                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 23 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

LAQUINN FISHER, an individual,                   No. 12-16661

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00756-FJM

  v.
                                                 MEMORANDUM*
CITY OF MESA; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Arizona
               Frederick J. Martone, Senior District Judge, Presiding

                       Argued and Submitted June 12, 2014
                            San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

       Laquinn Fisher appeals from the district court’s order dismissing his 42

U.S.C. § 1983 action alleging that police officers violated his Fourth Amendment

rights by conducting an unlawful protective sweep of his apartment. We have




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction under 28 U.S.C. § 1291. Our review is de novo, Watson v. Weeks, 436

F.3d 1152, 1157 (9th Cir. 2006), and we affirm.

      “Qualified immunity gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions.” Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2085 (2011). An official is entitled to qualified

immunity unless a plaintiff alleges sufficient facts to show that the official violated

a constitutional right and that the right was “clearly established” at the time of the

challenged conduct. Id. at 2080. A right is clearly established when “[t]he

contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987).

      Here, Fisher is correct that Maryland v. Buie, 494 U.S. 325 (1990),

established the principle that a protective sweep is permissible only if there are

“articulable facts which, taken together with the rational inferences from those

facts, would warrant a reasonably prudent officer in believing that the area to be

swept harbors an individual posing a danger to those on the arrest scene.” Id. at

334. Nevertheless, general propositions are of “little help in determining whether

the violative nature of particular conduct is clearly established,” al-Kidd, 131 S. Ct.

at 2084. In May 2006, the contours of the right to freedom from unlawful


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protective sweeps were not sufficiently clear such that reasonable officers would

have believed that the protective sweep at issue in this case was unlawful under the

circumstances. See Anderson, 483 U.S. at 640 (“[I]n the light of pre-existing law

the unlawfulness must be apparent.”). Accordingly, the district court did not err by

granting the respondents’ motion to dismiss on the basis that they are shielded by

qualified immunity.

      Moreover, the district court’s decision to compare and contrast the two

Arizona courts’ decisions was consistent with Wilson v. Layne, 526 U.S. 603, 618

(1999), where the Supreme Court observed that “[i]f judges . . . disagree on a

constitutional question, it is unfair to subject police to money damages for picking

the losing side of the controversy.” Therefore, the district court did not err in

comparing the two decisions.

      AFFIRMED.




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