                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JIM MAXWELL, individually and as         No. 10-56671
guardian of Trevor Allen Bruce and
Kelton Tanner Bruce; KAY                    D.C. No.
MAXWELL, individually and as             3:07-cv-02385-
guardian of Trevor Allen Bruce and         JAH-WMC
Kelton Tanner Bruce; JIM
MAXWELL, as executor of the Estate
of Kristin Marie Maxwell-Bruce,
                Plaintiffs-Appellants,

                  v.

COUNTY OF SAN DIEGO ; ALPINE FIRE
PROTECTION DISTRICT ; VIEJAS FIRE
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.
2         MAXWELL V . COUNTY OF SAN DIEGO

JIM MAXWELL, individually and as         No. 10-56706
guardian of Trevor Allen Bruce and
Kelton Tanner Bruce; KAY                    D.C. No.
MAXWELL, individually and as             3:07-cv-02385-
guardian of Trevor Allen Bruce and         JAH-WMC
Kelton Tanner Bruce; JIM
MAXWELL, as executor of the Estate
of Kristin Marie Maxwell-Bruce,          ORDERS AND
                 Plaintiffs-Appellees,     OPINION

                  v.

COUNTY OF SAN DIEGO ; ALPINE FIRE
PROTECTION DISTRICT ; VIEJAS FIRE
DEPARTMENT ; LOWELL BRYAN
“SAM ” BRUCE , Deputy; BRADLEY
AVI; JEREMY FELBER; BRIAN
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.
             MAXWELL V . COUNTY OF SAN DIEGO                          3

         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

                     Filed February 14, 2013

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

                     Opinion by Judge Farris;
                      Dissent by Judge Ikuta


                           SUMMARY*


                            Civil Rights

    In these consolidated appeals, the panel affirmed the
district court’s summary judgment denying qualified
immunity to San Diego Sheriff’s Department deputies and
reversed the district court’s dismissal, on sovereign immunity
grounds, of the Viejas Band Tribal Fire Department
paramedics. Plaintiffs, the surviving parents and children of
Kristin Marie Maxwell-Bruce, brought this 42 U.S.C. § 1983
action following the shooting of Kristin by her husband,
Sheriff Deputy Lowell Bruce. Plaintiffs sued the law


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4          MAXWELL V . COUNTY OF SAN DIEGO

enforcement officials and paramedics who arrived at the
scene in the aftermath of the shooting.

    The panel first held that the delay of Kristin’s ambulance
violated the Fourteenth Amendment due process clause and
that Sheriff’s officers were liable under the danger creation
exception. The panel determined that officers found Kristin
facing a preexisting danger from her gunshot wound and they
affirmatively increased that danger by preventing her
ambulance from leaving. The panel also held that plaintiffs’
multi-hour detention and separation violated the Fourth
Amendment’s ban on unreasonable seizures, given that
officers never claimed they had probable cause to arrest
plaintiffs or a reasonable suspicion for a temporary
Terry detention. The panel further held that officers violated
the Fourth Amendment when they pepper sprayed plaintiff
Jim Maxwell because there was no evidence that he was
resisting arrest.

    The panel held that Captain Reynolds and Lieutenant
Salazar were liable for the actions of their subordinates
because a jury could reasonably conclude they tacitly
endorsed the other Sheriff’s officers’ actions by failing to
intervene. Finally, the panel held that the Viejas Fire
Department paramedics, who were sued as individuals, did
not enjoy tribal sovereign immunity because a remedy under
§ 1983 would operate against them in their individual
capacities, not against the tribe.

   Dissenting, Judge Ikuta stated that under the existing case
law, the Sheriff’s deputies were entitled to qualified
immunity.
           MAXWELL V . COUNTY OF SAN DIEGO                 5

                        COUNSEL

Daniel M. Benjamin, Ballard Spahr LLP, San Diego,
California, and Todd Thibodo, Law Offices of Todd
Thibodo, Encino, California, for Plaintiffs-
Appellees/Plaintiffs-Appellants.

Morris G. Hill, Senior Deputy, San Diego County Counsel,
San Diego, California, for Defendants-Appellants Gregory
Reynolds, Anthony Salazar, Michael Knobbe, Jeffrey
Jackson, 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.


                         ORDER

    The panel has voted to deny the petition for rehearing in
case number 10-56671; Judges Clifton and Ikuta vote to deny
the petition for rehearing en banc, and Judge Farris so
recommends.

    Judges Farris and Clifton vote to deny the petition for
rehearing in case number 10-56706; Judge Clifton votes to
deny the petition for rehearing en banc, and Judge Farris so
recommends. Judge Ikuta votes to grant the petition for
rehearing and the petition for rehearing en banc.
6             MAXWELL V . COUNTY OF SAN DIEGO

    The full court has been advised of the petitions for
rehearing en banc and no judge has requested a vote on
whether to rehear the matters en banc. Fed. R. App. P. 35.

    The petitions for panel rehearing and the petitions for
rehearing en banc are DENIED.


                               ORDER

   The Opinion and Dissent filed September 13, 2012, slip
opinion number 11179, and appearing at 697 F.3d 941, is
withdrawn. It may not be cited as precedent by or to this
court or any district court of the Ninth Circuit.


                              OPINION

FARRIS, Circuit Judge:

   These associated 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 with his Glock .40 caliber service pistol in the
couple’s bedroom.1 At the time, Lowell and Kristin lived in

    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
the denial of summary judgment. W e review that decision in light of the
              MAXWELL V . COUNTY OF SAN DIEGO                             7

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.
Jackson, along with Bill Davis, a neighbor who happens to be
a San Diego Police Department sergeant and who was
apparently 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
determined 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


“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
dismissal, “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). W e 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.
8          MAXWELL V . COUNTY OF SAN DIEGO

sitting in a chair, conscious, alert and oriented. At about
11:00 PM, an Alpine Fire Protection District fire truck
arrived, carrying Captain Brian Boggeln, firefighter Colby
Ross, and 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
initially told they were not needed and prepared to leave.
Jackson 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
communicate. They also diagnosed her with an airway
obstruction. 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
            MAXWELL V . COUNTY OF SAN DIEGO                   9

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 sitting 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 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 success.

   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
10         MAXWELL V . COUNTY OF SAN DIEGO

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 investigators to interview them.

    Based on Alpine’s estimates, Kristin was placed in the
Viejas Fire ambulance between 11:18 and 11:25 PM.
Sergeant Knobbe, however, refused to let the ambulance
leave immediately 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
Diego County medical examiner, Kristin’s injuries were
repairable.

     At about 12:45 AM, Knobbe told Jim—who was still
pacing 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.
            MAXWELL V . COUNTY OF SAN DIEGO                  11

    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, Reynolds, 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”), pursuant 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 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). “Our
jurisdiction in these matters generally is limited to questions
of law and does not extend to claims in which the
determination of qualified immunity depends on disputed
issues of material fact . . . . Where disputed facts exist,
however, we can determine whether the denial of qualified
12          MAXWELL V . COUNTY OF SAN DIEGO

immunity was appropriate by assuming that the version of the
material facts asserted by the non-moving party is correct.”
Jeffers v. Gomez, 267, F.3d 895, 903 (9th Cir. 2001). We also
review de novo the district court’s determination that it lacks
subject matter jurisdiction because of tribal sovereign
immunity. 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
judgment 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).

                               A

    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,
           MAXWELL V . COUNTY OF SAN DIEGO                 13

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.

    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,
however, “two exceptions [to this rule]: (1) the ‘special
relationship’ exception; and (2) the ‘danger creation’
exception.” Id. The Maxwells contend that either or both
exceptions apply.

    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
officers “affirmatively placed the [victim] in a position of
danger.” Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir.
1989) (internal quotation marks omitted). Officers
affirmatively 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).

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

    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
herself and her wounds. Lowell had confessed and was in
custody. 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
dangers.” 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
Maxwells 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 recognition 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 prevent those parties from responding to that
emergency.
            MAXWELL V . COUNTY OF SAN DIEGO                  15

                               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
appeal the Maxwells’ allegation that they were subject to
seizure. 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).

    The remaining question is whether, under our pre-
December 2006 precedent, the detention was reasonable.
Under the Maxwells’ version of the facts, they were seized
for over five hours solely because they were witnesses to a
crime. In deciding 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).
16         MAXWELL V . COUNTY OF SAN DIEGO

    Nevertheless, “in an obvious case, [general] standards can
‘clearly establish’ the answer, even without a body of relevant
case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
This is an obvious case. Although detention of witnesses 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 “a founded suspicion of criminal activity” was
unconstitutional. 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.

    Nonetheless, Ward clearly restricts investigative witness
detentions by showing that in the hierarchy of state interests
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
investigative stop authorized by Terry v. Ohio, 392 U.S. 1
(1968). Ward noted that Terry made “suspicion that criminal
            MAXWELL V . COUNTY OF SAN DIEGO                  17

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 suspicion.

    The Supreme Court decision authorizing detentions solely
for the purpose of obtaining information confirms this
common 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 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 distribution of a flyer.” Id. at 427–28. By
focusing on the traffic stop’s minimal intrusion on personal
liberty, Lidster confirmed that the state interests justifying
investigative witness detentions are lower than those
justifying detention of suspected criminals.

     We conclude that the Sheriff’s officers were on notice
that they could not detain, separate, and interrogate the
Maxwells 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
18         MAXWELL V . COUNTY OF SAN DIEGO

v. Mississippi, 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 decision 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 witness detentions and strongly
suggested it would have ruled differently if our holding in
Ward governed. Id. at 1148. Further, Walker noted that the
events in question predated Lidster. Thus, unlike the Sheriff’s
officers, the officers in Walker were not necessarily on notice
that witness detention was subject 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
officers 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
            MAXWELL V . COUNTY OF SAN DIEGO                    19

not “occupant[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 interlocutory 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.
Moreover, 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 handcuffing him or frisking him for
weapons. We note again that weighing this evidence is
beyond our jurisdiction. Mattos, 661 F.3d at 439 n.2.

                               C

    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
20          MAXWELL V . COUNTY OF SAN DIEGO

unreasonable 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). We accept for the purposes of this appeal
the Maxwells’ allegation that Jim was arrested. Thus, the
questions are whether, under our pre-December 2006
precedent, probable cause existed or the degree of force was
excessive. We conclude that there was no probable cause and
the force was excessive.

    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
California 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
reasonableness.” Graham v. Connor, 490 U.S. 386, 398
(1989). Graham sets out a non-exhaustive list of factors for
evaluating reasonability: (1) the severity of the crime at issue,
(2) whether the suspect posed an immediate threat to the
safety 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).
            MAXWELL V . COUNTY OF SAN DIEGO                   21

    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

    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
present. We agree. A supervisor is liable under § 1983 for a
subordinate’s constitutional violations “if the supervisor
participated in or directed the violations, or knew of the
violations and failed to act to prevent them.” Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989). Reynolds and Salazar
testified that they were mere observers who stayed at the end
of the Maxwells’ driveway. But based on the Maxwells’
version of the facts, which we must accept as true in this
appeal, we draw the inference that Reynolds and Salazar
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. On this appeal we do not weigh
the evidence to determine whether Reynolds and Salazar’s
stated reasons for not intervening are plausible. Mattos,
661 F.3d at 439 n.2.
22         MAXWELL V . COUNTY OF SAN DIEGO

                             IV

    We next consider whether the Viejas defendants are
immune from suit because of tribal sovereign immunity.
“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 liability 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 performance of
       the provisions of the mutual aid agreement 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.
             MAXWELL V . COUNTY OF SAN DIEGO                        23

    The Maxwells attached to their complaint documents
showing 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 department and fire department employees would have
“have the same immunity” as their California counterparts for
acts performed in California. Cal. Health & Safety Code
§ 13863(b). California firefighters are not immune for gross
negligence. Cal. Health & Safety Code §§ 1799.106,
1799.107. Thus, the Maxwells conclude, the Viejas Band
waived sovereign immunity for the Viejas defendants to the
extent the Maxwells have alleged gross negligence.

    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
content 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


   2
      W e do not address the Viejas defendants’ argument that each
agreement predating December 2006 cannot be construed as falling under
§ 13863(b). W e need not determine how California or tribal law defines
these agreements because they do not satisfy the federal standard for
waivers of tribal sovereign immunity.
24          MAXWELL V . COUNTY OF SAN DIEGO

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

    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).

    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,
substantial party in interest.” Ford Motor Co. v. Dep’t of
Treasury of Ind., 323 U.S. 459, 464 (1945).

  Our remedy-focused analysis is less categorical than the
Maxwells’ proposed rule. While individual capacity suits
             MAXWELL V . COUNTY OF SAN DIEGO                        25

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
administration, 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 omitted).

    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.

    Cook, however, is consistent with the remedy-focused
analysis discussed above. In Cook, the plaintiff had sued the
individual 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

  3
     W e reject the Maxwells’ argument that the Viejas Fire paramedics
acted outside their authority by taking part in the unconstitutional
interference with Kristin’s medical care. See Evans v. McKay, 869 F.2d
1341, 1348 n.9 (9th Cir. 1989). The M axwells waived that argument by
suing the paramedics for state law torts only. W e have reviewed the
Maxwells’ complaint and find no allegations supporting § 1983 liability
for the paramedics.
26          MAXWELL V . COUNTY OF SAN DIEGO

immunity 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
authority” principle in individual capacity suits against tribal
officers. But in that context, the “scope of authority”
language refers to the principle that allegations of acts outside
an officer’s authority are by definition individual capacity
claims. See Chemehuevi Indian Tribe v. Cal. State Bd. of
Equalization, 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 coextensive in individual capacity claims. Such
a conclusion would be a major departure from the common
law immunity doctrine that shapes tribal sovereign immunity.
            MAXWELL V . COUNTY OF SAN DIEGO                    27

    The Viejas defendants’ reliance on Hardin v. White
Mountain Apache Tribe, 779 F.2d 476 (1985), is misplaced.
In Hardin, a tribal council ordered tribal police to eject the
plaintiff from tribal land. Id. at 478. The plaintiff sued the
tribe, several tribal institutions, and various officials in their
individual 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
institutions 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
representative 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
functions 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
have acted in concert with state officers accused of
constitutional 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
28         MAXWELL V . COUNTY OF SAN DIEGO

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.

    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
immunity is coextensive with other common law immunity
principles. 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 damages. 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
sovereign 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 liability 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 concerns allegedly grossly
negligent acts committed outside tribal land pursuant to an
            MAXWELL V . COUNTY OF SAN DIEGO                  29

agreement with a non-tribal entity. In this 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

    We therefore affirm the district court’s denial of summary
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 matter 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
minutes, 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.
30         MAXWELL V . COUNTY OF SAN DIEGO

    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 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
process 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
communicate 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
minutes at a landing site ten minutes from the Maxwells’
residence.
           MAXWELL V . COUNTY OF SAN DIEGO                 31

    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
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
Maxwell, 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
ambulance 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.,
32          MAXWELL V . COUNTY OF SAN DIEGO

Nelson 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 testified 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 ambulance to arrive. Based
on multiple contemporaneous assessments of Kristin’s
condition in the aftermath of the shooting, the Sheriff’s
deputies could reasonably conclude that her condition 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
statutory 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
            MAXWELL V . COUNTY OF SAN DIEGO                  33

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
danger. Maj. op. at 13. 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
“deliberate 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 without 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
inexplicably 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 significantly increased the risk facing Penilla” by
34          MAXWELL V . COUNTY OF SAN DIEGO

“ma[king] it impossible for anyone to provide emergency
medical care to [him].” Id.

     In Penilla, it should have been clear to any reasonable
officer 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
evidence 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 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 ineffectual police search,” we held that the facts
did not demonstrate 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
            MAXWELL V . COUNTY OF SAN DIEGO                  35

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 16. But only in retrospect is it
“obvious” 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
reasonableness of officers’ conduct “with the 20/20 vision of
hindsight” rather than “from the perspective of a reasonable
officer on the scene.” Ryburn, 132 S. Ct. at 992 (quoting
Graham 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
Graham, 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 stable and that paramedics were actively
tending to her at the time of the alleged delay, the danger was
not so obvious that a decision to briefly delay the ambulance
shows deliberate indifference.

                              II

    The majority likewise errs in holding that the Sheriff’s
deputies 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
36         MAXWELL V . COUNTY OF SAN DIEGO

deputies, 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
eventually fell asleep in a chair.

    Jim Maxwell remained outside the motor home; the
deputies 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
information 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
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
           MAXWELL V . COUNTY OF SAN DIEGO                 37

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
testified that the pepper spray did not cause him any pain or
discomfort, 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
beginning at 4:50 AM, and they finished questioning her at
5:55 AM. The search of the house was ongoing during these
interviews.

    The Maxwells claim they were unlawfully detained, in
violation 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 Maxwell 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.”
38          MAXWELL V . COUNTY OF SAN DIEGO

                               B

    No Supreme Court or Ninth Circuit decision establishes
that the deputies’ conduct in detaining, separating, and
questioning 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
authority 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 warrant issued did not violate their Fourth
Amendment rights.

    In fact, aggressive and prolonged detentions of the
residents 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 executing 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
            MAXWELL V . COUNTY OF SAN DIEGO                  39

of gang activity while she was asleep in bed, place her in
handcuffs at gunpoint, 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 held that officers could reasonably
detain boardinghouse residents 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 resident outside without her shoes;
refused to allow the detainees to drink coffee, smoke
cigarettes, or go to the bathroom without 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’ interrogation of the
detainees did not alter the Fourth Amendment analysis
because there was no evidence that the questioning prolonged
the detention or that “the police conditioned Plaintiffs’
release from detention on Plaintiffs’ willingness to submit to
an interrogation.” Id. at 1068–69.

    Second, both Supreme Court and Ninth Circuit cases
support the deputies’ decision to detain the Maxwells while
seeking 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
40         MAXWELL V . COUNTY OF SAN DIEGO

occupants of a targeted home. Thus, in upholding the
detention of an individual while officers executed a search
warrant for his home, Summers noted that the holding did not
“preclude the possibility that comparable police conduct may
be justified by exigent 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 officers “had
good reason to fear that, unless restrained, [the 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,
acting 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 deputies 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 contained 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.
           MAXWELL V . COUNTY OF SAN DIEGO                  41

For example, Jim Maxwell admitted that in the immediate
aftermath of the shooting, he picked up the gun Bruce used to
shoot Kristin in a misguided attempt to assist the deputies by
bringing the weapon to them. Finally, they needed to get the
statements of witnesses, and they reasonably believed that if
they did not separate 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
reasonable 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 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 consideration of warrant
requests.” Segura v. United States, 468 U.S. 796, 812–13
(1984) (holding that a 19-hour warrantless seizure of a
building, half of which occurred during the period between
10:00 PM and 10:00 AM the following day, was reasonable
under the circumstances). Based on these factors, the
deputies’ decision, “even if constitutionally deficient,
reasonably misapprehend[ed] the law governing the
42          MAXWELL V . COUNTY OF SAN DIEGO

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 Lidster, 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 securing 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 quotation 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 Amendment 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 (emphasizing 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 proposition”) (quoting Saucier v. Katz,
            MAXWELL V . COUNTY OF SAN DIEGO                   43

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 separation of building occupants in
the immediate aftermath of a shooting is reasonable, these
cases do not support the majority’s determination that there
was clearly established law prohibiting 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
Salazar 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
wrongdoers. 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 liability 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 for a
direct violation of the plaintiff’s constitutional rights, Iqbal,
129 S. Ct. at 1949; see also Starr, 652 F.3d at 1207.
44          MAXWELL V . COUNTY OF SAN DIEGO

    Here the Maxwells do not allege that Reynolds and
Salazar took any affirmative acts to set in motion the
allegedly unconstitutional acts of their subordinates, nor do
they present any evidence that Reynolds and Salazar knew
about their subordinates’ 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 allegations 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 geographic proximity, that Reynolds and Salazar
knew or reasonably should have known that the other
Sheriff’s deputies had forcibly detained the Maxwells and
prevented them from seeing their daughter and each other,
and that there were no exigent 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 implemented by the Defendants
or a specific event or events instigated by the Defendants that
led to these purportedly unconstitutional” seizures. Hydrick
v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). As in Hydrick,
           MAXWELL V . COUNTY OF SAN DIEGO                 45

“the factual allegations in Plaintiffs’ complaint resemble the
‘bald’ and ‘conclusory’ allegations in Iqbal, instead of the
detailed factual allegations 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).
Nevertheless, 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 Maxwells’ constitutional
rights. Under existing case law, the deputies are entitled to
qualified immunity for their actions. I therefore respectfully
dissent.
