and seize him simply because he is unwilling to step 

into the public domain for questioning, even if probable cause exists to believe that some offense 

has been committed.”) 

As stated on the record at the May 3, 2018 hearing, the FAC does not plead exigent 

circumstances and the Officers’ argument that they are entitled to qualified immunity on the 

unlawful entry claim will have to wait for a developed factual record at summary judgment. The 

existence of exigency is purely conjectural at this point, and to find otherwise would support the 

sweeping and legally unsupported conclusion that exigency exists every time a suspect who owns 

a gun does not respond to questioning or allow police to enter his or her home. 

For the foregoing reasons, the Officers’ motion to dismiss Count 1 for unlawful entry is 

DENIED. Whether the doorway exception or exigent circumstances shields the Officers from 

liability for their warrantless entry may be revisited at summary judgment, when the Court has the 

benefit of deposition testimony and body camera footage. As it stands, Malek has pled that he 

maintained his position within the vestibule of his home at all times, at least an arm’s length from 

the doorway, and that he was arrested in his living room. The Court also cannot infer any 

exigency justifying the intrusion. Malek has thus alleged that the Officers’ entry into his home 

violated his Fourth Amendment rights, which were clearly established under the circumstances. 

iii. Unlawful Searches

Malek’s third § 1983 cause of action for unlawful searches in violation of the Fourth 

Amendment includes separate allegations that the Officers conducted (1) an unlawful pre-warrant 

search of Malek’s home; and (2) an unlawful search based on a facially invalid search warrant 

procured by judicial deception. See FAC ¶¶ 105-107.8 The Officers move to dismiss both claims 

 

8

In response to the Officers’ request for a more definite statement on Malek’s previously 

dismissed claim for execution of an overbroad search warrant, Malek confirmed that he no longer 

pursues claims based on the search warrant’s overbreadth. See Opp’n at 3. 
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for failure to state a claim and based on qualified immunity. Mot. at 17-19. The Court addresses 

each allegedly unconstitutional search in turn.

a. Pre-Warrant Search

Malek alleges that before obtaining a search warrant, Officers Green and Favela searched 

the house, located the gun safe and shotgun, and took photographs of Malek’s vehicles in his 

garage. FAC ¶¶ 60-61. The Court finds that the § 1983 claim for an unlawful pre-warrant search 

is tied to the Officers’ unlawful entry into Malek’s home without a warrant or exigent 

circumstances. The cases relied on by the Officers are inapplicable, as those cases involved 

protective sweeps where they officers were lawfully within the home. See, e.g., Maryland v. Buie, 

494 U.S. 325, 327 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). If the Officers 

could not constitutionally enter Malek’s house, as discussed above, it follows that they are not 

shielded by qualified immunity for the protective sweep. 

For the reasons discussed above regarding the unlawful entry, as well as those stated on the 

record at the May 3, 2018 hearing, the Officers’ motion to dismiss Malek’s third cause of action 

based on an unlawful pre-warrant search is DENIED.9 

b. Judicial Deception

In contrast to the pre-warrant search, the Court finds that the judicial deception claim rises 

and falls with Malek’s claim for an arrest without probable cause. Malek alleges that the Officers, 

under the supervision of Officer Sandri, caused or permitted a false search warrant to be drafted 

and presented to a judge. Opp’n at 19 (citing FAC, ¶¶ 67, 77-79, 88). The false statement in 

support of probable cause was that Malek was prohibited from owning or possessing firearms 

under Penal Code § 29805 due to his § 417.4 conviction. FAC ¶ 77. There is no allegation that 

any of the Officers ever reviewed § 29805—indeed, Malek’s theory is that the Officers did not 

check the statute even though they had an obligation to know the law that they were enforcing. 

 

9 With respect to Officer Sandri, the FAC alleges that he remained with Malek while Officers 

Green and Favela conducted the pre-warrant search. FAC ¶ 60. However, Malek also alleges that 

Officer Sandri “supervised” the entire operation. Id. ¶ 7. Thus, even if Sandri did not conduct the 

pre-warrant search, this claim may move forward based on Officer Sandri’s supervisory liability.
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Thus, the same qualified immunity analysis for the Officers’ probable cause to arrest applies to the 

judicial deception claim.

As discussed at length above, the unlawful arrest claim fails under both prongs of qualified 

immunity because it was not objectively unreasonable for the Officers to rely on the PPR to 

support probable cause to arrest once they confirmed Malek’s identity, conviction and that he 

owned firearms. The right allegedly violated was also not clearly established. The Officers are 

therefore also entitled to qualified immunity on the judicial deception claim for stating their 

reasonable basis for probable cause in the search warrant application. Accordingly, the Officers’ 

motion to dismiss Count 3 based on a search pursuant to a warrant obtained by judicial deception

is GRANTED WITHOUT LEAVE TO AMEND. 

iv. Excessive Force

Count 4 of the FAC alleges that the Officers used excessive force in violation of Malek’s

Fourth Amendment rights. See FAC ¶¶ 108-110. Supreme Court precedent directs this Court to 

analyze claims of excessive force during an arrest under the Fourth Amendment’s reasonableness 

standard. Graham v. Connor, 490 U.S. 386, 395 (1989). Under Graham, “determining whether 

force used in making an arrest is excessive calls for a fact-intensive inquiry requiring attention to 

all circumstances pertinent to the need for the force used.” Velazquez v. City of Long Beach, 793 

F.3d 1010, 1024 (9th Cir. 2015); see also Green v. City & Cnty. of S.F., 751 F.3d 1039, 1049 (9th 

Cir. 2014) (the “objective reasonableness” of officers’ use of force “is determined by an 

assessment of the totality of the circumstances”). The Supreme Court has acknowledged that there 

is no “easy-to-apply legal test” for an excessive force claim. Scott v. Harris, 550 U.S. 372, 383 

(2007). Rather, courts “must still slosh our way through the factbound morass of 

‘reasonableness.’” Id. 

Pursuant to Graham, whether a particular seizure is reasonable must be “judged from the 

perspective of a reasonable officer on the scene,” 490 U.S. at 396, and “requires careful attention 

to the facts and circumstances of each particular case, 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. Courts are also free to 
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consider issues outside the three enumerated in Graham when additional facts are necessary to 

account for the totality of circumstances in a given case. See Mattos v. Agarano, 661 F.3d 433, 

441 (9th Cir. 2011).

This Court previously dismissed Malek’s excessive force claim under the second prong of 

qualified immunity because it was not clearly established under the particularized allegations that 

the Officers’ use of handcuffs for nine hours while they procured the search warrant amounted to a 

constitutional violation. See Prior Order at 26-32. Malek was granted leave to amend his 

allegations regarding the nature of his handcuffing and detention. Id. at 32. Malek now pleads 

that he was initially handcuffed behind his back with only a single set of handcuffs even though 

the Officers were trained to use two sets of handcuffs on large statured persons. FAC ¶ 58. At 

some point a few hours after Officer Green left to procure the search warrant, Malek alleges that 

he told Officers Sandri and Favela that he was experiencing pain from the handcuffs because he 

had a pre-existing injury and the handcuffs were too tight, but his complaints were ignored. Id. 

¶ 71. Malek also asked Officer Sandri to handcuff him in the front but Officer Sandri refused, 

even though he had discretion to handcuff arrestees in front where the arrestee is cooperative and 

nonthreatening. Id. ¶¶ 72-73. Eventually Officer Sandri handcuffed Malek in the back using two 

sets of handcuffs. Id. ¶ 74. Officer Sandri also ignored Malek’s request to take his prescribed 

medication for his back and shoulder pain. Id. ¶ 76. 

Importantly, the Court dismissed all of Malek’s claims in the original complaint, including 

the unlawful entry claim. Now, because the Court concludes that the Officers are not entitled to 

qualified immunity at this stage on the unlawful entry, the Court also finds that Malek has 

adequately pled an excessive force claim and that the constitutional violation alleged was clearly 

established in light of the unlawful entry. Malek has alleged that the Officers were not 

constitutionally permitted to cross the threshold into his home under the circumstances (i.e.

without a warrant, consent, or exigency) and therefore it was unreasonable for the Officers to use 

any force to detain him in his living room. Opp’n at 19-20. Accordingly, the cases relied on by 

the Officers holding that handcuffing is routine practice during a lawful arrest or the execution of a 

lawful search warrant are not applicable where the Officers’ very presence in Malek’s home was 
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unconstitutional. See Shaw v. City of Redondo Beach, No. CV-05-0481-SVW-FMO, 2005 WL 

6117549, at *7 (C.D. Cal. Aug. 23, 14 2005) (collecting cases); Sinclair v. Akins, 696 F. App’x 

773, 776 (9th Cir. 2017); Muehler v. Mena, 544 U.S. 93, 98 (2005).10

Separate and apart from the issue of whether any use of force was justified if the unlawful 

entry was unlawful, Malek also alleges that he complained to Officers Sandri and Favela that the 

handcuffs were too tight and causing him unnecessary pain. FAC ¶ 71. Regarding the issue of 

overly tight handcuffing, the Officers argue that they are shielded by qualified immunity because 

there is no consensus among courts on whether a tight handcuffing claim without any alleged 

injury is cognizable. See Reply at 11. But the Officers do not convince the Court that Malek must 

allege at the pleading stage—as opposed to offering evidence at summary judgment—that he 

suffered actual injury beyond expressing his discomfort and pain to the Officers. 

The primary case relied on by the Officers, Arpin v. Santa Clara Valley Transportation 

Agency, held that conclusory allegations of injury from handcuffing that are unsupported by 

medical records or other factual data are insufficient to defeat a motion for summary judgment. 

261 F.3d 912, 922 (9th Cir. 2001). But Arpin does not speak to what is required to plead a 

constitutional violation at the motion to dismiss stage, and the facts in Arpin did not involve an 

allegation that the plaintiff had complained about the tightness of the handcuffs. Id. Thus, Arpin

does not preclude Malek’s claims that the Officers used excessive force by keeping Malek 

handcuffed tightly behind his back for nine hours causing him unnecessary and prolonged pain 

after ignoring his complaints that the handcuffs were too tight and aggravating his pre-existing 

back injury. See FAC ¶¶ 71-76. The law is clearly established in these circumstances that “overly 

tight handcuffing can constitute excessive force.” Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 

(9th Cir. 2004); Meredith v. Erath, 342 F.3d 1057, 1063 (9th Cir. 2003) (holding that “to place and 

keep [a person] in handcuffs that were so tight that they caused her unnecessary pain violated her 

 

10 The Court acknowledges that an excessive force claim cannot be predicated solely on the fact of 

an unlawful arrest. Velazquez v. City of Long Beach, 793 F.3d 1010, 1030 (9th Cir. 2015). 

However, it is the “need for force which is at the heart of the Graham factors,” and thus, the force 

used to make an arrest must be balanced against the need for that force. See Blankenhorn v. City 

of Orange, 485 F.3d 463, 480 (9th Cir. 2007). Malek has alleged that there was no need for any 

force because there was no legal basis for the Officers to handcuff him at all in his living room. 
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Fourth Amendment right to be free from an unreasonable seizure”); LaLonde, 204 F.3d at 960 (“A 

series of Ninth Circuit cases has held that tight handcuffing can constitute excessive force.”) 

For the foregoing reasons, as well as those stated on the record at the May 3, 2018 hearing, 

the Officers’ motion to dismiss Malek’s excessive force claim is DENIED. At summary 

judgment, the Court may revisit whether Arpin requires Malek to point to specific evidence in the 

record to demonstrate that he sustained actual injuries. 261 F.3d at 922.

v. Retaliation

The sixth count in the FAC alleges that the Officers interfered with Malek’s “right to be 

free from government retaliation for exercise of Constitutional rights (including Second 

Amendment rights to lawfully possess firearms and Fourth Amendment rights to be free from 

invasion and search of home without a warrant) and for protected speech in exercise of 

Constitutional rights, as secured by the First Amendment and Fourteenth Amendments of the U.S. 

Constitution.” FAC ¶ 115(a). Malek’s theory is that the Officers did not go to his home with the 

intent to arrest him, but became “visibly irritated” and decided to arrest and “spitefully” handcuff

Malek only after he asserted his rights. See FAC ¶¶ 48-49, 54, 58; Opp’n at 22. Malek alleges 

that he was punished for his “defiance” in refusing to do things “the easy way” and giving up his 

firearms voluntarily. FAC ¶ 56. 

To state a claim for retaliation under the First Amendment, Malek must allege facts to 

support that (1) the Officers’ conduct “would chill or silence a person of ordinary firmness from 

future First Amendment activities,” and (2) “the evidence must be sufficient to establish that the 

officers’ desire to chill [Malek’s] speech was a but-for cause of their conduct.” Ford v. City of 

Yakima, 706 F.3d 1188, 1194 (9th Cir. 2014). The Court previously dismissed the retaliation 

claim for failure to allege a constitutional violation under the first prong of qualified immunity. 

See Prior Order at 35-37. The Officers argue that the new allegations do not save Malek’s claim, 

and that they are entitled to qualified immunity under the second prong as well. See Mot. at 21.

For the reasons outlined in the Court’s Prior Order, as well as those stated on the record at 

the May 3, 2018 hearing, Malek has not plausibly alleged that the Officers’ conduct was motivated 

by a desire to retaliate against him for his assertion of his Second and Fourth Amendment rights. 
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Even if the Court assumes that the Officers originally intended to cite and release Malek without 

plans to arrest him—which is conclusory and not supported by any factual allegations—that is not 

sufficient to allege causation. It is not plausible to infer that Malek would not have been arrested, 

handcuffed, had his home searched and taken to jail “but for” the Officers’ retaliatory animus and 

desire to punish him for his speech. 

Police encounters occur every day where officers start conversations with citizens, ask 

investigative questions, and make determinations as to a course of action. Thus, it is not 

surprising that Malek fails to identify a case that even comes close to clearly establishing that 

police officers cannot discuss alternatives with suspects before making an arrest or detention. See 

Opp’n at 23 (citing Ford, 706 F.3d at 1195 and Morales v. Fry, 873 F.3d 817, 826 (9th Cir. 

2017)). Neither Ford nor Morales is factually analogous to the case at hand, but rather stand for 

the general principle that it is unlawful for the police to retaliate against individuals for their protected 

speech.11 Even if Malek could make out a plausible retaliation claim, which he has not, the 

circumstances presented are certainly not an obvious case of constitutional misconduct and the law 

was not clearly established. 

For the foregoing reasons, the FAC does not plausibly allege a retaliation claim against the 

Officers. The Officers are further entitled to qualified immunity under the second prong because 

the state of the law did not give the officers fair warning that giving Malek alternatives and 

deciding to arrest him when he refused to give up his firearms voluntarily was unconstitutional. 

See Ford, 706 F.3d at 1195. Accordingly, the Officers’ motion to dismiss the retaliation claim 

under § 1983 is GRANTED WITHOUT LEAVE TO AMEND. 

B. State Law Causes of Action

i. Bane Act

Malek reasserts his claim against the Officers for a violation of the Bane Act, California 

Civil Code § 52.1. FAC ¶¶ 117-122. Because the Bane Act claim covers the same acts challenged 

under § 1983, the Officers argue that Count 7 should also be dismissed. Mot. at 22. As discussed 

 

11 Moreover, Morales post-dates Malek’s arrest and cannot clearly establish the constitutional 

violation in this case. 873 F.3d 817.
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above, however, Malek has pled viable § 1983 claims for unlawful entry (Count 1), unlawful prewarrant search (Count 3), and excessive force (Count 4), and therefore his Bane Act claim based 

on the conduct underlying these claims cannot be dismissed on that basis.

The Officers argue that the Bane Act claim independently fails because Malek does not 

plead coercion independent from the alleged constitutional violations. Mot. at 22. The Court 

previously found this argument persuasive and dismissed the Bane Act claim in the original 

complaint with leave to amend in order for Malek to allege independent “threats, intimidation, or 

coercion.” See Prior Order at 38-39 (citing Doe v. State, 8 Cal. App. 5th 832, 842–43 (Ct. App. 

2017), review denied (June 14, 2017)). However, Malek now persuasively argues that allegations 

of an independent “threat, intimidation, or coercion” are not required to state a Bane Act claim. 

The California Court of Appeal recently clarified in Cornell v. City and County of San 

Francisco that the Bane Act does not require “a plaintiff to allege a showing of coercion 

independent from the coercion inherent in the seizure or use of force.” 17 Cal. App. 5th 766, 803 

n.31 (Ct. App. 2017), as modified (Nov. 17, 2017), review denied (Feb. 28, 2018); accord, 

Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105–06 (9th Cir. 2014) (“[T]he elements of the 

excessive force claim under §52.1 are the same as under § 1983.”) Rather, coercion can be proven 

by showing that a violation of rights was intentional. Cornell, 17 Cal. App. 5th at 801-802 (“[T]he 

egregiousness required by Section 52.1 is tested by whether the circumstances indicate the 

arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable 

seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the 

wrongful detention.”)

Absent definitive guidance from the California Supreme Court, who denied review in 

Cornell, the Officers urge the Court to reject Cornell and rely instead on “settled” law followed by 

the Ninth Circuit, requiring a plaintiff to allege independent coercive conduct. Reply at 15 (citing 

Lyall v. City of Los Angeles, 807 F.3d 1178, 1196 (9th Cir. 2015); Kenner v. United States, 689 F. 

App’x 558, 560 (9th Cir. 2017) (unpublished); Feiman v. City of Santa Monica, 656 F. App’x 870, 

871 (9th Cir. 2016) (unpublished)). 

As discussed at the May 3, 2018 hearing, the ground underneath the Bane Act continues to 
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move and the Court finds that dismissal of the Bane Act claim at this stage would be premature 

and unsupported by recent developments in the law. Indeed, in the recent decision Reese v. 

County of Sacramento, the Ninth Circuit considered Cornell and determined that: 

[B]ased on the weight of this new state authority, and our 

obligation to consider the California Court of Appeal’s thorough 

analysis of its own law, we draw two conclusions as to the 

necessary showing for an excessive force claim under the Bane

Act. First, the Bane Act does not require the “threat, intimidation 

or coercion” element of the claim to be transactionally independent 

from the constitutional violation alleged. Cornell, 225 Cal. Rptr. 

3d at 382–83. Second, the Bane Act requires a “a specific intent to 

violate the arrestee’s right to freedom from unreasonable seizure.” 

Id. at 384. 

See Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018); ECF 63-1 at 64. 

Importantly, the Ninth Circuit concluded in Reese that: “We see no ‘convincing evidence that the 

state’s supreme court likely would not follow’ Cornell in reaching these two conclusions.” Id.

Malek has plausibly alleged that the Officers intentionally violated his rights under 

§ 1983—including by unlawfully entering his home without a warrant or exigency, conducting an 

unlawful pre-warrant search, and using excessive force. See, e.g., FAC ¶¶ 93, 99, 121. In light of 

Cornell and Reese, the Court finds that Malek has made out a claim under the Bane Act. See 

Cornell, 17 Cal. App. 5th at 801-802. Accordingly, the Officers’ motion to dismiss the Bane Act 

claim based on the conduct underlying the surviving § 1983 claims is DENIED.12

ii. State Law Immunities

Malek also brings state law claims against the Officers for negligence and personal injuries 

(Count 8); assault and battery (Count 9), and false arrest or imprisonment (Count 10). FAC 

¶¶ 123-137. The Officers argue that state law immunities bar these claims. Mot. at 23-25. Malek 

concedes that the asserted state law immunities “track[] the fate” of his federal claims. Opp’n at 

25. Based on the constitutional claims discussed above, the Court resolves the reasserted state law 

immunities as follows:

 

12 As explained at length above, Malek has not plausibly alleged an unlawful arrest, an unlawful 

search based on judicial deception, or retaliation. Accordingly, this conduct cannot form the basis 

of Malek’s Bane Act claim moving forward. 
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a. California Penal Code §§ 847(b), 835

The Officers argue that Malek’s state law claims stemming from his arrest and the 

Officers’ use of force trigger state law immunities that entitle the Officers to dismissal. Mot. at 

24. The false-arrest immunity under Penal Code § 847(b)(1) protects officers from suit when they 

make an arrest that they had “reasonable cause” to believe was lawful. Because the FAC pleads 

on its face that the Officers had probable cause to arrest Malek, § 847(b) also bars the parallel state

law claims based on the arrest because the Officers necessarily had “reasonable cause” to believe 

the arrest was lawful.13 See Cornell, 17 Cal. App. 5th at 786 (“California courts speak of 

reasonable cause and probable cause interchangeably...and appellants cite no case recognizing 

any meaningful distinction in the two phrases.”) (internal citations and quotations omitted). For 

these reasons, the Officers’ motion to dismiss Malek’s state law claims premised on an unlawful 

arrest is GRANTED WITHOUT LEAVE TO AMEND.

With respect to Penal Code § 835, which provides that an arrestee “may be subjected to 

such restraint as is reasonable for his arrest and detention,” this immunity is inapplicable where 

Malek has adequately alleged a claim of excessive force. Thus, Malek’s claims for negligence, 

assault and battery, and false imprisonment, to the extent they arise from his allegations that the 

Officers used excessive force, are not barred by § 835. See Robinson v. Solano Cty., 278 F.3d 

1007, 1016 (9th Cir. 2002) (“California denies immunity to police officers who use excessive 

force in arresting a suspect.”) (citing Mary M. v. City of Los Angeles, 54 Cal.3d 202, 215 (1991). 

Accordingly, the Officers’ motion to dismiss Malek’s state law claims at the pleading stage 

pursuant to § 835 is DENIED. 

b. California Government Code § 820.4

California Government Code § 820.4 provides that “[a] public employee is not liable for 

his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in 

this section exonerates a public employee from liability for false arrest or false imprisonment.” 

Gov’t Code § 820.4. The parties agree that with the exception of the false arrest or imprisonment 

 

13 In addition to providing a basis for dismissal of Count Ten to the extent it alleges a false arrest, 

§ 847(b) also bars Malek’s Bane Act and negligence claims premised on an unlawful arrest. 
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claim, this immunity is coextensive with the first prong of qualified immunity on Malek’s federal 

claims because the reasonableness inquiry also resolves the question of whether the Officers acted 

with “due care” under § 820.4. See Mot. at 24; Opp’n at 25. As discussed above, Malek has 

failed to allege constitutional violations with respect to Count 2 (unlawful arrest); Count 3

(judicial deception) and Count 6 (retaliation). Accordingly, Malek’s parallel Bane Act, assault and 

battery, and negligence claims based on reasonable conduct by the Officers are DISMISSED 

WITHOUT LEAVE TO AMEND.

C. Remaining Issues

The Officers raise three additional issues with the FAC, requesting that the Court (1) 

dismiss the Doe Defendants from the FAC because there are no facts implicating John Does; (2) 

strike Malek’s references to joint and several liability from the FAC pursuant to Rule 12(f); and 

(3) strike paragraph 9 of the FAC regarding discovery. Mot. at 24-25. Although the use of Doe 

Defendants is disfavored in federal court, it is premature to dismiss Doe Defendants from the FAC 

prior to any discovery occurring in this case in light of the stipulated discovery stay in place. See 

ECF 58. Accordingly, the Officers’ motion to dismiss the Doe Defendants is DENIED. 

Turning to the motion to strike references to joint and several liability in the FAC, the 

Officers correctly note that this Court previously dismissed without leave to amend Malek’s state 

law claims to the extent that he sought to hold the Officers vicariously liable for the actions of the 

others. See Prior Order at 40. However, Malek again reassures the Court that the FAC does not 

seek vicarious liability but rather reference “joint and several liability” so that he can recover for 

the total amount of damages against any concurrently culpable defendant. Opp’n at 25. Thus, the 

Officers’ motion to strike Malek’s prayers for joint and several relief is DENIED. 

However, the Court agrees that the allegations in paragraph 9 of the FAC regarding the 

alleged refusal by the California Department of Justice to provide certain pre-suit discovery 

requests are immaterial and impertinent under Rule 12(f). Accordingly, the Officers’ motion to 

strike paragraph 9 of the FAC is GRANTED. 
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IV. LEAVE TO AMEND

Having determined that Malek’s § 1983 claims for unlawful arrest, unlawful search based 

on a warrant procured by judicial deception, and retaliation—as well as the associated state law 

claims discussed above—are subject to dismissal, the Court must decide whether leave to amend 

is warranted. The Court does not deny leave to amend lightly. Leave ordinarily must be granted 

unless one or more of the following factors is present: (1) undue delay, (2) bad faith or dilatory 

motive, (3) repeated failure to cure deficiencies by amendment, (4) undue prejudice to the 

opposing party, and (5) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see 

also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 

The Court finds no undue delay or bad faith. However, despite the Court’s Prior Order

dismissing the original complaint with extensive guidance regarding amendment and qualified 

immunity, Malek still has not alleged plausible claims under § 1983 for unlawful arrest, unlawful 

search based on a warrant procured by judicial deception, retaliation, and associated state law 

claims based on such conduct. Moreover, as to the § 1983 claims, the Officers are entitled to 

qualified immunity under the second prong because Malek has again failed to identify a case 

indicating that the right allegedly violated was clearly established. See Sharp, 871 F.3d at 911.

After two motions to dismiss, two lengthy hearings and two thoroughly reasoned orders 

covering the same claims, the Court finds that Malek has failed to cure the previously identified 

deficiencies by amendment and further leave to amend the dismissed claims would be futile. See 

Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009), as amended (Feb. 

10, 2009) (finding that a plaintiff’s failure to correct identified deficiencies in an amended 

pleading “is a strong indication that the plaintiffs have no additional facts to plead.”); Salameh v. 

Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (“A district court’s discretion to deny leave 

to amend is particularly broad where the plaintiff has previously amended.”). Moreover, the 

Court finds that the Officers would be prejudiced by further amendment as they have already 

twice defended and prevailed under both prongs of the qualified immunity analysis with respect to 

the conduct underlying the dismissed claims. 

Weighing the Foman factors, the Court finds it appropriate to dismiss the § 1983 claims
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for unlawful arrest, judicial deception, and retaliation, as well as the state law claims based on 

such conduct, WITHOUT LEAVE TO AMEND.

V. ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. The Officers’ motion to dismiss is DENIED with respect to Malek’s § 1983

claims for unlawful entry into Malek’s home (Count 1), unlawful prewarrant search (Count 3), and excessive force (Count 4);

2. The Officers’ motion to dismiss is GRANTED WITHOUT LEAVE TO 

AMEND with respect to Malek’s § 1983 claims for unlawful arrest (Count 

2), search pursuant to a warrant procured by judicial deception (Count 3), 

violation of the Second Amendment (Count 5), and retaliation (Count 6),

3. The Officers’ motion to dismiss the Bane Act claim is DENIED as to the

conduct underlying the surviving § 1983 claims; 

4. The Officers’ motion to dismiss the state law claims in Counts 8, 9, and 10 

pursuant to state law immunities is GRANTED IN PART WITHOUT 

LEAVE TO AMEND and DENIED IN PART in accordance with the 

Court’s dismissal of the parallel § 1983 claims;

5. The Officers’ motion to dismiss the Doe Defendants is DENIED; the 

motion to strike references to joint and several liability is DENIED; and the 

motion to strike paragraph 9 of the FAC is GRANTED. 

6. The Officers SHALL ANSWER the FAC within 21 days of this Order. 

Nothing in this Order shall preclude the Officers from raising the defense of 

qualified immunity in a future motion or at trial, if appropriate. 

7. As previously ordered, the stipulated discovery stay in this case 

automatically lifts 30 days after the date of this Order. See ECF 58 ¶ 8. 

Dated: May 30, 2018

______________________________________

BETH LABSON FREEMAN

United States District Judge