Sharee Butler v. City of Sacramento; Michelle Perez; City of Sacramento Police Department

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAREE BUTLER,
Plaintiff - Appellant,
v.
CITY OF SACRAMENTO; MICHELLE
PEREZ; CITY OF SACRAMENTO
POLICE DEPARTMENT,
Defendants - Appellees.
No. 08-17551
D.C. No. 2:07-cv-00755-LKK-
DAD
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted February 9, 2010**
San Francisco, California
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.
Sharee Butler sued the City of Sacramento, the Sacramento Police
Department, and Sacramento Police Officer Michelle Perez. She alleged violations
FILED
FEB 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of her Fourth and Fifth Amendment rights under 42 U.S.C. § 1983, and violations
under several state-law provisions. The district court dismissed or granted
summary judgement in favor of the defendants with respect to each of Butler’s
claims. Butler appeals only the district court’s ruling that Perez is entitled to
qualified immunity with respect to Butler’s Fourth Amendment claim, and
accordingly, none of her other claims are before us. As the facts are known to the
parties, we will not repeat them here except to the extent necessary to explain our
decision.
I
Perez is entitled to qualified immunity unless (1) the facts, viewed in the
light most favorable to Butler, demonstrate a violation of a constitutional right and
(2) that right was clearly established at the time of the defendant’s misconduct.
Pearson v. Callahan, 129 S. Ct. 808, 815–16 (2009). This court may address these
questions in any order it chooses. Id. at 818.
Assuming, without deciding, that Perez violated Butler’s Fourth Amendment
rights by continuing to detain her after completing the search of her vehicle, this
right was not clearly established in 2005, and Perez is therefore entitled to qualified
immunity. A government official is immune from liability for discretionary
functions, so long as the official’s conduct “does not violate clearly established

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Indeed, many of the cases she cites were decided after her 2005 arrest, and1
therefore cannot possibly demonstrate that Perez’s actions violated a clearly
established Fourth Amendment right. See, e.g., Arizona v. Johnson, 129 S. Ct 781
(2009); Los Angeles County v. Rettele, 550 U.S. 609 (2007); United States v.
Mendez, 476 F.3d 1077 (9th Cir. 2007).
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statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity shields “all
but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986). “It is not necessary that the alleged acts have
been previously held unconstitutional, as long as the unlawfulness [of defendant’s
actions] was apparent in light of pre-existing law.” Malik v. Brown, 71 F.3d 724,
727 (9th Cir. 1995).
Butler cites no case directly demonstrating that the asserted right was clearly
established in 2005. She contends that in 2005 it was clearly established that “a1
seizure becomes unlawful when it is more intrusive than necessary to accomplish
the objectives that justified the seizure in the first place.” Be that as it may, the
circumstances of Butler’s arrest do not demonstrate that her detention was
unconstitutionally intrusive. To the contrary, it was established that Perez could
detain Butler during the search of her car and home. See Michigan v. Summers,
452 U.S. 692, 705 (1981) (holding that officers may detain the occupants of a
house while executing a search warrant); see also Maryland v. Wilson, 519 U.S.

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408, 414–15 (1997) (holding that officers may detain the occupants of a vehicle
while executing a search warrant). Thus, we cannot say that, at the time of Butler’s
arrest, “the unlawfulness [of Perez’s actions] was apparent in light of preexisting
law.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002) (internal quotation
marks omitted).
II
Accordingly, the judgment of the district court is
AFFIRMED.

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