                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JIM MAXWELL, individually and as        
guardian of Trevor Allen Bruce
and Kelton Tanner Bruce; KAY
MAXWELL, individually and as
guardian of Trevor Allen Bruce
and Kelton Tanner Bruce; JIM
MAXWELL, as executor of the
Estate of Kristen Marie Maxwell-
Bruce,
               Plaintiffs-Appellants,
                                             No. 10-56671
                 v.
COUNTY OF SAN DIEGO; ALPINE FIRE              D.C. No.
                                            3:07-cv-02385-
PROTECTION DISTRICT; VIEJAS FIRE              JAH-WMC
DEPARTMENT; LOWELL BRYAN
“SAM” BRUCE, Deputy; BRADLEY
AVI; JEREMY FELBER; GREGORY
REYNOLDS; ANTHONY SALAZAR; M.
KNOBBE; JEFFREY JACKSON; WARREN
VOTH; GARY KNEESHAW; WILLIAM
REILLY; L. RODRIGUEZ; BRIAN
BOGGELN; COLBY ROSS; CHIP
HOWELL; MICHAEL MEAD; DOES,
             Defendants-Appellees.
                                        




                            11179
11180          MAXWELL v. COUNTY OF SAN DIEGO



JIM MAXWELL, individually and as        
guardian of Trevor Allen Bruce
and Kelton Tanner Bruce; KAY
MAXWELL, individually and as
guardian of Trevor Allen Bruce
and Kelton Tanner Bruce; JIM
MAXWELL, as executor of the
Estate of Kristen Marie Maxwell-
Bruce,
                Plaintiffs-Appellees,
                 v.
                                             No. 10-56706
COUNTY OF SAN DIEGO; ALPINE FIRE
                                               D.C. No.
PROTECTION DISTRICT; VIEJAS FIRE
DEPARTMENT; LOWELL BRYAN                   3:07-cv-02385-
                                              JAH-WMC
“SAM” BRUCE, Deputy; BRADLEY
AVI; JEREMY FELBER; BRIAN                      OPINION
BOGGELN; COLBY ROSS; CHIP
HOWELL; MICHAEL MEAD; DOES,
                         Defendants,
                and
GREGORY REYNOLDS; ANTHONY
SALAZAR; M. KNOBBE; JEFFREY
JACKSON; WARREN VOTH; GARY
KNEESHAW; WILLIAM REILLY; L.
RODRIGUEZ,
            Defendants-Appellants.
                                        
        Appeal from the United States District Court
           for the Southern District of California
         John A. Houston, District Judge, Presiding

                  Argued and Submitted
            March 7, 2012—Pasadena, California
      MAXWELL v. COUNTY OF SAN DIEGO             11181
          Filed September 13, 2012

Before: Jerome Farris, Richard R. Clifton, and
       Sandra S. Ikuta, Circuit Judges.

          Opinion by Judge Farris;
           Dissent by Judge Ikuta
11184            MAXWELL v. COUNTY OF SAN DIEGO




                              COUNSEL

Daniel M. Benjamin, Ballard Spahr LLP, San Diego, Califor-
nia, and Todd Thibodo, Law Offices of Todd Thibodo,
Encino,     California, for   plaintiffs-appellees/plaintiffs-
appellants Jim Maxwell and Kay Maxwell.

Morris G. Hill, Senior Deputy, San Diego County Counsel,
San Diego, California, for defendants-appellants Gregory
Reynolds, Anthony Salazar, Michael Knobbe, Jeffrey Jack-
son, Warren Voth, Gary Kneeshaw, William Reilly, and
Leonard Rodriguez.

Phillip C. Samouris, John M. Morris, and Victoria E. Fuller,
Higgs, Fletcher & Mack LLP, San Diego, California, for
defendants-appellees Viejas Fire Department, Bradley Avi,
and Jeremy Felber.


                              OPINION

FARRIS, Circuit Judge:

  These consolidated appeals concern the aftermath of the
shooting of Kristin Marie Maxwell-Bruce by her husband,
Lowell Bruce.

                                     I

   Around 10:50 PM on December 14, 2006, Lowell, a San
Diego County Sheriff’s Department deputy, shot Kristin in
the jaw in the couple’s bedroom.1 At the time, Lowell and
  1
   These cases come to us in different procedural postures and thus
require us to consider different parts of the record. Case 10-56706 follows
                  MAXWELL v. COUNTY OF SAN DIEGO                     11185
Kristin lived in the home of Kristin’s parents, Jim and Kay
Maxwell, along with Lowell and Kristin’s children and Kay’s
father, Fred Stevens. Kristin was able to call 911 for help.
Lowell also called 911 and told the 911 dispatcher that he had
shot Kristin.

   Deputy Jeffrey Jackson of the Sheriff’s Department was
dispatched to the scene and arrived at about 10:53 PM. Jack-
son, along with Bill Davis, a neighbor who happens to be a
San Diego Police Department sergeant and who was appar-
ently notified of the shooting via telephone by Jim, went into
the Maxwell house. Jackson knew before he went into the
house that the suspect was a fellow deputy sheriff. When
Jackson arrived, he saw Kristin sitting in a chair, still talking
to the 911 dispatcher. Jackson walked past Kristin and deter-
mined that Lowell was not a threat. Jackson took Lowell’s
phone and told the 911 dispatcher to send the fire department.
Jackson then escorted Lowell to Jackson’s patrol car. Jackson
did not frisk Lowell for weapons or handcuff him.

   Rani Gibbs, a neighbor of the Maxwells and a nurse,
entered the house at about 10:58 PM. Gibbs found Kristin sit-
ting in a chair, conscious, alert and oriented. At about 11:00
PM, an Alpine Fire Protection District fire truck arrived, car-
rying Captain Brian Boggeln, firefighter Colby Ross, and

the denial of summary judgment. We review that decision in light of the
“depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials” in the record.
Fed. R. Civ. P. 56(c)(1)(A). Case 10-56671 follows the grant of a motion
to dismiss for lack of subject matter jurisdiction. In reviewing such a dis-
missal, “we may generally consider only allegations contained in the
pleadings, exhibits attached to the complaint, and matters properly subject
to judicial notice.” Colony Cove Props., LLC v. City of Carson, 640 F.3d
948, 955 (9th Cir. 2011) (internal quotation marks omitted). We recite the
cases’ shared backgrounds together for the reader’s convenience but limit
our analysis of each claim to the appropriate parts of the record.
11186         MAXWELL v. COUNTY OF SAN DIEGO
emergency medical technicians Michael Mead and Gerald
Howell II. Their fire truck did not have space for a gurney.

   Sheriff’s Department Deputies William Reilly, Leonard
Rodriguez, Warren Voth, and Gary Kneeshaw also arrived at
the scene around 11:00 PM. Voth and Kneeshaw were ini-
tially told they were not needed and prepared to leave. Jack-
son ordered Rodriguez to stay near the former’s patrol car and
went back into the house with Reilly, where they retrieved
Lowell’s gun.

   The Alpine responders entered the house a few minutes
later, and Gibbs left shortly thereafter. Ross and Mead also
came in and began a medical examination of Kristin. The
Alpine responders determined that Kristin’s vital signs and
motor responses were normal and that she was able to com-
municate. They also diagnosed her with an airway obstruc-
tion. Boggeln and Ross placed a c-spine collar on Kristin.

  The Alpine responders concluded that Kristin had to go to
a trauma center quickly. They requested an air ambulance,
which they believed to be the fastest mode of transport, and
were informed it would arrive in 25 minutes at a landing zone
10 miles away. The air ambulance had advanced medical
capabilities for dealing with trauma patients.

   Around 11:08 PM, an ambulance from the Viejas Band of
Kumeyaay Indians Tribal Fire Department arrived. The Viejas
Fire ambulance, which carried paramedics Bradley Avi and
Jeremy Felber, could transport Kristin to the landing zone.

   At the time, Kristin’s vital signs were still within normal
limits. The ambulance did not leave immediately. Rather, at
some point, the ambulance’s engine was turned off. Sometime
between 11:10 and 11:15 PM, Fred Stevens saw Kristin sit-
ting alone in the dining room, holding a towel to her jaw.

  Eventually, Avi and Felber brought in their backboard and
gurney. With help from Ross and Mead, they placed Kristin
               MAXWELL v. COUNTY OF SAN DIEGO              11187
on the backboard and taped her into place. The four men then
carried Kristin to the Viejas Fire ambulance. When they
arrived at the ambulance, Kristin began exhibiting signs of
distress, expelling blood from her mouth. The four men tilted
the backboard to allow the blood to drain, and Ross suctioned
the blood. They made other efforts to assist her without suc-
cess.

   Meanwhile, Sergeant Michael Knobbe had arrived at the
scene at 11:16 PM. Knobbe believed himself to be in charge.
He was in fact outranked by Captain Gregory Reynolds and
Lieutenant Anthony Salazar, who arrived around the same
time as Knobbe. Nonetheless, Reynolds and Salazar stayed
near the end of the driveway and did not interfere with
Knobbe taking control of the crime scene.

   Knobbe ordered Voth and Kneeshaw to stay at the crime
scene. He also ordered the house evacuated and sealed and the
Maxwells separated. Kay, Fred, and the children were placed
in a motor home on the driveway. Jim was allowed to pace
around the front of the driveway. Jim and Kay repeatedly
asked to be allowed to stay together and follow Kristin to the
hospital. They also told the deputies that they had not seen or
heard anything involving the shooting. Nonetheless, they
were told they had to stay and wait separately for investiga-
tors to interview them.

   Based on Alpine’s estimates, Kristin was placed in the Vie-
jas Fire ambulance between 11:18 and 11:25 PM. Sergeant
Knobbe, however, refused to let the ambulance leave immedi-
ately because he viewed the area as a crime scene and thought
that Kristin had to be interviewed. As a result of the delay, the
ambulance did not leave until 11:30 PM. By that point, the air
ambulance had already gotten to the landing zone.

   The Viejas Fire ambulance took 11 minutes to get to the
landing zone. Kristin died en route. The cause of death was
blood loss from her gunshot wound. According to the San
11188          MAXWELL v. COUNTY OF SAN DIEGO
Diego County medical examiner, Kristin’s injuries were
repairable.

   At about 12:45 AM, Knobbe told Jim—who was still pac-
ing on his driveway—that Kristin had died. At around 1:00
AM, Knobbe assigned Deputy Kneeshaw to monitor Jim. Jim
told Kneeshaw that he was going to tell Kay about Kristin’s
death. Kneeshaw told Jim that he had to stay put at the end
of the driveway, to which Jim responded, “You are gonna
have to shoot me, I’m going to see my wife!” Jim started to
walk toward the mobile home. Kneeshaw told Jim to stop and
tried to block his path. When Jim tried to continue walking,
Kneeshaw sprayed him three times with pepper spray, struck
him on the leg with his baton, and handcuffed him with
Knobbe’s help. Salazar and Reynolds were still at the end of
the driveway and did not intervene.

   Jim was released from his handcuffs about half an hour
later. He was still kept separate from the rest of his family
until investigators finished interviewing Kay around 5:00
AM. Kay and the other family members did not learn about
Kristin’s death until then.

   The Maxwells sued several parties after the night’s events.
These interlocutory appeals concern two sets of claims. In the
first, the Maxwells allege various constitutional violations by
Jackson, Reilly, Rodriguez, Voth, Kneeshaw, Knobbe, Reyn-
olds, and Salazar (the “Sheriff’s officers”) pursuant to 42
U.S.C. § 1983. In the second, the Maxwells seek tort damages
under California law against the Viejas Fire Department and
its paramedics, Avi and Felber (the “Viejas defendants”), pur-
suant to 28 U.S.C. § 1367(a).

   After discovery, the Sheriff’s officers moved under Federal
Rule of Civil Procedure 56 for summary judgment on the
basis of qualified immunity. The Viejas defendants moved
under Federal Rule of Civil Procedure 12(b)(1) to dismiss for
lack of subject matter jurisdiction, arguing they enjoyed tribal
               MAXWELL v. COUNTY OF SAN DIEGO              11189
sovereign immunity. The district court denied the former
motion and granted the latter.

                                II

   We review de novo the district court’s ruling on summary
judgment on the basis of qualified immunity. Rosenbaum v.
Washoe Cnty., 663 F.3d 1071, 1075 (9th Cir. 2011). Summary
judgment should be granted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[W]e must view the evidence . . . in the light most
favorable to the non-moving party and draw all reasonable
inferences in favor of that party.” Bank of N.Y. v. Fremont
Gen. Corp., 523 F.3d 902, 909 (9th Cir. 2008). We also
review de novo the district court’s determination that it lacks
subject matter jurisdiction because of tribal sovereign immu-
nity. Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492
(9th Cir. 2002).

                               III

   We begin with the district court’s denial of summary judg-
ment to the Sheriff’s officers on the ground of qualified
immunity. Qualified immunity protects government officers
“from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether
an officer is entitled to qualified immunity, we ask, in the
order we choose, (1) whether the alleged misconduct violated
a right and (2) whether the right was clearly established at the
time of the alleged misconduct. Pearson v. Callahan, 555
U.S. 223, 232, 236 (2009). “For a constitutional right to be
clearly established, its contours must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(internal quotation marks omitted).
11190          MAXWELL v. COUNTY OF SAN DIEGO
                                A

   [1] The Maxwells’ first claim alleges that the delay of
Kristin’s ambulance violated the Fourteenth Amendment’s
due process clause. The due process clause guarantees the
right to “bodily security.” Kennedy v. City of Ridgefield, 439
F.3d 1055, 1061 (9th Cir. 2006). The Maxwells contend that
the Sheriff’s officers violated Kristin’s right to bodily security
by delaying her ambulance and thus ensuring her death.

  [2] Normally, the Sheriff’s officers could not be held liable
under § 1983 for an injury inflicted by a third party. L.W. v.
Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). There are, how-
ever, “two exceptions [to this rule]: (1) the ‘special relation-
ship’ exception; and (2) the ‘danger creation’ exception.” Id.
The Maxwells contend there is a dispute of material fact about
whether either or both exceptions apply.

   [3] We agree that the danger creation exception applies. As
of December 2006, it was well-established in this circuit that
the danger creation exception applies where government offi-
cers “affirmatively placed the [victim] in a position of dan-
ger.” Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir.
1989) (internal quotation marks omitted). Officers affirma-
tively place a person in danger by leaving her “in a situation
that [is] more dangerous than the one in which they found
h[er].” Munger v. City of Glasgow Police Dep’t, 227 F.3d
1082, 1086 (9th Cir. 2000). Impeding access to medical care
amounts to leaving a victim in a more dangerous situation.
See Penilla v. City of Huntington Park, 115 F.3d 707, 710
(9th Cir. 1997).

   [4] The Sheriff’s officers found Kristin facing a preexist-
ing danger from her gunshot wound. There is evidence they
affirmatively increased that danger by preventing her ambu-
lance from leaving. This arguably left Kristin worse off than
if the ambulance had been allowed to bring her to an air
               MAXWELL v. COUNTY OF SAN DIEGO             11191
ambulance that had advanced medical capabilities and was
ready to fly her to a trauma center.

   [5] The Sheriff’s officers argue that our danger creation
cases are distinguishable because they did not involve first
responders securing a crime scene. But “officials can still be
on notice that their conduct violates established law even in
novel factual circumstances.” Hope, 536 U.S. at 741. The
existence of a crime scene does not change our analysis. It
was irrelevant to the delay of the ambulance. The ambulance
contained no witnesses or evidence apart from the victim her-
self and her wounds. Lowell had confessed and was in cus-
tody. The Sheriff’s officers had found the gun used in the
crime. The crime scene was sealed.

   The Sheriff’s officers also argue they lacked the mens rea
to be held liable under § 1983, claiming the record does not
show “deliberate indifference . . . to known or obvious dan-
gers.” Nicholas v. Wallenstein, 266 F.3d 1083, 1087 (9th Cir.
2001). We reject the argument. It was obvious that delaying
a bleeding gun shot victim’s ambulance increased the risk of
death.

   Finally, the Sheriff’s officers appear to argue that the Max-
wells must show that they acted with a “purpose to harm”
Kristin since this case involved a medical emergency calling
for split-second decisions. See Porter v. Osborn, 546 F.3d
1131, 1139 (9th Cir. 2008). This contradicts their earlier rec-
ognition that the appropriate standard is one of deliberate
indifference. It also nonsensically suggests that a medical
emergency faced by third parties justified the decision to pre-
vent those parties from responding to that emergency.

                               B

  The Maxwells next allege that their multi-hour detention
and separation violated the Fourth Amendment’s ban on
unreasonable seizures. We accept for the purpose of this
11192          MAXWELL v. COUNTY OF SAN DIEGO
appeal the Maxwells’ allegation that they were subject to sei-
zure. The Sheriff’s officers did not challenge this allegation
in the district court or in their opening brief on appeal. They
therefore waived the argument raised in their reply brief that
there was no seizure. See Taniguchi v. Schultz, 303 F.3d 950,
958-59 (9th Cir. 2002); Eberle v. City of Anaheim, 901 F.2d
814, 818 (9th Cir. 1990).

   [6] The remaining question is whether, under our pre-
December 2006 precedent, there is a dispute of material fact
about whether the detention was reasonable. Under the Max-
wells’ version of the facts, they were seized for over five
hours solely because they were witnesses to a crime. In decid-
ing whether this was reasonable, we look to “the gravity of
the public concerns served by the seizure, the degree to which
the seizure advances the public interest, and the severity of
the interference with individual liberty.” Brown v. Texas, 443
U.S. 47, 51 (1979).

   We note there are few cases discussing the reasonability of
detaining witnesses solely for investigative purposes. In most
cases, the lack of on-point precedent would compel us to
grant qualified immunity. To apply a legal right at “a high
level of generality would allow plaintiffs ‘to convert the rule
of qualified immunity . . . into a rule of virtually unqualified
liability simply by alleging violation of extremely abstract
rights.’ ” Groh v. Ramirez, 540 U.S. 551, 578 (2004)
(Thomas, J., dissenting) (quoting Anderson v. Creighton, 483
U.S. 635, 639 (1987)) (alteration in original).

   [7] Nevertheless, “in an obvious case, [general] standards
can ‘clearly establish’ the answer, even without a body of rel-
evant case law.” Brosseau v. Haugen, 543 U.S. 194, 199
(2004). This is an obvious case. Although detention of wit-
nesses for investigative purposes can be reasonable in certain
circumstances, such detentions must be minimally intrusive.

  In United States v. Ward, 488 F.2d 162 (9th Cir. 1973) (en
banc), we held that FBI agents’ detention of a person without
               MAXWELL v. COUNTY OF SAN DIEGO              11193
“a founded suspicion of criminal activity” was unconstitu-
tional. Id. at 169. There was no suspicion that the defendant
had been involved in a particular crime. Id. Rather, the stop
was pursuant to a pre-existing criminal investigation and was
made for the purpose of questioning the defendant about a
third person. Id.

   Ward has been read to prohibit involuntary detention of
witnesses to a crime. See Walker v. City of Orem, 451 F.3d
1139, 1148 (10th Cir. 2006). We do not read it quite so
broadly. Ward contained two caveats that left the door open
to investigatory witness detentions. First, it noted that the
detention did not involve an “emergency situation.” 488 F.2d
at 169. Second, it distinguished between federal agents—who
can enforce only federal statutes—and local law enforcement
officers—who have broader authority to detain as general
“guardians of the peace.” Id.

   [8] Nonetheless, Ward clearly restricts investigative wit-
ness detentions by showing that in the hierarchy of state inter-
ests justifying detention, the interest in detaining witnesses for
information is of relatively low value. Ward began its analysis
by comparing the challenged detention to the type of investi-
gative stop authorized by Terry v. Ohio, 392 U.S. 1 (1968).
Ward noted that Terry made “suspicion that criminal activity
is afoot” the prerequisite for a lawful detention. 488 F.2d at
169. By using Terry as a starting point, Ward made clear that
detention without suspicion of criminal activity involved a
lesser state interest than a detention based on such a suspi-
cion.

   The Supreme Court decision authorizing detentions solely
for the purpose of obtaining information confirms this com-
mon sense rule. In Illinois v. Lidster, 540 U.S. 419 (2004), the
Supreme Court considered a traffic checkpoint set up so
police could ask for information about a hit and run incident.
The Supreme Court applied its normal Fourth Amendment
reasonableness inquiry and determined the detentions were
11194          MAXWELL v. COUNTY OF SAN DIEGO
reasonable. The “[m]ost important[ ]” reason, it explained,
was that “the stops interfered only minimally with liberty of
the sort the Fourth Amendment seeks to protect.” Id. at 427.
The overall delay was “a very few minutes at most,” contact
with the police “lasted only a few seconds,” and the contact
“consisted simply of a request for information and the distri-
bution of a flyer.” Id. at 427-28. By focusing on the traffic
stop’s minimal intrusion on personal liberty, Lidster con-
firmed that the state interests justifying investigative witness
detentions are lower than those justifying detention of sus-
pected criminals.

   [9] We conclude that the Sheriff’s officers were on notice
that they could not detain, separate, and interrogate the Max-
wells for hours. The Sheriff’s officers have never claimed
they had probable cause to arrest the Maxwells or reasonable
suspicion for a temporary Terry detention. The crime was
solved, and even if it had not been, it is a “settled principle
that while the police have the right to request citizens to
answer voluntarily questions concerning unsolved crimes they
have no right to compel them to answer.” Davis v. Missis-
sippi, 394 U.S. 721, 727 n.6 (1969). Even in the Terry stop
context—which involves a suspicion of criminal activity that
is absent here—the Supreme Court has never endorsed a
detention longer than 90 minutes. See United States v. Place,
462 U.S. 696, 709-10 (1983).

   The Sheriff’s officers’ reliance on Walker v. City of Orem,
451 F.3d 1139 (10th Cir. 2006), is unavailing. In Walker,
police officers shot a man and then forced his family into their
house and interrogated them for 90 minutes. 451 F.3d at 1145.
The Tenth Circuit held the detention was unconstitutional but
granted qualified immunity because there was no clear circuit
precedent prohibiting such a detention. Id. at 1151. This deci-
sion does not show the right was uncertain in this case.
Walker held a detention like the one here unconstitutional six
months before December 2006. Walker also noted that our
circuit has clearly established case law on investigative wit-
               MAXWELL v. COUNTY OF SAN DIEGO              11195
ness detentions and strongly suggested it would have ruled
differently if our holding in Ward governed. Id. at 1148. Fur-
ther, Walker noted that the events in question predated Lid-
ster. Thus, unlike the Sheriff’s officers, the officers in Walker
were not necessarily on notice that witness detention was sub-
ject to the Fourth Amendment reasonableness test. See 451
F.3d at 1151.

   We also reject the argument that various exigencies made
the detention reasonable as a matter of law. The Sheriff’s offi-
cers cite Muehler v. Mena, 544 U.S. 93 (2005), which held
that “[a]n officer’s authority to detain incident to a search is
categorical.” Id. at 98. Muehler is inapposite. The Maxwells’
detention was not incident to a search. The Sheriff’s officers
did not obtain a search warrant until more than four hours
after the detention began. The Maxwells were not “occu-
pant[s] of [their house] at the time of the search.” Id. at 98.

   The Sheriff’s officers also cite Illinois v. McArthur, 531
U.S. 326 (2001), which allows warrantless seizures to prevent
the destruction of evidence while law enforcement obtains a
search warrant. There is, however, ample evidence that there
was no such threat, and we have no jurisdiction in this inter-
locutory appeal to weigh sufficiency of the evidence. Mattos
v. Angarano, 661 F.3d 433, 439 n.2 (2011) (en banc). The
perpetrator was in custody and the crime scene was sealed.
The Maxwells followed orders to leave their house. More-
over, the Sheriff’s officers arguably could have protected the
integrity of the crime scene without detaining witnesses there.
See Walker, 451 F.3d at 1149.

   Last, the Sheriff’s officers point to their need to secure the
crime scene. But there is evidence they did not perceive such
a need at the time. The Sheriff’s officers were on the scene for
over 20 minutes before Knobbe ordered the house evacuated.
By that time, Lowell had confessed and voluntarily gone into
custody. Jackson took Lowell into custody without handcuff-
ing him or frisking him for weapons. We note again that
11196           MAXWELL v. COUNTY OF SAN DIEGO
weighing this evidence is beyond our jurisdiction. Mattos, 661
F.3d at 439 n.2.

                                 C

   [10] The Maxwells also claim that Jim’s treatment when
he tried to rejoin his family violated the Fourth Amendment.
When Jim tried to rejoin his family, he was pepper-sprayed,
struck with a baton, and handcuffed. The Maxwells allege that
these acts constituted an arrest (1) without probable cause and
(2) with excessive force. Either type of arrest is an unreason-
able seizure. Caballero v. City of Concord, 956 F.2d 204, 206
(9th Cir. 1992); White v. Pierce Cnty., 797 F.2d 812, 816 (9th
Cir. 1986). It is undisputed that Jim was arrested. Thus, the
question is whether, under our pre-December 2006 precedent,
there are disputes of material fact about whether probable
cause existed or the degree of force was excessive. We con-
clude there are.

   [11] Probable cause exists if the arresting officers “had
knowledge and reasonably trustworthy information of facts
and circumstances sufficient to lead a prudent person to
believe that [the arrestee] had committed or was committing
a crime.” United States v. Ricardo D., 912 F.2d 337, 342 (9th
Cir. 1990). The only crime identified by the Sheriff’s officers
is Jim’s refusal to obey Deputy Kneeshaw’s order not to
rejoin his family. They argue this was a violation of Califor-
nia Penal Code § 148(a), which makes it a crime to “willfully
resist[ ], delay[ ], or obstruct[ ] any . . . peace officer.” Section
148(a) does not make it a crime, however, to resist unlawful
orders. Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.
2005) (en banc).

  The test for whether force was excessive is “objective rea-
sonableness.” Graham v. Connor, 490 U.S. 386, 398 (1989).
Graham sets out a non-exhaustive list of factors for evaluat-
ing reasonability: (1) the severity of the crime at issue, (2)
whether the suspect posed an immediate threat to the safety
               MAXWELL v. COUNTY OF SAN DIEGO              11197
of the officers or others, and (3) whether the suspect actively
resisted arrest or attempted to escape. Id. at 396. Because this
inquiry is fact-sensitive, summary judgment should be granted
sparingly. Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).

   [12] This case is not an exception. If Jim did not resist
arrest—and the Sheriff’s officers point to no evidence that he
did—the use of pepper spray alone could constitute excessive
force. See Headwaters Forest Defense v. Cnty. of Humboldt,
276 F.3d 1125, 1129-30 (9th Cir. 2002).

                                D

   [13] We must decide whether to grant summary judgment
to Captain Reynolds and Lieutenant Salazar alone. Reynolds
and Salazar did not directly participate in any of the allegedly
unlawful acts. The Maxwells contend that summary judgment
is nonetheless inappropriate because a jury could reasonably
find Reynolds and Salazar liable as the ranking officers pres-
ent. We agree. A supervisor is liable under § 1983 for a subor-
dinate’s constitutional violations “if the supervisor
participated in or directed the violations, or knew of the viola-
tions and failed to act to prevent them.” Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Reynolds and Salazar testi-
fied that they were mere observers who stayed at the end of
the Maxwells’ driveway. But a jury could reasonably con-
clude they tacitly endorsed the other Sheriff’s officers’ actions
by failing to intervene. It is undisputed that Reynolds and
Salazar were aware of the Maxwells’ detention and witnessed
at least part of Jim’s arrest and beating. Reynolds testified that
he heard Kneeshaw yelling “stop, stop, stop” right before the
latter pepper-sprayed and struck Jim. Salazar testified that he
heard a “commotion” at that time. Whether Reynolds and
Salazar’s stated reasons for not intervening are plausible is a
question of fact.

                               IV

  [14] We next consider whether the Viejas defendants are
immune from suit because of tribal sovereign immunity.
11198         MAXWELL v. COUNTY OF SAN DIEGO
“Tribal sovereign immunity protects Indian tribes from suit
absent express authorization by Congress or clear waiver by
the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d
718, 725 (9th Cir. 2008). It also protects tribal employees in
certain circumstances. See id. at 727.

                               A

   The Maxwells argue first that the Viejas defendants lack
tribal sovereign immunity because the Viejas Band waived it.
The Maxwells rely on California Health and Safety Code
§ 13863(b), which provides:

    A [fire protection] district may . . . enter into mutual
    aid agreements with [a] federally recognized Indian
    tribe that maintains a full-time fire department. The
    . . . federally recognized Indian tribe, or any of its
    employees, shall have the same immunity from lia-
    bility for civil damages on account of personal injury
    to or death of any person . . . resulting from acts or
    omissions of its fire department personnel in the per-
    formance of the provisions of the mutual aid agree-
    ment as is provided by law for the district and its
    employees, except when the act or omission occurs
    on property under the control of the . . . federally
    recognized Indian tribe.

   The Maxwells attached to their complaint documents show-
ing the Viejas Fire paramedics came to the Maxwells’ house
pursuant to an agreement between the Viejas Band and the
Alpine Fire Protection District. They argue these agreements
should be construed as mutual aid agreements authorized by
§ 13863(b). They further argue that by entering into mutual
aid agreements, the Viejas Band agreed that its fire depart-
ment and fire department employees would have “have the
same immunity” as their California counterparts for acts per-
formed in California. Cal. Health & Safety Code § 13863(b).
California firefighters are not immune for gross negligence.
                 MAXWELL v. COUNTY OF SAN DIEGO                     11199
Cal. Health & Safety Code §§ 1799.106, 1799.107. Thus, the
Maxwells conclude, the Viejas Band waived sovereign immu-
nity for the Viejas defendants to the extent the Maxwells have
alleged gross negligence.

   [15] We reject the argument. Waivers of tribal sovereign
immunity must be explicit and unequivocal. See Burlington N.
& Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir.
2007). Each agreement identified by the Maxwells explicitly
retains the Viejas Band’s sovereign immunity.2

   The Maxwells cite no authority for ignoring the clear con-
tent of these agreements in favor of state statutory language
to which the Viejas Band never agreed. In each case they cite,
the Indian tribe explicitly subjected itself to the authority of
another sovereign’s courts. See, e.g., C & L Enters., Inc. v.
Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S.
411, 422 (2001); Marceau v. Blackfeet Hous. Auth., 455 F.3d
974, 981 (9th Cir. 2006). We will not infer that the Viejas
Band intended the exact opposite of what it said simply
because it acted in the shadow of another sovereign’s law.

                                    B

   [16] In addition to their waiver argument, the Maxwells
claim that the Viejas Fire paramedics lack tribal sovereign
immunity because (1) they have been sued as individuals (2)
for acts that did not involve a policy or discretionary function.
We agree with the Maxwells’ conclusion but for a different
reason. We conclude that the Viejas Fire paramedics do not
enjoy tribal sovereign immunity because a remedy would
operate against them, not the tribe. See Shermoen v. United
States, 982 F.2d 1312, 1320 (9th Cir. 1992).
   2
     We do not address the Viejas defendants’ argument that each agree-
ment predating December 2006 cannot be construed as falling under
§ 13863(b). We need not determine how California or tribal law defines
these agreements because they do not satisfy the federal standard for waiv-
ers of tribal sovereign immunity.
11200             MAXWELL v. COUNTY OF SAN DIEGO
   Tribal sovereign immunity derives from the same common
law immunity principles that shape state and federal sovereign
immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49,
58 (1978); Cook, 548 F.3d at 727. Normally, a suit like this
one—brought against individual officers in their individual
capacities—does not implicate sovereign immunity. See
Miranda B. v. Kitzhaber, 328 F.3d 1181, 1190 (9th Cir.
2003). The plaintiff seeks money damages “not from the state
treasury but from the officer[s] personally.” Alden v. Maine,
527 U.S. 706, 757 (1999). Due to “the essential nature and
effect” of the relief sought, the sovereign is not “the real, sub-
stantial party in interest.” Ford Motor Co. v. Dep’t of Trea-
sury of Ind., 323 U.S. 459, 464 (1945).

   Our remedy-focused analysis is less categorical than the
Maxwells’ proposed rule. While individual capacity suits
against low-ranking officers typically will not operate against
the sovereign, we cannot say this will always be the case. In
any suit against tribal officers, we must be sensitive to
whether “the judgment sought would expend itself on the
public treasury or domain, or interfere with the public admin-
istration, or if the effect of the judgment would be to restrain
the [sovereign] from acting, or to compel it to act.” Shermoen,
982 F.2d at 1320 (internal citations and quotation marks omit-
ted).

   The Viejas defendants point to language in many of our
cases stating that “[t]ribal sovereign immunity ‘extends to
tribal officials when acting in their official capacity and
within the scope of their authority.’ ” Cook, 548 F.3d at 727
(quoting Linneen, 276 F.3d at 492). Facially, this language
suggests the Viejas Fire paramedics enjoy tribal sovereign
immunity. Cook, for example, held low-ranking tribal
employees were immune from claims that they performed
their tribal duties in a grossly negligent way.3 Id.
  3
   We reject the Maxwells’ argument that the Viejas Fire paramedics
acted outside their authority by taking part in the unconstitutional interfer-
                MAXWELL v. COUNTY OF SAN DIEGO                  11201
   Cook, however, is consistent with the remedy-focused anal-
ysis discussed above. In Cook, the plaintiff had sued the indi-
vidual defendants in their official capacities in order to
establish vicarious liability for the tribe. 548 F.3d at 727.
Thus, when Cook invoked the “scope of authority” principle,
it was because the tribe was the “real, substantial party in
interest.” Id. The plaintiff could not “circumvent tribal immu-
nity through ‘a mere pleading device.’ ” Id. (quoting Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989)). In
short, Cook conflated the “scope of authority” and “remedy
sought” principles because they are coextensive in official
capacity suits.

   This does not change the rule that individual capacity suits
related to an officer’s official duties are generally permissible.
As the Tenth Circuit has explained: “The general bar against
official-capacity claims . . . does not mean that tribal officials
are immunized from individual-capacity suits arising out of
actions they took in their official capacities . . . .” Native Am.
Distrib. Co. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288,
1296 (10th Cir. 2008) (emphasis in original). “Rather, it
means that tribal officials are immunized from suits brought
against them because of their official capacities—that is,
because the powers they possess in those capacities enable
them to grant the plaintiffs relief on behalf of the tribe.” Id.
(emphasis in original).

   Several of our cases have referred to the “scope of authori-
ty” principle in individual capacity suits against tribal offi-
cers. But in that context, the “scope of authority” language
refers to the principle that allegations of acts outside an offi-
cer’s authority are by definition individual capacity claims.

ence with Kristin’s medical care. See Evans v. McKay, 869 F.2d 1341,
1348 n.9 (9th Cir. 1989). The Maxwells waived that argument by suing
the paramedics for state law torts only. We have reviewed the Maxwells’
complaint and find no allegations supporting § 1983 liability for the
paramedics.
11202          MAXWELL v. COUNTY OF SAN DIEGO
See Chemehuevi Indian Tribe v. Cal. State Bd. of Equaliza-
tion, 757 F.2d 1047, 1051 (9th Cir. 1985) (overruled on other
grounds by Cal. State Bd. of Equalization v. Chemehuevi
Indian Tribe, 474 U.S. 9 (1985)). This does not mean that the
“scope of authority” and “remedy sought” principles are coex-
tensive in individual capacity claims. Such a conclusion
would be a major departure from the common law immunity
doctrine that shapes tribal sovereign immunity.

   The Viejas defendants’ reliance on Hardin v. White Moun-
tain Apache Tribe, 779 F.2d 476 (1985), is misplaced. In
Hardin, a tribal council ordered tribal police to eject the plain-
tiff from tribal land. Id. at 478. The plaintiff sued the tribe,
several tribal institutions, and various officials in their indi-
vidual capacities for declaratory and injunctive relief and
damages. Id. We concluded the alleged actions were within
the scope of the tribe’s powers and that the tribe and its insti-
tutions were thus covered by sovereign immunity. Id. at 478-
79. We then affirmed dismissal of the claims against the tribal
officials, noting simply that they had “act[ed] in their repre-
sentative capacity and within the scope of their authority.” Id.
at 479.

   Hardin did not mention the “remedy sought” principle
when it granted sovereign immunity, but it did not need to do
so. Hardin was in reality an official capacity suit. Hardin did
not (1) identify which officials were sued in their individual
capacities or (2) the exact nature of the claims against them.
But the use of the word “officials” suggests the plaintiff had
sued high-ranking tribal council members for voting to eject
him. Holding the defendants liable for their legislative func-
tions would therefore have attacked “the very core of tribal
sovereignty.” Baugus v. Brunson, 890 F. Supp. 908, 911 (E.D.
Cal. 1995).

  Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989), also does
not affect our analysis. Evans denied sovereign immunity to
individual tribal defendants sued under § 1983 and alleged to
               MAXWELL v. COUNTY OF SAN DIEGO             11203
have acted in concert with state officers accused of constitu-
tional violations. Id. at 1348. In a footnote, Evans suggested
that Hardin displaced the “remedy sought” principle by citing
its “scope of authority” language. Id. at 1348 n.9. If Evans
took the broadest possible reading of Hardin, it was mistaken
for the reasons discussed above. That reading would also be
dicta. The same footnote acknowledged that suits over plainly
unlawful acts are individual capacity suits by definition and
could have rested on that ground. See id.

   [17] In short, our tribal sovereign immunity cases do not
question the general rule that individual officers are liable
when sued in their individual capacities. We see no reason to
give tribal officers broader sovereign immunity protections
than state or federal officers given that tribal sovereign immu-
nity is coextensive with other common law immunity princi-
ples. See Santa Clara Pueblo, 436 U.S. at 58. We therefore
hold that sovereign immunity does not bar the suit against the
Viejas Fire paramedics as individuals. The Viejas Band is not
the real party in interest. The Maxwells have sued the Viejas
Fire paramedics in their individual capacities for money dam-
ages. Any damages will come from their own pockets, not the
tribal treasury. See Alden, 527 U.S. at 757.

   At oral argument, the Viejas defendants gave two reasons
why the Viejas Band could be the real party in interest in this
suit. First, they suggested that the Viejas Band might have
indemnified the paramedics and would thus have to pay for
any liability. But even if an indemnification agreement exists,
it would be “a purely intramural arrangement” between a sov-
ereign and its officers. Demery v. Kupperman, 735 F.2d 1139,
1148 (9th Cir. 1984) (internal quotation marks omitted). The
unilateral decision to insure a government officer against lia-
bility does not make the officer immune from that liability.
See id. Second, they suggested that liability would impact the
Viejas Band’s ability to hire paramedics. But this case con-
cerns allegedly grossly negligent acts committed outside tribal
land pursuant to an agreement with a non-tribal entity. In this
11204          MAXWELL v. COUNTY OF SAN DIEGO
context, denying tribal sovereign immunity to individual
employees sued as individuals will have a minimal effect, if
any, on the tribe’s hiring ability.

                               V

   [18] We therefore affirm the district court’s denial of sum-
mary judgment on the ground of qualified immunity to the
Sheriff’s officers with regards to the Maxwells’ Fourteenth
Amendment due process claim and Fourth Amendment search
and seizure claims, reverse the district court’s granting of the
Viejas defendants’ motion to dismiss for lack of subject mat-
ter jurisdiction due to tribal sovereign immunity, and remand
for further proceedings. Costs are awarded to plaintiffs-
appellants.

  AFFIRMED        in   part,   REVERSED        in   part,   and
REMANDED.



IKUTA, Circuit Judge, dissenting:

   The facts of this case are undeniably tragic. But despite the
ill-fated sequence of events, the Sheriff’s deputies who
secured the crime scene did not “violate clearly established
statutory or constitutional rights of which a reasonable person
would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), by delaying the ambulance’s departure for a few min-
utes, if at all, or detaining the Maxwells while they obtained
and executed a search warrant for the Maxwells’ home.
Accordingly, qualified immunity protects all the deputies
from suit for civil damages. See id.

   In reaching the opposite conclusion, the majority draws
strained analogies to cases whose facts are not “even roughly
comparable to those present in this case,” Ryburn v. Huff, 132
S. Ct. 987, 990 (2012), and fails to heed the Supreme Court’s
              MAXWELL v. COUNTY OF SAN DIEGO             11205
instruction “not to define clearly established law at a high
level of generality,” Ashcroft v. Al-Kidd, 131 S. Ct. 2074,
2084 (2011). I therefore join Part IV of the majority opinion
but dissent with respect to Part III.

                               I

   In holding that the Sheriff’s deputies were not entitled to
qualified immunity for allegedly violating Kristin’s due pro-
cess right to bodily security, the majority misconstrues both
the chronology of events and the applicable case law.

                              A

   Kristin was shot inside her house shortly before 10:50 PM
on December 14, 2006. At that time, Kristin was able to call
911, to move about the house, to sit upright, and to communi-
cate effectively. At 10:53 PM, Deputy Sheriff Jackson first
arrived on the scene. At 10:58 PM, a nurse who lived nearby
arrived and found that Kristin was alert, oriented, and able to
answer questions appropriately.

   At around 11:00 PM, the first ambulance and paramedics
arrived. At 11:03, the paramedics determined that Kristin’s
vital signs were within normal limits. Rather than transport
Kristin to the hospital immediately, the paramedics decided to
call an air ambulance, which would arrive in twenty-five min-
utes at a landing site ten minutes from the Maxwells’ resi-
dence.

  At 11:08, the second ambulance arrived. At 11:11 PM,
paramedics again determined that Kristin’s vital signs were
within normal limits.

   At 11:16, Sergeant Michael Knobbe arrived and began the
process of securing the crime scene. As part of that process,
two Sheriff’s deputies took Jim and Kay Maxwell, Kay’s
father Fred Stevens, and Kristin’s two children out of the
11206          MAXWELL v. COUNTY OF SAN DIEGO
house, and left Kay, Fred and the children in the family motor
home in the Maxwells’ driveway. Jim was told to remain in
the driveway outside the motor home. According to Jim Max-
well, while he was on his way to the family’s motor home he
heard a deputy declare, “Nobody is leaving. This is a crime
scene.” This statement, and a statement subsequently made by
Jackson during a deposition that Knobbe was “so concerned
with the crime scene [he] didn’t want to let the ambulance
leave,” is the only evidence the Maxwells offer to support
their claim that the deputies caused a delay.

   It was not until the paramedics first placed Kristin on a
gurney in the back of the Viejas Fire ambulance between
11:18 PM and 11:25 PM that she began exhibiting signs of
distress, expelling blood from her mouth. Knobbe testified
that he saw paramedics take Kristin back out of the ambu-
lance and place her in a sitting position at some time between
11:23 PM and 11:26 PM.

   The ambulance departed at around 11:30 PM and arrived at
the landing site at 11:41, approximately eleven minutes after
the air ambulance had arrived. Kristin was pronounced dead
at 11:42 PM.

   Construing these facts in the light most favorable to the
Maxwells, as we must on summary judgment, see, e.g., Nel-
son v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009), two
things are clear. First, there is no evidence that the Sheriff’s
deputies were aware of the urgency of Kristin’s situation
when they allegedly delayed the ambulance. After Kristin was
shot, she was conscious, communicating effectively, and her
vital signs were normal. The County Medical Examiner testi-
fied that Kristin’s injury was “survivable and reparable.” The
deputies knew that the paramedics who were tending to her
decided to wait the 25 minutes it would take for an air ambu-
lance to arrive. Based on multiple contemporaneous assess-
ments of Kristin’s condition in the aftermath of the shooting,
the Sheriff’s deputies could reasonably conclude that her con-
               MAXWELL v. COUNTY OF SAN DIEGO              11207
dition was stable and that a delay of a few minutes would not
put her in peril.

   Second, any delay caused by the deputies could not have
lasted longer than seven minutes. The Maxwells’ evidence
shows that the ambulance was not even ready to depart until
11:23 PM at the earliest, when Kristin was placed inside the
ambulance a second time. The ambulance left at 11:30 PM, at
most seven minutes later.

                               B

   Under these facts, the deputies are entitled to qualified
immunity. “Qualified immunity shields government officials
from civil damages liability unless the official violated a stat-
utory or constitutional right that was clearly established at the
time of the challenged conduct.” Reichle v. Howards, 132 S.
Ct. 2088, 2093 (2012). A government official’s conduct does
not violate clearly established law unless, at the time of the
challenged conduct, the contours of a right were “sufficiently
clear ‘that every reasonable official would have understood
that what he is doing violates that right.’ ” Id. (emphasis
added) (alterations omitted) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).

   The right at issue here was Kristin’s due process right to
bodily security. The majority claims that the deputies should
have understood they were violating this right because they
delayed the ambulance from leaving, thus putting her in dan-
ger. Maj. op. at 11191. But under our case law, government
officials cannot be held liable for affirmatively placing the
plaintiff in a position of danger unless they acted with “delib-
erate indifference to [a] known or obvious danger.” Kennedy
v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006)
(quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).
This means that the plaintiffs must present evidence that the
government officials “recognize[d] the unreasonable risk and
actually intend[ed] to expose the [victim] to such risks with-
11208          MAXWELL v. COUNTY OF SAN DIEGO
out regard to the consequences to the [victim].” Grubbs, 92
F.3d at 899 (quoting Uhlrig v. Harder, 64 F.3d 567, 573 n.8
(10th Cir. 1995)).

   There is no such evidence here. And there is no basis for
the majority’s conclusion otherwise. The only case from this
circuit holding state deputies liable for preventing a person
from receiving emergency medical care is not remotely close
to this case. See Penilla v. City of Huntington Park, 115 F.3d
707, 710 (9th Cir. 1997). In Penilla, the Ninth Circuit held
police officers liable for a due process violation where, after
finding a man “in grave need of medical care,” they inexplica-
bly cancelled a 911 call to paramedics, dragged the man from
his porch into his empty house, locked the door, and left him
there alone, where he died. Penilla, 115 F.3d at 708. The
court found that the officers “took affirmative actions that sig-
nificantly increased the risk facing Penilla” by “ma[king] it
impossible for anyone to provide emergency medical care to
[him].” Id.

   In Penilla, it should have been clear to any reasonable offi-
cer that the victim would die without immediate medical
assistance. But there was no such evidence in this case. On
the contrary, Kristin’s vital signs were within normal limits
and her condition appeared to be stable until shortly before
her death. Instead of putting the victim beyond the reach of
any help, as in Penilla, the deputies at most delayed the
ambulance’s departure for a few minutes once paramedics had
already begun administering medical care. Finally, even if the
(at most) seven-minute delay before the ambulance left the
property could have placed Kristin in danger, there is no evi-
dence that the deputies actually recognized that risk.

   This case is far more similar to Estate of Amos ex rel. Amos
v. City of Page, Arizona, 257 F.3d 1086 (9th Cir. 2001),
where we held that deputies were not liable even though they
interfered with third party rescue efforts. Id. at 1089. In Estate
of Amos, the police prevented civilian efforts to search for the
               MAXWELL v. COUNTY OF SAN DIEGO              11209
victim of a car accident, who had wandered off into the
desert. The police called off their own search efforts later that
night when their flashlights lost power. Id. Months later, the
victim was discovered dead at the bottom of a canyon. Id. We
rejected the plaintiff’s argument that the officers were liable
because “they greatly increased [the victim’s] risk of danger
when they called off civilian search efforts at the accident site
and did not provide adequate replacement protection.” Id. at
1091. Although the plaintiffs described “a bungled and inef-
fectual police search,” we held that the facts did not demon-
strate that the police officers “were aware of a known and
significant risk of death ‘yet consciously chose a course of
action that ignored the risk.’ ” Id. at 1092 (quoting Ross v.
United States, 910 F.2d 1422, 1433 (7th Cir. 1990)). As in
Estate of Amos, the Maxwells have described the deputies’
emergency response as “bungled and ineffectual,” but they
have not established deliberate indifference. Id.

   Instead of citing relevant case law, the majority makes the
unsupported and conclusory statement that “it was obvious”
that the deputies violated Kristin’s due process right to bodily
security. Maj. op. at 11191. But only in retrospect is it “obvi-
ous” that the brief delay may have raised the risk that Kristin
would die from her injuries. This very term, the Supreme
Court reprimanded the Ninth Circuit for judging the reason-
ableness of officers’ conduct “with the 20/20 vision of hind-
sight” rather than “from the perspective of a reasonable
officer on the scene.” Ryburn, 132 S. Ct. at 992 (quoting Gra-
ham v. Connor, 490 U.S. 386, 396-97 (1989)). The Court
reaffirmed 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.” Id. (quoting Gra-
ham, 490 U.S. at 396-97). Contrary to the Court’s direction,
the majority’s eyes here are focused on the rearview mirror.
Given that Kristin’s medical condition initially appeared sta-
ble and that paramedics were actively tending to her at the
time of the alleged delay, the danger was not so obvious that
11210          MAXWELL v. COUNTY OF SAN DIEGO
a decision to briefly delay the ambulance shows deliberate
indifference.

                               II

   The majority likewise errs in holding that the Sheriff’s dep-
uties were not entitled to qualified immunity with respect to
the Maxwells’ claim that they were unreasonably seized in
violation of the Fourth Amendment, and that one of the depu-
ties, Sergeant Kneeshaw, used excessive force against Jim
Maxwell when he attempted to see his wife. As before, the
majority’s conclusion is based on a misconstruction of both
the facts and the law.

                               A

   After Knobbe began the process of securing the crime
scene, Kay and Fred Maxwell and the two children were told
to remain in the family’s motor home. The motor home was
equipped with a bathroom, running water, electricity, heat, a
bed, and a TV. Kay testified that although she could not get
the heat to work at first, a deputy was “nice enough to crawl
underneath” the motor home to turn the propane on. Kay put
the children in bed and turned on the TV. Kay’s father eventu-
ally fell asleep in a chair.

   Jim Maxwell remained outside the motor home; the depu-
ties wanted to restrict Jim and Kay (the two witnesses of the
crime) from communicating with each other before they were
interviewed so that the deputies could “obtain untainted infor-
mation related to the homicide.” The deputies also told Jim
and Kay that they could not follow their daughter in the
ambulance.

  According to the undisputed facts, at some time after 1:00
AM, Kneeshaw told Jim Maxwell that Kristin had died.
Although Jim wanted to tell his wife, Kneeshaw told him he
had to stay in the driveway. Jim stated, “You will have to
               MAXWELL v. COUNTY OF SAN DIEGO              11211
shoot me, I am going to see my wife,” and continued walking
to the motor home. Kneeshaw stepped in front of Jim and
again told him to stop, but Jim attempted to continue walking.
At that point, Kneeshaw sprayed Jim with pepper spray and
struck him on the leg with his baton. Kneeshaw and Knobbe
then handcuffed Jim’s hands behind his back. They removed
the handcuffs shortly thereafter. Jim testified that a deputy
then asked him whether he was okay and allowed him to rinse
his eyes out at the faucet at the end of the street. Jim also tes-
tified that the pepper spray did not cause him any pain or dis-
comfort, and that it was not the pepper spray or baton that
made him stop, but only the two deputies who handcuffed
him. He apologized to the deputies after the altercation.

   Around two hours later, at 3:35 AM, a homicide detective
obtained a search warrant for the Maxwells’ home; the search
began at roughly 3:50 AM. Meanwhile, two detectives began
interviewing Jim Maxwell regarding the murder investigation
at 3:26 AM. The detectives interviewed Kay Maxwell begin-
ning at 4:50 AM, and they finished questioning her at 5:55
AM. The search of the house was ongoing during these inter-
views.

   The Maxwells claim they were unlawfully detained, in vio-
lation of their Fourth Amendment rights, for over six hours,
from 11:16 PM until the detectives finished interviewing Kay
at 5:55 AM. The detectives testified (and the Maxwells did
not dispute) that they did not order Jim Maxwell or Kay Max-
well to submit to being interviewed against their will. Neither
Jim nor Kay asked to leave during their interviews, and both
were cooperative. Sergeant Edward Musgrove testified that
Jim and Kay Maxwell were interviewed “at the same time the
residence was being searched” in order to “reduce[ ] the time
that the witnesses were excluded from the residence, and
restricted from communicating with each other.”

                                B

   No Supreme Court or Ninth Circuit decision establishes
that the deputies’ conduct in detaining, separating, and ques-
11212          MAXWELL v. COUNTY OF SAN DIEGO
tioning the Maxwells while they obtained and executed a
search warrant for the Maxwells’ home was unreasonable.
Rather, all the precedents point in the other direction.

   First, it is well established that a search warrant “carries
with it the limited authority to detain the occupants of the
premises while a proper search is conducted.” Michigan v.
Summers, 452 U.S. 692, 705 (1981); see also Muehler v.
Mena, 544 U.S. 93, 98 (2005). Indeed, “[a]n officer’s author-
ity to detain incident to a search is categorical; it does not
depend on the ‘quantum of proof justifying detention or the
extent of the intrusion to be imposed by the seizure.’ ” Mena,
544 U.S. at 98 (emphasis added) (quoting Summers, 452 U.S.
at 705 n.19). It is irrelevant whether the detained individual
is suspected of criminal activity because “ ‘[t]he connection
of an occupant to [a] home’ alone ‘justifies a detention of that
occupant.’ ” Id. at 99 n.2 (quoting Summers, 452 U.S. at 703-
04). Therefore, the deputies’ authority to detain the Maxwells
during the roughly two and a half hours after the search war-
rant issued did not violate their Fourth Amendment rights.

   In fact, aggressive and prolonged detentions of the resi-
dents of a house can be justified in connection with executing
a search warrant, even when the search does not occur in the
immediate aftermath of a violent crime. Thus, in Mena, the
Court held that it was “plainly permissible” for officers exe-
cuting a search warrant, which was based on probable cause
to believe that a gang member lived in the target house, to
enter the bedroom of a woman not suspected of gang activity
while she was asleep in bed, place her in handcuffs at gun-
point, and detain her (along with three other individuals) in
the garage for two to three hours while the search proceeded.
Id. at 95-96, 98. Putting a non-suspect in handcuffs for two to
three hours was not an unreasonable seizure because
“[i]nherent in Summers’ authorization to detain an occupant
of the place to be searched is the authority to use reasonable
force to effectuate the detention.” Id. at 98-99. Similarly, in
Dawson v. City of Seattle, 435 F.3d 1054 (9th Cir. 2006), we
               MAXWELL v. COUNTY OF SAN DIEGO              11213
held that officers could reasonably detain boardinghouse resi-
dents for two hours while executing inspection warrants for
evidence of rodent infestation, even though the officers drew
their weapons and screamed at the residents, forced one resi-
dent outside without her shoes; refused to allow the detainees
to drink coffee, smoke cigarettes, or go to the bathroom with-
out an escort; and questioned the detainees about whether
they had drugs or weapons in their rooms. Id. at 1058-60. We
emphasized that, if not detained, the residents “might have
fled, rendering themselves unavailable to answer questions
pertinent to the search,” or mistakenly “impaired the search
rather than assisted it.” Id. at 1066-67. The officers’ interroga-
tion of the detainees did not alter the Fourth Amendment anal-
ysis because there was no evidence that the questioning
prolonged the detention or that “the police conditioned Plain-
tiffs’ release from detention on Plaintiffs’ willingness to sub-
mit to an interrogation.” Id. at 1068-69.

   Second, both Supreme Court and Ninth Circuit cases sup-
port the deputies’ decision to detain the Maxwells while seek-
ing a search warrant based on probable cause to believe that
a violent crime had just occurred inside the Maxwells’ house.
The Supreme Court has made clear that a search warrant is
not always necessary to justify detention of the occupants of
a targeted home. Thus, in upholding the detention of an indi-
vidual while officers executed a search warrant for his home,
Summers noted that the holding did not “preclude the possi-
bility that comparable police conduct may be justified by exi-
gent circumstances in the absence of a warrant.” Summers,
452 U.S. at 703 n.17. As suggested by Summers, the Court
later held that exigent circumstances justified officers in
detaining a man outside his home for roughly two hours while
they obtained a search warrant for the home. See Illinois v.
McArthur, 531 U.S. 326, 328 (2001). McArthur explained that
four factors made the warrantless detention reasonable: (1) the
officers “had probable cause to believe that . . . [the] home
contained evidence of a crime and contraband,” (2) the offi-
cers “had good reason to fear that, unless restrained, [the
11214          MAXWELL v. COUNTY OF SAN DIEGO
defendant] would destroy evidence before they could return
with a warrant,” (3) the officers “made reasonable efforts to
reconcile their law enforcement needs with the demands of
personal privacy” by not searching the home or arresting the
resident before obtaining the warrant, and (4) the detention
was “no longer than reasonably necessary for the police, act-
ing with diligence, to obtain the warrant.” Id. at 331-33.

   These cases fully support the conclusion that the exigencies
present in this case made it reasonable for the deputies to
detain the Maxwells while seeking a search warrant. The dep-
uties arrived minutes after a violent crime had occurred, and
it was their responsibility to assist the victim and secure the
crime scene. They realized that the Maxwells’ home con-
tained evidence necessary to prosecute the perpetrator. See
McArthur, 531 U.S. at 332. They also had good reason to
believe that allowing the Maxwells back in the house could
compromise the evidence. See Dawson, 435 F.3d at 1067; see
also McArthur, 531 U.S. at 326, 332. For example, Jim Max-
well admitted that in the immediate aftermath of the shooting,
he picked up the gun Bruce used to shoot Kristin in a mis-
guided attempt to assist the deputies by bringing the weapon
to them. Finally, they needed to get the statements of wit-
nesses, and they reasonably believed that if they did not sepa-
rate Jim and Kay, the two of them might influence one
another’s recollections, making their statements vulnerable to
challenge in court and jeopardizing the prosecution.

   Moreover, the deputies detained the Maxwells in a reason-
able manner. In fact, the Maxwells were treated far more
humanely than were the detainees in Mena or Dawson, who
also were not suspected of any crime. The deputies allowed
Kay, her father, and the children to wait in the privacy of their
family motor home for the duration of the pre-warrant period.
Deputy Kneeshaw’s brief use of force against Jim, which Jim
himself testified did not cause him any memorable pain or
discomfort, was fully justified in order “to effectuate the
detention.” Mena, 544 U.S. at 99. And the four-hour period
               MAXWELL v. COUNTY OF SAN DIEGO              11215
was no longer than reasonably necessary for the police to
obtain the warrant. All the evidence in the record indicates
that the deputies acted diligently in obtaining the warrant as
quickly as possible at a time “when it is reasonable to assume
that judicial officers are not as readily available for consider-
ation of warrant requests.” Segura v. United States, 468 U.S.
796, 812-13 (1984) (holding that a 19-hour warrantless sei-
zure of a building, half of which occurred during the period
between 10:00 PM and 10:00 AM the following day, was rea-
sonable under the circumstances). Based on these factors, the
deputies’ decision, “even if constitutionally deficient, reason-
ably misapprehend[ed] the law governing the circumstances.”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

   The majority’s reliance on United States v. Ward, 488 F.2d
162 (9th Cir. 1973) (en banc), and Illinois v. Lidster, 540 U.S.
419 (2004), is puzzling, because these cases are far afield
from the issues before us. Both decisions consider when the
Fourth Amendment allows police to stop cars on the road in
order to investigate crimes committed by third parties. In Lid-
ster, the Court held that the Fourth Amendment allowed
police to stop motorists at a highway checkpoint to ask them
whether they had any information about a recent hit-and-run
accident. Lidster, 540 U.S. at 426-28. In Ward, we held that
FBI agents violated a driver’s right to travel the public roads
when they pulled him over to interview him regarding a
months-old investigation of a third-party fugitive. Ward, 488
F.2d at 169. Unlike Mena and Dawson, these cases provide no
guidance as to when a police officer acts reasonably in secur-
ing a crime scene and detaining occupants and witnesses.
“Because ‘[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application,’ ” the Court has explained, “its proper application
requires careful attention to the facts and circumstances of
each particular case.” Graham, 490 U.S. at 396 (internal quo-
tation marks omitted) (quoting Bell v. Wolfish, 441 U.S. 520,
559 (1979)). For instance, “[t]he general proposition . . . that
an unreasonable search or seizure violates the Fourth Amend-
11216         MAXWELL v. COUNTY OF SAN DIEGO
ment is of little help in determining whether the violative
nature of particular conduct is clearly established.” Al-Kidd,
131 S. Ct. 2084; see also Brosseau, 543 U.S. at 198 (empha-
sizing that the assessment of clearly established law in the
Fourth Amendment context “must be undertaken in light of
the specific context of the case, not as a broad general propo-
sition”) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled on other grounds by Pearson v. Callahan, 555 U.S.
223 (2009)). Because the facts and circumstances of Lidster
and Ward shed no light on whether the detention and separa-
tion of building occupants in the immediate aftermath of a
shooting is reasonable, these cases do not support the majori-
ty’s determination that there was clearly established law pro-
hibiting the deputies’ conduct.

                              III

   Finally, even if the majority were correct that the deputies
violated clearly established law, it is impossible to conclude
that Captain Gregory Reynolds and Lieutenant Anthony Sala-
zar could be held liable merely because they were standing
behind yellow crime tape at the scene.

   We have long held that officers may not be held liable
“merely for being present at the scene of an alleged unlawful
act” or for being a member of the same team as the wrongdo-
ers. Jones v. Williams, 297 F.3d 930, 936-38 (9th Cir. 2002)
(emphasis added). More recently, Ashcroft v. Iqbal, 556 U.S.
662 (2009), clarified that there is no respondeat superior lia-
bility under § 1983. Rather, a government official may be
held liable only for the official’s own conduct. Id. at 675-76.
To bring a § 1983 action against a supervisor, the plaintiff
must show: (1) the supervisor breached a legal duty to the
plaintiff, see Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir.
2011); (2) the breach of duty was “the proximate cause” of
the plaintiff’s constitutional injury, id. at 1207, and (3) the
supervisor had at least the same level of mens rea in carrying
out his superintendent responsibilities as would be required
               MAXWELL v. COUNTY OF SAN DIEGO              11217
for a direct violation of the plaintiff’s constitutional rights,
Iqbal, 129 S. Ct. at 1949; see also Starr, 652 F.3d at 1207.

   Here the Maxwells do not allege that Reynolds and Salazar
took any affirmative acts to set in motion the allegedly uncon-
stitutional acts of their subordinates, nor do they present any
evidence that Reynolds and Salazar knew about their subordi-
nates’ conduct in delaying the ambulance or detaining and
separating the Maxwells. Moreover, they do not dispute that
neither Reynolds nor Salazar crossed the yellow tape across
the Maxwells’ driveway that restricted entry to the crime
scene. The Maxwells allege merely that Reynolds and Salazar
(1) were the highest ranking officials at the scene, (2) could
observe the crime scene from the driveway, and (3) heard
Kneeshaw yelling at Jim Maxwell to “stop, stop” just before
using pepper spray and striking Jim with his baton.

   These facts are insufficient to create a genuine issue of
material fact that Reynolds and Salazar breached a legal duty
to the Maxwells, that they were the proximate cause of the
Maxwells’ constitutional injuries, or that they acted with the
requisite state of mind. First, the Maxwells do not allege that
the supervisors were even aware that the deputies delayed
Kristin’s departure, let alone that the supervisors acted with
deliberate indifference. Nor can we infer, solely based on geo-
graphic proximity, that Reynolds and Salazar knew or reason-
ably should have known that the other Sheriff’s deputies had
forcibly detained the Maxwells and prevented them from see-
ing their daughter and each other, and that there were no exi-
gent circumstances to justify the detention. This is especially
true given that Reynolds and Salazar never entered the crime
scene. Nor is there any evidence “of a specific policy imple-
mented by the Defendants or a specific event or events insti-
gated by the Defendants that led to these purportedly
unconstitutional” seizures. Hydrick v. Hunter, 669 F.3d 937,
942 (9th Cir. 2012). As in Hydrick, “the factual allegations in
Plaintiffs’ complaint resemble the ‘bald’ and ‘conclusory’
allegations in Iqbal, instead of the detailed factual allegations
11218          MAXWELL v. COUNTY OF SAN DIEGO
in Starr.” Id. at 941. It is therefore clear that Reynolds and
Salazar cannot be held liable for the alleged constitutional
violations of other deputies on the scene.

                              IV

   It is a truism that “tragic facts make bad law.” Wyeth v.
Levine, 555 U.S. 555, 604 (2009) (Alito, J., dissenting). Nev-
ertheless, we may not furnish a cause of action where the law
does not supply one. See Whitmore v. Arkansas, 495 U.S. 149,
166 (1990); see also Gusman v. Marrero, 180 U.S. 81, 87
(1901). The deputies arriving at the Maxwells’ residence
faced a chaotic scene: a woman had been shot in the jaw; the
perpetrator was still in the house; multiple ambulances and
paramedics were responding to the scene; and frantic relatives
were milling about. From the perspective of the deputies, it
was more than merely reasonable to take steps to secure the
crime scene and separate the witnesses—it was their duty.
The majority has not pointed to a single case that clearly
establishes that the deputies’ actions here violated the Max-
wells’ constitutional rights. Under existing case law, the depu-
ties are entitled to qualified immunity for their actions. I
therefore respectfully dissent.
