United States v. 2007-12-03 | 04-55026 | TEKLE VUSA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 EPHRAIM TEKLE, a minor, by and
through his Guardian Ad Litem,
LILY TEKLE,
Plaintiff-Appellant, No. 04-55026
v. D.C. No.
UNITED STATES OF AMERICA; GARO CV 01-3894 RSWL
 TOROSSIAN; KEITH BODEN; CHARLES ORDER AND
MCCALMONT; THOMAS JANKOWSKI; AMENDED
DAVID M. HAWKES, all agents and OPINION
employees of the Internal Revenue
Service, an agency of the United
States of America,
Defendants-Appellees. 
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
October 19, 2005—Pasadena, California
Opinion Filed August 11, 2006
Opinion Withdrawn December 3, 2007
Amended Opinion Filed December 3, 2007
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Tashima;
Partial Concurrence and Partial Dissent by Judge Fisher;
Concurrence by Judge Kleinfeld
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COUNSEL
A. Clifton Hodges, Hodges and Associates, Pasadena, Cali-
fornia, for the plaintiff-appellant.
Frank M. Travieso, Assistant United States Attorney, Los
Angeles, California, for the defendants-appellees.
ORDER
Defendants-appellees’ petition for panel rehearing is
granted. The opinion and Judge Kleinfeld’s opinion concur-
ring the result filed on August 11, 2006, and reported at 457
F.3d 1088, are withdrawn and replaced by the amended opin-
ion, Judge Fisher’s opinion concurring in part and concurring
in the judgment, and Judge Kleinfeld’s opinion concurring in
the result filed concurrently with this order.
The petition for rehearing en banc is denied as moot. No
further petitions for panel rehearing will be entertained. Peti-
tions for rehearing en banc may be filed with respect to the
amended opinion.
OPINION
TASHIMA, Circuit Judge:
Ephraim Tekle (“Tekle”), a minor, by and through his
mother and guardian ad litem, Lily Tekle, filed a complaint
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against the United States and various individuals, seeking
declaratory relief and damages under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680, and for
alleged civil rights violations, pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). The complaint stemmed from an incident at
Tekle’s home when federal agents arrested Tekle’s parents.
The district court granted summary judgment in favor of the
individual defendants on the basis that they did not violate
Tekle’s constitutional rights and that, even if they had, they
were entitled to qualified immunity. Because the liability of
the United States was derivative of the liability of the individ-
ual defendants, the court also granted summary judgment in
favor of the United States. Tekle appeals. We have jurisdic-
tion pursuant to 28 U.S.C. § 1291, and we reverse.
BACKGROUND1
In 1998, Tekle’s parents, Solomon and Lily Tekle, were
suspected of narcotics trafficking and tax-related offenses.
Internal Revenue Service (“IRS”) Special Agent Thomas Jan-
kowski prepared a plan to execute search and arrest warrants
at their home. Jankowski learned that the couple’s three chil-
dren, including then eleven-year-old Ephraim, lived at the
home and that Lily took the children to school each morning.
1“Because this case arises in the posture of a motion for summary judg-
ment we are required to view all facts and draw all reasonable inferences
in favor of the nonmoving party,” in this case, Tekle. Brosseau v. Haugen,
543 U.S. 194, 195 n.2 (2004) (per curiam); see also Motley v. Parks, 432
F.3d 1072, 1075 n.1 (9th Cir. 2005) (en banc) (accepting the plaintiffs’
recitation of the facts because the case arose in the posture of a motion for
summary judgment and involved issues of qualified immunity). We dis-
agree with the government that Tekle has failed to produce any admissible
evidence sufficient to create a genuine issue of material fact, pursuant to
Butler v. San Diego Dist. Attorney’s Office, 370 F.3d 956 (9th Cir. 2004).
In response to the government’s filing of the declarations of its agents,
Tekle filed his own deposition, as well as depositions of both his parents,
with his opposition to the government’s motion for summary judgment.
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Jankowski thus planned to serve the warrants after Lily had
taken the children to school.
On the morning of March 23, 1998, a team of approxi-
mately twenty-three agents gathered at an area away from the
Tekle home for briefing.2 Another team of agents arrested
Lily without incident after she dropped off two of her children
at school. The agents asked Lily for the garage door opener
to her house, and she told them to be careful because her
eleven-year-old son was at home and her husband recently
had suffered a heart attack and undergone major heart sur-
gery. The agents communicated by radio with the team of
agents at the Tekle home and informed them of what Lily had
told them.
At the Tekle residence, the agents announced the presence
of law enforcement officers over a public address system. Jan-
kowski also called Solomon Tekle on a cellular telephone,
asking him to surrender himself at the front door.
Immediately prior to the agents’ announcement, Tekle
opened the garage door and exited the garage in order to take
out the trash, unaware of the agents’ presence. He was bare-
foot and was wearing a t-shirt and shorts. He saw numerous
police cars and heard a “loud intercom” over which the offi-
cers were saying, “Young man, turn around and put your
hands in the air.” Because he did not realize they were speak-
ing to him, he turned around and started running back to the
house through the garage. The agents again told him to turn
around with his hands up, and Tekle turned around and started
walking out of the garage with his hands up.
One of the officers told Tekle to get on the ground, so he
lay face down on the driveway. The officer held a gun to
Tekle’s head, searched him, and handcuffed him. The officer
2The agents were from the IRS, the DEA, and the Los Angeles Police
Department.
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pulled Tekle up from behind by the chain of the handcuffs
and took him out to the sidewalk, where Tekle sat, still hand-
cuffed, with his feet “in the gutter” until his father, Solomon,
was brought out of the house in handcuffs, approximately fif-
teen minutes later.
After Solomon came out of the house, the officers removed
the handcuffs from Tekle and sat him on a stool in the drive-
way, where about fifteen to twenty officers kept their guns
pointed at him. Tekle asked if he could use the restroom, but
one of the officers followed him to the restroom, keeping his
hand on his gun, and would not let Tekle close the door, so
Tekle returned to the driveway. One of the officers asked
Tekle where his parents were from, and Tekle replied that he
was born here but that his parents were from Ethiopia. The
officer said, “Ethiopia is an f’n ugly country, and there’s noth-
ing to see there.” When Tekle asked for his shoes, another
officer threw the shoes on the ground and spat on them. Sev-
eral hours later, one of Tekle’s relatives came to the house to
pick him up.
In his complaint, Tekle sought declaratory relief and dam-
ages.3 He alleged claims for false arrest, assault and battery,
and mental distress pursuant to the FTCA. He further alleged
violations of his federal and state civil rights. The district
court granted summary judgment in favor of the defendants,
concluding that the force used was reasonable and, in the
alternative, that Fourth Amendment law governing the agents’
conduct was not clearly established at the time of the incident.
Accordingly, it held that the agents were entitled to qualified
immunity. The court also concluded that Tekle had not raised
an issue of triable fact regarding the reasonableness of his
3After Tekle’s first two complaints were dismissed without prejudice on
procedural grounds with respect to the individually named defendants, he
filed another complaint against them, and the two actions were consoli-
dated under the original action, which included the United States as a
defendant.
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detention. The court entered judgment in favor of the individ-
ual defendants and the United States, and Tekle timely
appealed.
STANDARD OF REVIEW
The district court’s grant of a motion for summary judg-
ment is reviewed de novo. Blanford v. Sacramento County,
406 F.3d 1110, 1114 (9th Cir. 2005). “Viewing the evidence
in the light most favorable to the nonmoving party, . . . and
drawing all reasonable inferences in favor of that party, we
must determine whether the district court correctly applied the
relevant substantive law and whether there are any genuine
issues of material fact.” Galvin v. Hay, 374 F.3d 739, 745 (9th
Cir. 2004). In evaluating a claim of qualified immunity, we
first must determine whether, when viewed in the light most
favorable to Tekle, the alleged facts show a violation of a con-
stitutional right. Blanford, 406 F.3d at 1114-15. If the answer
is yes, we then must determine whether the constitutional
right at issue was clearly established at the time of the alleged
violation. Id. at 1115. “ ‘The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.’ ” Saucier v. Katz,
533 U.S. 194, 202 (2001) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
DISCUSSION
“Bivens is a judicially created cause of action against fed-
eral officers arising under the United States Constitution.”
Ting v. United States, 927 F.2d 1504, 1513 (9th Cir. 1991).
FTCA actions, by contrast, are created by statute. “The FTCA
provides a waiver of the United States government’s sover-
eign immunity for tort claims arising out of the conduct of
government employees acting within the scope of their
employment.” Adams v. United States, 420 F.3d 1049, 1051
(9th Cir. 2005). “The FTCA specifies that the liability of the
United States is to be determined ‘in accordance with the law
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of the place where the [allegedly tortious] act or omission
occurred.’ ” Rhoden v. United States, 55 F.3d 428, 430 (9th
Cir. 1995) (per curiam) (quoting 28 U.S.C. § 1346(b)) (alter-
ation in the original). California law therefore governs the
United States’ liability in Tekle’s FTCA claim. See Galvin,
374 F.3d at 758 (applying California law to determine the lia-
bility of federal officers for false arrest); Cervantes v. United
States, 330 F.3d 1186, 1188 (9th Cir. 2003) (same); see also
Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir. 1994)
(“Liability is determined by the tort law of the state where the
claim arose.”).
I. Bivens Claims
Tekle alleges that the individual defendants used excessive
force when they pointed a gun at his head and pointed guns
at him for the duration of the incident, and that they subjected
him to an unreasonable detention. We hold that Tekle has
raised genuine issues of material fact regarding whether the
officers’ conduct violated his constitutional rights and there-
fore reverse the district court’s grant of summary judgment in
favor of defendants on Tekle’s Bivens claims.
A. Excessive Force
[1] “[U]se of force is contrary to the Fourth Amendment if
it is excessive under objective standards of reasonableness.”
Saucier, 533 U.S. at 202. In determining whether the force
used was reasonable, we must balance “ ‘the nature and qual-
ity of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at
stake.’ ” Blanford, 406 F.3d at 1115 (quoting Graham v. Con-
nor, 490 U.S. 386, 396 (1989)).
The legal framework is clearly established. The first factor
in determining whether the force used was excessive is the
severity of the force applied. Drummond ex rel. Drummond v.
City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). The
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second factor, and the most important, is the need for the
force. Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.
2003). The amount of force used is “ ‘permissible only when
a strong government interest compels the employment of such
force.’ ” Drummond, 343 F.3d at 1057 (quoting Deorle v.
Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001)). Factors to
be considered in determining the need for the force include
“ ‘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.’ ” Blanford, 406 F.3d at 1115 (quoting Gra-
ham, 490 U.S. at 396).
Finally, we must balance the force used against the need,
to determine whether the force used was “greater than is rea-
sonable under the circumstances.” Santos v. Gates, 287 F.3d
846, 854 (9th Cir. 2002). This determination
“requires careful attention to the facts and circum-
stances of each particular case” and a “careful bal-
ancing” of an individual’s liberty with the
government’s interest in the application of force.
Because such balancing nearly always requires a
jury to sift through disputed factual contentions, and
to draw inferences therefrom, we have held on many
occasions that summary judgment or judgment as a
matter of law in excessive force cases should be
granted sparingly. This is because police misconduct
cases almost always turn on a jury’s credibility
determinations.
Id. at 853 (quoting Graham, 490 U.S. at 396) (internal cita-
tions omitted).
[2] We now apply the framework to the facts of this case.
The first factor is the severity of the force. Drummond, 343
F.3d at 1056. We have held that the pointing of a gun at
someone may constitute excessive force, even if it does not
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cause physical injury. See Robinson v. Solano County, 278
F.3d 1007, 1014-15 (9th Cir. 2002) (en banc). In Robinson,
police were told that a man carrying a shotgun had shot two
dogs and was yelling at someone. Robinson, the plaintiff,
approached the police to explain the situation to them, but the
officers pointed their guns at his head, handcuffed him, and
shoved him into their car, refusing to listen to his explanation
of the situation. He was released after fifteen to thirty min-
utes. We agreed with the Third Circuit that officers who
“pointed guns at people not under suspicion, handcuffed them
and detained them for 25 minutes could be liable for a Fourth
Amendment violation” because the “ ‘use of guns and hand-
cuffs must be justified by the circumstances.’ ” Id. at 1014
(quoting Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d
Cir. 1995)).
[3] Here, viewing the facts in the light most favorable to
Tekle, approximately twenty-three armed officers saw a bare-
foot, eleven-year-old boy, clad in shorts and a t-shirt, emerge
from his home.4 Although he tried to return to the house after
4There is no dispute that Tekle was eleven years old at the time of the
incident. The government has attempted to portray Tekle as more threaten-
ing than he appeared. For example, Agent Jankowski described Tekle as
a “young male, approximately five feet tall,” in his declaration prepared
for this litigation. However, in a Memorandum of Activity dated April 7,
1998, approximately two weeks after the incident, Jankowski stated that
Tekle “appeared to be about 12 to 14 years old,” and Agent David Hawkes
similarly described Tekle as appearing to be between those ages in his
April 2, 1998, Memorandum of Activity. These memoranda indicate that,
although Tekle may have appeared slightly older than his actual age, it
still was apparent to the officers at the time that Tekle was a child.
Although Judge Kleinfeld states that the evidence was that Tekle was
between five and six feet tall, the record actually indicates that, in prepara-
tion for this litigation, the government attempted to portray Tekle as more
threatening than he appeared to them at the time of the incident. Nor is
there any support whatsoever in the record for Judge Kleinfeld’s specula-
tion that the officers feared that Tekle could “run around the neighborhood
stirring up older youths and adults to interfere.” Kleinfeld concurring op.
at 15553.
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hearing the initial “intercom,” he then stopped and cooper-
ated. He did not attempt to flee, nor did he resist them, but he
complied with their requests, lying face down on the drive-
way. He was unarmed.5 The officers then held a gun to his
head, searched him, handcuffed him, pulled him up from
behind by the chain of the handcuffs, and sat him on the side-
walk, still handcuffed, with their guns pointed at him, for ten
to fifteen minutes. Only after they removed his father from
the home in handcuffs did they remove the handcuffs from
Tekle. They then sat him on a stool, with their guns still
drawn, for another fifteen to twenty minutes. We conclude
under these circumstances that the amount of force used
against Tekle constituted a “ ‘very substantial invasion of
[his] personal security.’ ” Id. at 1015 (quoting Baker, 50 F.3d
at 1193). Consequently, this factor weighs in favor of Tekle.
[4] Turning to the second and most important factor, we
conclude that “the need for the force, if any, was minimal at
best.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003).
All the factors to be considered in determining the need for
the force weigh in favor of a finding that the need for force
was minimal. First, Tekle clearly was a child and was not the
subject of the arrest warrant. Tekle was unarmed and vastly
outnumbered and did not pose an immediate threat to the offi-
cers’ safety. He did not actively resist arrest or attempt to flee.
More importantly, the agents knew that Solomon had an eleven-year-
old child, and, when Lily was arrested, she told the arresting agents that
her eleven-year-old son was at home. This information allegedly was con-
veyed to the team of agents at the Tekle home prior to the incident. For
all these reasons and taking into account the summary judgment posture
of the case, we assume throughout this opinion that Tekle clearly was a
child and appeared to be approximately eleven to twelve years old to the
officers at the scene.
5The government urged at oral argument that Tekle could have been
armed. There is no evidence in the record, however, to support such an
assertion, and there has never been any allegation that the officers thought
Tekle was armed.
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Under these circumstances, even if the officers needed to
secure Tekle in order to execute the search and arrest war-
rants, it should have been apparent that this eleven-year-old
boy did not pose a threat and that the need for force accord-
ingly was minimal. Cf. id. (finding the force excessive where
the officer threw the plaintiff to the ground and handcuffed
her, despite the fact that she posed no safety risk and made no
attempt to leave the property); Baldwin v. Placer County, 418
F.3d 966, 970 (9th Cir. 2005) (stating that the governmental
interests in using handcuffs were at a minimum when there
was no indication that officers believed the suspects would
flee or be armed), cert. denied, 126 S. Ct. 1331 (2006); Wall
v. County of Orange, 364 F.3d 1107, 1111-12 (9th Cir. 2004)
(reversing the grant of summary judgment where the deputy
violently arrested the plaintiff, handcuffing his hands tightly,
even though there was no probable cause for arrest and the
plaintiff was following the deputy’s instructions).
[5] Balancing the force used against the need, we conclude
that, “when the disputed facts and inferences are treated in the
manner required by law, a jury could properly find” that the
force used was “greater than [was] reasonable under the cir-
cumstances.” Santos, 287 F.3d at 853, 854. There were over
twenty officers present at the scene, and Tekle was not sus-
pected of any crime. He was cooperative and unarmed and,
most importantly, he was eleven years old. A reasonable
agent confronted with these circumstances should have
known that there was no need to use guns and handcuffs. Yet,
the officers kept Tekle handcuffed and pointed their weapons
at him even after it was apparent that he was a child and was
not resisting them or attempting to flee. Moreover, Tekle has
alleged that an officer pulled him up from behind by the chain
of the handcuffs, an act which, if true, could support a jury
finding of excessive force. We understand that “[t]he calculus
of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
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in a particular situation.” Graham, 490 U.S. at 396-97. None-
theless, we are convinced, if only by the sheer number of offi-
cers versus the one, clearly unarmed, barefoot child that a
reasonable jury could find that the officers used excessive
force.
[6] “ ‘[I]f a violation could be made out on a favorable
view of the parties’ submissions, the next, sequential step is
to ask whether the right was clearly established.’ ” Wall, 364
F.3d at 1111 (quoting Saucier, 533 U.S. at 201). “[I]t is not
necessary that the alleged acts have been previously held
unconstitutional, as long as the unlawfulness was apparent in
light of existing law.” Drummond, 343 F.3d at 1060-61. The
question 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. “[I]n the absence of binding prece-
dent, we ‘look to whatever decisional law is available to
ascertain whether the law is clearly established for qualified
immunity purposes, including decisions of state courts, other
circuits, and district courts.’ ” Boyd v. Benton County, 374
F.3d 773, 781 (9th Cir. 2004) (quoting Drummond, 343 F.3d
at 1060).
[7] We have held since 1984 that pointing a gun at a sus-
pect’s head can constitute excessive force in this circuit. See
Robinson, 278 F.3d at 1014 (stating that “under more extreme
circumstances the pointing of a gun has been held to violate
even the more rigorous standard applicable before Graham,
when plaintiffs were required to establish conduct so exces-
sive that it ‘shocked the conscience’ ”) (quoting McKenzie v.
Lamb, 738 F.2d 1005, 1010 (9th Cir. 1984)); see also
Baldwin, 418 F.3d at 970 (stating that officers “violated the
civil right of the plaintiffs to be free from battery by gun-
wielding officers, a right established in this circuit since
1984”). The plaintiffs in McKenzie were suspected of trying
to sell stolen jewelry and of possibly being tied to a prior rob-
bery and murder. The officers burst into the room with weap-
ons drawn, forced the plaintiffs to the wall, handcuffed them,
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threw them to the floor, and pressed their guns against the
plaintiffs’ heads, refusing at first to identify themselves as
police officers. We found “ample basis for a jury to find the
police officers’ conduct excessive.” McKenzie, 738 F.2d at
1011.
In McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992), a
police officer held a gun to the head of a nine-year-old and
threatened to pull the trigger during a search of the child’s
residence. The officer argued that he was entitled to immunity
because it was not clearly established at the time that it was
an unconstitutional use of force for a police officer to point
a gun at a resident’s head during a lawful search of the resi-
dence. Id. at 293. The Seventh Circuit rejected this argument,
stating that, although “[t]he level of generality at which the
relevant legal ‘rule’ is identified cannot be so abstract as to
convert the rule of qualified immunity into a rule of virtually
unqualified liability,” “this does not require a prior case that
is ‘precisely on all fours on the facts and law involved here.’ ”
Id. (quoting Landstrom v. Ill. Dep’t of Children & Family
Servs., 892 F.2d 670, 676 (7th Cir. 1990)). The court then
concluded that it was clearly established that the force used by
the officer was constitutionally proscribed. Id. at 294.
[8] Similar to McDonald, Tekle was a minor at the time of
the incident and “posed no threat to the safety of . . . any . . .
officer present, was not actively resisting arrest or attempting
to evade arrest by fleeing, and was not engaged in any assaul-
tive behavior toward . . . the . . . officers.” Id. at 292-93; see
also Ikerd v. Blair, 101 F.3d 430, 435 (5th Cir. 1996) (holding
that judgment as a matter of law was erroneously granted
where the deputy sheriff grabbed a ten-year-old child out of
a chair and dragged her into another room in the course of her
father’s arrest, even though she “was not under arrest and
posed no threat to anyone”); Baker, 50 F.3d at 1193-94 (con-
cluding that the plaintiffs had presented evidence sufficient to
withstand summary judgment where officers pointed guns at
the plaintiffs, including three minors, aged seventeen, seven-
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teen, and fifteen, and handcuffed some of them for up to
twenty-five minutes, where there was “simply no evidence of
anything that should have caused the officers to use the kind
of force they are alleged to have used”). McKenzie, McDon-
ald, Ikerd, and Baker all were decided prior to 1998, the year
of the events in this case. “[W]e conclude that the officers had
‘fair warning’ that the force they used was constitutionally
excessive even absent a Ninth Circuit case presenting the
same set of facts.” Drummond, 343 F.3d at 1061 (quoting
Hope v. Pelzer, 536 U.S. 730, 741 (2002)); cf. McDonald, 966
F.2d at 294 (reasoning that the officer “would have no reason
to think that [the Seventh] Circuit would reject [the Third Cir-
cuit’s] holding” regarding the reasonableness of his actions).
Although there may not be a prior case specifically prohibit-
ing the use of handcuffs and weapons by more than twenty
officers to subdue an unarmed eleven-year-old boy who is not
suspected of any wrongdoing and is cooperating with the offi-
cers, “[a]ny reasonable officer should have known that such
conduct constituted the use of excessive force.” Drummond,
343 F.3d at 1061.
[9] A reasonable officer would have known that the force
used against Tekle violated his constitutional rights. See, e.g.,
id. at 1061-62 (reversing the district court’s grant of summary
judgment in favor of the officers and remanding for trial
because a reasonable officer would have known that pressing
his weight on a person who was handcuffed and offering no
resistance, constituted the use of excessive force, “even absent
a Ninth Circuit case presenting the same set of facts”). We
thus conclude that the district court erred in granting summary
judgment in favor of the defendants on this claim.
B. Unreasonable Detention
Tekle further contends that his detention was unreasonable,
relying on Franklin v. Foxworth, 31 F.3d 873 (9th Cir. 1994),
in which we concluded that officers conducted a detention in
connection with a search unreasonably, “by removing a
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gravely ill and semi-naked man from his sickbed without pro-
viding any clothing or covering, and then by forcing him to
remain sitting handcuffed in his living room for two hours,”
despite the fact that they had no reason to believe he had com-
mitted a crime or was armed. Id. at 876-77. We conclude that
the way handcuffs were used on Tekle rendered his detention
unreasonable.
[10] “An officer’s authority to detain incident to a search
is categorical . . . .” Muehler v. Mena, 544 U.S. 93, 98 (2005).
“[P]olice do not, however, have unfettered authority to detain
a building’s occupants in any way they see fit.” Dawson v.
City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006). Rather,
the detention must be conducted “in a reasonable manner.”
Id.; see also Muehler, 544 U.S. at 98-99 (stating that officers
have the “authority to use reasonable force to effectuate the
detention” of a building’s occupants) (emphasis added); Gan-
wich v. Knapp, 319 F.3d 1115, 1120 (9th Cir. 2003) (stating
that, apart from police conduct that is per se unreasonable, we
must balance privacy concerns and law enforcement concerns
to determine if the detention was reasonable). “[D]etaining a
person in handcuffs during the execution of a warrant to
search for evidence is permissible, but only when justified by
the totality of the circumstances.” Meredith, 342 F.3d at 1062-
63; see also Robinson, 278 F.3d at 1014 (agreeing with the
Third Circuit that the use of guns and handcuffs must be justi-
fied by the circumstances).
In Muehler, the Supreme Court considered the reasonable-
ness of the detention of an occupant of a house that was
searched pursuant to a search warrant. Iris Mena, who was not
suspected of criminal wrongdoing, rented a room in her house
to a gang member who was suspected of involvement in a
driveby shooting. Police obtained a search warrant for the
home to search for weapons and evidence of gang member-
ship. The officers placed Mena in handcuffs at gunpoint when
they first entered the home, moved her into a converted
garage with three other people found on the property, and
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detained her in handcuffs throughout the two-to-three-hour
search.
The Court concluded that the “use of force in the form of
handcuffs to effectuate Mena’s detention in the garage, as
well as the detention of the three other occupants, was reason-
able because the governmental interests outweigh the mar-
ginal intrusion.” Muehler, 544 U.S. at 99. The Court relied on
the fact that “this was no ordinary search” because it involved
“a search for weapons and a wanted gang member resides on
the premises,” making it an “inherently dangerous situa-
tion[ ].” Id. at 100. The Court also noted that “this case
involved the detention of four detainees by two officers.” Id.
The governmental interests in detaining and using handcuffs
thus were “at a maximum.”6 Id.
Dawson relied on Muehler to find reasonable the detention
of a boardinghouse’s tenants during a two-hour inspection by
public health officials for rodent infestation. Dawson, 435
F.3d at 1066-70. We pointed to the fact that the landlord was
associated with a man with a violent criminal history who pre-
viously had threatened inspectors, as well as to the fact that
police did not know how many people were inside the build-
ing, concluding that “[a]llowing an unknown number of
unidentified people to move about unsupervised during an
involuntary inspection would dramatically increase the likeli-
hood that an occupant could injure or kill an officer, or that
an officer might mistakenly injure an occupant.” Id. at 1067.
Significantly, Dawson did not involve either the use of
handcuffs or children. And, although Muehler involved the
6Judge Kleinfeld asserts that this case is “analogous” to Muehler, char-
acterizing Muehler as involving a “small, barefoot woman” being detained
in handcuffs. Kleinfeld concurring op. at 15555. While both cases involve
detention in handcuffs, the detention of a single, unarmed boy by over
twenty armed officers simply is not analogous to the detention of four
individuals (presumably adults, although the case does not specify) by
only two officers.
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use of handcuffs, they were used on adults in a situation
where the officers were outnumbered by the detainees. Unlike
both Dawson and Muehler, here, law enforcement personnel
vastly outnumbered Tekle, more than twenty to one. It was
apparent at the time that he was not the subject of the arrest
warrant. Nor was there a suspicion that there were deadly
weapons and a gang member thought to be “armed and dan-
gerous” on the premises. Muehler, 544 U.S. at 95.
Tekle was barefoot, unarmed, clad in shorts and a t-shirt,
and appeared to be approximately twelve years old. He was
alone, and there were twenty-three armed officers. He was not
resisting the officers but was lying face down on the ground
with his arms stretched in front of him. Moreover, the officers
already had searched Tekle and “uncovered no weapons or
anything else to warrant further concern for their safety.” Ben-
nett v. City of Eastpointe, 410 F.3d 810, 837 (6th Cir. 2005).
Yet Tekle remained handcuffed for fifteen to twenty more
minutes, and an officer allegedly lifted him from behind by
the chain of the handcuffs. We conclude that a reasonable jury
could find that the officers’ use of handcuffs rendered Tekle’s
detention unreasonable. Cf. id. (concluding that the use of
handcuffs during a stop pursuant to Terry v. Ohio, 392 U.S.
1 (1968), violated the Fourth Amendment rights of the plain-
tiffs, described as “youths,” because the officers had con-
ducted pat-down searches and uncovered no weapons and the
officers had no reason to believe the youths were dangerous
or would flee). We accordingly turn to whether it would be
clear to a reasonable officer that his conduct was unlawful in
light of existing law. Saucier, 533 U.S. at 202; Drummond,
343 F.3d at 1060-61.
We stated in Meredith that, as of July 10, 1998, “it was not
clearly established in this (or any other) circuit that simply
handcuffing a person and detaining her in handcuffs during a
search for evidence would violate her Fourth Amendment
rights.” Meredith, 342 F.3d at 1063. None of the plaintiffs in
Meredith, however, was an eleven-year-old child.
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[11] Moreover, in Franklin, we stated that detentions of
children raise particular concerns that must be assessed with
the other circumstances. Franklin, 31 F.3d at 876. The Sev-
enth Circuit’s decision in McDonald, relying in part on the
fact that the plaintiff was a child, was decided in 1992. See
McDonald, 966 F.2d at 295; see also Ikerd, 101 F.3d at 435
(a Fifth Circuit case decided in 1996 also involving the use of
excessive force against a child); Baker, 50 F.3d at 1193 (a
Third Circuit case, deciding in 1995 that the use of guns and
handcuffs during a twenty-five minute detention of seventeen-
and fifteen-year-old children supported a finding that their
constitutional rights were violated). The totality of the cir-
cumstances supports the conclusion that not only was Tekle’s
detention unreasonable, but a reasonable officer would have
known that an eleven-year-old child who was unarmed, bare-
foot, vastly outnumbered, and was not resisting arrest or
attempting to flee should not have been kept in handcuffs for
fifteen to twenty additional minutes.
II. FTCA Claims7
In his complaint, Tekle alleged three tort claims: false
arrest, assault and battery, and intentional infliction of emo-
tional distress.8 Generally, “the United States is liable ‘to the
7Except for footnote 8, infra, Part II sets forth the views of Judge
Tashima and does not constitute part of the majority opinion.
8The government argues that Tekle has waived his FTCA claim for fail-
ure to raise the issue in his opening brief. We acknowledge that Tekle has
not based his claim on tort law, which is the applicable law. We note,
however, that there are five pages of argument devoted to the district
court’s perceived error in granting summary judgment in favor of the
United States on the FTCA claim. Moreover, the government is not preju-
diced because it “thoroughly discussed the question in its own brief.” USA
Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1278 (9th Cir. 1994).
Contrary to Judge Kleinfeld’s assertion that Tekle’s argument in his brief
deals with his Bivens claim, not his FTCA claim, Kleinfeld concurring op.
at 15556, the brief clearly asserts that the district court erred in granting
summary judgment in favor of the United States on his tort claims. See
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same extent as a private individual under like circum-
stances.’ ” Galvin, 374 F.3d at 758 (quoting 28 U.S.C.
§ 2674). The FTCA provides an exception to the United
States’ liability for certain torts, including assault, battery, and
false arrest. 28 U.S.C. § 2680(h). When such a tort is commit-
ted by a federal law enforcement officer, however, liability is
restored. Id.
We previously have stated that “ ‘[law enforcement] obli-
gations make the law of citizen arrests an inappropriate instru-
ment for determining FTCA liability.’ ” Galvin, 374 F.3d at
758 (quoting Arnsberg v. United States, 757 F.2d 971, 979
(9th Cir. 1985)) (alteration in original). Thus, when federal
officers are involved, we have held that the United States’ lia-
bility is determined by “ ‘the law governing arrests pursuant
to warrants.’ ” Ting, 927 F.2d at 1514 (quoting Arnsberg, 757
F.2d at 979).
[12] The Supreme Court, however, recently held that the
United States’ liability under the FTCA is to be based on the
state law liability of a private party, not of a state or municipal
entity. United States v. Olson, 546 U.S. 43, 44-47 (2005). The
issue in Olson was the liability of the United States for alleg-
edly negligent inspections by federal mine inspectors. The
Appellant’s Opening Br. at 24 (discussing the “liability placed upon the
UNITED STATES in a tort claim”). His argument deals solely with the
liability of the United States and therefore cannot be regarding the Bivens
claim, but is meant to deal with the FTCA claim. See Ting, 927 F.2d at
1513 (“While Bivens is a judicially created cause of action against federal
officers arising under the United States Constitution, . . . the FTCA
imposes liability on the United States government for acts by its employ-
ees that constitute torts in the state where the conduct occurred.”) (empha-
sis added). The failure to discuss the United States’ liability under tort law
appears to be due to counsel’s failure to understand the law applicable to
an FTCA claim. Because he raised the issue and the government is not
prejudiced, we exercise our discretion to address the issue, especially in
light of our holding that the district court erred in granting summary judg-
ment in favor of the defendants on the Bivens claims.
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Court reversed a line of Ninth Circuit precedent permitting
liability under the FTCA where local law would make a state
or municipal entity liable. Id. at 44. The Court stated in broad
terms that the FTCA means what it says — “namely, that the
United States waives sovereign immunity ‘under circum-
stances’ where local law would make a ‘private person’ liable
in tort.” Id. (quoting 28 U.S.C. § 1346(b)(1)).9 The Court
emphasized the “private person” language, rejecting the
notion that the United States would be liable only if a state or
municipal entity would be liable. Id. at 45-46.
The Court also examined the language making the United
States liable “ ‘in the same manner and to the same extent as
a private individual under like circumstances.’ ” Id. at 46
(quoting 28 U.S.C. § 2674). The Court rejected reading the
words “like circumstances” too narrowly, by looking only at
the liability of federal mine inspectors, rather than broadening
the inquiry by examining the liability of private persons who
conduct safety inspections. Id. at 46-47.
The Court thus stated in no uncertain terms that we erred
by restricting the FTCA to the liability of government entities.
Even if the conduct entails uniquely governmental functions,
the court is to examine the liability of private persons in anal-
ogous situations. Id. at 46 (citing Indian Towing Co. v. United
States, 350 U.S. 61, 64 (1955), for the holding that the FTCA
“requires a court to look to the state-law liability of private
entities, not to that of public entities, when assessing the Gov-
ernment’s liability under the FTCA ‘in the performance of
activities which private persons do not perform’ ”). Judge
Fisher’s reliance on the Court’s admonition to look further
afield in order to limit the inquiry in the instant case to the lia-
9The exception to the exception, restoring liability when false arrest,
assault, and battery are alleged against law enforcement officers, does not
provide a different standard for liability. See 28 U.S.C. § 2680(h). It
merely reverts to 28 U.S.C. § 1346(b), which means the United States’ lia-
bility is based on a private person’s liability. Id.
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bility of federal law enforcement officers, accordingly, turns
the Court’s reasoning on its head.
Contrary to Judge Fisher’s warning, taking Olson at its
word does not bring the FTCA into conflict with 26 U.S.C.
§ 7608. Although § 7608 grants IRS agents the authority to
execute and serve arrest warrants, the statute does not grant
agents the authority to commit torts in the process of execut-
ing warrants. Holding federal law enforcement officials liable
for torts committed while acting within the scope of the
authority granted to them does not bring the FTCA into con-
flict with the statute granting them such authority. In fact, it
is the very purpose of the FTCA to hold the United States lia-
ble for torts committed by a government employee “while act-
ing within the scope of his office or employment.” 28 U.S.C.
§ 1346(b). Thus, although Judge Fisher is correct that
“§ 2680(h)’s law enforcement proviso was intended to pro-
vide remedies for victims of law enforcement abuses, not for
the routine and lawful exercise of law enforcement privi-
leges,” Fisher concurring op. at 15550, this begs the question
of whether the officers’ actions were abusive or routine and
lawful. Olson states in broad terms that the words of the
FTCA “mean what they say, namely, that the United States
waives sovereign immunity ‘under circumstances’ where
local law would make a ‘private person’ liable in tort.” Olson,
546 U.S. at 44.10
Finally, although this court did state in Rhoden that a Cali-
fornia court would apply federal law to determine whether an
arrest by a federal officer was privileged, the issue in Rhoden
was “when and for how long a federal immigration agent may
10Moreover, nowhere in its pleadings in the district court or in its briefs
in this court does the government raise the “privilege” under 26 U.S.C.
§ 7608 as a defense. Thus, the argument in Judge Fisher’s concurring
opinion that the rule of Olson, making the United States liable when local
law would make a private person liable in tort, does not apply in the face
of a federal “privilege” under § 7608 is advanced in spite of the failure of
the government to raise the issue.
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detain a potentially excludable alien, what procedures the
agent must follow, and when and how soon after being
detained a person must be brought before an immigration
judge.” 55 F.3d at 430. The district court had reasoned that
California law did not address such questions and that the
plaintiff accordingly could not bring an action under the
FTCA. We held that this was error and that the liability of the
United States should be determined by whether the immigra-
tion agents complied with applicable federal standards.11 Id. at
431.
Generally, however, “[i]n assessing the United States’ lia-
bility under the FTCA, we are required to apply the law of the
state in which the alleged tort occurred.” Conrad v. United
States, 447 F.3d 760, 767 (9th Cir. 2006). Thus, for example,
in Conrad, we applied California law to a claim of malicious
prosecution by an IRS agent because the claim was based on
“actions and events occurring in California.” Id.; see also,
e.g., Galvin, 374 F.3d at 758 (applying California law to an
FTCA claim for false arrest by federal law enforcement offi-
cers); Cervantes, 330 F.3d at 1188 (applying California law
to FTCA claims for false arrest and false imprisonment by
customs agents)12; Ting, 927 F.2d at 1513 (holding that “Cali-
fornia law governs the United States’ liability in this FTCA
action” for, inter alia, assault and battery and false arrest by
federal agents); accord Kikumura v. Osagie, 461 F.3d 1269,
1299-1301 (10th Cir. 2006) (applying Colorado law in an
FTCA claim involving federal prison officers); Dalrymple v.
United States, 460 F.3d 1318, 1327 (11th Cir. 2006) (stating
that the violation of an internal policy of the INS did not
create a cause of action under the FTCA unless the conduct
was “independently tortious under applicable state law,” and
11Moreover, of course, Rhoden was decided well before we had the
guidance of Olson.
12Cervantes stated that California law was applicable and cited Califor-
nia law, but then cited federal law for the determination that probable
cause existed for the arrest. See Cervantes, 330 F.3d at 1188.
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applying Florida law to determine whether federal agents’
actions were privileged in an excessive force claim); Harris
v. United States, 422 F.3d 322, 327-30 (6th Cir. 2005) (rely-
ing on Ohio law to determine whether probable cause existed
in an FTCA claim that DEA agents assaulted or maliciously
prosecuted the claimant); Williams v. United States, 242 F.3d
169, 172-73 (4th Cir. 2001) (rejecting the argument that fed-
eral law applied to an FTCA claim involving a hospital that
was run by the United States on a Cherokee reservation, and
citing cases for “the universally accepted position that ‘law of
the place,’ as used in the FTCA, refers to state and local law,
not federal law”); Tindall ex rel. Tindall v. United States, 901
F.2d 53, 55 (5th Cir. 1990) (per curiam) (applying Mississippi
law to an FTCA action involving agents of the Bureau of
Alcohol, Tobacco, and Firearms).13
13Moreover, the case on which Rhoden relied to state that the court must
include federal law in assessing the United States’ liability under the
FTCA was Richards v. United States, 369 U.S. 1 (1962), in which the
question was what law to apply in an FTCA action where the negligent act
occurred in one state but the resultant injury and death occurred in a dif-
ferent state. Id. at 2. Richards concluded that “a reading of the [FTCA] as
a whole, with due regard to its purpose, requires application of the whole
law of the State where the act or omission occurred,” including the choice-
of-law rules of the state where the negligence occurred. Id. at 11. Thus,
the question was whether the FTCA required the application of “(1) the
internal law of the place where the negligence occurred, or (2) the whole
law (including choice-of-law rules) of the place where the negligence
occurred, or (3) the internal law of the place where the operative effect of
the negligence took place.” Id. at 3. There was no question that state law
applied. See id. at 14 n.29 (“In fact, despite the ambiguity that exists in
the [legislative] history due to the fact that Congress did not specifically
consider the choice-of-laws problem, the legislative material indicates that
Congress thought in terms of state law being applicable.”). Similarly, in
the other case cited by Rhoden, Caban v. United States, 728 F.2d 68 (2d
Cir. 1984), the Second Circuit did not merely state as a general principle
that federal law applied to FTCA claims of negligence, invasion of pri-
vacy, and false imprisonment by INS agents. The court undertook a care-
ful examination of New York’s law of false imprisonment and concluded
that, “[i]n light of New York’s policy of assessing a defendant’s actions
in accordance with the law applicable to his conduct, we infer that the
New York state courts would look to federal principles in determining the
standard by which INS officials’ detention of a would-be entrant are to be
judged.” Id. at 73 (citation omitted).
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For these reasons, Olson requires us to examine the law
regarding the liability of a private person for false arrest,
assault and battery, and intentional infliction of emotional dis-
tress.
A. False Arrest
Under California law, false arrest, or false imprisonment, is
“the unlawful violation of the personal liberty of another.”
Cal. Penal Code § 236; see Collins v. City & County of S.F.,
123 Cal. Rptr. 525, 526 (Ct. App. 1975) (stating that false
arrest is “but one way of committing a false imprisonment,
and they are distinguishable only in terminology”). “The ele-
ments of a tortious claim of false imprisonment are: (1) the
nonconsensual, intentional confinement of a person, (2) with-
out lawful privilege, and (3) for an appreciable period of time,
however brief.” Easton v. Sutter Coast Hosp., 95 Cal. Rptr. 2d
316, 323 (Ct. App. 2000).
[13] A private person may make an arrest, which is “taking
a person into custody, in a case and in the manner authorized
by law.” Cal. Penal Code § 834.
A private person may arrest another: 1. For a public
offense committed or attempted in his presence. 2.
When the person arrested has committed a felony,
although not in his presence. 3. When a felony has
been in fact committed, and he has reasonable cause
for believing the person arrested to have committed
it.
Cal. Penal Code § 837. While a law enforcement officer may
arrest a person without a warrant when he has probable cause
to believe that the arrestee committed a misdemeanor in his
presence, a private person may only arrest someone for a mis-
demeanor when the offense actually has been committed or
attempted in his presence. Hamburg v. Wal-Mart Stores, Inc.,
10 Cal. Rptr. 3d 568, 580 (Ct. App. 2004). Reasonable cause
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to believe that a misdemeanor has been committed is not suf-
ficient. Id. at 581. When a private person is entitled to make
an arrest, he is entitled to use reasonable force to detain the
person. People v. Fosselman, 659 P.2d 1144, 1148 (Cal.
1983) (en banc); see also People v. Garcia, 78 Cal. Rptr. 775,
779 (Ct. App. 1969) (stating that when a private citizen was
assaulted in the course of effecting a citizen’s arrest, he was
“justified in using such force as was reasonable for defen-
dant’s arrest and detention”).
[14] Here, there is no evidence that the officers had any
reason to believe that Tekle had committed a misdemeanor in
their presence. Moreover, as discussed supra, based on the
evidence provided by Tekle, a jury could find that the force
used to detain him was not reasonable. Tekle accordingly has
raised genuine issues of material fact regarding the officers’
liability for false arrest. We therefore reverse the district
court’s grant of summary judgment on Tekle’s false arrest
claim.
B. Assault and Battery
Tekle’s second allegation under the FTCA was that the
officers assaulted him “by willfully and maliciously pointing
a loaded firearm at [him] and threatening to shoot him.” He
further alleged that they committed battery “by placing hand-
cuffs upon him, pushing him to the ground and forcing him
to lay [sic] down and to sit with the handcuffs still on for an
appreciable period of time.”
Assault and battery are defined in the California Penal
Code. Assault is the “unlawful attempt, coupled with a pres-
ent ability, to commit a violent injury on the person of anoth-
er.” Cal. Penal Code § 240. “A battery is any willful and
unlawful use of force or violence upon the person of another.”
Cal. Penal Code § 242. “Harmful or offensive contact, inten-
tionally done, is the essence of battery, while apprehension of
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that contact is the basis of assault.” 5 B.E. Witkin, SUMMARY
OF CAL. LAW, Torts § 383 (10th ed. 2005) (citations omitted).
To establish civil assault, Tekle would need to establish
that (1) the officers threatened to touch him in a harmful or
offensive manner; (2) it reasonably appeared to him that they
were about to carry out the threat; (3) he did not consent to
the conduct; (4) he was harmed; and (5) the officers’ conduct
was a substantial factor in causing the harm. See Judicial
Council of Cal., Civil Jury Instructions No. 1301 (2006) (list-
ing the elements of an assault claim). Tekle testified that,
while he was lying on the ground, an officer placed a gun to
his head and then handcuffed him. He also stated that the offi-
cers had “all sorts of different guns, big ones and small ones,
pointing at [him]” while he was sitting on the stool in the
garage. Five years after the incident, he still had flashbacks,
insomnia, and depression, and he had been treated by two
psychiatrists and two psychologists. He further testified that,
although he has never committed a crime, he still felt nervous
whenever he saw a police officer.
The elements of a battery claim in California are that (1)
the defendant intentionally did an act that resulted in harmful
or offensive contact with the plaintiff’s person, (2) the plain-
tiff did not consent to the contact, and (3) the contact caused
injury, damage, loss or harm to the plaintiff. Cole v. Doe 1
thru 2 Officers of Emeryville Police Dep’t, 387 F. Supp. 2d
1084, 1101 (N.D. Cal. 2005). According to Tekle’s deposi-
tion, an officer handcuffed him while he was lying face down
on the ground and that he then picked him up by the chain of
the handcuffs, cutting his skin.
[15] Over twenty armed officers encountered a barefoot,
unarmed eleven-year-old boy who was not resisting them.
Tekle testified that the officers continued to keep their guns
trained upon him throughout the incident and that one officer
picked him up from behind by the chain of the handcuffs. He
certainly did not consent to the conduct, and he has alleged
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that he suffered harm. We conclude that Tekle has raised a
genuine issue of material fact as to whether the officers may
be liable for assault and battery. We therefore reverse the dis-
trict court’s grant of summary judgment on this claim.
C. Intentional Infliction of Emotional Distress
Tekle’s third FTCA claim was for intentional infliction of
emotional distress. The elements of a prima facie case of
intentional infliction of emotional distress in California are
“ ‘(1) extreme and outrageous conduct by the defendant with
the intention of causing, or reckless disregard of the probabil-
ity of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and prox-
imate causation of the emotional distress by the defendant’s
outrageous conduct.’ ” Davidson v. City of Westminster, 649
P.2d 894, 901 (Cal. 1982) (quoting Cervantez v. J.C. Penney
Co., 595 P.2d 975, 983 (Cal. 1979)). In order to be considered
outrageous, the conduct “must be so extreme as to exceed all
bounds of that usually tolerated in a civilized community.” Id.
(internal quotation marks omitted). Where reasonable persons
may differ, the trier of fact is to determine whether “ ‘the con-
duct has been sufficiently extreme and outrageous to result in
liability.’ ” Cross v. Bonded Adjustment Bureau, 55 Cal. Rptr.
2d 801, 811 (Ct. App. 1996) (quoting Molko v. Holy Spirit
Ass’n for the Unification of World Christianity, 762 P.2d 46,
63 (Cal. 1988) (en banc)).
In Cross, the court concluded that reasonable minds could
differ as to whether the defendant’s conduct was sufficiently
extreme and outrageous where the defendant, a collection
agency, made affirmative misrepresentations to the plaintiffs
who hired it and persuaded the plaintiffs to accept $40,000 on
a judgment worth over $250,000. Id. The court stated that the
agency’s actions “were intentional and done with the foresee-
able consequence that the [plaintiffs] would suffer severe
emotional distress once they discovered the truth.” Id.
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[16] The district court here concluded that the agents did
not engage in extreme and outrageous conduct. We disagree
that such a conclusion can be reached on these facts as a mat-
ter of law. In addition to testifying that the officers kept their
weapons pointed at him and picked him up off the ground by
the chain of the handcuffs, Tekle also testified that an officer
made disparaging remarks about Ethiopia. When Tekle asked
a different officer if he could put on some shoes, the officer
threw Tekle’s shoes at him and spit on them. In light of the
conclusion in Cross that a collection agency’s abuse of its
fiduciary duty, which adversely affected the plaintiffs’ finan-
cial interests, could support a claim for intentional infliction
of emotional distress, we conclude that reasonable minds
could differ as to whether the conduct alleged here by Tekle
was sufficiently extreme and outrageous to support such a
claim. We therefore reinstate Tekle’s intentional infliction of
emotional distress claim.
CONCLUSION
Viewing the facts and drawing all inferences in Tekle’s
favor, we conclude that the alleged facts show a violation of
Tekle’s constitutional rights. We further conclude that a rea-
sonable officer should have known that it was constitutionally
excessive to use such force and to use the handcuffs in the
manner alleged against an unarmed eleven-year-old child who
was fully complying with the officer’s requests. We therefore
reverse the grant of summary judgment in favor of the officer-
defendants on Tekle’s Bivens claims. Because the grant of
summary judgment in favor of the United States was predi-
cated on the district court’s erroneous conclusions regarding
the excessive force and unreasonable detention claims, we
also reverse the grant of summary judgment in favor of the
United States on the FTCA claims. We remand all claims to
the district court for further proceedings.
REVERSED and REMANDED.
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FISHER, Circuit Judge, concurring in part and concurring in
judgment:
I concur in Part I of Judge Tashima’s opinion. I write sepa-
rately with regard to Part II because I do not believe the
FTCA exposes federal law enforcement officers to tort liabil-
ity when they are acting within the confines of the special law
enforcement privileges conferred upon them by other federal
statutes.
I.
I agree that United States v. Olson, 546 U.S. 43 (2005),
undermines the prior rule in this circuit, first articulated in
Arnsberg v. United States, 757 F.2d 971, 978-79 (9th Cir.
1985), that the unique obligations of law enforcement offi-
cials “make the law of citizen arrests an inappropriate instru-
ment for determining FTCA liability” and thus “the law
governing arrests pursuant to warrants” defines the standard
of care. See id. Arnsberg’s conclusion was premised upon 28
U.S.C. § 2674, which makes the United States liable “in the
same manner and to the same extent as a private individual
under like circumstances.” We held that because federal law
enforcement officers arrest suspects pursuant to their unique
governmental duties, “a private citizen making a citizen’s
arrest does not act under ‘like circumstances’ required by
§ 2674.” Arnsberg, 757 F.2d at 979 (citing Caban v. United
States, 728 F.2d 68, 73-74 (2d Cir. 1984)). Olson rejected this
type of reasoning, holding that “like circumstances do not
restrict a court’s inquiry to the same circumstances,” and that
tort law governing the conduct of private parties — not gov-
ernmental entities — should supply the liability standard in
FTCA suits involving unique governmental functions. Olson,
546 U.S. at 46-47 (internal quotation marks omitted, emphasis
in original).
Even though law enforcement officers’ unique governmen-
tal function in making arrests would not in general avoid anal-
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ogizing to the law of citizen arrests, there is a second and
independent basis for treating officers differently in an FTCA
suit such as this one. Specifically, federal law grants law
enforcement officials special privileges that allow law
enforcement officers to do their jobs without violating civil
and criminal sanctions that would otherwise apply. These
privileges authorize federal law enforcement officers, acting
within lawful bounds applicable to such officers, to execute
search warrants on private property without committing the
tort of trespass, to make valid arrests without committing the
tort of false arrest and to use reasonable force in arresting sus-
pects without committing the tort of battery. These same acts
if done by private parties would often not be privileged from
civil tort liability.
Olson could be read to support the conclusion that law
enforcement privileges should not be recognized in FTCA
suits, and that federal officers are left only with those privi-
leges available to private citizens such as the citizen’s arrest
privilege. But I would read Olson’s instruction that “like cir-
cumstances do[es] not restrict a court’s inquiry to the same
circumstances, but require[s] it to look further afield,” Olson,
546 U.S. at 46 (emphasis in original), to provide courts with
enough flexibility to preserve law enforcement privileges.
Because Olson did not involve such privileges, and because
the FTCA’s text does not clearly foreclose their availability,
I would not reach out to construe Olson’s definition of “like
circumstances” to override them.
Adopting this construction avoids creating tension between
the FTCA and other provisions of federal law. In this case 26
U.S.C. § 7608(a)(2) accorded the IRS agent defendants the
privilege to “execute and serve search warrants and arrest
warrants.” To hold that the FTCA makes IRS officers liable
even when acting within the scope of this federal privilege
would bring the FTCA into conflict with § 7608(a)(2),
whereas the two statutes could easily be harmonized by read-
ing the FTCA to impose liability only when the officers have
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exceeded the bounds of the privilege. See California ex rel.
Sacramento Metro. Air Quality Mgmt. Dist. v. United States,
215 F.3d 1005, 1012 (9th Cir. 2000) (“[I]t is a well estab-
lished axiom of statutory construction that, whenever possi-
ble, a court should interpret two seemingly inconsistent
statutes to avoid a potential conflict.”).
Construing the FTCA as preserving federal law enforce-
ment privileges would also avoid an absurd result: that federal
officers acting lawfully may nonetheless be held civilly liable
if they do not conform their conduct to what is required of pri-
vate citizens. See United States v. Tatoyan, 474 F.3d 1174,
1181 (9th Cir. 2007) (“Statutes should be read to avoid . . .
absurd results.”). Congress could have explicitly waived fed-
eral law enforcement privileges when it singled out federal
law enforcement officials for removal from the protection of
the FTCA’s intentional tort exception. See 28 U.S.C.
§ 2680(h). We have held, however, that § 2680(h)’s law
enforcement proviso was intended to provide remedies for
victims of law enforcement abuses, not for the routine and
lawful exercise of law enforcement privileges. See Orsay v.
United States Dep’t of Justice, 289 F.3d 1125, 1134-35 (9th
Cir. 2002) (citing S. Rep. No. 93-588 (1973), reprinted in
1974 U.S.C.C.A.N. 2789, 2792 (1974)). Absent a clear
expression by Congress on the subject, we should not abridge
statutorily conferred federal law enforcement privileges.1
One final element of the FTCA’s text solidifies that law
enforcement privileges survive the Act. The statute requires
us to apply “the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1). We have understood this
1Far from expressing congressional intent to eliminate federal law
enforcement privileges, the FTCA’s text might be understood to support
the preservation of those privileges by providing that “[w]ith respect to
any [FTCA] claim . . . the United States shall be entitled to assert any
defense . . . to which the United States is entitled.” 28 U.S.C. § 2674. The
government has not argued here that federal law enforcement privileges fit
within this provision, however, and I therefore do not rely on it.
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to mean that we apply the law a state court would apply in
analogous circumstances, including federal law if the state’s
choice-of-law rules would so provide. See Rhoden v. United
States, 55 F.3d 428, 431 (9th Cir. 1995) (per curiam). Thus
we have allowed defendants in FTCA suits to assert the privi-
leges that a state court would recognize in an analogous state
law tort action. For example, in Rhoden we held that a Cali-
fornia court would apply federal law to determine whether
federal immigration officials’ detention of the plaintiff was
privileged against a claim of false imprisonment under Cali-
fornia law. Id.; accord Trenouth v. United States, 764 F.2d
1305, 1307 (9th Cir. 1985). We held that the defendants
would be liable only if the detention violated applicable fed-
eral statutes or the Constitution. See Rhoden, 55 F.3d at 431,
432 n.5. We reached a similar conclusion in Galvin v. Hay,
374 F.3d 739, 758 (9th Cir. 2004), although by applying state
rather than federal privilege law. We looked to California
Penal Code § 847(b)(1), which makes both state and federal
officers immune from civil suits for false imprisonment where
the detention was the result of a lawful arrest.2 See Galvin,
374 F.3d at 758. Despite the slight tension between Rhoden
and Galvin regarding which body of privilege law should
apply, the principle that California courts would apply a law
2The statute provides in relevant part:
There shall be no civil liability on the part of, and no cause of
action shall arise against, any peace officer or federal criminal
investigator or law enforcement officer . . . acting within the
scope of his or her authority, for false arrest or false imprison-
ment arising out of any arrest under any of the following circum-
stances:
(1) The arrest was lawful, or the peace officer, at the time of
the arrest, had reasonable cause to believe the arrest was law-
ful.
(2) The arrest was made pursuant to a charge made, upon
reasonable cause, of the commission of a felony by the per-
son to be arrested.
Cal. Penal Code § 847(b) (emphasis added).
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enforcement privilege (not the citizen’s arrest privilege) is set-
tled — and Olson does not clearly unsettle it. Cf. Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (hold-
ing that a three-judge panel may overrule prior precedent only
“where the reasoning or theory of our prior circuit authority
is clearly irreconcilable with the reasoning or theory of inter-
vening higher authority” (emphasis added)).
I would therefore hold that federal officers should not be
held liable under the FTCA if they are acting within the scope
of a privilege conferred by another federal statute.
II.
Our holding that a rational jury could conclude that Tekle’s
detention was constitutionally unreasonable applies with
equal force to Tekle’s FTCA claim of false arrest. See Rho-
den, 55 F.3d at 432 n.5 (noting that the same conduct might
give rise to both FTCA and Bivens actions). Tekle accord-
ingly has raised genuine issues of material fact regarding
whether the detention was made “without lawful privilege.”
Cf. Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496
(2000) (affirming defendant’s demurrer because plaintiffs
“failed to allege facts establishing that the conduct of which
they complain was not lawfully privileged”); see also Rhoden,
55 F.3d at 430 (“Once the plaintiff has proven the elements
of the tort, the defendant has the burden to establish that the
detention or arrest was legally justified.”). I therefore agree
that the district court’s grant of summary judgment on that
claim should be reversed.
Similarly, issues of fact remain regarding whether the offi-
cers acted lawfully in pointing a gun at Tekle’s head and pick-
ing him up by the chain of his handcuffs. Therefore I agree
that the district court’s grant of summary judgment on Tekle’s
assault and battery and emotional distress claims should be
reversed.
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KLEINFELD, Circuit Judge:
I concur in the result.
I agree that pointing guns at the boy amounted to the use
of excessive force under well-established precedent, so the
officers who did so lack qualified immunity.1
Regarding the handcuffs, I would also reverse, but more
narrowly.
A reasonable officer could believe that the boy could inter-
fere with legitimate law enforcement in at least two ways. He
could leap on the officers or run in front of them as they tried
to control his father. Though only eleven, the evidence was
that he was between five and six feet tall. Alternatively, he
could run around the neighborhood stirring up older youths
and adults to interfere. He had already run back toward the
house in violation of the officers’s command, “Young man,
turn around and put your hands in the air.” His youth might
make him less physically dangerous, but more impulsive and
energetic than an adult, and he was not a small child. It was
not unreasonable for the officers to believe that he might
interfere with their legitimate activities.2
I would reverse the district court on only one aspect of the
use of the handcuffs: lifting the boy to his feet by the hand-
cuffs which were fastened behind him. No law enforcement
purpose has been offered to justify that sadistic bit of bully-
ing. Though there is no case holding that pulling an unresist-
ing non-suspect to his feet by handcuffs fastened behind him
amounts to the use of excessive force, the cases do establish
1See Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002).
2See Graham v. Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonable-
ness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.”).
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that the needless and wanton infliction of pain during a search
or arrest violates the Constitution.3 The proposition that police
may not inflict pain on non-suspects detained during a search,
in the absence of any law enforcement reason, should be so
obvious to reasonable officers that qualified immunity cannot
shield them. A policeman ought to know that he is not consti-
tutionally entitled to hurt people for no reason.4
Though the majority’s holding is not clear, it seems to be
that (1) keeping the boy handcuffed for fifteen or twenty min-
utes after the officers had searched him and found no weapons
was excessive, and (2) this is so well established that any rea-
sonable officer ought to know it, so the officers lacked quali-
fied immunity. The opinion appears to hold that even though
the boy’s father, for whom the warrant had been issued, had
not yet been handcuffed and brought outside, the officers
should have removed the handcuffs from his son once they
ascertained that the son was not armed.
The majority errs in two respects. First, it was not unconsti-
tutional to keep the boy handcuffed while the warrant was still
being executed. We made the same mistake in Mena v. City
of Simi Valley,5 and the Supreme Court corrected it in
Muehler v. Mena.6 Although the small, barefoot woman in
Muehler was not herself a threat, the Court held that her “de-
tention in handcuffs for the length of the search” was constitu-
3See, e.g., Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)
(holding that forcibly throwing a woman to the ground and twisting her
arms while handcuffing her amounted to excessive force because it was
unnecessary).
4See, e.g., Headwater Forest Defense v. County of Humboldt, 276 F.3d
1125, 1130-31 (9th Cir. 2002).
5Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003) rehearing
and rehearing en banc denied, 354 F.3d 1015 (9th Cir. 2004) (Kleinfeld,
J., dissenting).
6Muehler v. Mena, 544 U.S. 93 (2005).
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tionally permissible.7 The search in Muehler was not of the
woman, but of the residence.
The cases are analogous. Under Muehler, the majority errs
in limiting the duration to the search of the boy, as opposed
to execution of the search warrant for the home and arrest
warrant for the father. The Court rejected our view that the
two or three hour duration of the handcuffing in Muehler
made it unconstitutional, yet here we hold that, as soon as the
officers knew the boy was unarmed they had to take off the
handcuffs, even though the search and arrest were still ongo-
ing. The large number of officers who supposedly had their
guns pointed at the boy does not justify requiring the officers
to remove the handcuffs. The point was to control the boy and
prevent him from making trouble, not to shoot him if he did
make trouble. As we held in Dawson v. City of Seattle, “Mue-
hler confirms an officer’s authority to detain a building’s
occupants during a search so long as the officer conducts the
detention in a reasonable manner.”8
The majority goes on to deny qualified immunity for keep-
ing the handcuffs on after the boy was found to have no weap-
ons. Such a denial of qualified immunity requires not only
that it was unconstitutional to keep him handcuffed until the
house was searched and his father was arrested, but also that
any reasonable officer should have known that it was unconstitu-
tional.9 This strikes me as bizarre, because no case supports
the proposition that keeping an individual handcuffed during
a search is unconstitutional except for our decision10 reversed
in Muehler.11
7Id. at 95.
8Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006).
9Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that govern-
ment officials are entitled to qualified immunity in performing their dis-
cretionary functions unless their actions “violate clearly established
statutory or constitutional rights of which a reasonable person would have
known”).
10Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003).
11Muehler v. Mena, 544 U.S. 93 (2005).
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We should not reach the Federal Tort Claims Act issues,
because Tekle’s brief does not raise them.12 He argues exclu-
sively that the officers violated his constitutional rights, not
that they violated his state law rights. In footnote 8, the major-
ity provides a factually mistaken justification for reaching the
Federal Tort Claims Act: “there are five pages of argument
devoted to the district court’s perceived error in granting sum-
mary judgment in favor of the United States on the FTCA
claim.”13 Tekle’s argument at pages 23-24 of his opening
brief, cited in the majority opinion at footnote 8, is that fed-
eral liability “would have to stem from the actions of its
agents,” and the agents committed “clear violations of
EPHRAIM’s constitutional rights.” That is a Bivens claim, not
a Federal Tort Claims Act claim.14
After setting out the facts and general principles of law on
the first fourteen pages of the brief, the appellant argues at
pages 15 through 28 that the individual defendants and the
United States government violated the constitutional rights of
EPHRAIM and qualified immunity does not apply. The
12Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (“[W]e will not ordi-
narily consider matters on appeal that are not specifically and distinctly
argued in appellant’s opening brief.”).
13Judge Tashima and I have been unable to agree on whether the appel-
lant’s brief fairly raises the FTCA theory. I have attached as an appendix
to this dissent a statement of issues and the five pages of argument that
Judge Tashima thinks raise the claim, and that I think do not raise the
claim. There is a point to the doctrine that a claim not raised in the appel-
lant’s brief is waived, and the point is not just to simplify an appellate
court’s work. Rather, there is a fairness problem, perhaps a due process
problem, if an appellee loses an appeal on a theory that came from a
judge’s chambers rather than an appellant’s brief.
14Compare 28 U.S.C. § 1346(b)(1) (waiving sovereign immunity “under
circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or
omission occurred”) (emphasis added), with Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971)
(holding that claim for damages may be allowed where agents of the
United States violated individual’s constitutional rights).
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remaining two pages of the brief, 28-29, are a conclusion
arguing that the plaintiff’s due process rights under the Con-
stitution were violated and there is no entitlement to immu-
nity. Appellant does not argue that anyone violated state tort
law. True, the government argues that it did not violate state
tort law, but the appellant is the master of the appeal and
chose not to make the argument that the government
responded to. There is no reply brief. I am mystified about
why we are issuing three different opinions on an issue that
appellants chose not to put before us.
Were we to reach the Federal Tort Claims Act issues, I
agree with Judge Fisher that the Federal Tort Claims Act does
not expose federal law enforcement officers to liability when
they are acting within the confines of the special law enforce-
ment privileges conferred upon them by other statutes. How-
ever, I disagree with Judge Fisher’s conclusion that Tekle’s
FTCA claim for false arrest presents genuine issues of mate-
rial fact.
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