                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DRENDOLYN SIMS,                        No. 11-55401
        Plaintiff-Appellant,
                                          D.C. No.
             v.                       3:09-cv-01356-
                                         JM-WMC
MIKE STANTON ,
        Defendant-Appellee.         ORDER AND
                                  AMENDED OPINION


     Appeal from the United States District Court
         for the Southern District of California
   Jeffrey T. Miller, Senior District Judge, Presiding

               Argued and Submitted
        August 8, 2012—Pasadena, California

               Filed December 3, 2012
              Amended January 16, 2013

    Before: Stephen Reinhardt, Barry G. Silverman,
      and Kim McLane Wardlaw, Circuit Judges.

                       Order;
             Opinion by Judge Reinhardt
2                        SIMS V . STANTON

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s summary judgment
granting qualified immunity to a police officer and remanded
in this action brought under 42 U.S.C. § 1983.

    Plaintiff suffered serious injuries as a result of the
officer’s act of kicking down the front gate of her yard. She
alleged that the officer violated her Fourth Amendment rights
by his warrantless entry into the curtilage of her house during
his pursuit of a suspect, who had committed at most a
misdemeanor offense. The panel first held that plaintiff’s
yard was curtilage entitled to the same Fourth Amendment
protections as her home. The panel held that the officer’s
actions amounted to an unconstitutional search and that the
law at the time of the incident would have placed a
reasonable officer on notice that his warrantless entry into the
curtilage of a home constituted an unconstitutional search,
which could not be excused in this case under the exigency or
emergency exception to the warrant requirement.


                            COUNSEL

L. Marcel Stewart, San Diego, California, for Petitioner.

Peter J. Ferguson, Santa Ana, California, for Respondent.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     SIMS V . STANTON                       3

                          ORDER

   The opinion filed on December 3, 2012 is hereby
amended as follows:

1. At page 11, lines 11–12 of the slip opinion, delete <the
   single misdemeanor of>.

2. At page 11, line 16 of the slip opinion, after <however,>
   insert <generally>.

3. At page 11, line 17 of the slip opinion, after the sentence
   ending <warrantless entry.> insert the following sentence
   <Nothing about the facts of this case warrants a departure
   from our general rule that an underlying misdemeanor
   offense justifies a warrantless entry in only “the ‘rarest’
   cases.” Id. (citations omitted).>.

4. At page 11, line 21 of the slip opinion, after <fleeing
   felon> insert <and the exigency of potential destruction
   of evidence by that felon>.

5. At page 11, lines 26–27 of the slip opinion, delete <The
   district court erroneously applied this precedent.>.

6. At page 12, line 10 of the slip opinion, after <any> and
   before <circumstances> delete <“rare”>.

7. At page 12, lines 10–11 of the slip opinion, after
   <circumstances> delete <that would call for> and insert
   <making this one of those “rarest” cases justifying>.

8. At page 12, at line 11 of the slip opinion, between
   <exception to the> and <rule> insert <general>.
4                     SIMS V . STANTON

    With these amendments, Judges Reinhardt, Silverman,
and Wardlaw vote to deny the petition for rehearing and the
suggestion for rehearing en banc. The full court was advised
of the suggestion for rehearing en banc. No judge requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.

    The petition for rehearing and petition for rehearing en
banc are DENIED. No future petitions for rehearing or
petitions for rehearing en banc will be entertained.



                         OPINION

REINHARDT, Circuit Judge:

    Drendolyn Sims suffered serious injuries as a result of
officer Mike Stanton’s act of kicking down the front gate to
her small, enclosed yard. Sims was standing directly behind
the gate when it swung open, knocking her down and
rendering her temporarily unconscious, or at least incoherent,
causing a laceration on her forehead and an injury to her
shoulder. Stanton unreasonably believed that his warrantless
entry into the curtilage of Sims’s home was justified by his
pursuit of Nicholas Patrick, who had committed at most a
misdemeanor offense by failing to stop for questioning in
response to a police order. Sims filed an action in district
court under 42 U.S.C. § 1983, alleging that her Fourth
Amendment rights had been violated by Stanton’s warrantless
entry into her front yard and seeking damages for her injuries.
                          SIMS V . STANTON                               5

    The district court found that Stanton was entitled to
qualified immunity and granted his motion for summary
judgment. Reviewing that decision de novo, we must
determine whether Stanton violated Sims’s Fourth
Amendment right to be free from a warrantless entry into her
front yard and whether the contours of that right were
sufficiently established at the time that a reasonable officer
would have been aware that his conduct was unconstitutional.
We conclude that Stanton’s actions amounted to an
unconstitutional search. We hold that the law at the time of
the incident would have placed a reasonable officer on notice
that his warrantless entry into the curtilage of a home
constituted an unconstitutional search, which could not be
excused under the exigency or emergency exception to the
warrant requirement. Stanton was, therefore, not entitled to
qualified immunity.

                         BACKGROUND1

    On May 27, 2008 at approximately one o’clock in the
morning, Officer Stanton and his partner responded to a radio
call regarding an “unknown disturbance” in the street
involving a baseball bat in La Mesa, California. The officers
were driving a marked car and wearing police uniforms.
Stanton was familiar with the area as one “known for
violence associated with the area gangs,” and he “was also
aware of gang members being armed with weapons such as


  1
    Although we review a district court’s grant of summary judgment de
novo, evaluating the facts in the light most favorable to the nonmoving
party, most of the material facts in this case are not in dispute. Thus, we
set forth the undisputed facts and note where a disputed fact affects the
legal analysis that follows. See LaLonde v. Cnty. of Riverside, 204 F.3d
947, 950 n.3 (9th Cir. 2000).
6                         SIMS V . STANTON

guns and knives.” Still, when the officers arrived, they
observed nothing unusual.

    The officers noticed three men walking in the street.
Upon seeing the car, two of the men turned into a nearby
apartment complex. The third, who turned out to be Patrick,
crossed the street about twenty-five yards in front of the
police car and walked quickly toward Sims’s home, which
was located in the same direction as the police car. Neither
officer saw Patrick with a baseball bat or any other possible
weapon. The officers had no information that would link
Patrick to the disturbance. Nor did the officers observe any
conduct on Patrick’s part that would suggest that he had been
involved in the disturbance that they had been called to
investigate.

    According to Stanton’s version of the facts, he exited the
patrol car, announced “police,” and ordered Patrick to stop
multiple times in a voice that was loud enough that all
persons in the area would have heard his commands.
Whether Patrick heard the commands or not, he did not stop.
Instead, he entered the gate to Sims’s front yard and the gate
shut behind him. Believing that Patrick was disobeying his
lawful order (a misdemeanor offense under California Penal
Code § 1482) and “fearing for [his] safety,” Stanton made a
“split-second decision” to kick open the gate to Sims’s yard.
Sims was standing behind the gate when it flew open, striking
her and sending her into the front stairs. She was temporarily


    2
    California Penal Code § 148 makes “willfully resist[ing], delay[ing],
or obstruct[ing]” an officer “in the discharge or attempt to discharge any
duty of his or her office” a misdemeanor offense punishable by up to one
year and by a fine of up to $1000. § 148; see also In re M.M., 54 Cal. 4th
530, 533 (2012) (§ 148 is a misdemeanor offense).
                          SIMS V . STANTON                              7

knocked unconscious, or at least became incoherent, as a
result of the blow and sustained a laceration on her forehead,
an injury to her shoulder, and was taken to the hospital.

    The gate Stanton kicked open is part of a fence made of
“sturdy, solid wood” that is more than six feet tall, enclosing
the front yard to Sims’s home. Sims lives in a manufactured
home with a small front yard that abuts the house. She states
that she “enjoy[s] a high level of privacy in [her] front yard.”
Her fence, which was built for “privacy and protection,”
ensures that her outdoor space is “completely secluded” and
cannot be seen by someone standing outside the gate.
Additionally, the front yard is used for talking with friends,
as Sims was doing on the evening of the incident, and for
storing her wheelchair, which she keeps parked inside the
fence.

    Sims’s complaint against Stanton alleged unconstitutional
arrest, search, excessive force, and additional state law tort
claims. Stanton moved for summary judgment, which the
district court granted, finding that (1) Stanton did not use
excessive force; (2) exigency and a lesser expectation of
privacy in the curtilage surrounding Sims’s home justified the
warrantless entry; and (3) no clearly established law put
Stanton on notice that his conduct was unconstitutional and
therefore he was entitled to qualified immunity. Sims appeals
the district court’s decision on her unconstitutional search
claim and the grant of qualified immunity to Stanton.3



  3
   After dismissing Sims’s federal claims, the district court declined to
exercise supplemental jurisdiction over her state law claims and dismissed
them without prejudice. Because we reverse the dismissal of Sims’s
federal claims, we also reverse the dismissal of Sims’s state law claims.
8                     SIMS V . STANTON

                       DISCUSSION

    The Fourth Amendment prohibits officers from entering
an enclosed front yard—curtilage—without a warrant, to the
same extent that it prohibits them from entering a home. See
United States v. Perea-Rey, 680 F.3d 1179, 1184 (9th Cir.
2012). Thus, we first must determine whether Sims’s front
yard was curtilage. If so, Stanton’s warrantless entry is
unconstitutional unless it meets the requirements for an
exception to the warrant rule.

    We next review the facts presented to the district court to
determine whether Stanton’s warrantless entry meets either
the exigency or emergency exceptions to the warrant
requirement. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th
Cir. 2009). Because both exceptions turn on the seriousness
of the underlying offense, we ultimately conclude that
Stanton’s warrantless entry cannot be justified by his pursuit
of Patrick, who committed, at most, only a misdemeanor. See
United States v. Johnson, 256 F.3d 895, 908 n.6 (9th Cir.
2001) (en banc) (exigency exception); LaLonde, 204 F.3d at
958 n.16 (emergency exception).

                          Curtilage

    Before analyzing the exceptions to the warrant
requirement, it must be determined whether Sims’s yard is
curtilage and therefore entitled to the same Fourth
Amendment protections as her home.
                      SIMS V . STANTON                       9

    It is well-established that “[t]he presumptive protection
accorded people at home extends to outdoor areas
traditionally known as ‘curtilage’—areas that, like the inside
of a house, harbor the intimate activity associated with the
sanctity of a person’s home and the privacies of life.” United
States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010)
(quoting United States v. Dunn, 480 U.S. 294, 300 (1987))
(internal quotations and alterations omitted). “Because the
curtilage is part of the home, searches and seizures in the
curtilage without a warrant are also presumptively
unreasonable.” Perea-Rey, 680 F.3d at 1184 (citing Oliver v.
United States, 466 U.S. 170, 180 (1984)). The district court
recognized that Sims’s front yard was curtilage, but erred in
finding that its status as curtilage entitled Sims to a “lesser
expectation of privacy . . . as opposed to the home itself.”

    Sims’s small, enclosed, residential yard is quintessential
curtilage. “[A] small, enclosed yard adjacent to a home in a
residential neighborhood [] is unquestionably such a ‘clearly
marked’ area ‘to which the activity of home life extends,’ and
so is ‘curtilage’ subject to the Fourth Amendment
protection.” Struckman, 603 F.3d at 739 (quoting Oliver,
466 U.S. at 182 n.12). Because Sims’s front yard obviously
meets the definition of curtilage, the district court did not
need to analyze it under the factors announced by the
Supreme Court in United States v. Dunn. 480 U.S. at 294.
These factors serve as “useful analytical tools” to ensure that
Fourth Amendment protections extend to areas that are much
further from the house but that still should be “treated as the
home itself.” Id. at 300–01. Here, however, the factors are
unnecessary because it is “easily understood from our daily
10                        SIMS V . STANTON

experience” that Sims’s yard is curtilage.4 Oliver, 466 U.S.
at 182 n.12; see also Struckman, 603 F.3d at 739.

    Because curtilage is protected to the same degree as the
home, the district court erred in applying a “totality of the
circumstances” balancing inquiry that justified the
warrantless intrusion based in part on a “lesser expectation of
privacy” in one’s front yard as compared to one’s home. We
hold that the Fourth Amendment protects Sims’s yard, a mere
extension of the home itself, from warrantless search. Perea-
Rey, 680 F.3d at 1184. Stanton’s warrantless entry, therefore,
was presumptively unconstitutional. Struckman, 603 F.3d at
743.




 4
    Of course, applying the Dunn factors to Sims’s yard leads to the same
result. The first factor, “the proximity of the area claimed to be curtilage
to the home,” id. at 301, is met because her front yard is adjacent to her
home and extends only a short distance. The second factor, whether the
area is “included within an enclosure surrounding the home,” id., is met
because a tall wooden fence encloses both her front yard and her home.
Sims meets the third factor, “the nature of the uses to which the area is
put,” id., because Sims stated that she enjoyed a high degree of privacy in
her front yard, that she used it to store her wheelchair, and that she
entertains guests there. The final factor, “steps taken by the resident to
protect the area from observation by people passing by,” id., is met
because the gate that Stanton kicked in was a “sturdy, solid wood,” six-
foot-high fence with narrow slats between the planks of wood.

     Stanton’s argument that because he could see the front door it was not
entitled to the same expectation of privacy is beside the point. The
warrantless entry was to Sims’s yard, which Stanton obviously could not
see prior to kicking in the front gate; if he could have, he would have
known that Sims was standing behind it.
                      SIMS V . STANTON                      11

        Exceptions To The Warrant Requirement

    When the warrantless search is to home or curtilage, we
recognize two exceptions to the warrant requirement:
exigency and emergency. Hopkins, 573 F.3d at 763. “These
exceptions are narrow and their boundaries are rigorously
guarded to prevent any expansion that would unduly interfere
with the sanctity of the home.” Id. at 763. The exigency
exception assists officers in the performance of their law
enforcement function. It permits police to commit a
warrantless entry where “necessary to prevent . . . the
destruction of relevant evidence, the escape of the suspect, or
some other consequence improperly frustrating legitimate law
enforcement efforts.” Id. at 763 (citing United States v.
McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc)).
The emergency exception, in contrast, seeks to ensure that
officers can carry out their duties safely while at the same
time ensuring the safety of members of the public. It applies
when officers “have an objectively reasonable basis for
concluding that there is an immediate need to protect others
or themselves from serious harm.” Id. at 764 (citing United
States v. Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008))
(internal emphasis omitted).

    Under either exception, our review of whether the
circumstances justified the warrantless entry considers the
seriousness, or lack thereof, of the underlying offense.
Johnson, 256 F.3d at 908 n.6 (exigency exception); LaLonde,
204 F.3d at 958 n.16 (emergency exception). The district
court erroneously granted summary judgment to Stanton,
despite clear precedent that precludes the finding of an
exception to the warrant requirement when the circumstances
turn on only a misdemeanor offense. Johnson, 256 F.3d at
908 n.6; LaLonde, 204 F.3d at 958 n.16.
12                    SIMS V . STANTON

                     Exigency Exception

    Stanton attempts to show that exigent circumstances
justified his warrantless entry, specifically that Patrick would
have escaped arrest.         The burden to show exigent
circumstances rests on the officer, who must “point[] to some
real immediate and serious consequences if he postponed
action to get a warrant.” Welsh v. Wisconsin, 466 U.S. 740,
749–50, 751 (1984) (internal quotation marks and citation
omitted). We have recognized circumstances that justify a
warrantless entry to prevent “the destruction of relevant
evidence, the escape of the suspect, or some other
consequence improperly frustrating legitimate law
enforcement efforts.” Hopkins, 573 F.3d at 763 (quoting
McConney, 728 F.2d at 1199).

    Not every law enforcement action, however, justifies an
exception to the warrant requirement. The recognition that
sometimes law enforcement needs take precedence must be
balanced against the Fourth Amendment protections against
unreasonable searches. We have given officers clear
guidance on how to approach the balance between “a
person’s right to be free from warrantless intrusions” and
“law enforcement’s interest in apprehending a fleeing
suspect.” Johnson, 256 F.3d at 908 n.6. We have said, “[i]n
situations where an officer is truly in hot pursuit and the
underlying offense is a felony, the Fourth Amendment
usually yields,” but “in situations where the underlying
offense is only a misdemeanor, law enforcement must yield
to the Fourth Amendment in all but the ‘rarest’ cases.” Id.
(citations omitted). Stanton offers nothing to show why in
this case the Fourth Amendment should yield.
                          SIMS V . STANTON                             13

    Stanton does not argue that this case involves probable
cause for any crime more serious than disobeying an officer’s
order to stop.5 We do not doubt that Stanton believed that
Patrick might escape arrest if he did not follow him into
Sims’s front yard. The possible escape of a fleeing
misdemeanant, assuming Patrick had been fleeing, is not,
however, generally, a serious enough consequence to justify
a warrantless entry. Nothing about the facts of this case
warrants a departure from our general rule that an underlying
misdemeanor offense justifies a warrantless entry in only “the
‘rarest’ cases.” Id. (citations omitted). The precedent relied
on by the district court, United States v. Santana, which held
that a “suspect may not defeat an arrest which has been set in
motion in a public place . . . by the expedient of escaping to
a private place,” involved a fleeing felon and the exigency of
potential destruction of evidence by that felon. 427 U.S. 38,
43 (1976). Since Santana, the Supreme Court and our court
have made it clear that the exigency exception to the warrant
requirement generally applies only to a fleeing felon not to a
fleeing misdemeanant. Welsh, 466 U.S. at 750; Johnson,
256 F.3d at 908 n.6.

    The warrantless intrusion is particularly egregious in this
case because Stanton violated the Fourth Amendment rights
of an uninvolved person, Sims. See Johnson, 256 F.3d at
909. Stanton could have knocked on the door and asked Sims
for permission to enter and speak with, or arrest, Patrick.
Knocking on the door would still not have justified a


   5
     W hether Stanton had probable cause to believe that Patrick had
violated California Penal Code § 148 is fiercely debated by the parties.
W e do not need to decide this question, because, even if Stanton had
probable cause to believe that Patrick violated § 148, that violation would
at most be a misdemeanor offense.
14                       SIMS V . STANTON

warrantless entry, but at the very least, with the warning of a
knock, Sims might have been able to move away from behind
the gate before Stanton kicked it open. In any event, the
record before us does not reveal any circumstances making
this one of those “rarest” cases justifying an exception to the
general rule that “where the underlying offense is only a
misdemeanor, law enforcement must yield to the Fourth
Amendment.” Johnson, 256 F.3d at 908 n.6.

                      Emergency Exception

    Stanton asserts that he pursued Patrick into Sims’s
curtilage because he feared for his own safety. To establish
that the circumstances gave rise to an emergency situation,
Stanton must show an “objectively reasonable basis for
fearing that violence was imminent.” Ryburn v. Huff, 132 S.
Ct. 987, 992 (2012). As in the case of an exigency exception,
an “officer[’s] assertion of a potential threat to [his] safety
must be viewed in the context of the underlying offense.”
LaLonde, 204 F.3d at 958 n.16.6 Where the threat is to the
officer’s safety, we observe that “[o]ne suspected of
committing a minor offense would not likely resort to
desperate measures to avoid arrest and prosecution.” Id.
(quoting United States v. George, 883 F.2d 1407, 1413 n.3
(9th Cir. 1989)). Reviewing the constitutionality of the
warrantless entry de novo, we conclude that the record does
not support a finding of an emergency after Patrick entered
Sims’s fenced yard.


 6
   Stanton attempts to distinguish LaLonde on the ground that it involved
the warrantless entry into a home, rather than a front yard. This
distinction is meaningless because the yard is curtilage and therefore
entitled to the same protection as the home under the Fourth Amendment.
See discussion supra, pp. 9–10.
                           SIMS V . STANTON                            15

    Stanton was called to investigate a disturbance involving
a baseball bat at one o’clock in the morning. Although
Stanton knew the area as one associated with gangs whose
members may be armed, he had no information tying Patrick
to the reported disturbance. He did not see Patrick carrying
a baseball bat or any other weapon.7 The only facts in the
record suggesting suspicious behavior were that Stanton
observed Patrick “cross the street and quickly walk/run
toward” Sims’s home, and that after he ordered Patrick to
stop, Patrick “looked directly at [Stanton], ignored [his]
lawful orders and quickly went through a front gate.” Once
Patrick fled into Sims’s front yard, without signaling in any
way that he would engage Stanton, return with a weapon, or
otherwise threaten him with violence, there was simply no
evidence of imminent danger to the officer or anyone else.

    The circumstances of this case stand in stark contrast to
the facts that supported the officer’s reasonable belief in
Ryburn that danger could be imminent. In Ryburn, four
officers went to high school student Vincent Huff’s home to
investigate threats that he was going to “shoot up” the school.
132 S. Ct. at 988. The officers testified to facts that were
specific to Mrs. Huff and her son that “led them to be
concerned for their own safety and for the safety of other
persons in the residence.” Id. at 990. In addition to the
reported threat of a school shooting, these facts included:

           the unusual behavior of the parents in not
           answering the door or the telephone; the fact
           that Mrs. Huff did not inquire about the
           reason for their visit or express concern that
           they were investigating her son; the fact that

 7
     W hen Patrick was eventually stopped, he had no weapon on his person.
16                    SIMS V . STANTON

        she hung up the telephone on the officer; the
        fact that she refused to tell them whether there
        were guns in the house; and finally, the fact
        that she ran back into the house while being
        questioned.

Id. Based on the suspected presence of weapons in the home
of a teenager who had threatened to commit a violent felony
by the use of deadly weapons, those officers had an
“objectively reasonable basis” to fear that “family members
or the officers themselves were in danger.” Id. at 990. Here,
Stanton attempts to justify his fear that Patrick threatened his
safety, by pointing to the report of an incident involving a bat
and his belief that Sims’s neighborhood was a high-crime
area. However, none of the factors: Stanton’s belief that
Patrick committed a misdemeanor by failing to heed his
order, the original call to the police regarding the disturbance,
the presence of gangs and the crime rate in the neighborhood,
nor a combination of all three is sufficient to constitute an
“emergency” that justified breaking down a closed gate and
entering without a warrant.

    Stanton described Sims’s neighborhood as “an area
known for violence associated with the area gangs,” and
stated that he “was also aware of gang members being armed
with weapons such as guns and knives.” Based on the facts
which he knew about the neighborhood and the report of a
disturbance in the street, Stanton speculates that Patrick may
have been carrying a concealed weapon, that he may have
gone into Sims’s home in order to arm himself and then
return to the street, or that someone armed inside Sims’s
home might have attempted to interfere with Patrick’s arrest.
Without some particularized facts relating to Patrick,
Stanton’s inferences are too generalized and speculative to
                      SIMS V . STANTON                       17

provide an “objectively reasonable basis” for fearing that
violence might be imminent, see Ryburn, 132 S. Ct. at 992,
and nothing in the record reveals an emergency that justifies
the warrantless entry of a home’s curtilage in pursuit of a
misdemeanant.

    A contrary conclusion would undermine Fourth
Amendment protections for individuals residing, often not by
choice, in poor neighborhoods where crime is more prevalent
than in wealthy communities. As we have said in the context
of drawing inferences from neighborhood characteristics to
support reasonable suspicion of criminal activity, “[w]e must
be particularly careful to ensure that a ‘high crime’ area
factor is not used with respect to entire neighborhoods or
communities in which members of minority groups regularly
go about their daily business.” United States v. Montero-
Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000). We do not
imply that general factors, such as the time of day, the nature
of the call, or the officers’ prior experience with gangs and
violence in the neighborhood, are of no relevance to an
officer’s fear that violence may occur. To justify an
emergency exception to the warrant requirement, however,
these factors must be combined with particularized evidence
that the person being pursued or the home being investigated
poses a threat to the officer’s or the public’s safety. This was
not the case here: Patrick entered Sims’s home, where he was
apparently welcome, and gave Stanton no reason to believe
that his or anyone else’s safety would be in danger.

    In sum, Stanton’s “assertion of a potential threat to [his]
safety,” based on generalized assumptions concerning the
neighborhood or its residents, rather than specific facts
relating to the individuals involved, did not justify an
exception to the warrant requirement when viewed “in the
18                    SIMS V . STANTON

context of the underlying offense,” at most a misdemeanor.
LaLonde, 204 F.3d at 958 n.16.

                     Qualified Immunity

    In a claim for civil damages under § 1983, to avoid the
bar of qualified immunity, the plaintiff must show that the
officer violated a constitutional right and that the right was
“clearly established” at the time of the occurrence. Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). The determination
whether a right was clearly established “must be undertaken
in light of the specific context of the case, not as a broad
general proposition.” Saucier v. Katz, 533 U.S. 194, 201
(2001). The individual circumstances of the case do not,
however, provide a basis for qualified immunity if “the
unlawfulness was apparent in light of preexisting law.”
Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.
1998) (internal citation omitted). “Although earlier cases
involving ‘fundamentally similar’ facts can provide
especially strong support for a conclusion that the law is
clearly established, they are not necessary to such a finding.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). The Supreme
Court has made clear that “officials can still be on notice that
their conduct violates established law even in novel factual
circumstances.” Id. Therefore, the “salient question” is
“whether the state of the law” in 2008 gave Stanton “fair
warning” that his warrantless entry was unconstitutional. Id.

    Contrary to the district court’s findings, a reasonable
officer should have known that the warrantless entry into
Sims’s front yard violated the Fourth Amendment because
clearly established law afforded notice that Sims’s front yard
was curtilage and, was therefore, protected to the same extent
as her home. Established law also afforded notice that a
                      SIMS V . STANTON                      19

warrantless entry into a home cannot be justified by pursuit
of a suspected misdemeanant except in the rarest of
circumstances. Since well before the incident occurred in
2008, Supreme Court law and the precedent of this court had
established that, on the basis of the record before us,
Stanton’s conduct was clearly unconstitutional.

    A front yard has been considered curtilage since 1984
when the Supreme Court decided Oliver v. United States.
466 U.S. at 170. A front yard enclosed by a six-foot-tall,
wooden fence, in which private items are stored and social
interactions take place is the paradigmatic example of
curtilage and is both “clearly marked” and “easily
understood.” Id. at 182 n.12. Thus, Stanton should have
known that his warrantless entry was presumptively
unconstitutional.

    This presumption may be overcome only by
circumstances justifying either an exigency or emergency
exception. Stanton attempts to show exigent circumstances
by pointing to the risk that Patrick might escape. It should
have been clear to Stanton, however, from Supreme Court
and Ninth Circuit decisions that law enforcement actions
involving a misdemeanor offense will rarely, if ever, justify
a warrantless entry. Welsh, 466 U.S. at 750 (clearly
established since 1984); Johnson, 256 F.3d at 908 (clearly
established since 2001). That Welsh leaves open the
possibility for a “rare” exception to this rule does not mean
that the rule was not clearly established at the time and does
not change our qualified immunity analysis. Here, nothing in
the record suggests that this case was “rare” in any respect.

    Stanton also contends that the emergency exception
justified his warrantless entry by asserting that he feared for
20                    SIMS V . STANTON

his safety. The circumstances of this case belie the
reasonableness of that fear. The non-serious nature of the
underlying offense, failure to heed an officer’s command,
precludes us from finding, on the record before us, that an
emergency exception was applicable. LaLonde, 204 F.3d at
958 (clearly established since 2000). So, too, does the lack of
any reasonable basis for any specific concern that the
individuals involved were likely to engage in any act of
violence. Accordingly, Stanton is not entitled to qualified
immunity.

   For the reasons stated above, the district court’s order
granting summary judgment in favor of the defendant is
REVERSED and REMANDED.
