                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 12 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARIE SALES, individually and on                 No. 14-55169
behalf of the Estate of Paul J. Quintanar,
                                                 D.C. No. 8:12-cv-01834-CJC-
              Plaintiff - Appellee,              MLG

 v.
                                                 MEMORANDUM*
CITY OF TUSTIN,

              Defendant,

  and

A. GLEASON, Officer; J. MONSOOR,
Officer; ROQUE, Officer,

              Defendants - Appellants.


                    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.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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
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
(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.




                                           4
                                                                                  FILED
Marie Sales v A. Gleason Officer et al 14-55169
                                                                                   MAY 12 2016
Nelson, Senior Circuit Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                                 U.S. COURT OF APPEALS


       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
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.
