Marie Sales, individually and on behalf of the Estate of Paul J. Quintanar v. City of Tustin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIE SALES, individually and on
behalf of the Estate of Paul J. Quintanar,
Plaintiff - Appellee,
v.
CITY OF TUSTIN,
Defendant,
and
A. GLEASON, Officer; J. MONSOOR,
Officer; ROQUE, Officer,
Defendants - Appellants.
No. 14-55169
D.C. No. 8:12-cv-01834-CJC-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted February 1, 2016
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
FILED
MAY 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Defendants-Appellants Gleason, Monsoor, and Roque (“officers”) appeal the
district court’s denial of their motion for summary judgment on the basis of
qualified immunity. Plaintiff-Appellee Marie Sales brought suit against the City of
Tustin and the officers under 42 U.S.C. § 1983 and state law alleging, among other
things, that the officers violated her son’s Fourth Amendment rights when they
detained him, searched him, and attempted to arrest him. Appellee’s son, Paul
Quintanar, was tragically struck and killed by a car exiting the freeway after he ran
away from officers while they were attempting to arrest him for possession of
marijuana. We review a district court’s denial of summary judgment on the basis
of qualified immunity de novo, Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir.
2011) (en banc), and we reverse.
1. As a threshold matter, we have jurisdiction under 28 U.S.C. § 1291 to
review the denial of summary judgment on qualified immunity grounds
notwithstanding the absence of a final judgment. Plumhoff v. Rickard, 134 S. Ct.
2012, 2018–20 (2014) (citing Johnson v. Jones, 515 U.S. 304, 309 (1995)); see
also Mattos, 661 F.3d at 439, n.2. Appellee contends that a district court’s
decision to deny summary judgment for qualified immunity on the basis that there
is a genuine issue of material fact cannot be appealed. See Cunningham v. City of
Wenatchee, 345 F.3d 802, 806–07 (9th Cir. 2003) (“Interlocutory appeals are not
2

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available when the appellate court is required to resolve a ‘fact-related dispute
about the pretrial record, namely, whether or not the evidence in the pretrial record
was sufficient to show a genuine issue of fact for trial.’” (quoting Johnson v. Jones,
515 U.S. 304, 307 (1995)). However, we were not asked to determine whether
there is a genuine issue of material fact. We were asked to determine
whether—taking the facts as alleged by the Appellee—the officers are entitled to
qualified immunity. Thus, we have jurisdiction over this interlocutory appeal, and
Appellee’s motion to dismiss the appeal for lack of jurisdiction is denied. See id.
at 807 (“The officials must present the appellate court with a legal issue that does
not require the court to ‘consider the correctness of the plaintiff’s version of the
facts . . . .’” (quoting Johnson, 515 U.S. at 312)).
2. The officers are entitled to qualified immunity, because they did not
violate a clearly established constitutional right. See Pearson v. Callahan, 555
U.S. 223, 231–32 (2009). Under clearly established law, a law enforcement officer
may “approach an individual in public and ask him if he is willing to answer
questions.” United States v. Washington, 490 F.3d 765, 770 (9th Cir. 2007). The
officer also has probable cause to arrest an individual for possession of a controlled
substance when that individual admits he has marijuana. United States v. Pope,
686 F.3d 1078, 1084 (9th Cir. 2012); see also People v. Kelly, 222 P.3d 186, 188
3

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(Cal. 2010); Cal. Health & Safety Code § 11357(a) (2011). In addition, the officer
may ask “for consent to search, ‘as long as [he does] not convey a message that
compliance . . . is required.’” Washington, 490 F.3d at 770 (quoting Florida v.
Bostick, 501 U.S. 429, 435 (1991)). Because the applicable law did not place the
illegality of the officers’ conduct “beyond debate,” Ashcroft v. al–Kidd, 131 S. Ct.
2074, 2083 (2011), the officers are entitled to qualified immunity. In other words,
contrary to the dissent, we find no clearly established law that specifically alerted
the officers that their approach of, request to search, and attempted arrest of
Quintanar violated the Fourth Amendment.
The district court’s denial of the officers’ motion for summary judgment on
the basis of qualified immunity is REVERSED.
Costs awarded to Defendants-Appellants on appeal.
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Marie Sales v A. Gleason Officer et al 14-55169
Nelson, Senior Circuit Judge, dissenting:
In my view, the district court correctly found that the officers are not entitled
to qualified immunity as a matter of law. I respectfully dissent.
As the majority notes, we must accept the facts as alleged by Appellee. But,
accepting the facts as alleged, it is clear to me that the officers are not entitled to
qualified immunity.
The district court found a genuine dispute as to whether a reasonable person
in Quintanar’s situation would have felt free to terminate the encounter with the
officers. The district court also found that at the time of the incident it was clearly
established law that a Fourth Amendment seizure occurs when police officers place
an individual in a situation in which a reasonable person would not feel free to
terminate the encounter.
The majority concludes that no clearly established law put the officers on
notice that their conduct violated Quintanar’s constitutional rights.
But it is clearly established that a police officer violates the Fourth
Amendment if he detains a person “‘even momentarily’” without at least
reasonable suspicion for doing so. United States v. Washington, 490 F.3d 765, 774
(9th Cir. 2007) (quoting Florida v. Royer, 460 U.S. 491, 498 (1983)).
The majority correctly notes that it is well established that a police officer
FILED
MAY 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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may approach an individual in public and ask him if he is willing to answer
questions. However, the law is also well established that an officer may not detain
that individual without at least reasonable suspicion that criminal activity is afoot.
Accepting the facts as alleged, I believe Officer Gleason detained Quintanar
without a reasonable suspicion for doing so. This was a violation of Quintanar’s
clearly established constitutional right. I would affirm the district court.

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