                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            APR 04 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SCOTT GILLEN, husband and                        No.   17-16617
VERONICA GILLEN, wife,
                                                 D.C. No. 2:15-cv-00460-ROS
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

TOWN OF HAYDEN, a political
subdivision; et al.,

              Defendants,

 and

W. WHITE; et al.,

              Defendants-Appellants.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                       Argued and Submitted March 8, 2019
                                Phoenix, Arizona

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Weston White, Matthew Engwis, and Matthew Bowling (collectively,

“defendants”) appeal the district court’s order denying their motion for summary

judgment on Scott Gillen’s state and federal claims for false imprisonment and

false arrest. We have jurisdiction under 28 U.S.C. § 1291. See Isayeva v.

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th Cir. 2017).

      Gillen has failed to “identify a case where an officer acting under similar

circumstances” as defendants was found to have exceeded the categorical authority

of officers announced in Michigan v. Summers, 452 U.S. 692 (1981), to detain

incident to the execution of a search warrant. Sharp v. Cty. of Orange, 871 F.3d

901, 916 (9th Cir. 2017) (emphasis omitted) (quoting White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam)). None of the cases cited by Gillen involved, let

alone settled beyond debate, the question whether Summers and Muehler v. Mena,

544 U.S. 93 (2005), authorized officers to detain an individual returning to his

residence, where (as here) law enforcement officers were surveilling the premises

shortly before a SWAT team was to arrive to ensure that execution of the search

warrant could take place when the individual was not present. Cf. Bailey v. United

States, 568 U.S. 186 (2013); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983).

Nor do any of the cases cited by Gillen clearly establish that officers who detain an

individual at the premises to be searched are prohibited from transporting that


                                          2
individual, for the duration of the search, to a nearby location. Cf. Bailey, 568 U.S.

186; Taylor, 716 F.2d 701.1

      Given that defendants could have reasonably believed their actions were

authorized under Summers, they are also entitled to qualified immunity on Gillen’s

analogous state law claims. See Chamberlain v. Mathis, 729 P.2d 905, 912 (Ariz.

1986).2

      REVERSED.




      1
        White’s mistaken belief that an arrest warrant existed is immaterial because
the inquiry into whether officer action was permitted under the Fourth Amendment
is objective. See Scott v. United States, 436 U.S. 128, 138 (1978).
      2
        Gillen does not argue that Arizona law confines the authority to detain
incident to a search more narrowly than does Summers and its progeny.
                                          3
