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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 WITH 

LEAVE TO AMEND AND DENYING IN 

PART DEFENDANTS’ MOTION TO 

DISMISS

[Re: ECF 15]

On the evening of February 4, 2016, Plaintiff Pourya Malek (“Malek”) was arrested at his 

home without a warrant on charges of unlawful possession of firearms. He was handcuffed for 

nine hours and his home was searched both before and after the officers obtained a search warrant. 

The officers seized his firearms. Malek was jailed in the early morning, released by about 1:00 

p.m., and by the end of the day all charges against him were dropped and his guns were returned to 

him. It turned out that Malek’s name was wrongly included on the California Department of 

Justice’s Prohibited Persons Report (“PPR”) which formed the basis of his arrest. He now sues 

the officers involved for damages under 42 U.S.C. § 1983 and related state law claims. 

Defendants Special Agent Jeffery Green (“Green”), Special Agent Elisardo Favela 

(“Favela”), and Special Agent Supervisor Lance Sandri (“Sandri”) (collectively the “Officers”) 

move to dismiss several of Malek’s claims on the grounds of qualified immunity and various state 

law immunities. ECF 15 (“Mot.”) The Court heard oral argument on the Officers’ motion to 

dismiss on August 31, 2017. Having reviewed the briefing and oral argument of the parties, as 

well as the governing law, the Court GRANTS IN PART WITH LEAVE TO AMEND and 

DENIES IN PART the Officers’ motion to dismiss.
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I. BACKGROUND

The following facts are alleged in the Complaint and are taken as true for the purposes of a 

motion to dismiss. ECF 1 (“Compl.”). The Complaint also contains additional allegations that the 

Court finds to be legal conclusions, and those allegations are therefore not set forth in this 

summary of the factual background. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

A. The Lead Up to the Incident 

On October 22, 2012, Malek pleaded no contest to a misdemeanor charge for brandishing a 

replica firearm in violation of California Penal Code § 417.4, in the California Superior Court for 

Santa Clara County. Compl. ¶ 16. Malek complied with the Superior Court’s order of two years 

of probation, 30 days in the Weekend Work Program, and payment of a fine. Id. On April 21, 

2014, the Superior Court granted Malek’s motion to terminate his probation and to withdraw the 

no-contest plea, dismissing the charges against him. Id. Malek has no other criminal history. Id.

At all relevant times, Officers Green, Favela, and Sandri were employed as law 

enforcement officers by the California Department of Justice acting within the course and scope of 

their employment. Id. ¶¶ 4-6. On February 4, 2016, the Officers reviewed a Prohibited Person 

Report (“PPR”) in the California Department of Justice-Bureau of Firearms Armed Prohibited 

Person System (“APPS”). Id. ¶ 18. The PPR at issue had been generated on November 12, 2015. 

Id. Pourya Malek’s name appeared on the PPR, and the report stated that Malek had been 

convicted of California Penal Code § 417.4 (Brandishing Replica Firearm). Id. ¶ 19. Malek

should not have been listed in the PPR, because no California Penal Code statute prohibits a 

person convicted of § 417.4 from possessing or owning firearms. Id. The Officers learned from 

the PPR that Malek possessed seven firearms. Id. ¶ 20. Malek alleges that the Officers “failed to 

read” or “know” that California Penal Code § 29805 does not include § 417.4 as a predicate 

misdemeanor offense that would prevent Malek from possessing or owning firearms. Compl. ¶ 22. 

On the same day that they reviewed the PPR, the Officers drove to Malek’s home and 

arrived at 9:00 p.m. Id. ¶ 23. The Officers knocked on Malek’s door and asked him if his name 

was Pourya Malek. Id. ¶ 24. Malek confirmed that he was Pourya Malek. Id. The Officers then 

informed Malek that they were wearing body cameras and that everything would be recorded. Id. 
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The Officers then asked Malek if he owned any firearms, to which Malek responded that he did. 

Id. Officer Green then told Malek that “according to the documents” in Green’s possession, 

Malek was prohibited from owning firearms as the result of a conviction in 2012. Id. Malek

responded that the Officers were mistaken. Id. One or more of the Officers then told Malek that 

he needed to give the Officers his firearms. Id. ¶ 25. Malek responded that he had done nothing 

wrong and asked if the Officers had a warrant. Id. One or more of the Officers then told Malek

that he could give up his firearms voluntarily, in which case he would not go to jail, or Malek

could wait for them to obtain a search warrant. Id. At some point, one or more of the Officers

stated that if Malek did not voluntarily give up his firearms, he would be arrested and taken to jail. 

Id. 

B. The Officers Arrest and Handcuff Malek

After this initial exchange with the Officers, Malek “closed the door slightly,” and stated 

that he wanted to speak to an attorney and demanded to see a search warrant. Id. ¶ 26. At that 

point, the Officers “barged into” Malek’s home, placed him under arrest and handcuffed him 

behind his back without reading his Miranda rights. Id. ¶ 27.

Malek alleges that the Officers then searched his house, including going into the garage to 

take photographs of Malek’s vehicles. Id. ¶ 28. Malek asked why the Officers were searching his 

home without a search warrant, and the Officers replied they did not need a search warrant. Id. 

The Officers continued to ask Malek to surrender his firearms voluntarily, and informed Malek

that obtaining a warrant would take several hours. Id. ¶ 29. Malek stated he would surrender his 

firearms if a search warrant was obtained. Id. Malek’s wife was present during the incident, and 

the Officers did not permit her to move about the house unaccompanied. Id. ¶ 30. In addition, the 

Officers kept the front door of the house open, which made the house cold and attracted the 

attention of neighbors. Id. ¶ 31. The Officers did not permit Malek to put on warm clothes or turn 

on the heat in the house. Id. Malek complained to the Officers of “significant pain from the 

handcuffs, including by aggravating a pre-existing back injury.” Id. 

Malek alleges that “[a]fter thoroughly searching” Malek’s home, “at some point before 

3:54 A.M.” on February 5, 2016, Officer Green left the house to procure a search warrant in order
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to search Malek’s home and seize his firearms. Id. ¶ 32. 

C. Officer Green Departs Malek’s Home to Obtain a Search Warrant

Officer Green made a statement of probable cause in support of an application for a search 

warrant that 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. ¶ 33. Malek alleges that California Penal Code § 29805 does not list § 417.4 as a predicate 

offense. Id. ¶ 17. As such, Malek should not have been listed on the PPR and was not prohibited 

from owning or possessing firearms in violation of § 29805. Id. ¶ 19. Malek further alleges that 

the Officers “fail[ed] to know” that § 29805 does not include § 417.4 as a predicate misdemeanor 

offense, because the Officers “failed to read” § 29805. Id. ¶ 22. 

In addition to issues with Officer Green’s statement of probable cause, Malek alleges the 

search warrant was defective because it failed to limit the search and seizure to the seven firearms 

identified on the PPR. Id. ¶ 34. The search warrant sought permission to search and seize a wide 

variety of firearms and firearm related items. Id. ¶ 35. Moreover, the search warrant sought a wide 

range of non-firearm related personal property such as personally identifying documents, 

electronic devices, cell phones, computers, and any items associated with criminal activity such as 

possession or sales of controlled substances. Id. 

When Officer Green procured the search warrant, he called Officer Sandri to inform him 

that the search warrant had been obtained. Id. ¶ 36. Back at the house, Officer Sandri then told 

Malek a search warrant had been obtained and told Malek to open the gun safe otherwise a 

locksmith would come drill it open. Id. Malek remained handcuffed, but instructed his wife to 

open the gun safe. Id. Officers Favela and Sandri seized the guns and ammunition in the safe as 

well as several knives on display near the gun 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. 

D. The Officers Take Malek to Jail and Eventually Discover the PPR Error

By 6:00 a.m. on February 5, 2016, Malek had been in handcuffs for approximately nine 
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hours. Id. ¶ 38. The Officers then transported Malek to Santa Clara County jail. Id. ¶ 39. Prior to 

leaving, Malek requested that he be allowed to take his prescribed pain medication for his back, 

but Officer Sandri said no. Id. At the Santa Clara County jail, Malek 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). Compl. ¶ 40. Malek remained in custody until 1:00 

p.m. on February 5, 2016. Id. A few hours later, at 6:00 p.m., Officer Sandri left a voicemail for 

Malek stating that their “paperwork” was incorrect and that Malek was not prohibited from 

owning or possessing firearms. Id. ¶ 41. The Officers returned the seized firearms and 

ammunition to Malek at 9:00 p.m. on February 5, 2016. Id. 

The Complaint asserts five counts against the three Officers: (1) claims pursuant to 42 

U.S.C. § 1983 for violations of Malek’s Fourth, Second, and First Amendment rights; (2) violation 

of California Civil Code § 52.1 (“Bane Act”); (3) negligence and personal injuries; (4) assault and 

battery; and (5) false arrest or imprisonment. See generally Compl.1 Malek seeks compensatory, 

punitive and statutory damages. Id. The Officers filed the instant motion to dismiss on February 

22, 2017. ECF 15 (“Mot.”). 

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 

 

1 Although Malek has labeled the counts up to six, there are only five counts listed in the 

Complaint. Moreover, as discussed below, Malek’s sole count pursuant to section 1983 is actually 

multiple claims that must be addressed separately. 
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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 

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.3d 
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1447, 1449–50 (9th Cir. 1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). 

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (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.

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 
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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

The Complaint alleges five counts against the Officers. However, Malek’s first count for a 

violation of § 1983 is actually comprised of multiple constitutional violations which must be 

addressed separately. The Court considers the Officers’ motion to dismiss various § 1983 claims

in the Complaint, and then turns to Malek’s claims brought under state law. For the reasons 

below, the Officers’ motion to dismiss is GRANTED IN PART WITH LEAVE TO AMEND and 

DENIED IN PART.

A. Section 1983 Claims2

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 doctrine 

of qualified immunity protects government officials “from liability for civil damages insofar as 

their conduct does not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 

172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 

 

2 Malek confirms in his opposition that the Complaint only brings claims under § 1983 against the 

Officers in their individual capacities and does not allege that the Officers are sued in their 

“official capacities.” Opp’n 25. The Officers’ motion to dismiss claims against them in their 

official capacities is therefore DENIED AS MOOT. Mot. 17. 
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L.Ed.2d 396 (1982)). To survive the Officers’ invocation of qualified immunity, the plaintiff must 

succeed on both prongs. Nelson v. City of Davis, 685 F.3d 867, 875 (9th Cir. 2012). 

The Officers move to dismiss the § 1983 count on the grounds of qualified immunity with 

respect to (1) probable cause supporting Malek’s arrest; (2) the Officers’ entry into the home to 

arrest Malek; (3) the use of handcuffs during Malek’s arrest and the duration of his handcuffing; 

(4) the search and seizure of Malek’s property pursuant to a search warrant; and (5) a retaliation 

claim. See Mot. 5. The Court has considered the issues to be decided as characterized by the 

Officers. The Court notes that the Complaint contains additional factual allegations in support of 

§ 1983 claims that the Officers have not moved to dismiss, including: (1) an unreasonable prewarrant search of Malek’s home; and (2) judicial deception by Officer Green in procuring the 

search warrant. As such, those claims are not reviewed in this Order. However, it is not clear 

whether Malek is alleging a § 1983 violation based on the pre-warrant search. In fact, it is not 

clear from the Complaint how many distinct claims Malek is actually alleging against the Officers 

encompassed by his single count for violations of § 1983. See Compl. ¶¶ 50-55. Any amended 

complaint should clarify which conduct Malek challenges as distinct constitutional violations. 

i. Unlawful Arrest and Unlawful Entry to Arrest

In their motion to dismiss, the Officers characterize Malek’s § 1983 claim regarding the 

arrest as two distinct violations: (1) an arrest made without probable cause; and (2) an unlawful 

entry into Malek’s home to arrest him. Mot. 5-11. With respect to the arrest, Malek pleads that the 

Officers violated his “right to be free from government entry of home and real property without 

probable cause and a warrant as secured by the Fourth Amendment.” Compl. ¶ 51(a). Malek’s 

opposition further suggests that Malek challenges only the Officers’ “warrantless home entry 

without probable cause.” Opp’n 5. Thus, it is not clear whether Malek challenges the arrest as a 

distinct violation from the unlawful entry into his home. The Court separately analyzes these two 

claims, which implicate distinct Fourth Amendment principles, in response to the Officers’ 

arguments that they are entitled to qualified immunity for both the arrest and the unlawful entry 

into the home. 

For the reasons below, the Officers’ motion to dismiss Malek’s § 1983 claims based on 
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Malek’s arrest and the Officers’ entry into Malek’s home to arrest him is GRANTED WITH 

LEAVE TO AMEND.

a. Probable Cause to Arrest

The Officers argue that they are shielded by qualified immunity under either prong of the 

test with respect to whether the arrest was supported by probable cause because (1) probable cause 

to arrest is clear from the face of the Complaint; and (2) Malek does not plead facts permitting an 

inference that the Officers’ conduct violated a “clearly established” right. Mot. 5-9. The Court 

finds that as pled, qualified immunity applies under either prong.

1. The Complaint Does Not Allege an Unreasonable Mistake of 

Law

“Whenever an officer restrains the freedom of a person to walk away, he has seized that 

person.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). A seizure 

is unreasonable under the Fourth Amendment if it is an arrest made without probable cause or a 

detention short of arrest made without reasonable suspicion. Dubner v. City & Cnty. of San 

Francisco, 266 F.3d 959, 964 (9th Cir.2001); Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 

75 L.Ed.2d 229 (1983). 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 Officers contend that probable cause is alleged on the face of the Complaint, and thus 

they are shielded under the first prong of qualified immunity. Mot. 5-8. In relevant part to the 

probable cause analysis, the Complaint alleges that the Officers reviewed a PPR that identified 

Malek as having been convicted of § 417.4 (Brandishing Replica Firearm) in October 2012 and 

illegally possessed seven firearms as of November 12, 2015 when the PPR was generated. Compl. 

¶¶ 18-20. Malek further alleges that the Officers “fail[ed] to know” that California Penal Code 

§ 29805 does not include § 417.4 among the predicate misdemeanor offenses, and “failed to read” 

§ 29805 to confirm that it does not prohibit a person who has violated § 417.4 from possessing or 

owning firearms. Id. ¶ 22. 

The factual scenario alleged by Malek shows that on the same day that they viewed the 
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PPR, the Officers drove to Malek’s house, arriving at 9:00 p.m. Id. ¶ 23. The Officers knocked on 

Malek’s door and questioned him when he opened the door. Id. ¶ 24. In response to their 

questions, Malek confirmed his name and that he owned firearms. Id. The Officers informed 

Malek that he was prohibited from owning firearms because of a 2012 conviction. Id. Malek told 

the Officers they were mistaken. Id. Malek further alleges that the Officers told him that he had 

“options” in that he could either give up his firearms voluntarily and not go to jail, or he could 

wait for the Officers to procure a search warrant and be arrested and go to jail. Id. ¶ 25. Malek

then “asserted his constitutional rights” and “closed the door slightly.” Id. ¶ 26. At that point, the 

Officers “barged” into Malek’s house without his consent, arrested Malek and handcuffed him 

behind his back. Id. ¶ 27.

The Court finds that as pled, “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 Officers had reviewed a California Department of Justice § 

29805 PPR that identified someone by Malek’s name as being prohibited from possessing firearms 

due to a conviction under California Penal Code § 417.4 for brandishing a replica firearm in 

October 2012, and that he owned seven firearms as of November 2015. After the Officers

knocked on his door and questioned him, Malek confirmed his name was the name on the PPR 

and stated that he owned firearms. The Officers argue, and the Court agrees, that probable cause 

to arrest Malek existed at that point. 

In response, Malek argues that “[i]t was unreasonable for Defendants to not read the statute 

on which they were basing serious Fourth Amendment intrusions.” Opp’n 8. He argues that the 

Officers’ conduct is not excused by a mistake of law. However, the Supreme Court has recently 

directed that the Court’s inquiry consider the objective reasonableness of a mistake of law. See 

Heien v. North Carolina, 135 S.Ct. 530, 539 (2014). The question is thus whether it was 

objectively reasonable for an officer to rely on the PPR to provide an accurate representation of

the law and conclude that Malek’s conduct was illegal. In Heien, an officer stopped a vehicle 

because one of its two brake lights was out, but a court later determined that the law only required 

a single working brake light. Id. at 534. In other words, the defendant was pulled over despite the 
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fact that his conduct did not actually violate any law. In Heien, the defendant was charged with 

drug possession based on the post-arrest search of his 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. Id. at 535. 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. 

Malek does not point to allegations in the Complaint indicating that the Officers’ reliance 

on the PPR was objectively unreasonable in this case. Rather, Malek cites to a string of pre-Heien 

cases for the proposition that “[p]robable cause cannot be established by an erroneous 

understanding of the law.” Opp’n 8 (citing Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th 

Cir. 2004)). However, Beier involved the officers’ reliance on the statement of an ordinary citizen 

who indicated that the plaintiff was violating a judicial protective order, which turned out to be a 

mistake. Id. The line of cases cited by Malek similarly held that there was no probable cause to 

arrest or detain an individual based on a mistake of law when no crime was actually committed. 

However, Malek’s recitation of these cases carefully avoids the Supreme Court’s recent 

clarification in Heien that the Fourth Amendment tolerates objectively reasonable mistakes of fact 

or of law. 135 S.Ct. at 536 (noting that “reasonable men make mistakes of law, too”). The Ninth 

Circuit has recognized this change in law. Dunlap v. Anchorage Police Dep’t, 607 F. App'x 764, 

765 (9th Cir. 2015) (unpublished) (remanding case to district court for consideration of whether 

arrest based on mistake of law was reasonable and therefore lawful under Heien); see also Lea v. 

Steinbronn, 671 F. App’x 488, 488 (9th Cir. 2016) (unpublished) (affirming summary judgment 

for defendants because “[e]ven if the Oregon statute did not criminalize [plaintiff’s] conduct, 

[defendant] is entitled to summary judgment...based on his reasonable belief that it did.”)

The Complaint does not plausibly allege that the Officers’ mistake of law was 

unreasonable under Heien. Malek alleges that the Officers, who worked for the California 

Department of Justice, reviewed a PPR generated by other Department of Justice personnel which 

contained Malek’s name and alerted them that Malek illegally possessed firearms. Malek alleges 

that the Officers failed to read, know, or understand the actual predicate offenses listed in § 29805
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which did not include Malek’s misdemeanor offense. Although Malek alleges that the PPR was 

three months old, Malek does not allege any facts indicating that the PPR was untrustworthy due 

to its age. Malek further argues that the Officers “have an ongoing duty to make appropriate 

inquiries regarding the facts received or to further investigate if insufficient details are relayed.” 

Opp’n 9 (citing Lacey v. Maricopa Cnty., 693 F.3d 896, 924 (9th Cir. 2012)). However, without 

facts to suggest that it was unreasonable for the Officers to rely on the PPR generated by other 

California Department of Justice personnel, Malek has also not alleged that the Officers violated 

their duty to conduct further investigation. An officer may rely on the work of another law 

enforcement officer to establish probable cause. See United States v. Jensen, 425 F.3d 698, 704 

(9th Cir. 2005) (“The accepted practice of modern law enforcement is that an officer often makes 

arrests at the direction of another law enforcement officer even though the arresting officer himself 

lacks actual, personal knowledge of the facts supporting probable cause.”). 

Other than conclusory allegations that it was “unreasonable” for the Officers not to read or 

otherwise know the content of § 29805, the Complaint contains no facts to support an inference 

that the alleged mistake of law was unreasonable. As detailed by the Supreme Court in Heien, 

“the mistake of law relates to the antecedent question of whether it was reasonable for an officer to 

suspect that the defendant’s conduct was illegal. If so, there was no violation of the Fourth 

Amendment in the first place.” 135 S.Ct. at 539. Based on the facts alleged in the Complaint, the

Court finds that the only plausible inference is that the Officers had probable cause to arrest Malek

for a violation of § 29805 when they confirmed that his identity and gun ownership matched the 

information in the PPR because their mistake of law was reasonable. However, this is a close call 

at the motion to dismiss stage and the Court believes Malek may be able to allege facts that would 

address the unreasonableness of the Officers’ conduct, thus the Court will allow expanded factual 

pleading. In the event Malek successfully alleges facts that the Officers’ mistake of law was 

unreasonable, then the Court would not be able to determine that the Officers had probable cause 

to arrest Malek as a matter of law. 
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2. The Alleged Violation was not Clearly Established

Independent of the constitutional question, the Officers argue that the second prong of 

qualified immunity shields them from liability for the arrest. Mot. 8-9. As pled, the plausible 

inference from the Complaint is that the Officers had probable cause to arrest Malek for a 

violation of § 29805. However, Malek could cure the deficiency on the constitutional issue by 

pleading facts sufficient to support the inference that the Officers’ mistake of law was 

unreasonable. The Court also considers the Officers’ argument under the second prong of 

qualified immunity that the law was not clearly established under the particular circumstances of 

this case.

“A court, when deciding whether there has been a violation of a clearly established right 

for qualified immunity, must strike the proper balance in defining that right.” Dunn, 621 F.3d at 

1200. If the right is defined too generally, it will bear no relationship to the objective legal 

reasonableness that is the touchstone of the inquiry. Id. “[T]he right the official is alleged to have 

violated must have been ‘clearly established’ in a more particularized, and hence more relevant, 

sense: The contours of the right must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right.” Id. (quoting Anderson v. Creighton, 483 U.S. 

635 (1987)). 

Here, Malek argues that the Fourth Amendment right to be free from arrests without 

probable cause is clearly established. Opp’n 23. Although Malek correctly cites Fourth 

Amendment protection at a high level, the Supreme Court has repeatedly admonished courts to 

consider clearly established law as it relates to the particular circumstances of the case, and must 

avoid defining it “at a high level of generality.” See White v. Pauly, 137 S.Ct. at 551-52. Thus, 

addressing the second prong of the qualified immunity analysis, the question presented by the 

Officers’ motion is whether the law clearly established that a reasonable officer in the alleged 

circumstances could not rely on a California Department of Justice document identifying an 

individual as illegally possessing firearms to support probable cause to arrest once the suspect 

identified himself and confirmed that he owned the firearms. Therefore, the Court must consider 

the state of the law on February 4, 2016, and whether it would have alerted the Officers in this 
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case that Malek’s arrest was not supported by probable cause and was thus unconstitutional. 

Malek has not identified any cases, and the Court has found none, indicating that the right 

allegedly violated was clearly established. The Ninth Circuit has recently emphasized that this is 

Malek’s burden under the second prong of qualified immunity: “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, No. 15-56146, 2017 WL 

4126947, at *7 (9th Cir. Sept. 19, 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). 

Malek relies on Beier v. City of Lewiston to defeat qualified immunity. 354 F.3d 1058 (9th 

Cir. 2004). In Beier, a Ninth Circuit decision discussed above, 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. Id. 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. In stark contrast to Beier, the 

instant 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. In Beier, the Ninth Circuit clearly differentiated between “legal information 

obtainable from official channels and legal information obtained from lay citizens.” Id. at 1070. 

The situation in this case is more in line with the cases, cited in Beier, where officers were 

granted qualified immunity for arrests they made based on recalled warrants, even when the 
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arrestee provided the officers with notice of the recall. Id. The Ninth Circuit acknowledged that 

various appellate courts held that officers in those circumstances reasonably relied on information 

from official warrant tracking services that later turned out to be inaccurate. Id. (collecting cases). 

Here, the Officers similarly had a Department of Justice issued PPR which was a facially valid 

document even though it was legally inaccurate. Beier confirms 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.” Id. Thus,

contrary to what Malek argues is clearly established, Beier actually indicates that the Officers 

were entitled to rely on the officially-obtained PPR even when Malek informed them that they 

were mistaken. Whereas the officers in Beier relied on Susan’s interpretation of a protective order 

without ever asking to see it (even though she had a copy in her purse), and they never confirmed 

the information through any official channels. Id. at 1071. In light of these material factual 

differences to the case at hand, Beier does not clearly establish that the Officers here violated the 

Fourth Amendment.

The other cases Malek relies on fare no better. In fact, Malek does not explicitly argue that 

other cases are controlling on the second prong of qualified immunity. Instead, he seems to 

conflate the first prong of qualified immunity with the second prong and cites cases for the 

proposition that probable cause cannot exist to arrest if the conduct did not constitute a crime. 

Opp’n 23-24 (citing United States v. Wallace, 213 F.3d 1216, 1217 (9th Cir. 2000)). The Court 

has already discussed the impact of Heien on such case law, which is relevant under the first prong 

of qualified immunity regarding whether a constitutional violation has occurred. 135 S.Ct. at 539. 

Nevertheless, the Court considers whether Wallace or Heien demonstrates that the Officers’ 

conduct violated “clearly established” federal law in this case. Neither case comes close. 

In Wallace, an officer conducted a traffic stop because he mistakenly believed that any 

tinting of a vehicle’s front windows was illegal. 213 F.3d at 1217. The tinting turned out to be 

illegal but for a different reason than the officer thought. The Ninth Circuit held that the officer 

had probable cause to stop the car because his belief that the defendant’s windows were overly 

tinted was objectively reasonable. Id. In its decision, the Ninth Circuit distinguished the case from 
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cases where the defendant’s conduct does not “in any way, shape or form constitute a crime.” Id. 

at 1221. These circumstances are not at all what the Officers faced in this case, and Wallace 

would not put any reasonable officer in the alleged circumstances on notice that the particular 

conduct by these Officers was unlawful. To the extent Wallace stands for a general principle of 

law that probable cause can never exist if a crime was not actually committed, Heien calls that

authority into question. Heien is also factually inapposite under the second prong of qualified 

immunity, and Malek does not argue otherwise. Rather, he cites to it for the general proposition 

that the Fourth Amendment tolerates only “objectively reasonable mistakes.” Opp’n 24. 

Although not explicitly argued, the Court considers that Malek may be invoking Wallace 

and Heien to show that the alleged constitutional violation was sufficiently “obvious” such that he 

does not need to point to a specific case on point to plead around qualified immunity. Indeed, 

Malek relies on Hope v. Pelzer for the legal standard that a requirement that facts of previous 

cases be “materially similar” to the case at issue is a “rigid gloss on the qualified immunity 

standard.” 536 U.S. 730, 739 (2002). Rather than require a case with similar facts, the Supreme 

Court emphasized in Hope that the relevant question is whether the state of the law at the time 

gave the officers fair warning that their alleged conduct was unconstitutional. Id. at 741. More 

recently, the Supreme Court clarified that although “general statements of law are not inherently 

incapable of giving fair and clear warning to officers,” that unlawfulness must still be “apparent” 

in light of pre-existing law. White v. Pauly, 137 S.Ct. at 552 (internal citations and quotations 

omitted). Therefore, cases “cast at a high level of generality” do not create clearly established law 

outside “an obvious case.” Id. The Ninth Circuit has held that this “obviousness principle”—

which it characterizes as “an exception to the specific-case requirement”—is “especially 

problematic in the Fourth-Amendment context.” Sharp, 2017 WL 4126947, at *8. The Court 

finds that even if the Officers’ reliance on the PPR was unreasonable, the allegations do not 

constitute sufficiently “obvious” constitutional misconduct such that Malek need not provide a 

case directly on point. 

Despite the opportunity to do so in his opposition brief and at oral argument, Malek fails to 

“point to prior case law that articulates a constitutional rule specific enough to alert these
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[Officers] in this case that their particular conduct was unlawful.” Sharp, 2017 WL 4126947, at 

*7 (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. As currently pled, the Officers 

are entitled to qualified immunity as it related to their probable cause to arrest Malek for a 

violation of § 29805 when they confirmed his identity and gun ownership matched the information 

in a California Department of Justice issued PPR. 

The Officers are entitled to qualified immunity under the facts as pled because clearly 

established law did not proscribe the Officers’ alleged conduct in arresting Malek for a violation 

of § 29805 in reliance on the Department of Justice PPR once he confirmed his identity and that 

he owned firearms. Again, it is not clear whether Malek asserts a distinct claim for an unlawful 

arrest independent from his challenge to the Officers’ entry into his home. To the extent Malek

alleges two separate claims, the Officers’ motion to dismiss Malek’s claim for unlawful arrest is 

GRANTED WITH LEAVE TO AMEND. The Court next considers whether the Officers are 

shielded by qualified immunity for their warrantless entry into Malek’s home.

b. Whether a Warrant was Required to Enter Malek’s Home

Even if the Officers had probable cause, the arrest may violate the Fourth Amendment if 

their invasion into Malek’s home to effect the arrest was unlawful. Malek pleads that the Officers 

drove to Malek’s home, knocked on his door, Malek opened his door and the Officers asked him 

questions regarding the information in the PPR. When Malek refused to hand over his firearms 

and “closed the door slightly,” the Officers “barged into” Malek’s house without a warrant and 

told him that he was under arrest and handcuffed him. Compl. ¶¶ 24-28, 45. Malek’s counsel 

argued at the hearing that this allegation means that Malek was put under arrest and handcuffed 

once the Officers were inside the house. ECF 42, 31:15-16. The Court accepts this as a reasonable 

inference drawn from the Complaint. The Officers argue that they are entitled to qualified 

immunity for this conduct because their entry of the home was constitutionally permissible, or 

alternatively, a reasonable officer would not have been on notice that the entry to effect Malek’s 

arrest under the circumstances was unlawful. Given that Pearson relaxed the sequence of the 
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Saucier two-prong qualified immunity analysis, the Court considers only the “clearly established” 

prong on this claim, which is dispositive. 555 U.S. at 236. As pled, qualified immunity applies to 

the Officers’ conduct in these circumstances because the alleged violation of Malek’s Fourth 

Amendment right was not clearly established at the time of the Officers’ alleged conduct.

“The Fourth Amendment generally prohibits the warrantless entry of a person’s home, 

whether to make an arrest or to search for specific objects.” Illinois v. Rodriguez, 497 U.S. 177, 

181 (1990). In fact, “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 v. New York, 445 U.S. 573, 586 (1980)). However, officers can 

rebut the presumption of reasonableness 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). The Ninth Circuit has recognized that where officers have probable cause to arrest, 

the “warrantless arrest of a suspect who voluntarily opens the door of his dwelling in response to a 

noncoercive knock by the police” does not violate the Fourth Amendment. See United States v. 

Vaneaton, 49 F.3d 1423, 1426–27 (9th Cir.1995); accord United States v. Crapser, 472 F.3d 1141, 

1148 (9th Cir. 2007) (acknowledging that “we have held [in Vaneaton] that police may make a 

warrantless arrest of a suspect who voluntarily opens the door to his residence in response to a 

knock by the police.”) If the police “use no force, threats, or subterfuge, a suspect’s decision to 

open the door exposes him to a public place, and the privacy interests protected by Payton are not

violated.” Crapser, 472 F.3d at 1148 (citing Vaneaton, 49 F.3d at 1427). 

In light of these Fourth Amendment principles, the alleged facts and circumstances of this 

case certainly present a close call. And if Malek is able to amend his allegations to support the 

inference that the Officers lacked probable cause to arrest him at all, that might also change the 

Court’s analysis of Malek’s claim for the Officers’ unlawful entry into the home. However, under 

the facts as currently pled, Malek has not shown that this particular entry into his home was 

proscribed by clearly established law at the time of the incident.

Again, Malek defines the right at an exceptionally high level of generality, arguing that the 

Officers violated his “right to be free from warrantless searches of the home absent exigency.” 
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Opp’n 24. This phrasing sounds familiar. The Supreme Court in Anderson v. Creighton criticized 

the court of appeals for defining the right on the qualified immunity question as “the right to be 

free from warrantless searches of one’s home unless the searching officers have probable cause 

and there are exigent circumstances,” rather than considering the “objective (albeit fact-specific) 

question whether a reasonable officer could have believed [the officer’s] warrantless search to be 

lawful, in light of clearly established law and the information the searching officers possessed.” 

483 U.S. at 640-641; see also Dunn, 621 F.3d at 1200. 

On the second prong of qualified immunity, Malek would have the Court take the position 

expressly rejected by the Supreme Court in Anderson, rather than undergo a “clearly established” 

analysis that is particularized to the facts alleged in this case. The Court will not ignore 

controlling Supreme Court and Ninth Circuit instructions to consider the right allegedly violated in 

a “particularized” and more relevant sense such that it bears a relationship to the objective legal 

reasonableness of the Officers’ conduct. Dunn, 621 F.3d at 1200. The relevant question before 

the Court is therefore whether it was clearly established on February 4, 2016, that a reasonable 

officer would understand that after obtaining information in a PPR identifying a person as 

prohibited from owning firearms and then knocking on that suspect’s door, asking him to give up 

his firearms when he voluntarily responded to their knock, and then entering his home to arrest

him when he refused to give up the guns and retreated inside the house was unlawful under the 

Fourth Amendment. There is no controlling case that would have alerted the Officers that this 

alleged conduct was unlawful. In fact, a reasonable officer could have understood binding 

Supreme Court and Ninth Circuit precedent to point in the other direction and actually authorize 

their conduct. 

Again, Malek bears the burden of presenting to the Court case law showing that clearly 

established law prohibited the Officers’ conduct. Sharp, 2017 WL 4126947, at *7 (citing White v. 

Pauly, 137 S.Ct. at 552). Malek identified Payton v. New York as clearly establishing 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. at 576. Thus, Malek argues 

Payton provided the Officers with “clear and fair warning” that an arrest inside the home is 
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presumptively unreasonable without a warrant. ECF 42, 11:2-4. Payton is not “particularized” to 

the facts alleged in the Complaint. See White, 137 S.Ct. at 552. The facts in Payton are so 

dissimilar from the alleged circumstances that it is not sufficient authority to alert the Officers that 

their entry into Malek’s home was unlawful. In Payton, the police “broke through a closed door 

with crowbars” to enter the suspect’s apartment and seize incriminating evidence found inside the 

apartment in plain view in order to convict the suspect. 445 U.S. at 576-77. Here, the Officers 

knocked on Malek’s door, identified themselves as police, and asked him to confirm his identity 

and gun ownership and then asked him to give up his firearms voluntarily on the basis that he was 

prohibited from possessing them. When he refused, they “barged into” his house and arrested 

him. Malek does not allege any coercive intrusion, and a reasonable officer would not have been

on notice that this conduct intruded on the zone of privacy implicated in Payton. 

The Officers point out that a reasonable officer could actually perceive binding authority to 

authorize the conduct alleged here. In United States v. Vaneaton, the police were “armed with 

ample probable cause” but without a warrant when they knocked on the door to the suspect’s 

motel room. 49 F.3d 1423, 1426-27 (9th Cir. 1995). The suspect voluntarily opened the door, 

identified himself, and was arrested “just inside the open door” of his motel room. Id. 1423. The 

Ninth Circuit held that so long as the police had probable cause to arrest, the “warrantless arrest of 

a suspect who voluntarily opens the door of his dwelling in response to a noncoercive knock by 

the police” does not violate the Fourth Amendment. Id. Because Payton was aimed to protect an 

individual’s “zone of privacy,” the Ninth Circuit held that the bright line rule established by 

Payton does not apply when a suspect “voluntarily expose[s] himself to warrantless arrest” in 

response to a noncoercive knock by the police. Vaneaton, 49 F.3d at 1427. The Officers argue 

that when Malek freely opened the door to his home in response to a noncoercive knock by police 

officers and refused to give up his guns, a reasonable police officer could have believed that 

Malek “voluntarily exposed himself to warrantless arrest.” 49 F.3d at 1426. 

Malek does not engage with two additional controlling cases cited by the Officers: United 

States v. Santana, 427 U.S. 38 (1976) and United States v. Botero, 589 F.2d 430, 432 (9th Cir. 

1978). In Santana, undercover officers investigating a drug conspiracy were directed to Santana’s 
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home, where they saw her standing in the doorway of her house with a brown paper bag in her 

hand. 427 U.S. at 40. Santana then “retreated into the vestibule of her house.” Id. The Supreme 

Court held that “[w]hile it may be true that under the common law of property the threshold of 

one’s dwelling is ‘private,’ as is the yard surrounding the house, it is nonetheless clear that under 

the cases interpreting the Fourth Amendment Santana was in a ‘public’ place.” Id. at 42. 

Moreover, Santana’s retreat into her house could not thwart an otherwise proper arrest. Id. The 

Supreme Court thus held in Santana that “a suspect may not defeat an arrest which has been set in 

motion in a public place...by the expedient of escaping to a private place.” Id. at 43. 

Under the stipulated facts in Botero, the defendant opened the door in response to the 

agent’s knock at the door to his apartment and was placed under arrest “at that time.” 589 F.2d at 

432. Because there was no allegation that the agent physically entered Botero’s home to arrest 

him, the warrantless entry into the apartment was not at issue. Id. However, the Ninth Circuit

reasoned that under Santana, “a defendant standing in a doorway cannot divert an arrest by 

retreating into the house,” because the doorway is a “public place.” Id. Thus, the Ninth Circuit 

stated that “even if the arresting officers followed Botero into the apartment to arrest him, the 

entry was proper under Santana.” Id. 

Malek does not convincingly distinguish Vaneaton, does not engage with Santana and 

Botero, and more importantly does not identify any pre-existing authority at the time of the 

incident that clearly established that the Officers’ entry into his home violated the Fourth 

Amendment. The cases Malek relies on may be relevant to a constitutional inquiry under the first 

prong of qualified immunity, but they are not sufficient to demonstrate that the Officers’ entry into 

his home violated clearly established law. Opp’n 6-7 citing Kyllo v. United States, Florida v. 

Jardines, 569 U.S. 1 (2013), United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012). These 

cases actually implicate an issue that neither party explicitly briefed or argued, regarding whether 

the Officers trespassed onto Malek’s curtilage by knocking on Malek’s door, or whether their 

conduct fell within the “knock and talk” exception to the warrant requirement. Malek insinuates 

that the Officers were not entitled to be outside his door in the first place because they came to his 

house with the intent to arrest him. However, the Complaint does not allege sufficient facts to 
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support such an inference. 

Kyllo, Jardines and Perea-Rey bear no factual resemblance to the circumstances alleged 

here. These cases do not involve a knock on the door by police to consensually contact the 

inhabitant, or even consider the validity of a warrantless arrest. Rather, they dealt with whether an 

unconstitutional search occurs when an officer gathers evidence on someone’s property without 

consent. Kyllo involved the use of a thermal-imaging device aimed at a private home from a 

public street to detect relative amounts of heat within the home. 533 U.S. at 29. The detective in 

Jardines brought a trained police dog to the defendant’s home to conduct a dog-sniff for illegal 

narcotics around the outside of the defendant’s house, and used the dog’s “positive alert” for 

narcotics to obtain a search warrant. 569 U.S. at 4. The Supreme Court held that the officer’s 

conduct amounted to a warrantless search under the Fourth Amendment. Id. at 1418. Neither 

Jardines or Kyllo involved the “knock and talk” exception to the warrant requirement which 

permits the police to enter the curtilage of someone’s home in order to knock on the door and 

contact the inhabitants.

The only discussion of a “knock and talk” in the cases offered by Malek was in Perea-Rey. 

There, the Ninth Circuit held that it goes beyond the implied license of a “knock and talk” and 

constitutes an unconstitutional search for the police to meander around the curtilage of someone’s 

home without warrant. 680 F.3d at 1188-89. Malek does not allege that the Officers did so in this

case. In Perea-Rey, the Border Patrol agent never knocked on the suspect’s front door “to initiate 

a consensual contact.” Id. at 1188. Rather, the agent entered the curtilage, bypassed the front door 

and went straight to the carport “where uninvited visitors would not be expected to appear.” Id. 

When he encountered the defendant standing in the carport, the officer identified himself and told 

the defendant not to move. Id. Unlike Malek in this case, “Perea-Rey never had an opportunity to 

simply ignore a knock on the door to his home by police.” Id. 

The Ninth Circuit explained that its holding in Perea-Rey did not eliminate the knock and 

talk exception to the warrant requirement: “To be clear, it remains permissible for officers to 

approach a home to contact the inhabitants. The constitutionality of such entries into the curtilage 

hinges on whether the officer’s actions are consistent with an attempt to initiate consensual contact 
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with the occupants of the home.” Id. at 1187-88. Here, the Complaint alleges that the Officers 

drove to Malek’s house and immediately knocked on his door to initiate consensual contact with 

him, presumably to confirm the information on the PPR and to confiscate his guns. 

Thus, regardless of whether a constitutional violation occurred when the Officers entered 

Malek’s home and arrested him, such a violation was not clearly established by Payton, Kyllo, 

Jardines or Perea-Rey. In fact, the facts are more closely analogous to Vaneaton, Santana, and 

Botero. The Officers point out that to the extent any of these cases are inconsistent with each 

other “such debate is dispositive of the qualified immunity question” because a split in authority 

renders it “unfair to subject police to money damages for picking the losing side of the 

controversy.” Reply 6 (citing Pearson v. Callahan, 555 U.S. 223, 245 (2009). The Court agrees 

that the law in these circumstances was not clearly established. 

Malek argues that the Ninth Circuit “explicitly questioned the validity of Vaneaton,” in 

United States v. Lundin, 817 F.3d 1151, 1160-61 (9th Cir. 2016). Opp’n 7. First, Lundin was 

handed down on March 22, 2016, more than one month after the incident in this case occurred on 

February 4, 2016. Therefore, the Court does not consider whether Lundin constitutes clearly 

established law alerting a reasonable officer that his conduct was unlawful. See 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.”) (emphasis added); accord Pearson, 555 U.S. at 244. The Court finds that 

Lundin actually confirms the qualified immunity analysis above. The Ninth Circuit did not 

overrule Vaneaton, and explicitly held that whether Vaneaton remained good law was “a question 

for another case and another day.” 817 F.3d at 1061. The Ninth Circuit’s recognition that

Vaneaton “may be on infirm ground after Jardines” signals that the law is unsettled in this area 

and does not clearly proscribe the conduct alleged in this case. 817 F.3d at 1160. 

Ultimately, Malek does not meet his burden to “identify a case where an officer acting 

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

White v. Pauly, 137 S.Ct. at 552. Malek does not point to any controlling precedent that existed 

on February 4, 2016, that would have alerted a reasonable officer in these circumstances that a 
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knock, talk, and arrest of Malek in his home was unlawful when the Officers had probable cause 

to arrest but no warrant. Sharp, 2017 WL 4126947, at *7 (“Plaintiffs must point to prior case law 

that articulates a constitutional rule specific enough to alert these deputies in this case that their 

particular conduct was unlawful.”) (emphasis in original). Therefore, the law was not clearly 

established that the Officers’ entry into Malek’s home to arrest him was unreasonable under the 

circumstances pled in the Complaint. 

c. Exigent Circumstances

The parties also dispute whether exigent circumstances existed such that the Officers were 

entitled to enter Malek’s home without a warrant. In light of the above analysis under the second 

prong of qualified immunity for the unlawful entry to arrest, the Court finds that the issue of 

exigent circumstances need not be decided because Vaneaton’s “doorway exception” does not 

require exigent circumstances to be present. The Court recognizes that the Supreme Court held in

Payton v. New York that “[i]n terms that apply equally to seizures of property and to seizures of 

persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent 

circumstances, that threshold may not reasonably be crossed without a warrant.” 445 U.S. at 590. 

However, as explained above, the Ninth Circuit has explicitly held 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.” LaLonde v. Cty. of 

Riverside, 204 F.3d 947, 955 (9th Cir. 2000) (citing United States v. Santana, 427 U.S. 38 (1976), 

United States v. Vaneaton, 49 F.3d 1423, 1427 (9th Cir.1995)). In Vaneaton, the Ninth Circuit 

stated that “[b]ecause we conclude that Vaneaton’s exposure to the police was voluntary, we need 

not discuss exigent circumstances.” 49 F.3d at 1426 n.2. This is because if the suspect voluntarily 

exposes himself to warrantless arrest, “the presumption created by Payton is overcome.” Id. at 

1426. 

The Court’s qualified immunity analysis above found that clearly established federal law at 

the time of the incident did not prohibit a reasonable officer under the circumstances from 

arresting Malek inside his house with probable cause but without a warrant and without exigent 

circumstances when Malek voluntarily answered the Officers’ knock at his door. Malek failed to 
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“identify a case where an officer acting under similar circumstances as [the Officers] was held to 

have violated the Fourth Amendment.” White v. Pauly, 137 S.Ct. at 552. The Court thus construes 

the Officers’ argument that exigent circumstances also existed to arrest Malek without a warrant as 

an alternative ground for dismissal. Mot. 6-8. Should an amended complaint allege an 

unreasonable mistake of law and sufficiently plead around qualified immunity with respect to the 

issues above, only then would the Court need to consider the Officers’ qualified immunity 

arguments regarding exigent circumstances. 

For the foregoing reasons, the Officers’ motion to dismiss Malek’s § 1983 claim for 

unlawful arrest and unlawful entry to arrest is GRANTED WITH LEAVE TO AMEND.

In granting leave to amend, the Court leaves open the possibility that Malek could conceivably 

allege further factual allegations to raise a plausible inference that, for example, (1) the Officers’ 

reliance on the PPR was unreasonable; and (2) the Officers’ conduct went beyond the scope of a 

permissible “knock and talk.” The Court does not hold any opinion as to whether any such facts 

would ultimately avoid the application of qualified immunity in this case. For the purposes of this 

motion to dismiss, the Court determines only that amendment would not necessarily be futile. 

ii. Excessive Force 

Malek contends that the Complaint properly pleads an excessive force claim against all 

three Officers for the “painful, embarrassing, lengthy, and invasive” detention. Opp’n 16. Claims 

of excessive force in the course of an authorized arrest or detention “should be analyzed under the 

Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 

109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether a particular seizure is reasonable must be 

“judged from the perspective of a reasonable officer on the scene,” id. at 396, 109 S.Ct. 1865, 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. 

As with the unlawful arrest, the Officers argue that they are shielded by qualified immunity 

under either prong on the excessive force claims. Mot. 11-14. Here, the Court addresses only the 
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second prong of qualified immunity, which is dispositive. See Pearson, 129 555 U.S. at 241–42. 

The Complaint alleges the following circumstances regarding excessive force: the officers arrested 

Malek for a firearm related felony and handcuffed him behind his back; Malek was subjected to 

nine hours of handcuffing while the officers secured and executed a search warrant; Malek

informed the officers that the handcuffs caused him “significant pain” including by aggravating a 

pre-existing back injury; Malek requested that he be able to take his prescribed pain pills for his 

back due to the painful handcuffing, but Officer Sandri said no. 

Malek argues that it would have been clear to a reasonable officer confronted with these 

circumstances that the alleged use of force was unreasonable. The Officers argue that even if 

Malek alleges a constitutional violation, it was not clearly established that the alleged use of force 

was excessive. The Officers point out that the law actually permits police officers to handcuff 

arrestees, and further allows detention of building occupants incident to a search for an extended 

period of time even if there is no arrest. Mot. 13 (citing Michigan v. Summers, 452 U.S. 692, 705 

(1981)). The Ninth Circuit has recently confirmed that under Summers, “irrespective of the 

exigencies of the particular circumstances, officers may categorically detain the occupant of a 

home while executing a search warrant in that home.” Sharp, 2017 WL 4126947, at *6. The 

Officers also cite to a number of cases to support their argument that “nine hours of handcuffing 

during an arrest and search for illegal firearms is constitutionally permissible.” Reply 11. As 

discussed below, Malek is unable to meet his burden to identify a case that would have alerted the 

Officers that their alleged conduct was unlawful. See Sharp, 2017 WL 4126947, at *7 (quoting 

White v. Pauly, 137 S.Ct. at 552). 

The Court notes that Malek’s opposition focuses on the first prong of qualified immunity, 

and does not properly address the second prong of qualified immunity with respect to the 

excessive force claim. Malek argues that “it was clearly established that restraint and handcuffs 

are a use of force subject to standard Fourth Amendment objective reasonableness.” Opp’n 24. 

While Malek correctly identifies general principles of Fourth Amendment jurisprudence, he 

ignores the relevant inquiry. Under the second prong of qualified immunity for the excessive 

force claim, the Court considers whether it was clearly established that a reasonable officer under 
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the circumstances as pled would understand that handcuffing an arrested felon with firearms and 

restraining him in handcuffs for the time it took to secure and execute a search warrant, even when 

the arrestee complained of back pain and asked to take pain medication, was an unreasonable use 

of force. The Court considers the case law Malek presents to determine if the constitutional right 

in question was “clearly established” in light of preexisting law. 

Malek argues that this case is similar to Meredith v. Erath, 342 F.3d 1057, 1063 (9th Cir. 

2003). Opp’n 18. In Meredith, the Ninth Circuit held that an Internal Revenue Service (“IRS”) 

agent executing a search warrant in an office building was not entitled to qualified immunity for 

handcuffing the plaintiff, a resident of the building, during a search. 342 F.3d at 1057. The 

plaintiff in Meredith repeatedly insisted on seeing the search warrant, until the defendant 

eventually grabbed her, threw her to the ground, twisted her arms and handcuffed her. Id. at 1060. 

Importantly, the plaintiff alleged that the handcuffs caused her pain because they were too tight 

and she suffered extensive bruising. Id. The Ninth Circuit held that it was clearly established that 

the amount of alleged force used by the IRS agent was excessive, and that a reasonable agent in 

the position of the IRS agent would have known that such conduct violated the Fourth 

Amendment. Id. at 1061. The Ninth Circuit noted that the plaintiff did not pose a safety risk, 

made no attempt to leave the property, and was suspected of committing only non-violent 

offenses. Id. Here, the Officers argue that Meredith is inapposite because that case involved the 

investigation of a non-violent tax crime, and there was no reason to believe the resident posed a 

safety risk. Mot. 11. In contrast, the allegations of the Complaint in this case include that the 

Officers were investigating a firearm-related felony, Malek confirmed he owned guns, the Officers

knew he had previously been convicted of brandishing a replica firearm, and the Officers had 

probable cause to arrest Malek. 

The Court agrees with the Officers that Meredith is dissimilar from the alleged facts in this 

case. Meredith therefore does not amount to “clearly established” law that would inform a 

reasonable officer that handcuffing a suspect during an arrest and search for firearms was 

unreasonable and thus unconstitutional. The facts in the Complaint, taken as true, allege that the 

handcuffing lasted only as long as the time it took the officers to obtain and execute a search 
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warrant. Malek argues that the Officers could have allowed him to remain un-cuffed while they 

sat guard over him in his living room, or removed his handcuffs in response to his complaints of 

pain. Opp’n 18. The Officers respond that they are not aware of any precedent establishing that an 

arrestee whose residence is being searched for firearms should be released from handcuffs if he 

complaints of back pain. Mot. 14. While the availability of alternatives may be a relevant factor 

under the first prong of qualified immunity determining whether the conduct was reasonable, it 

does not inform the Court’s inquiry under the second prong. On the second prong of qualified 

immunity, Malek must “point to prior case law that articulates a constitutional rule specific 

enough to alert these [Officers] in this case that their particular conduct was unlawful.” Sharp, 

2017 WL 4126927. Meredith would not alert the Officers that their specific conduct, or even 

analogous conduct, was unlawful. Malek points to no controlling precedent that prohibits officers 

from handcuffing an arrestee who is suspected of committing a firearm related felony, or from 

keeping the arrestee in handcuffs while waiting for and executing a search warrant to seize 

firearms that the arrestee confirmed were in the house. Therefore, Malek fails to demonstrate that 

the Officers’ conduct as alleged was “clearly proscribed by established federal law.” Id. 

The Officers also correctly point out in their reply and at the hearing that Malek cannot 

avail himself of the line of cases, including Meredith, that involve allegations of overly-tight 

handcuffing. See, e.g., LaLonde v. County of Riverside, 204 F.3d 947, 960 (9th Cir. 2000) (“A 

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

While the Ninth Circuit has long recognized that excessively tight handcuffing may constitute a 

Fourth Amendment violation, the Complaint contains no allegations that the handcuffs were too 

tight, that the handcuffs hurt or damaged Malek’s wrists, or even that they caused any other injury. 

Rather, Malek alleges that the pain resulted from “aggravating a pre-existing back injury.” Compl. 

¶ 31. Ninth Circuit precedent establishing that overly tight handcuffing can constitute excessive 

force is therefore not applicable to the facts as alleged in the Complaint. Malek has not cited, and 

the Court has not found, any case holding that handcuffing alone, or handcuffing when the suspect 

alerts the officer to a pre-existing injury, is sufficient to state a claim for excessive force. 

An examination of Wall v. County of Orange, on which Malek relies, makes clear that case 
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law on overly tight handcuffing does not clearly establish the alleged constitutional violation in 

this case. 364 F.3d 1107, 1112 (9th Cir. 2004). In Wall, the police were called in response to an 

altercation between plaintiff and the manager of a car wash. Id. at 1109. When the officer arrived 

and began talking to the car wash owners, the plaintiff approached the officer and was told to “get 

out of here.” Id. The plaintiff then agreed to leave and began walking away as the officer 

instructed. Id. According to the plaintiff’s allegations, “without warning” the officer then 

“physically attacked” him from behind, grabbed him by his wrist, twisted his arm, and smashed 

his face, chest and glasses into the car. Id. The handcuffs were allegedly “extremely tight” behind 

his back, and the plaintiff requested multiple times for the officer to loosen the handcuffs. Id. at 

1110. The plaintiff sustained nerve damage from the handcuffing incident and was forced to give 

up his profession as a dentist as the result of the injury. Id. On summary judgment, the Ninth 

Circuit found that the officer was not shielded by qualified immunity either for the arrest, which 

was unlawful, or for the use of excessive force. Id. 1111-12. The officer was found to have 

violated a clearly established constitutional right to be free of excessive force by “continuing the 

restraint by handcuffs that hurt and damaged [plaintiff’s] wrist.” Id. 1112. The alleged facts in this 

case do not implicate this preexisting law on overly tight handcuffing. Unlike the facts of Wall, 

the Complaint does not have any allegations whatsoever of an abnormal handcuffing procedure, 

overly tight handcuffs, injuries caused by the handcuffing, visible manifestations of Malek’s preexisting injury, or even a request by Malek to the Officers to loosen or remove the handcuffs. 

Relevant authority would involve whether it is unreasonable for an officer to continue 

handcuffing once the suspect has complained of pain from a pre-existing injury or has asked to 

take medication to treat a pre-existing condition. None of the cases Malek relies on involve a 

similar factual scenario. Franklin dealt with the use of handcuffs on a severely disabled person. 

31 F.3d at 876-77. Winterrowd v. Nelson involved a painful pat-down of a “harmless motorist” 

and did not involve an arrest or the use of handcuffs. 480 F.3d 1181, 1185 (9th Cir. 2007). The 

excessive force claim in Green v. City & Cty. of San Francisco was premised on “the fact that 

[plaintiff] was held at gunpoint while she was otherwise restrained.” 751 F.3d 1039, 1051 (9th Cir. 

2014). As with Meredith and the case law on tight handcuffing, these cases do not put a 
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reasonable officer on notice that handcuffing a suspected felon during an arrest and search for 

weapons, despite his complaint of back pain and request to take his medication, would be an

unreasonable use of force. 

This is not to say that the Officers can never be on notice that their conduct violates 

established law unless Malek comes forward with a case with the exact same factual scenario. A 

plaintiff certainly can plead around the second prong of qualified immunity “even in novel factual 

situations.” Nelson v. City of Davis, 685 F.3d 867, 884 (9th Cir. 2012) (quoting Hope v. Pelzer, 

536 U.S. 730, 741 (2002)). However, the Court does not find that Malek has alleged an “obvious” 

instance of constitutional misconduct, and none of the preexisting law Malek relies on makes the 

unlawfulness of the Officers’ alleged actions apparent in this case.

Malek does not engage with any of the existing case law cited by the Officers holding that 

handcuffing a suspect is actually constitutionally permissible, and prolonged detentions lasting 

several hours can be justified by a search for weapons. See Shaw v. City of Redondo Beach, No. 

cv-05-0481, 2005 WL 6117549, at *7 (C.D. Cal. Aug. 23, 2005) (“[C]ourts have recognized that 

the use of handcuffs in effecting an arrest is ‘standard practice.’”); see also LaLonde v. County of 

Riverside, 204 F.3d 947, 964 (9th Cir.2000) (“Handcuffing an arrestee is standard practice, 

everywhere.”) (Trott, J., concurring in part, dissenting in part); Muehler v. Mena, 544 U.S. 93 

(2005) (holding that 2-3 hours of detention in handcuffs was reasonable during a search for 

weapons); Mountain Pure, LLC v. Roberts, 814 F.3d 928, 934 (8th Cir. 2016) (holding that the 

length of the detention “was reasonable given that the search took nearly twelve hours and the 

government had a legitimate interest in detaining the employees during the search,” and applying 

qualified immunity because “Appellants have shown no precedent demonstrating that these 

detentions violated these employees’ clearly established rights.”); United States v. Stout, 439 F. 

App’x 738, 747 (10th Cir. 2011) (finding that “an inherently dangerous situation arises” when a 

search warrant authorizes a search for weapons, justifying detention and handcuffing during 

detention); Unus v. Kane, 565 F.3d 103, 120 (4th Cir. 2009) (holding that four hours of 

handcuffing during execution of search warrant for financial documents was reasonable). Malek’s 

failure to address or distinguish any of these cases further demonstrates that the alleged 
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constitutional question confronting the Officers regarding their use of handcuffs was not “beyond 

debate.” See Ashcroft v. al-Kidd, 131 S. Ct. at 2083.

“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.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. On Malek’s version of the facts, the Court 

finds that it would not have been clear to a reasonable officer that the force used was unreasonable 

under the circumstances. In other words, controlling federal law does not “clearly establish” that 

officers cannot handcuff a suspected felon with a firearm who is under arrest while they wait for a 

search warrant to be obtained and executed, and cannot continue the restraint when the arrestee 

complains of a pre-existing back injury. Unlike in the cases on which Malek relies, the Complaint 

does not allege tight handcuffing, severe injuries to the wrist or otherwise, a request to loosen or 

release the handcuffs, or any other abusive conduct. Thus, Malek fails to “identify a case” to alert 

the Officers that their conduct was unlawful, and qualified immunity applies. See Sharp, 2017 WL 

4126947, at *7 (quoting White v. Pauly, 137 S.Ct. at 552).

3

 

Because the Court finds that Malek could allege additional facts regarding the nature of his

handcuffing and detention, the Officers’ motion to dismiss Malek’s section 1983 claims for 

excessive force is GRANTED WITH LEAVE TO AMEND.

iii. Unlawful Search

The Complaint alleges a violation of section 1983 for the Officers’ pre-warrant and postwarrant search of Malek’s home, as well as judicial deception by Officer Green in procuring the 

search warrant. The Officers move to dismiss only claims as to Officers Sandri and Favela for the 

post-warrant search of the home and their seizure of Malek’s firearms and knives pursuant to the 

warrant. Mot. 14-16; Reply 12. However, the Complaint also contains allegations regarding a prewarrant search of the home and Officer Green’s involvement in procuring and executing the 

 

3 Again, the Court does not reach the constitutional question of whether the Complaint plausibly 

alleges that the Officers’ conduct constituted unreasonable force under Graham. Since Malek 

must prevail on both prongs of qualified immunity, the Court’s conclusion that the constitutional 

right allegedly violated was not clearly established at the time of the challenged conduct is 

dispositive on the motion to dismiss Malek’s excessive force claims. 
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search warrant. The Officers do not move to dismiss these claims. 

a. Pre-Warrant Search

The Complaint alleges that once the Officers entered Malek’s home and placed him under 

arrest, the Officers searched his house, including going into the garage to take photographs of his 

vehicles. Compl. ¶ 28. Malek alleges that he asked why the Officers were searching his home 

without a search warrant, and one or more of the Officers replied they did not need a search 

warrant. Id. The Complaint also alleges that a “thorough[] search[]” of Malek’s home occurred 

“at some point before 3:54 A.M.” Compl. ¶ 32. Despite these factual allegations, it is not clear 

whether Malek is challenging the pre-warrant search under § 1983. The Officers do not move on 

this claim. Therefore, the sufficiency of the allegations concerning the pre-warrant search is not 

before the Court at this time. As such, the Court does not decide whether the allegations state a 

plausible claim for an unlawful search or if the alleged conduct was a permissible protective 

sweep. 

b. Unlawful Search by Officers Sandri and Favela

The Officers do move to dismiss the section 1983 claims against Officers Sandri and 

Favela for their execution of the search warrant on the grounds that they reasonably relied on 

Officer Green and the Superior Court Judge who issued the search warrant. Mot. 14. The Court 

agrees that Officers Sandri and Favela are entitled to qualified immunity under the facts alleged. 

The Complaint alleges that Officer Green obtained a search warrant and then called Officer Sandri 

to inform him that a search warrant had been obtained. Compl. ¶ 36. Officer Sandri then told 

Malek that they had a search warrant, and Malek “would have to open the gun safe or Defendants 

would have a locksmith come drill it open.” Id. Malek instructed his wife to open the gun safe, 

and Officers Sandri and Favela then seized Malek’s guns and ammunition. Id. Officer Sandri and 

Favela also seized several knives on display near the gun safe. Id. Officer Green returned “[a]t 

some point after opening the gun safe and showed Malek the search warrant. Id. Malek then 

alleges that after opening the gun safe, “one or more of Defendants” went through the house 

searching and taking photographs. Id. 

Malek argues that Officers Sandri and Favela may not argue that they reasonably relied on 
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the legality of the search warrant because the search warrant lacked particularity on its face. Opp’n 

15. Malek acknowledges that an officer’s reliance on a search warrant “must be objectively 

reasonable.” Ramirez v. Butte-Silver Bow Cty., 298 F.3d 1022, 1027 (9th Cir. 2002), aff’d sub 

nom. Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). However, 

Malek ignores binding Ninth Circuit authority that “[w]hat’s reasonable for a particular officer 

depends on his role in the search.” Id. Given the division of labor in conducting a search, an 

officer can either “plan and lead” a search, or he can be a line officer and “help execute it.” Id. 

Malek has only plausibly alleged that Officers Sandri and Favela were line officers. Thus, they 

“are required to do much less” than the leader of a search (in this case, Officer Green). Id. at 

1028. The Ninth Circuit has held that line officers “do not have to actually read or even see the 

warrant; they may accept the word of their superiors that they have a warrant and that it is valid.” 

Id. (citing Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986). 

Here, the Complaint does not include factual allegations to state a plausible claim that 

Sandri and Favela were leaders of the search or that their reliance on the search warrant was 

unreasonable. The Complaint alleges only that Sandri and Favela executed the search warrant by 

confiscating Malek’s guns, ammunition, and knives once they heard from Officer Green that a 

warrant was issued. There are no allegations that Officers Sandri and Favela participated in the 

procurement of the search warrant, or that they ever even saw or read the search warrant. For 

these reasons, qualified immunity shields Officers Sandri and Favela from liability for their 

execution of the search warrant. Ramirez, 298 F.3d at 1028 (“Because they were not required to 

read the warrant, the line officers conducting this search cannot reasonably have been expected to 

know that it was defective.”) Moreover, Malek does not allege that Officers Sandri and Favela’s 

search was impermissibly overbroad. Regardless of the scope of the written warrant, Malek only 

alleges that the Officers obtained access to the gun safe and seized the guns and ammunition 

contained inside as well as the knives on open display near the safe. He further alleges on 

information and belief that they went through the house “searching and taking photographs.”

Compl. ¶ 36. 

Accordingly, the Officers’ motion to dismiss the section 1983 claims against Officers
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Sandri and Favela based on their execution of the search warrant is GRANTED WITH LEAVE 

TO AMEND. The Court also finds that this analysis disposes of any section 1983 claim for 

violation of the Second Amendment, because Officers Sandri and Favela acted reasonably in 

seizing Malek’s firearms pursuant to the warrant, and promptly returning them when the mistake 

was discovered. 

c. Judicial Deception and Unlawful Search as to Officer Green

The allegations in the Complaint against Officer Green with respect to his procurement of 

the search warrant and its execution are distinct from those against Officers Sandri and Favela. 

The Officers do not move to dismiss section 1983 claims against Officer Green related to the 

search warrant, and they do not address Malek’s judicial deception claim against Officer Green in 

their briefing. Although the hearing on the motion to dismiss involved some oral argument on 

these claims, the issue is not properly before the Court because the Officers did not move to 

dismiss these claims against Officer Green. 

iv. Retaliation

Malek contends that the Officers violated section 1983 by interfering with Malek’s “right 

to be free from government retaliation for protected speech in exercise of Constitutional rights, as 

secured by the First Amendment of the U.S. Constitution.” Compl. ¶ 51(e). The Complaint

alleges that after Malek requested to see a warrant from the Officers, Malek was faced with “the 

option to either give up his legally possessed firearms voluntarily or go to jail.” Id. ¶ 25. Malek

argues that he engaged in protected speech by informing the Officers that they were mistaken 

regarding his right to possess firearms, refusing to give the Officers his lawfully possessed and 

registered firearms, requesting that the Officers obtain a warrant, closing the door slightly and 

stating that he wanted to speak to his attorney. Id. ¶¶ 24-27. Malek urges the Court to find that 

these allegations support and inference that when Malek exercised his First Amendment right by 

asserting his Second and Fourth Amendment rights, the Officers “retaliated” by entering his home 

without a warrant, arresting him, handcuffing him for nine hours and taking him to jail. Opp’n 20. 

These allegations do not plausibly allege a retaliation claim.

The parties agree that in order to state a claim for retaliation under the First Amendment, a 
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plaintiff must show that (1) the defendant’s 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 [plaintiff’s] speech was a but-for cause of their conduct.” 

Ford v. City of Yakima, 706 F.3d 1188, 1194 (9th Cir. 2014). The Officers argue that Malek’s 

retaliation claim fails to plead facts showing that the officers took any actions because they desired 

to chill Malek’s speech. Mot. 16. In line with the Ninth Circuit’s analysis in Ford, the relevant 

question on causation here is: would Malek have been arrested, handcuffed, had his home 

searched, and been taken to jail “but for” the officers’ desire to punish him for his speech? Based 

on the facts alleged, the answer is clearly yes. As the Officers point out, the cases Malek cites to 

support his contention that he has plausibly alleged that the Officers were motivated by 

“retaliatory animus” are distinguishable. In Bass v. City of Fremont, police officers allegedly 

pulled Bass over and forced him out of his vehicle despite their knowledge that his brake light 

worked and his registration was current. No. C 12-4943, 2013 WL 891090, at *1 (N.D. Cal. Mar. 

8, 2014). When Bass asserted his rights as a citizen, the officers search him and his vehicle, 

shoved him, put him in overly tight handcuffs, and accused him of being on or selling drugs. Id. 

Without conducting any field sobriety tests, the officers arrested Bass for driving under the 

influence of a controlled substance and brought him to jail. Id. 

The Bass court held that “[t]he temporal proximity between Bass informing the officers 

that he had rights as a citizen and the officers’ search and arrest of Bass, together with the alleged 

lack of probable cause for the arrest, permits a reasonable inference that the officers desired to 

chill his speech.” Id. at *3. Such circumstances are not present here. As discussed above, this 

Court has already found that the Officers believed they had probable cause to arrest Malek for a 

violation of § 29805. Therefore, the facts alleged in the Complaint do not raise the reasonable 

inference that had Malek not verbally challenged the officers, they would not have arrested and 

handcuffed him for violating the felony they reasonably believed he committed and searched his 

home for the firearms they knew that he owned. Accordingly, Malek has not plausibly alleged 

that the Officers’ conduct was motivated by a desire to retaliate against Malek for his assertion of 

his Second and Fourth Amendment rights. Accepting the allegations as true, the reasonable 
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inference is that the Officers acted the way they did out of a desire to arrest a suspected felon and 

confiscate the weapons they believed he unlawfully owned.

Similarly distinguishable is Holland v. City of San Francisco, where the plaintiff Holland 

was participating in a public protest when she saw that her girlfriend was being taken away in 

handcuffs by the police. No. C10-2603, 2013 WL 968295, at *1 (N.D. Cal. Mar. 12, 2013). The 

evidence showed that Holland was exhaustively questioning police officers as to why they were 

arresting her girlfriend, saying they had no right to arrest her, and asserting her own “right to be in 

the street” when the officers ordered her to get back on the sidewalk. Id. at *5. On summary 

judgment, the court held that a reasonable juror could infer from the evidence that “Holland would 

not have been arrested or subjected to excessive force had it not been for her persistent questioning 

of the officers and verbal challenges to their authority.” Id. Again, the Complaint does not allege 

the sort of exhaustive questioning of police officers in the course of their duties that led the 

officers in Holland to kick the plaintiff to the ground and perform a strip search. Here, the 

Officers drove to Malek’s home after reviewing the PPR, presumably for the purpose of 

confirming his identity and gun ownership in order to confiscate the guns. Once Malek confirmed 

his name and that he owned the guns, there is no plausible inference from the facts that he would 

have avoided their alleged conduct had he remained silent instead of asserting his constitutional 

rights. That the Officers discussed Malek’s realistic options with him before deciding to arrest 

him does not amount to a claim that the Officers retaliated against him for his assertion of rights, 

and in fact more plausibly suggests that his arrest was not the preferred option. 

For the foregoing reasons, the Officers’ motion to dismiss Malek’s section 1983 claim for 

retaliation is GRANTED WITH LEAVE TO AMEND.4 

B. State Law Claims

The Officers move to dismiss Malek’s claims under state law on the grounds that the 

claims challenge the same conduct as the section 1983 claims, and the Officers are shielded by 

multiple governmental immunities under state law. Mot. 17-25.

 

4 Because the Court finds that Malek fails to state a claim for retaliation in violation of the First 

Amendment, the Court does not address the second prong of qualified immunity on this claim.
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i. Bane Act

The Complaint includes a claim for violation of California Civil Code § 52.1, also known 

as the Bane Act. Compl. ¶¶ 56-61. A defendant is liable under the Bane Act “if he or she 

interfered with or attempted to interfere with the plaintiff’s constitutional rights by ... threats, 

intimidation, or coercion.” Shoyoye v. Cnty. of Los Angeles, 203 Cal.App. 4th 947, 956 (2012); 

Cal. Civ.Code § 52.1(a). Although the Bane Act is analogous to § 1983, it is not tantamount to 

a § 1983 violation, and requires more than evidence of a violation of rights. Bass v. City of 

Fremont, No. C12–4943 TEH, 2013 WL 891090, at * 4 (N.D.Cal. Mar. 8, 2013); see also Austin 

B. v. Escondido Union Sch. Dist., 149 Cal.App.4th 860, 883, 57 Cal.Rptr.3d 454 (2007) (“The 

essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, 

intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had 

the right to do under the law.”). In order to state a claim under the Bane Act, Malek must allege 

“(1) interference with or attempted interference with a state or federal constitutional or legal right, 

and (2) the interference or attempted interference was by threats, intimidation, or coercion.” Allen 

v. City of Sacramento, 234 Cal.App.4th 41, 67, 183 Cal.Rptr.3d 654 (2015). The California Court 

of Appeal recently clarified that the Bane Act “requires a showing of threatening conduct 

independent from the alleged interference or violation of a civil right.” Doe v. State, 8 Cal. App. 

5th 832, 842–43, 214 Cal. Rptr. 3d 391, 400 (Ct. App. 2017), review denied (June 14, 2017); see 

also Allen, 234 Cal.App.4th at 66 (“[W]e conclude a wrongful arrest or detention, without more, 

does not satisfy both elements of section 52.1.”). 

The Court finds that the Complaint does not plead any independently threatening conduct 

or intimidation beyond the alleged violations of constitutional rights. Malek argued at the hearing 

on the motion to dismiss that a Bane Act claim is sufficiently alleged so long as the Complaint 

contains allegations of an unlawful arrest along with allegations of excessive force. See Bender v. 

County of L.A., 217 Cal. App. 4th 968, 977 (2013). Malek does not address Doe v. State, which is 

the most recent authority on the issue and explicitly confirms the continued validity of the line of 

cases holding that something more than an inherently coercive violation is required to state a claim 

under the Bane Act. 8 Cal. App. 5th at 842–43. Rather than point to any allegations of 
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intimidation beyond inherent coercion, Malek argues that the Court should hold that the coercion 

element of the Bane Act “may be intrinsic to constitutional violations.” Opp’n 22. This argument 

fails, and the cases relied on by Malek are either outdated or inapposite. 

Thus, Malek has failed to allege any threats, intimidation, or coercion in connection with 

an alleged constitutional violation. The law is clear under Doe v. State, Allen, and Shoyoye v. 

County of Los Angeles, 203 Cal. App. 4th 947, 959 (2012) that not all constitutional violations by 

police officers constitute Bane Act violations. Therefore, following this precedent, the Court 

holds that Malek must allege threatening conduct separate from the coercion inherent in the 

alleged constitutional violations. See Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 

1219, 1222 (9th Cir. 2003) (“In the absence of a controlling California Supreme Court decision, [a 

federal court] must predict how the California Supreme Court would decide the issue, using 

intermediate appellate court decisions, statutes, and decisions from other jurisdictions as 

interpretive aids.”).

For these reasons, the Court GRANTS WITH LEAVE TO AMEND the Officers’ motion 

to dismiss Malek’s Bane Act claim. 

ii. State Law Immunities and Punitive Damages

As stated above and at the hearing on the motion to dismiss, Malek’s constitutional claims 

are largely in need of amendment based on the deficiencies described above. The Officers have 

also asserted a host of state law immunities and challenged the adequacy of Malek’s punitive 

damages prayer. Any amendments on the constitutional claims will also impact the viability of

certain state law claims and Malek’s prayer for punitive damages. Although a final determination 

on these issues is more appropriate when the operative pleading on the constitutional violations is 

set and it is clear which constitutional claims will proceed, the Court provisionally addresses the 

state law immunities below. Importantly, where the Court granted qualified immunity under the 

second prong above, the state law claims based on such conduct do not necessarily fail. In sum on 

the constitutional claims, the Court does not determine whether the Complaint sufficiently alleges 

a claim of unlawful entry to arrest or a claim of excessive force. The Court does, however, 

conclude that under the facts as pled, the Officers had probable cause to arrest Malek, that Officers 
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Sandri and Favela acted reasonably in executing the search warrant, and that Malek does not 

plausibly allege a First Amendment retaliation claim. However, the Officers did not move to 

dismiss the constitutional claims arising from the pre-warrant search or claims against Officer 

Green related to his procurement and execution of the search warrant. 

Where the Court DENIES the Officers’ motion to dismiss pursuant to certain state law 

immunities below, the denial is without prejudice to the Officers reasserting the immunities at a 

later stage of the litigation, including on a subsequent motion to dismiss. Finally, because the 

Complaint alleges claims against Officer Green with respect to the search warrant, the Court finds 

that the punitive damages claim is adequately pled for that claim. The Court now addresses the 

applicability of the various state law immunities asserted by the Officers. 

a. California Government Code § 820.8

California Government Code § 820.8 bars state law claims against public employees for 

damages for “an injury caused by the act or omission of another person.” Malek appeared to 

concede at the hearing that the Complaint does not allege vicarious liability. ECF 42, 61:13-23. 

Thus, § 820.8 is not applicable to the extent the Complaint alleges only that the Officers are 

responsible for their own actions. To the extent Malek seeks to hold the Officers jointly and 

severally liable under state law, the Officers’ motion to dismiss is GRANTED WITHOUT 

LEAVE TO AMEND pursuant to § 820.8. 

b. California Government Code § 821.6

The Officers argue that California Government Code § 821.6 immunizes the Officers to all 

of Malek’s state law claims other than those based on false arrest or false imprisonment. Mot. 21. 

However, the Ninth Circuit recently held that the “prosecutorial” immunity under § 821.6 is 

limited to malicious-prosecution claims. See Sharp, 2017 WL 4126947, at *16. Even though the 

Officers cite to decisions by intermediate appellate courts in California that have expanded the 

immunity to other action by police officers, the California Supreme Court held that § 821.6 does 

not extend beyond malicious prosecution claims. See Sullivan v. Cty. of Los Angeles, 12 Cal.3d 

710 (1974). Because “California’s highest court has not extended § 821.6 immunity to actions 

outside of malicious prosecution,” the Court finds that this immunity does not apply in this case. 
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Sharp, 2017 WL 4126947, at *16. Accordingly, the Officers’ motion to dismiss pursuant to 

§ 821.6 is DENIED. 

c. California Penal Code §§ 835, 836, 847(b)

The Officers argue that they are immune from liability under state law for arrests made 

with probable cause pursuant to California Penal Code § 836. Specifically, the Officers argue that 

Malek’s “false arrest or imprisonment” claim must be dismissed under California Penal Code 

§ 847(b). The false-arrest immunity under § 847(b)(1) protects officers from suit when they make 

an arrest that they had “reasonable cause” to believe was lawful. “Reasonable cause to arrest 

exists when the facts known to the arresting officer would lead a reasonable person to have a 

strong suspicion of the arrestee’s guilt.” See Levin v. United Airlines, 158 Cal. App. 4th 1002, 

1018 (2008), as modified (Jan. 14, 2008); see also O’Toole v. Superior Court, 140 Cal. App. 4th 

488, 511 (2006). The “reasonable cause” inquiry is an objective standard. Levin, 158 Cal. App. 

4th at 1018. As one California intermediate appellate court noted, “[t]he terms reasonable cause 

and probable cause as used in the context of an arrest appear to be interchangeable.” Id. at 1017 

n.18. 

Because the Court concludes above that the Officers had probable cause to arrest Malek 

based on the facts alleged, the Court finds that the Complaint also alleges that the Officers had 

“reasonable cause” to believe the arrest was lawful. Accordingly, § 847(b) applies and the 

Officers are entitled to immunity from Malek’s state law “false arrest or imprisonment” claim. 

Although the Court already dismissed the Bane Act claim, to the extent Malek amends the factual 

allegations underlying the Bane Act claim the Court notes that § 847(b) would also immunize the 

Officers from Bane Act liability premised on false arrest and imprisonment. For these reasons, the 

Officers’ motion to dismiss Malek’s “false arrest or imprisonment” claim is GRANTED WITH 

LEAVE TO AMEND.

However, the Court does not reach the question of whether the Officers are immune under 

California Penal Code § 835, which provides that an arrestee “may be subjected to such restraint 

as is reasonable for his arrest and detention.” The Court did not determine above whether the 

alleged facts adequately pled a constitutional violation for excessive force because it granted the 
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Officers’ motion to dismiss the excessive force claim under the second prong of qualified 

immunity. Malek’s claims for “assault and battery” and negligence arise from his allegations that 

the Officers used excessive force. And “California denies immunity to police officers who use 

excessive force in arresting a suspect.” Robinson v. Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 

2002) (citing Mary M. v. City of Los Angeles, 54 Cal.3d 202, 215 (1991). Therefore, the Officers’ 

motion to dismiss Malek’s state law claims for “assault and battery” and negligence pursuant to 

§ 835 is DENIED without prejudice to re-asserting the statutory immunity at a later point in the 

litigation. 

d. California Government Code § 820.4 

California Government Code § 820.4 similarly only immunizes the Officers from certain 

state law claims. § 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.” As discussed above, the Court 

finds that Officers Sandri and Favela acted reasonably in executing the search warrant. Therefore, 

the Court GRANTS WITH LEAVE TO AMEND the Officers’ motion to dismiss Malek’s state 

law claims challenging the conduct of Officers Sandri and Favela related to their execution of the 

search warrant pursuant to § 820.4.

However, the Officers did not move to dismiss the section 1983 claims with respect to the 

pre-warrant search or Officer Green’s procurement and execution of the search warrant. The 

Court therefore cannot conclude that this conduct was an exercise of “due care” and does not find 

that the Officers are entitled to dismissal on Malek’s state law claims challenging such conduct. 

The Officers’ motion to dismiss Malek’s state law claims pursuant to § 820.4 is therefore 

DENIED with respect to the pre-warrant search of Malek’s home as well as Officer Green’s 

search warrant-related conduct. This denial is without prejudice to the Officers reasserting this 

statutory immunity at a later stage of the litigation.

e. California Government Code § 262.1

The Officers argue that California Government Code § 262.1, immunizes all three 

Officers, including Officer Green, from liability for Malek’s state law claims based on an 

allegedly deficient warrant. Mot. 22-24. The Court has already held that Officers Sandri and 
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Favela are immune from state law claims related to the search warrant pursuant to § 820.4 because 

they acted with “due care” in executing the warrant. Thus, the only remaining issue under § 262.1

is whether Officer Green is also immune from state law claims related to the warrant. The Court 

finds that he is not. 

California Government Code § 262.1 provides that “[a] sheriff or other ministerial officer 

is justified in the execution of, and shall execute, all process and orders regular on their face and 

issued by competent authority, whatever may be the defect in the proceedings upon which they 

were issued.” This immunity plainly does not apply to Malek’s allegations regarding Officer 

Green’s judicial deception in procuring the warrant, since such conduct occurred before the search 

warrant was issued. Moreover, to the extent the state law claims are based on Officer Green’s 

liability for the execution of the search warrant, Malek plausibly alleges that the search warrant 

was not “regular” on its face because it was overbroad and facially invalid. The Court recognizes 

what the Officers describe as California’s “forgiving immunity standard” under this provision 

which requires the validity of a warrant to be judged by “an ordinarily intelligent and informed 

layman.” Vallindras v. Massachusetts Bonding & Ins. Co., 42 Cal. 2d 149, 154 (1954). However, 

the Court finds that § 262.1 does not immunize Officer Green from liability under state law 

because Malek has adequately alleged that the search warrant was “patently irregular and void” on 

its face. Id. The Officers’ motion to dismiss Malek’s state law claims pursuant to § 262.1 is 

therefore DENIED without prejudice to reasserting the statutory immunity at a later stage of the 

litigation. 
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IV. ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. The Officers’ Motion to Dismiss Malek’s § 1983 claims for unlawful arrest is 

GRANTED WITH LEAVE TO AMEND as to all of the Officers.

2. The Officers’ Motion to Dismiss Malek’s § 1983 claims for excessive force is 

GRANTED WITH LEAVE TO AMEND as to all of the Officers.

3. The Officers’ Motion to Dismiss Malek’s § 1983 claims for unlawful search and 

seizure is GRANTED WITH LEAVE TO AMEND as to the execution of the 

warrant by Officers Sandri and Favela.

4. The Officers’ Motion to Dismiss Malek’s § 1983 claims for retaliation is 

GRANTED WITH LEAVE TO AMEND as to all of the Officers. 

5. The Officers’ Motion to Dismiss Malek’s Bane Act claims is GRANTED WITH 

LEAVE TO AMEND as to all of the Officers.

6. The Officers’ Motion to Dismiss Malek’s state law claims for joint and several 

liability pursuant to California Government Code § 820.8 is GRANTED 

WITHOUT LEAVE TO AMEND.

7. The Officers’ Motion to Dismiss Malek’s state law claims pursuant to California 

Government Code § 821.6 is DENIED. 

8. The Officers’ Motion to Dismiss Malek’s state law claims pursuant to California 

Penal Code § 836 and § 847(b) is GRANTED WITH LEAVE TO AMEND.

9. The Officers’ Motion to Dismiss Malek’s state law claims pursuant to § 835 is 

DENIED without prejudice to reasserting the immunity at a later stage of the 

litigation.

10. The Officers’ Motion to Dismiss Malek’s state law claims pursuant to California 

Government Code § 820.4 is GRANTED IN PART WITH LEAVE TO AMEND 

as to Officers Sandri and Favela for their execution of the search warrant, and 

DENIED IN PART with respect to claims related to the pre-warrant search and 

Officer Green’s warrant-related conduct. 
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11. The Officers’ Motion to Dismiss Malek’s state law claims pursuant to California 

Government Code § 262.1 is DENIED without prejudice to reasserting the 

immunity at a later stage of the litigation. 

12. The Officers’ Motion to Dismiss Malek’s prayer for punitive damages as to the 

remaining claims is DENIED without prejudice to raising the arguments at a later 

stage of the litigation.

If Malek wishes to amend, he must file an amended complaint on or before 21 days from 

the date of this Order. In the event that a motion to dismiss the amended complaint is filed, the 

Court requests that the chambers copy of any amended complaint be a redlined version, in color.

Dated: September 27, 2017

______________________________________

BETH LABSON FREEMAN

United States District Judge