                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

 ESTATE OF COLTON PETERSON; et al.,              No.    14-35682

                 Plaintiffs - Appellees,         D.C. No. 2:09-cv-00123-DLC

   v.
                                                 MEMORANDUM*
 DAVID KRUEGER, Missoula Police
 Detective,

                 Defendant - Appellant,

   and

 CITY OF MISSOULA, Montana; et al.,

                 Defendants.



                   Appeal from the United States District Court
                            for the District of Montana
                   Dana L. Christensen, District Judge, Presiding

                       Argued and Submitted March 6, 2017
                                Portland, Oregon

Before: FISHER and FRIEDLAND, Circuit Judges, and MAHAN,** District
Judge.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
      Detective David Krueger challenges the district court’s denial of his motion

for summary judgment based on qualified immunity. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We reverse the district court’s decision denying

qualified immunity and hold that Krueger is entitled to qualified immunity because

the law was not clearly established at the time of the violation.

      1. The district court denied Krueger’s motion for summary judgment based

on qualified immunity, finding that the contours of the law were sufficiently clear

that Krueger may be said to have been on notice that his conduct was unlawful.

The United States Supreme Court recently reiterated “the longstanding principle

that ‘clearly established law’ should not be defined ‘at a high level of generality.’”

White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (citing Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011)). “[T]he clearly established law must be ‘particularized’

to the facts of the case.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640

(1987)). The district court erred in failing to identify a case where an officer acting

under similar circumstances as Krueger was held to have violated the Fourteenth

Amendment. Instead, the district court relied on Munger v. City of Glasgow Police

Department, 227 F.3d 1082 (9th Cir. 2000), Kennedy v. City of Ridgefield, 439

F.3d 1055 (9th Cir. 2006), and Patel v. Kent School District, 648 F.3d 965 (9th Cir.

2011), which lay out the state-created danger exception in markedly different

circumstances and are applicable to this case only at a high level of generality.


                                          2
Accordingly, we conclude that summary judgment based on qualified immunity

was warranted because the law was not clearly established at the time of the

alleged conduct. See White, 137 S. Ct. at 552.

      2. Because we hold that Krueger is entitled to qualified immunity, we do

not consider whether the alleged conduct constituted a constitutional violation.

      REVERSED.




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