                                   NOT FOR PUBLICATION                           FILED
                            UNITED STATES COURT OF APPEALS                    MAR 23 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                                   FOR THE NINTH CIRCUIT


    MARILYN INJEYAN,                                 No. 13-56636

                Plaintiff - Appellant,               D.C. No. 8:12-cv-00790-BRO-JPR

      v.
                                                     MEMORANDUM*
    CITY OF LAGUNA BEACH; DETECTIVE
    ROBERT RAYHAUSER,

                Defendants - Appellees.

                          Appeal from the United States District Court
                              for the Central District of California
                        Beverly Reid O'Connell, District Judge, Presiding

                            Argued and Submitted December 10, 2015
                                     Pasadena, California

           Before: PREGERSON, CALLAHAN, and HURWITZ, Circuit Judges.

           Marilyn Injeyan appeals the district court’s grant of summary judgment in this

42 U.S.C. § 1983 action on qualified immunity grounds to Laguna Beach Police

Sergeant Robert Rahaeuser and the City of Laguna Beach. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.




*
      This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
      1.     Injeyan’s son was suspected of involvement in a crime during which

butyric acid had been thrown into a home. Rahaeuser and other Laguna Beach

police officers were executing a search warrant of Injeyan’s home issued after a

judge found probable cause to believe that items used to commit that crime—

including the butyric acid—would be found in the home, where her son lived.

Immediately upon entering the home, Rahaeuser encountered Injeyan and

handcuffed her. Injeyan claims that in handcuffing her, Rahaeuser violated the

Fourth Amendment by forcibly lifting her arms behind her back, injuring both of her

rotator cuffs. Injeyan did not verbally complain when being handcuffed, nor did

she display outward signs of injury.

      2.     “The doctrine of qualified immunity shields officials from civil liability

as long as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal citations and quotation marks

omitted). “Put simply, qualified immunity protects ‘all but the plainly incompetent

or those who knowingly violate the law,’” id. (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)), including “actions in the hazy border between excessive and

acceptable force.” Id. at 312 (internal citations and quotation marks omitted). An

officer is thus entitled to qualified immunity unless (1) there is a violation of a

constitutional right and (2) the right at issue was clearly established at the time of


                                             2
the officer’s alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232

(2009).

      3.      We reject Injeyan’s argument that the mere fact of handcuffing her

violated the Fourth Amendment. Rahaeuser could not have been certain about who

else was in the home or whether dangerous chemicals were stored there. He was

therefore justified in temporarily detaining Injeyan until the scene was stabilized.

See Muehler v. Mena, 544 U.S. 93, 98-100 (2005) (holding that an officer’s authority

to detain incident to a search is categorical, and the use of handcuffs to effectuate

plaintiff’s detention for the duration of the search was reasonable because the search

presented an inherently dangerous situation).

      4.      Injeyan contends that even if the handcuffing alone did not violate the

Fourth Amendment, the force used was excessive given that she was a seventy-two

year-old slight woman who readily submitted to the officer’s authority. But even

assuming that Rahaeuser used excessive force, “[q]ualified immunity is applicable

unless the official’s conduct violated a clearly established constitutional right.”

Pearson, 555 U.S. at 231 (internal citations and quotation marks omitted). “A

clearly established right is one that is ‘sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.’” Mullenix, 136 S.

Ct. at 308 (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).




                                                3
      5.     Although it is well settled that using excessive force in connection with

an otherwise legal arrest or seizure violates the Fourth Amendment, see Meredith v.

Erath, 342 F.3d 1057, 1061-62 (9th Cir. 2003), the Supreme Court has cautioned

that we should not “define clearly established law at a high level of generality,”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011) (internal citations omitted).

      6.     Qualified immunity applies unless existing case law makes clear to any

reasonable officer in the defendant’s particular position that his use of force is

excessive. See City of S.F. v. Sheehan, 135 S. Ct. 1765, 1777 (2015).

      7.     We find no precedent placing the conclusion that Rahaeuser’s alleged

conduct under the particular circumstances he confronted was unreasonable “beyond

debate,” al-Kidd, 131 S. Ct. at 2083.       Meredith, upon which Injeyan relies,

established that the lengthy handcuffing of an individual during a search aimed at

evidence of tax crimes may violate the Fourth Amendment. See 342 F.3d at 1063.

And Hansen v. Black held that a jury could find a Fourth Amendment violation if an

officer who arrested the plaintiff without probable cause in her driveway

unreasonably injured the plaintiff’s wrist while handcuffing her. 885 F.2d 642, 645

(9th Cir. 1989). Neither case dealt with facts like those here: a handcuffing during

the execution of a search warrant, where a seemingly dangerous chemical was

involved and prompt action was required to protect public (and the officers’) safety,




                                             4
and where the arrestee did not display any signs of pain during the handcuffing.1

The conclusion that Rahaeuser’s conduct constituted excessive force in the particular

circumstances of this case thus does not follow “immediately from” our precedents.

See Mullenix, 136 S. Ct. at 309.

             AFFIRMED.




1
       These circumstances also distinguish this case from Franklin v. Foxworth,
which held that officers acted unreasonably by removing a “gravely ill and semi-
naked man from his sickbed without providing any clothing or covering” and forced
him to “remain sitting handcuffed in his living room for two hours.” 31 F.3d 873,
876-77 (9th Cir. 1994). Nor does Tekle v. United States constitute “clearly
established” precedent on point, because there we considered whether officers were
entitled to qualified immunity where they made an eleven year-old child lie face
down in his driveway, put a gun to his head, and handcuffed him for ten to fifteen
minutes, all in connection with the arrest of his parents, who were themselves
suspected only of non-violent crimes. 511 F.3d 839, 845-47 (9th Cir. 2006).

                                             5
                                                                              FILED
Marilyn Injeyan v. City of Laguna Beach, No. 13-56636                         MAR 23 2016

                                                                        MOLLY C. DWYER, CLERK
Pregerson, J., dissenting                                                U.S. COURT OF APPEALS



      I dissent. Injeyan’s claim of excessive force is not a carbon copy of

Meredith, Hansen, Franklin, or Tekle. But these cases, when taken together,

provide clear notice that the officer’s conduct would run afoul of the law. See

Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2007) (holding it was objectively

unreasonable for the officer to grab a woman by the arms, throw her to the ground,

and twist her arms while handcuffing her during the execution of a search warrant

related to tax evasion crimes); Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989)

(holding the officers used excessive force on Hansen by unreasonably injuring her

wrist and arm as they handcuffed her); Franklin v. Foxworth, 31 F.3d 873, 876–77

(9th Cir. 1994) (holding that officers acted unreasonably by removing a “gravely ill

and semi-naked man from his sickbed without providing any clothing or covering

and then [] forcing him to remain sitting handcuffed in his living room for two

hours”); Tekle v. United States, 511 F.3d 839, 845–47 (9th Cir. 2006) (holding that

a reasonable officer would have known that pointing a gun at an unarmed,

barefoot, eleven-year-old non-suspect and forcing him to lie face down in his

driveway was unreasonable).

      Here, the officer was faced with seventy-two-year-old Marilyn Injeyan—a

slight woman whom the officer had met the day before, who was not a suspect in
the crime, and who readily submitted to the officer’s authority to detain her. Yet,

in the face of ready submission, the officer handcuffed Injeyan and wrenched her

arms to such a degree that he tore her rotator cuffs. Any reasonable officer would

have understood that such force in these circumstances was excessive.

      I understand that the Supreme Court has cautioned that we not define clearly

established law at a high level of generality. But I am troubled that in a number of

cases this caution has become an insurmountable barrier to many righteous claims.
