                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 C.B., a minor,                                No. 11-17454
            Plaintiff-Appellee,
                                                 D.C. No.
                 v.                           1:09-cv-00285-
                                                AWI-SMS
 CITY OF SONORA; MACE
 MCINTOSH, Chief of Police;
 HAL PROCK, Officer,                             OPINION
       Defendants-Appellants.


       Appeal from the United States District Court
           for the Eastern District of California
    Oliver W. Wanger, Senior District Judge, Presiding

                  Argued and Submitted
          May 16, 2013—San Francisco, California

                   Filed September 12, 2013

   Before: M. Margaret McKeown and Paul J. Watford,
Circuit Judges, and Thomas S. Zilly, Senior District Judge.*

                 Opinion by Judge Zilly;
        Concurrence and Dissent by Judge McKeown


  *
    The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
2                    C.B. V. CITY OF SONORA

                           SUMMARY**


                            Civil Rights

   The panel vacated a jury verdict and the district court’s
judgment and remanded in an action arising out of the
handcuffing and removal from school of then eleven-year-old
C.B. by Sonora police officers.

    The jury rendered a verdict ostensibly in favor of
defendants, but the district court concluded that the verdict
was incomplete and inconsistent and, after extensive
extemporaneous colloquies with the jurors, directed them to
re-deliberate. The jury eventually returned a verdict in favor
of C.B. The panel held that the verdict form and protracted
unscripted discussions between the district judge and the
jurors were so confusing and potentially misleading as to
require a new trial. The panel further held that police officers
were entitled to qualified immunity as to C.B.’s claims under
42 U.S.C. § 1983 because the law was, and still is, not clearly
established that handcuffing and driving a juvenile from
school to a relative’s place of business implicates Fourth
Amendment rights.

    Concurring in part and dissenting in part, Judge
McKeown stated that she concurred in the majority’s decision
to remand this case for a new trial. She also concurred in the
remand of the state law claims. She dissented from that part
of the opinion which held that police officers were entitled to
qualified immunity on C.B.’s Fourth Amendment claims

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  C.B. V. CITY OF SONORA                    3

because the facts demonstrated that C.B.’s prolonged
detention was an obvious violation of the Fourth
Amendment’s general proscription against unreasonable
seizures.


                        COUNSEL

Cornelius J. Callahan and Stephanie Y. Wu, Borton Petrini,
LLP, Modesto, California, for Defendants-Appellants.

John F. Martin and Christine Hopkins, Law Offices of John
F. Martin, Walnut Creek, California, for Plaintiff-Appellee.


                         OPINION

ZILLY, Senior District Judge:

    This case involves a verdict form and protracted
unscripted discussions between the district judge and the
jurors that were so confusing and potentially misleading as to
require a new trial. This case arises out of the handcuffing
and removal from school of then eleven-year-old C.B. by
Sonora Police officers. Trial proceeded against City of
Sonora, Sonora Chief of Police Mace McIntosh, and Sonora
Police Officer Harold (Hal) Prock on four claims: false
imprisonment and intentional infliction of emotional distress
(“IIED”) under state law, and unlawful seizure and excessive
force under 42 U.S.C. § 1983. The jury rendered a verdict
ostensibly in favor of defendants, but the district court
concluded that the verdict was incomplete and inconsistent
and, after extensive extemporaneous colloquies with the
jurors, directed them to re-deliberate. The jury eventually
4                 C.B. V. CITY OF SONORA

returned a verdict in favor of C.B. Defendants unsuccessfully
moved for judgment as a matter of law, a new trial, or
remittitur, and now appeal. We hold that defendants are
entitled to a new trial, and that individual defendants
McIntosh and Prock are entitled to qualified immunity on the
two federal claims.

                     BACKGROUND

A. C.B.’s Handcuffing and Removal from School

    At the time of the events at issue in this case, C.B. was
taking medication for attention-deficit and hyperactivity
disorder; the medication helped C.B. focus and not get too
easily distracted. On Monday, September 29, 2008, C.B.
forgot to take his medication before going to school, and he
proceeded to have a difficult day. Sometime during the first
three periods, after one of the breaks, a broadcast on the
handheld transceivers (“walkie talkies”) used by school
personnel indicated that C.B. had not returned to class. Karen
Sinclair, a physical education (“P.E.”) instructor and the
disciplinarian for Sonora Elementary School, who is
generally called “Coach,” assisted in getting C.B. back to
class before going to teach her own class. Later that morning,
around 11:20 a.m., Kerri McCluskey, the school counselor,
brought C.B. to Coach Sinclair’s office, and indicated that
C.B. needed to be there for a while. After having a brief
conversation with Coach Sinclair about his “rough day,” C.B.
went behind a barrier in the room to have some quiet time.
About twenty minutes later, C.B. told Coach Sinclair that he
was ready to return to class, and she said, “okay.”

   Coach Sinclair’s office was designated in C.B.’s plan
under Section 504 of the Rehabilitation Act of 1973,
                  C.B. V. CITY OF SONORA                     5

29 U.S.C. § 794, as a place where C.B. could go when he was
non-responsive or needed to “cool down”; it was considered
a “safe zone” for C.B. Coach Sinclair’s professional
relationship with C.B. dated back to when C.B. was in
kindergarten, and she was familiar with C.B.’s habit of
becoming unresponsive and then taking off. In fact, when
C.B. was in the fourth grade, he had run away from P.E. class
and ended up in the school parking lot. On that occasion,
school personnel had learned that C.B. was missing, but had
not yet located him when Coach Sinclair received a call
indicating that C.B. was in the parking lot. C.B. had been
found by John Large, who later advised Coach Sinclair that
C.B. said he was “tired of feeling the way he felt and he
wanted to go out into traffic and kill himself.” Coach Sinclair
asked C.B. about this statement, and C.B. explained
“sometimes I feel like running into traffic.” At trial, C.B.
admitted that he had previously told Coach Sinclair he
wanted to run into traffic.

    Coach Sinclair had this prior incident in mind as the
events of September 29, 2008, unfolded. Around noon,
Coach Sinclair received word that C.B. was being
unresponsive on the playground. Coach Sinclair went outside
and attempted to speak with C.B. She began by commenting,
“you’re having a rough day today,” and she indicated she was
aware that he had not taken his medication. Coach Sinclair
then invited C.B. to come to her office. C.B. did not respond.
At trial, C.B. indicated that he had made a conscious decision
not to speak.

   During this interaction, Coach Sinclair was concerned
about C.B. running across the playground and out an
unlocked gate, which opens to Greenley Road, an arterial on
which traffic often exceeds the 35 mile-per-hour limit. For
6                 C.B. V. CITY OF SONORA

some time, Coach Sinclair attempted to persuade C.B. to
return with her to her office. She then told C.B. that she
would have to call the police if he would not come inside
with her. According to Coach Sinclair, C.B. looked up for
the first time during the incident and said, “Call the police.”
In contrast, C.B. testified he did not say anything in response
to Coach Sinclair’s statement that he could either “go to her
office or she was going to call the cops.” C.B. indicated at
trial that he thought Coach Sinclair was “just saying that to
get me to go inside” and that he “didn’t believe her.”

    Coach Sinclair used a walkie talkie to request that
someone in the front office call the police to assist with an
out-of-control youth. C.B. remained seated on the bench,
looking at the ground, while the police were in transit. Chief
McIntosh arrived before Officer Prock; Officer John Bowly
also responded to the scene, but was not named as a
defendant in this case. Coach Sinclair advised them both
orally and via hand signals that C.B. was “a runner” and had
not taken his medication.

    After being informed that C.B. was “a runner,” Officer
Prock likewise had concern about C.B.’s welfare if he were
to run. He observed that the school grounds could be easily
exited. He described nearby Greenley Road as “a busy
roadway” on which “everybody usually travels on an average
or close to 40, 45 miles an hour.” Moreover, Officer Prock
testified that, if C.B. had attempted to run away, he and his
colleagues would have needed to apprehend and restrain him,
which itself might have resulted in injuries to C.B.

    Officer Prock attempted to engage C.B. in conversation
for approximately four to five minutes, trying even to joke
with him. C.B. remained unresponsive. Based on his
                  C.B. V. CITY OF SONORA                     7

training, Officer Prock viewed this behavior as “passively
resisting” authority, perhaps while thinking about the next
move. The efforts to coax C.B. into communicating having
proven futile, Chief McIntosh gave a hand signal to Officer
Prock indicating that handcuffs should be used. A gesture
was made (touching wrists together), rather than an audible
verbal cue given, so as not to trigger C.B. to run. Chief
McIntosh viewed handcuffs as a means of preserving C.B.’s
safety, allowing the officers to control C.B. without using
physical force if he decided to run.

    Officer Prock asked C.B. to stand up and put his hands
behind his back, and C.B. complied. Officer Prock then
applied the handcuffs. Coach Sinclair observed Officer Prock
put his pinky finger between the handcuffs and C.B.’s wrists
to make sure the handcuffs were not too tight. Coach Sinclair
subsequently laughed with Ms. McCluskey about how loose
the handcuffs were. Although C.B. testified at trial that the
handcuffs hurt and caused red marks around his wrists, he
acknowledged that he did not contemporaneously tell Officer
Prock or his colleagues that the handcuffs were too tight or
otherwise complain about them, and he indicated that the
officers were “not mean” to him.

    After placing C.B. in handcuffs, Officer Prock went to
retrieve his vehicle, leaving C.B. with Chief McIntosh and
others, who walked with C.B. to the upper parking lot. While
Officer Prock was pulling his vehicle to C.B.’s location in the
upper parking lot, Officer Bowly left the scene. During this
time, Officer Prock received contact information for C.B.’s
guardians, and he called C.B.’s uncle. Officer Prock testified
that he asked the uncle to come and pick up C.B., but the
uncle indicated he could not close his business to do so and
requested that Officer Prock bring C.B. to the business. At
8                 C.B. V. CITY OF SONORA

trial, Officer Prock explained that, only after he had
completed the call with C.B.’s uncle, did he take steps to
place C.B. in his patrol vehicle.

    Chief McIntosh testified that handcuffs remained on C.B.
while he was in Officer Prock’s vehicle because “it is not a
safe environment inside the patrol car with somebody that is
not restrained.” Officer Prock transported C.B. to his uncle’s
business and released him. By that time, C.B. had begun
communicating with Officer Prock, and Officer Prock was no
longer concerned about C.B. running away. The entire
interaction, from police arriving at the school to C.B. being
placed into his uncle’s care, took roughly thirty minutes.

    At trial, when asked about their decision to remove C.B.
from the school and transport him to his uncle’s business,
both Chief McIntosh and Officer Prock described the
procedure for taking temporary custody of a juvenile who is
beyond the control of his or her guardian or custodian. Chief
McIntosh’s and Officer Prock’s understanding was that
school authorities did not want C.B. on the campus because
he was uncontrollable. Chief McIntosh cited to Section 601
of the California Welfare and Institutions Code (“Cal. W&I”)
as the applicable statute. The law provides in relevant part:

       Any person under the age of 18 years . . . who
       is beyond the control of [his or her parents,
       guardian, or custodian] . . . is within the
       jurisdiction of the juvenile court which may
       adjudge the minor to be a ward of the court.
                     C.B. V. CITY OF SONORA                            9

Cal. W&I § 601(a). A related provision authorizes a peace
officer, without a warrant, to take into temporary custody a
minor when such officer has “reasonable cause for believing
that such minor is a person described in Section 601.” Cal.
W&I § 625(a).

B. Resubmission to the Jury

    The jury’s initial answers on the verdict form were
favorable to defendants, finding no liability on the excessive
force and unlawful seizure claims, and finding that, although
C.B. had proven the elements of his IIED claim, defendants
had established the affirmative defense of privilege.1 The
jury nevertheless awarded damages for the IIED claim,
recording them in response to Question 11C. The jury did not
record any findings concerning the false arrest claim.

    After declaring this initial verdict inconsistent and
incomplete, the district judge instructed the jurors to
deliberate further:

             Ladies and gentlemen, the verdicts that
         have been returned have what the law calls an
         inconsistency in them because we have a
         typographical error in our verdict form that,
         quite frankly, misled you. And so let me

  1
    On the verdict form, Questions 1 and 3 asked whether the respective
constitutional violations, excessive force and unlawful seizure, had been
proven. Question 5 inquired whether City of Sonora had a longstanding
practice or custom causing the use of excessive force against juveniles.
Questions 6, 7, and 8 concerned the IIED claim, with the first two
interrogatories aimed at liability and the last involving the affirmative
defense. The jury initially answered “no” to Questions 1, 3, and 5, and
“yes” to Questions 6, 7, and 8.
10                    C.B. V. CITY OF SONORA

         explain to you what happens with this verdict
         form.

             You found no liability on either of the
         civil rights claims under federal law. You
         found that there was intentional infliction of
         emotional distress and that it caused harm or
         damage.

             You then found that there was privilege,
         which is a defense to the claim, and it wipes
         out the claim. And so this should have said C,
         if you find that the conduct is privileged, then
         there is no damage because the privilege, in
         effect, says the conduct’s okay. If you don’t
         find the privilege, then you can award
         damages, but you can’t award damages if you
         find that the conduct is privileged.

            And so I have changed this instruction
         from 11D to 11C, because 11C are the
         damages for emotional distress.2

            And then you did not make any findings
         on the false arrest claims. So that’s one
         additional claim that you need to decide,

  2
    The instruction to which the district judge referred appeared on the
verdict form, directly after Question 8 regarding the affirmative defense
to the IIED claim. Although the district judge announced his intention to
correct the typographical error by substituting “11C” for “11D,” thereby
instructing the jury not to award damages on the IIED claim if it found
defendants had prevailed on the affirmative defense to that claim, the final
verdict form completed by the jury still contained the erroneous reference
to Question 11D, which pertained to damages on the false arrest claim.
                       C.B. V. CITY OF SONORA                               11

          because you haven’t at least recorded on your
          verdict form that you have decided that.3

In the remaining remarks on this occasion, and in the
subsequent conversations with the jurors, the district court
never clarified that the reason it had declared the verdict
inconsistent was not because the jury’s answers to Questions
1, 3, 5, 6, 7, and 8 conflicted with each other, but rather
because, in light of the answers indicating no liability on the
IIED claim, the jury should not have responded to Question
11C regarding damages for the IIED claim.

    The jury’s confusion concerning why it was being asked
to deliberate again manifested itself in the following hand-
written question:

          Clarify question 8 [sic]
          if we said yes to all on page 23 of Jury
          Instruction #20 doesn’t that mean we answer
          yes to page 9 in verdicts of trial jury?




 3
   The verdict form told the jury that, if it answered “yes” to Question 8,
meaning it found defendants had proven their affirmative defense as to the
IIED claim, it should not answer Question 11D (regarding damages for the
false arrest claim), but that, if it answered “no” to Question 8, it should
answer Question 9 (concerning liability on the false arrest claim). The
verdict form failed to tell the jury to answer Question 9 if it responded
“yes” to Question 8. Thus, the verdict form essentially advised the jury
that, if it found in favor of defendants on the affirmative defense to the
IIED claim, it did not need to answer Questions 9 and 11D or consider the
merits of the false arrest claim. In rendering its initial verdict, the jury had
complied with this directive, answering “yes” to Question 8 and not
responding to Questions 9 or 11D.
12                C.B. V. CITY OF SONORA

The instruction referenced in the jury’s note defined the
elements of the affirmative defense to the IIED claim.
Question 8, on page 9, of the verdict form, asked whether the
affirmative defense had been proven. The appropriate answer
to the jury’s question was “yes.” The district judge, however,
launched into a long lecture about the elements of the
affirmative defenses to the IIED and false arrest claims and
the scenarios under which Question 11 concerning damages
should and should not be answered. During the course of this
discussion, one of the jurors asked a question that provided
insight into the difficulty the jury was having:

           JUROR SEAT NUMBER EIGHT: Okay.
       So the fact that we answered affirmative yes
       to questions 6 and 7.

           THE COURT: Yes.

           JUROR SEAT NUMBER EIGHT: I
       guess our question is how does that affect our
       response to number 8? Is it conflicting?

Still failing to understand that the jurors were struggling with
whether their prior answers to Questions 6, 7, and 8 were
viewed by the district court as inconsistent with each other
(rather than with the response to Question 11C), the district
court repeated the elements of the affirmative defense to the
IIED claim.

    As yet unsatisfied, the same juror asked another similar
question, which produced a confusing response from the
district judge:
                  C.B. V. CITY OF SONORA                     13

           JUROR SEAT NUMBER EIGHT: And
       that is not a conflict?

            THE COURT: It’s not a conflict because
       it’s an affirmative defense. It’s potentially a
       conflict depending on what you think of the
       conduct and the states of mind. But that’s for
       you to determine.

[Emphasis added.] After expressing a few more thoughts, the
district judge repeated his puzzling statement:

       And so, there is a potential inconsistency, but
       that depends on what you find the intentions,
       the states of mind are and the conduct is in
       light of the law. And you’re the only people
       who can make those decisions. We cannot
       tell you how to do it. The attorneys have told
       you how to do it in their arguments, but it’s
       for you to make the ultimate decisions.

[Emphasis added.] After substantial additional colloquy, the
jury requested permission to retire again to the jury room.
Approximately five minutes later, the jury returned to the
courtroom and was excused for the evening.

    When proceedings resumed the next morning, the district
judge began another extensive colloquy with the jury. During
this session of supplemental instruction, a juror asked for a
transcript of the explanation given the previous day. After a
sidebar discussion with counsel, instead of providing the
requested transcript, the district judge attempted to repeat his
comments from the earlier evening. The district judge first
summarized the claims brought by C.B., two federal and two
14                C.B. V. CITY OF SONORA

state law claims, and the affirmative defenses raised in
connection with the state law claims, and then told the jurors:

           And there should be consistency -- and
       that was your concern -- between those
       findings. The consistency is a function of
       how you find the facts, which evidence you
       believe, how much weight you give to the
       evidence.

[Emphasis added.] The district judge did not specify which
“findings” needed to be consistent, and this statement could
have been interpreted by the jury as indicating that its
answers to Questions 1–5, concerning the federal law claims,
could not conflict with its responses to Questions 6–9,
regarding the state law claims. In fact, however, the jury was
not required to reach the same result on all of the claims, and
it could have found Chief McIntosh and Officer Prock liable
for intentional infliction of emotional distress without
concluding that they had violated C.B.’s constitutional rights.

    The jury deliberated for approximately four more hours,
and returned a verdict opposite to the one they initially
reached, finding liability against all defendants on all claims,
and awarding damages. After denying defendants’ motions
for judgment as a matter of law, a new trial, or remittitur, the
district court entered judgment against all defendants.

                         DISCUSSION

A. New Trial

   Given the nature of the jury’s superfluous and missing
answers, the district court should not have required the jury
                  C.B. V. CITY OF SONORA                     15

to engage in further deliberations. The decision to resubmit
an inconsistent verdict for clarification when the jury is still
available and the decision to give supplemental jury
instructions are reviewed for an abuse of discretion. See Duk
v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1057–58 (9th Cir.
2003); Jazzabi v. Allstate Ins. Co., 278 F.3d 979, 982 (9th
Cir. 2002). Whether a supplemental jury instruction
misstates the law, however, is reviewed de novo. Jazzabi,
278 F.3d at 982. When a district court provides a jury with
a general verdict form accompanied by written questions on
one or more issues of fact, and the jury’s answers to those
questions are consistent with each other but not with the
general verdict, the district court may “approve, for entry
under Rule 58, an appropriate judgment according to the
answers, notwithstanding the general verdict.” Fed. R. Civ.
P. 49(b)(3)(A); see Nimnicht v. Dick Evans, Inc., 477 F.2d
133, 135 (5th Cir. 1973); see also Wilks v. Reyes, 5 F.3d 412,
415 (9th Cir. 1993).

    On appeal, defendants have not argued that the district
court erred in failing to enter judgment in accordance with the
jury’s initial verdict, as authorized by Rule 49(b), but they
have challenged the district court’s actions in connection with
resubmission of the case. Our review is therefore limited to
whether the verdict form and the protracted unscripted
discussions the district judge had with the jurors were so
confusing and potentially misleading that defendants are
entitled to a new trial. “When a [deliberating] jury makes
explicit its difficulties a trial judge should clear them away
with concrete accuracy.” Bollenbach v. United States, 326
U.S. 607, 612–13 (1946). “[T]he judge’s last word is apt to
be the decisive word,” and when that last word concerns “a
vital issue and [is] misleading, the error is not cured by a
prior unexceptional and unilluminating abstract charge.” Id.
16                C.B. V. CITY OF SONORA

at 612. In evaluating whether a supplemental instruction was
proper, the Court must look beyond whether it was “correct,
so far as it went” and whether, when read in light of the
original instruction, it “fairly presented the issues.” Powell
v. United States, 347 F.2d 156, 158 (9th Cir. 1965). Rather,
the ultimate inquiry is “whether the charge taken as a whole
was such as to confuse or leave an erroneous impression in
the minds of the jurors.” Id.

    We conclude that the unscripted supplemental
instructions, together with the problematic verdict form, gave
the jury the misimpression that its initial answers to
Questions 1, 3, 5, 6, 7, and 8 were internally inconsistent and
needed to be revised. By failing to adequately explain that
the verdict had been resubmitted to the jury because the
answers to Questions 6, 7, and 8 were inconsistent with the
award of damages in Question 11C, the district court failed to
alleviate the jury’s confusion as to why it was being asked to
re-deliberate. Moreover, in telling the jurors that “there
should be consistency . . . between those findings,” without
further explanation, the district judge unwittingly indicated to
the jury that its previous answers concerning liability on the
federal law and IIED claims were incorrect because they were
not consistent with each other. The erroneous and incomplete
directions following Question 8 in the verdict form
compounded the problem. The district judge’s insistence that
Question 9 regarding liability on the false arrest claim needed
to be answered effectively operated as a instruction to the jury
to answer “no” to Question 8, which was the only response to
Question 8 that required the jury to proceed to Question 9. In
sum, in more than one way, the district court improperly sent
                      C.B. V. CITY OF SONORA                              17

a message to the jurors that they got it wrong the first time.
Defendants are entitled to a new trial.4

B. Qualified Immunity

    We must also decide whether McIntosh and Prock are
entitled to qualified immunity on the federal claims. We
apply the customary standards of review, namely de novo
review as to the denial of qualified immunity raised in a
renewed motion for judgment as a matter of law,5 construing
the evidence in the light most favorable to the non-moving
party, and giving significant deference to the jury’s verdict.
A.D. v. Cal. Highway Patrol, 712 F.3d 446, 452–53 (9th Cir.
2013).


 4
   On appeal, defendants assign error to the district court’s denial of their
motion in limine to exclude testimony by Coach Sinclair about prior
incidents of student handcuffing at Sonora Elementary School. In light of
our ruling, we need not decide whether any error in admitting the evidence
of previous handcuffings would itself warrant a new trial.
 5
    The record reveals that defendants attempted to move for judgment as
a matter of law before the jury began deliberating, but the district court
delayed the matter, indicating that it “reserved that right” to defendants.
Defendants’ motion for judgment as a matter of law was eventually
brought after the jury had rendered a verdict, and was therefore more akin
to a motion under Rule 50(b), but the district court treated it as defendants’
“reserved” motion under Rule 50(a), citing in its order, as the governing
legal standard, only Rule 50(a). Thus, contrary to C.B.’s assertion that
defendants were precluded from bringing a Rule 50(b) motion by a failure
to make a proper Rule 50(a) motion, see Tortu v. Las Vegas Metro. Police
Dep’t, 556 F.3d 1075, 1081–83 (9th Cir. 2009), we deem defendants’
post-trial motion as a consolidated Rule 50(a) and 50(b) motion. See
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)
(“Rule 50(b) ‘may be satisfied by an ambiguous or inartfully made
motion’ under Rule 50(a),” and it is given a “liberal interpretation” to
avoid overly harsh results).
18                    C.B. V. CITY OF SONORA

    Qualified immunity analysis consists of two steps: (1)
whether the facts the plaintiff alleges make out a violation of
a constitutional right; and (2) whether that right was clearly
established at the time the defendant acted. Pearson v.
Callahan, 555 U.S. 223, 232, 236 (2009). We need not
decide whether C.B.’s constitutional rights in fact were
violated here, because in our view the officers’ conduct did
not violate a clearly established right. See id. at 243–44.

    We begin with the officers’ assertion of qualified
immunity on C.B.’s Fourth Amendment unlawful custody
claim. As the source of their authority to take C.B. into
temporary custody, the officers invoked Cal. W&I § 625(a),6
which they contend authorized them to take C.B. into custody
if he was an out-of-control juvenile within the meaning of
Cal. W&I § 601(a). Whether § 601(a) applies in this setting
is unclear. Subsection 601(a) applies when a minor is
“beyond the control” of “his or her parents, guardian, or
custodian,” but does not make reference to school officials,
in contrast to § 601(b), which does. Nonetheless, because the
term “custodian” in § 601(a) is ambiguous and California

 6
   C.B. accuses defendants of post hoc rationalization, indicating that the
statute was not referenced in the reports concerning this incident and was
not mentioned during the depositions of Chief McIntosh and Officer
Prock. The statute was, however, discussed in defendants’ motion for
summary judgment, and the issue of whether the statute provided a basis
for qualified immunity was squarely before the district court in advance
of trial. The district court, however, concluded that defendants had not
presented evidence establishing Chief McIntosh and/or Officer Prock
knew enough about C.B.’s medical condition to invoke Cal. W&I § 625.
In making such ruling, the district court improperly confined its reading
of the statute to subsection (c), which authorizes a warrantless seizure of
a juvenile “found in any street or public place suffering from any sickness
or injury which requires care, medical treatment, hospitalization, or other
remedial care.” Cal. W&I § 625(c).
                  C.B. V. CITY OF SONORA                    19

courts have not squarely resolved the question, no clearly
established law informed the officers that school officials
were not “custodians” within the meaning of § 601(a). See
Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442–43 (9th Cir.
1991); see also Pearson, 555 U.S. at 231.

    That leaves the question of whether a reasonable officer
could have believed (even if mistakenly) that C.B. was
beyond the control of school officials within the meaning of
§ 601(a). See Fuller, 950 F.2d at 1443. Even if we were to
construe § 625(a)’s “reasonable cause” standard as requiring
probable cause for such belief, as C.B. contends, the officers
are entitled to qualified immunity. The officers were
informed by school officials that C.B. (1) was out of control,
(2) was “a runner,” (3) had been “yelling and cussing,” (4)
had not taken his medications, and (5) could not remain at
school any longer. No clearly established law would put a
reasonable officer faced with these circumstances on notice
that taking C.B. into temporary custody under § 625(a) was
unlawful. See Saucier v. Katz, 533 U.S. 194, 202 (2001).
Moreover, the officers investigated further by talking to C.B.,
but C.B. was unresponsive. No clearly established law at the
time suggested that the officers were required to conduct
additional investigation beyond talking to C.B. before they
could rely on the information they received from school
officials, particularly when a prolonged investigation might
increase the risk of C.B. running away and onto a busy road,
from which he was separated only by an unlocked gate.

    In ruling on defendants’ consolidated Rule 50(a) and
50(b) motion for judgment as a matter of law, the district
court failed to conduct this second part of the qualified
immunity analysis. With respect to plaintiff’s unlawful
seizure claim, the district court did not cite a single case in
20                     C.B. V. CITY OF SONORA

which police officers were held to have violated the Fourth
Amendment by transporting a disruptive child from a school
to a guardian’s home or place of business.7 Moreover, in
citing our decision in Greene v. Camreta, 588 F.3d 1011 (9th
Cir. 2009), vacated in part, 131 S. Ct. 2020, vacated in part
on remand, 661 F.3d 1201 (9th Cir. 2011), as support for
applying the “special need” doctrine first announced in N.J.
v. T.L.O., 469 U.S. 325 (1985), the district court failed to
recognize that the events at issue in this case transpired
before Greene was decided.8

    The district court also ignored precedent from other
circuits indicating that handcuffing during the course of an
otherwise lawful arrest ordinarily fails to state an excessive
force claim. See Brown v. Gilmore, 278 F.3d 362 (4th Cir.


 7
   The only authorities on which the district court relied did not deal with
the situation in which a school official wants a student removed from
campus, and the cases were themselves at odds concerning whether a
single instance of misconduct is sufficient to indicate that a juvenile is
“beyond control,” within the meaning of Cal. W&I §§ 601 & 625. See In
re D.J.B., 96 Cal. Rptr. 146 (Cal. Ct. App. 1971); In re David S., 91 Cal.
Rptr. 261 (Cal. Ct. App. 1970).
  8
    The “special need” doctrine involves a two-part inquiry: (i) whether
the action at issue was justified at its inception; and (ii) whether the action
as actually conducted “was reasonably related in scope to the
circumstances which justified the interference in the first place.” T.L.O.,
469 U.S. at 341. The dissent contends that the “special need” test
governs. Even under the more demanding “reasonable cause” standard of
Cal. W&I § 625(a), however, we conclude that the law was not clearly
established concerning whether the officers could rely primarily on the
representations of school officials in deciding to take custody of C.B., and
thus, we need not decide whether the “special need” doctrine applies or
whether it was satisfied. The dissent’s reasoning that C.B.’s detention did
not meet the second prong of the “special need” test reaches too far by
deciding questions of fact more appropriately reserved for a jury.
                  C.B. V. CITY OF SONORA                     21

2002); Neague v. Cynkar, 258 F.3d 504 (6th Cir. 2001);
Glenn v. City of Tyler, 242 F.3d 307 (5th Cir. 2001). Indeed,
no clearly established law suggests that handcuffing a
juvenile when lawfully taking him into temporary custody
violates the juvenile’s Fourth Amendment rights, absent a
showing that the handcuffs caused injury or that the officer
ignored complaints about the handcuffs, neither of which
C.B. alleged in this case. See Hupp v. City of Walnut Creek,
389 F. Supp. 2d 1229, 1232 (N.D. Cal. 2005) (citing Wall v.
County of Orange, 364 F.3d 1107 (9th Cir. 2004); LaLonde
v. County of Riverside, 204 F.3d 947 (9th Cir. 2000); Palmer
v. Sanderson, 9 F.3d 1433 (9th Cir. 1993)).

    Because the law was, and still is, not “clearly established”
that handcuffing and driving a juvenile from school to a
relative’s place of business implicates Fourth Amendment
rights, McIntosh and Prock are entitled to qualified immunity
with regard to plaintiff’s claims under 42 U.S.C. § 1983. See
Hope v. Pelzer, 536 U.S. 730, 739–41 (2002) (the “state of
the law” must have given “fair warning” to the officer that the
conduct in question was unconstitutional).

                      CONCLUSION

    For the foregoing reasons, the verdict and judgment are
vacated, and this matter is remanded for further proceedings.
The district court is instructed to enter judgment as a matter
of law in favor of individual defendants McIntosh and Prock
as to C.B.’s claims under 42 U.S.C. § 1983 on the basis of
qualified immunity. In light of our rulings, we do not address
whether defendants are entitled to an offset of the amount
22                C.B. V. CITY OF SONORA

paid in settlement by the Sonora School District and Karen
Sinclair.

     VACATED, REVERSED in part, and REMANDED.



McKEOWN, Circuit Judge, concurring in part and dissenting
in part:

    I concur in the majority’s decision to remand this case for
a new trial. I also concur in the remand of the state law
claims. I respectfully dissent from Part B, which holds that
Officers McIntosh and Prock are entitled to qualified
immunity on C.B.’s Fourth Amendment claims. The facts
demonstrate that C.B.’s prolonged detention was
unconstitutional. In light of existing precedent, the district
court did not err in denying the motion for judgment as a
matter of law premised on qualified immunity.

    Three police officers arrived at the playground of Sonora
Elementary School in response to a dispatch reporting an “out
of control juvenile.” Upon arrival, the officers found C.B., an
80-pound 11-year-old child, seated calmly and silently on a
bench, staring at the ground. A school official whispered
“Runner. No medicine.” and made corresponding hand
gestures to the officers, but did not explain what medicine
C.B. had failed to take or what it meant to be a “runner.”
Indeed, some of his medicines were at the school, though no
one bothered to check. Based on this meager information,
without making further inquiries, and after no more than five
minutes of unsuccessfully attempting to engage C.B. in
conversation, the officers ordered C.B. to stand up with his
hands behind his back, handcuffed him, placed him in the
                  C.B. V. CITY OF SONORA                    23

back of a police vehicle, and transported him while
handcuffed to his uncle’s business.

    At trial the officers testified that they had no reason to
believe C.B. had committed any crime or threatened anyone’s
safety, nor was there any evidence that the child was a danger
to himself. It is undisputed that C.B. did not act out of
control, did not make any attempt to run away, and was
compliant throughout. Under these circumstances, C.B.’s
prolonged detention was unreasonable, the standard set out by
the Fourth Amendment as well as the Supreme Court in New
Jersey v. T.L.O., 469 U.S. 325 (1985). Imposing this standard
on law enforcement agents is nothing new. Though
responding to a school’s request, police officers cannot
escape the reasonableness standard when they intercede as
law enforcement. The police are not surrogate school
officials for managing internal school problems. The officers
here may well have been genuinely motivated to assist the
school in some way, but good intentions cannot trump
established law.

     The officers’ focus on the meaning of the “reasonable
cause” standard under California Welfare and Institutions
Code § 625(a) is misplaced. That section is inapplicable on
its face to C.B.’s scenario. Section 625(a) allows a peace
officer who has “reasonable cause” for believing a minor fits
into one of the categories described in § 601 to take the minor
into temporary custody without a warrant. Both §§ 601(a)
and (b) describe minors who “persistent[ly] or habitual[ly]
refuse[] to obey . . . reasonable . . . orders”—§ 601(a)
addresses disobedience towards “parents, guardian[s], or
custodian[s],” while § 601(b) concerns disobedience towards
“school authorities,” where a school attendance review board
or probation officer determines that available services are
24                    C.B. V. CITY OF SONORA

insufficient to correct the minor’s disobedience.1 Because
Sonora Elementary School is not C.B.’s parent, guardian, or
custodian under § 601(a),2 and the requisite determination had
not been made under § 601(b), the California welfare statute
does not come into play.

    Even if § 625(a) were applicable through § 601(a), the
“reasonable cause” standard mirrors the “reasonableness”
standard in T.L.O., 469 U.S. at 341–43, and state precedents
make clear that C.B. was not “beyond control.” The officers


   1
     I agree with the district court that § 625(c), which authorizes the
warrantless seizure of a juvenile in need of medical treatment or
hospitalization, was not a legitimate basis for seizure. Because that
section is inapplicable, I also agree with the majority that § 625(a) should
be the focus of our analysis.
  2
    On its face, the term “custodian” does not apply to school officials.
See In re Rita M.P., 12 Cal. App. 3d 1057 (1970) (dealing with a
custodianship relationship, where the custodian was a probation officer
who had custody of the minor child while the child awaited placement in
a foster home). This point is buttressed by the grouping together of
parents, guardians, and custodians in § 601(a), indicating that “custodian”
should be narrowly construed to parallel the level of specificity of
“parent” and “guardian.” Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S.
576, 586 (2008) (noting that under the rule of ejusdem generis, “when a
statute sets out a series of specific items ending with a general term, that
general term is confined to covering subjects comparable to the specifics
it follows”). Moreover, “school authorities” are specifically and
separately addressed in § 601(b), which contains requirements and
conditions not present in § 601(a). If school authorities qualified as
custodians under § 601(a), they would not need to make the determination
required under § 601(b), rendering the latter provision superfluous.
United States v. 144,744 pounds of Blue King Crab, 410 F.3d 1131, 1134
(9th Cir. 2005) (“It is an accepted canon of statutory interpretation that we
must interpret the statutory phrase as a whole, giving effect to each word
and not interpreting the provision as to make other provisions meaningless
or superfluous.”) (citations omitted).
                   C.B. V. CITY OF SONORA                      25

had no evidence that there had been any persistent or habitual
disobedient conduct on the part of C.B. A single act of
defiance is ordinarily not enough to establish that a minor is
beyond control under § 601(a) unless that single act is
sufficiently serious. See In re Bettye K., 234 Cal. App. 3d
143, 149 (1991) (“A single act in violation of parental
authority is ordinarily insufficient, by itself, to establish a
finding that a minor is beyond parental control within the
meaning of Welf. & Inst. Code, § 601, subd. (a). . . .”).

     C.B.’s conduct—sitting silently on a schoolyard bench,
even taken in conjunction with a dispatch to investigate an
“out of control juvenile”—is incomparable to those single
acts of defiance that have been deemed sufficiently serious
under § 601(a) and hardly compares even to those that have
been found insufficiently serious. See, e.g., In re D.J.B.,
18 Cal. App. 3d 782, 786–87 (1971) (holding that leaving a
parent’s home without consent was not a sufficiently serious
single act of defiance); In re David S., 12 Cal. App. 3d 1124,
1128 (1970) (holding that lying about spending the weekend
at a beach 40 miles from home but actually intending to go to
Mexico and being picked up 600 miles away at the Mexican
border was a sufficiently serious single act of defiance). Not
surprisingly, the cases under § 601(a) deal with parents,
guardians, and custodians, not school officials. Contrary to
the majority’s assertion, it is abundantly clear that the officers
had no authority to proceed under California law because
§§ 601 and 625 are inapplicable to C.B.’s situation.

    Putting §§ 601 and 625 aside, the Fourth Amendment
requires that seizures be objectively reasonable in light of the
facts and circumstances. Graham v. Connor, 490 U.S. 386,
397 (1989). This inquiry requires a balancing of “the nature
and quality of the intrusion on the individual’s Fourth
26                C.B. V. CITY OF SONORA

Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.”
Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation
marks and citation omitted). In T.L.O., the Supreme Court
addressed how that balance should be struck in the context of
a search conducted by a teacher or school official in the
school setting. 469 U.S. at 328. Taking into consideration a
school’s special need to maintain an orderly educational
environment and a teacher’s lack of familiarity with the
“niceties of probable cause,” the Court held that school
administrators acting on their own authority should be held to
a standard more lenient than probable cause that focuses
instead on the question of “reasonableness” according to the
“dictates . . . of common sense.” Id. at 341–43. The Court
set out a twofold inquiry for determining the reasonableness
of a school search: (1) whether the search was justified at its
inception, and (2) whether the search as ultimately conducted
was reasonably related in scope to the circumstances
justifying the search in the first place. Id. at 341–42.

     At a minimum, Officers McIntosh and Prock must be held
to T.L.O.’s reasonableness standard, an issue the majority
acknowledges “is a matter involving questions of fact more
appropriately reserved for a jury,” and thus should not be
resolved by granting qualified immunity. Although T.L.O.
was decided in the context of a school search, that standard
has since been applied to school seizures. See, e.g., Doe v.
State of Hawaii Dep’t of Educ., 334 F.3d 906, 909 (9th Cir.
2003) (“In applying the Fourth Amendment in the school
context, the reasonableness of the seizure must be considered
in light of the educational objectives [the school official] was
trying to achieve.”) (citing T.L.O., 469 U.S. at 342); Wallace
v. Batavia Sch. Dist. 101, 68 F.3d 1010 (7th Cir. 1995);
Edwards v. Rees, 883 F.2d 882 (10th Cir. 1987). T.L.O. itself
                      C.B. V. CITY OF SONORA                           27

also involved school authorities acting alone, and the Court
expressed “no opinion” as to the appropriate standard to be
applied to police conduct in the school setting. Id. at 347 n.7.
But the rationale behind T.L.O.—particularly the need to
accommodate teachers’ unfamiliarity with the probable cause
standard—indicates that the participation of police officers
can only raise the standard of suspicion required. In short,
T.L.O. set a floor of reasonableness.

    Some courts have held that T.L.O.’s reasonableness
standard applies to school seizures by law enforcement
officers, see, e.g., Grey ex rel. Alexander v. Bostic, 458 F.3d
1295 (11th Cir. 2006),3 while others have applied probable
cause to police conduct in the school setting, see, e.g., Picha
v. Wielgos, 410 F.Supp. 1214, 1219–21 (N.D. Ill. 1976). We
need not bridge this divide. As counsel for Officers
McIntosh and Prock acknowledged at oral argument, the
appropriate standard for police officers in the school setting
is no lower than T.L.O.’s reasonableness standard for school
administrators.

    Applying T.L.O.’s twofold reasonableness inquiry, C.B.’s
seizure was justified at its inception. Officers McIntosh and
Prock were dispatched to investigate an “out of control
juvenile.” They reasonably relied on the school official’s
representation that C.B. was a runner and had not taken his

  3
    In Grey, the Eleventh Circuit affirmed the district court’s denial of
summary judgment on the basis of qualified immunity. The Eleventh
Circuit explained that T.L.O.’s reasonableness standard applied to a
deputy sheriff who detained and handcuffed a nine-year-old student for
under five minutes after she allegedly threatened to hit her teacher in gym
class, that the deputy sheriff violated the student’s Fourth Amendment
rights, and that the deputy sheriff was not entitled to qualified immunity
because the violation was obvious. Id. at 1304–07.
28                   C.B. V. CITY OF SONORA

medication when they initially detained C.B. and attempted
to engage him in conversation. But once they discovered that
C.B. was simply sitting silently on a schoolyard bench, they
could no longer rely solely on the school official’s
unexplained allegation that C.B. was beyond control and her
request to remove C.B. from school—any continued
detention of C.B. was not “reasonably related in scope to the
circumstances which justified the interference in the first
place.” Id. at 341. Aside from the fear that C.B. might run
away—a fear I find objectively unpersuasive in light of
Officers McIntosh and Prock’s own testimony at trial that
C.B. never attempted to run, nor would he have been able to
while surrounded by four standing adults—the officers do not
cite any concrete objectives or interests advanced by C.B.’s
prolonged detention. Nor did the officers make any basic
assessment of the situation once they arrived on the
scene—by, for instance, asking the school official what C.B.
had done to prompt the dispatch to begin with—which might
have uncovered facts on which they could make a judgment.4
Without more, a school official’s request for the officers to
intercede and a disabled 11-year-old child’s refusal to talk to
the officers is hardly a reasonable justification for an
extended detention. The officers’ conduct was objectively
unreasonable and was “excessively intrusive in light of the
age . . . of the student and the nature of the infraction.” Id. at
342. They had no authority to proceed under either
California law or the Fourth Amendment.

   Because C.B.’s seizure was unconstitutional, I turn to the
second prong of the qualified immunity analysis, namely


  4
    The majority’s lengthy recitation of C.B.’s history at the school and
information known by school officials is, of course, irrelevant since the
officers knew none of these circumstances.
                  C.B. V. CITY OF SONORA                     29

whether C.B.’s constitutional right was “clearly established”
at the time of the officers’ misconduct. Pearson v. Callahan,
555 U.S. 223, 232 (2009). In my view, it would have been
“clear to a reasonable officer” in September 2008 that C.B.’s
seizure was “unlawful in the situation [Officers McIntosh and
Prock] confronted.” Saucier v. Katz, 533 U.S. 199, 202
(2001).

    The majority is mistaken that T.L.O. has never been
applied to seizures. The officers had fair warning based on
cases in the Ninth and other circuits that T.L.O.’s
reasonableness standard applied to their conduct, meaning
that C.B.’s seizure was required to be justified at its
inception, and the seizure ultimately effected was required to
be related in scope to the circumstances justifying it. See,
e.g., Doe, 334 F.3d at 909 (citing T.L.O. and holding that, in
the school context, “the reasonableness of the seizure must be
considered in light of . . . educational objections”); Grey, 458
F.3d at 1304–06 (“apply[ing] the reasonableness standard
articulated in [T.L.O.] . . . to school seizures by law
enforcement officers”); Wallace, 68 F.3d at 1012–14 (noting
that “several circuit courts have relied upon [T.L.O.] to find
that seizures of students by teachers also come within the
ambit of the Fourth Amendment” and concluding that “in the
context of a public school, a teacher or administrator who
seizes a student does so in violation of the Fourth
Amendment . . . when the restriction of liberty is
unreasonable under the circumstances then existing and
apparent”); Edwards, 883 F.2d at 884 (citing T.L.O. for the
proposition that “courts have always sought to accommodate
both the interests protected by the Constitution and the
interests in providing a safe environment conducive to
education in the public schools” when applying the Fourth
Amendment in the school context).
30                C.B. V. CITY OF SONORA

    Even without reference to these cases, an official can have
fair warning that his conduct is unconstitutional when that
violation is obvious. See United States v. Lanier, 520 U.S.
259, 271 (1997) (“[A] general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question, even though the
very action in question has [not] been previously held
unlawful.”) (internal quotation marks and citations omitted).
The prolonged detention of a compliant disabled 11-year-old
child sitting on a schoolyard bench based on the paltry
information relied on by Officers McIntosh and Prock is an
obvious violation of the Fourth Amendment’s general
proscription against unreasonable seizures.
