C. B. v. City of Sonora, et al

Filing

FILED OPINION (ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, BARRY G. SILVERMAN, SUSAN P. GRABER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, JAY S. BYBEE and MILAN D. SMITH, JR.) The judgment of the district court is affirmed in part, reversed in part. The judgment against Chief Mace McIntosh is reduced by $15,000. The judgment against Officer Hal Prock is reduced by $5,000. AFFIRMED IN PART AND REVERSED IN PART. C.B. shall recover his costs on appeal against the City of Sonora; no costs are awarded against Chief McIntosh and Officer Prock. Opinion by Judge Paez as to all but Part II.C.1.; Opinion by Judge M. Smith as to Part II.C.1; Partial Concurrence and Partial Dissent by Judge M. Smith; Concurrence by Judge Gould; Partial Concurrence and Partial Dissent by Judge Berzon FILED AND ENTERED JUDGMENT. [9277133]

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ID: 9277133

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C. B., a minor,

No. 11-17454
Plaintiff-Appellee,
v.

CITY OF SONORA; MACE MCINTOSH,
Chief of Police; HAL PROCK,
Officer,
Defendants-Appellants.

D.C. No.
1:09-cv-00285AWI-SMS

OPINION

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted En Banc
March 17, 2014—San Francisco, California
Filed October 15, 2014
Before: Alex Kozinski, Chief Judge, and Diarmuid F.
O’Scannlain, Sidney R. Thomas, Barry G. Silverman,
Susan P. Graber, Ronald M. Gould, Richard A. Paez,
Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Paez as to all but Part II.C.1.;
Opinion by Judge M. Smith as to Part II.C.1;
Partial Concurrence and Partial Dissent by Judge M. Smith;
Concurrence by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Berzon

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C.B. V. CITY OF SONORA
SUMMARY*

Civil Rights
The en banc court affirmed in part and reversed in part the
district court’s judgment entered following a jury trial, in an
action arising out of a decision by Sonora City Police
Department officers to handcuff and remove from school
grounds C.B., an 11-year-old child with attention-deficit and
hyperactivity disorder who was sitting on a bench and refused
to leave the playground.
The en banc court held that the 2003 amendment to Fed.
R. Civ. P. 51 abrogated prior case law that denied review of
jury instructions in civil cases in the absence of a timely
objection. The en banc court held that the plain error
standard of review in the civil context is similar to, but
stricter than, the plain error standard of review applied in
criminal cases. When reviewing civil jury instructions for
plain error, a court must consider, as in the criminal context,
whether (1) there was an error; (2) the error was obvious; and
(3) the error affected substantial rights. The en banc court
held that it is appropriate to consider the costs of correcting
an error, and—in borderline cases—the effect that a verdict
may have on nonparties. Finally, the court also held that the
decision whether to correct a plain error under Federal Rule
of Civil Procedure 51(d)(2) is discretionary.
The en banc court concluded that defendants had not
identified any plain error in the district court’s jury
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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instructions, that the district court’s evidentiary rulings were
not an abuse of discretion, and that defendants had not shown
they were entitled to a settlement offset.
The en banc court further held that defendants Chief
McIntosh and Officer Prock were not entitled to qualified
immunity on C.B.’s Fourth Amendment excessive force
claim because no officer could have reasonably believed that
their use of handcuffs to remove C.B. from school grounds
complied with the Fourth Amendment.
The en banc court held that Chief McIntosh and Officer
Prock were entitled to qualified immunity with respect to
C.B.’s unlawful seizure claim because a reasonable officer
would not have known that taking a child in C.B.’s situation
into temporary custody was unreasonable, and therefore
unconstitutional.
Concurring in part and dissenting in part, Judge M. Smith,
was joined in full by Judges O’Scannlain, Tallman and
Bybee, and was joined as to Part I, which is the opinion of the
court, by Judges Kozinski, Graber and Gould. In Part I of his
opinion, Judge M. Smith stated that a majority of the court
agreed that Chief McIntosh and Officer Prock were entitled
to qualified immunity with respect to C.B.’s unlawful seizure
claim. In Part II of his opinion, Judge M. Smith dissented
from the majority’s conclusion that the scope of C.B.’s right
to be free from excessive force was clearly established. In
his view, the officers were entitled to qualified immunity on
the excessive force claim because a reasonable officer would
not have known that handcuffing C.B. to safely take him into
temporary custody violated his constitutional rights.

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C.B. V. CITY OF SONORA

Concurring in part, Judge Gould, with whom Judges
Kozinski and Graber joined, agreed with Parts I, II.A, II.B,
II.C.2, and II.D of Judge Paez’s opinion, concerning the
factual background, rejection of the challenges to jury
instructions and to evidentiary rulings, and the conclusions
that Chief McIntosh and Officer Prock used excessive force
in violation of the Fourth Amendment when, in removing
C.B. from school grounds, they handcuffed him for 25 to 30
minutes and that they were not entitled to qualified immunity
for handcuffing C.B. Judge Gould joined in Part I of Judge
M. Smith’s opinion, concerning the unlawful seizure claim,
concluding that the officers were entitled to qualified
immunity as to the seizure of C.B.
Concurring in part and dissenting in part, Judge Berzon,
joined by Judge Thomas, agreed with Judge Paez’s opinion,
with one exception: As to C.B.’s unlawful seizure claim, she
concurred in the result reached by Judge Paez but would
reach that result via different reasoning. Because there was
no cause to believe C.B. could be detained under the relevant
California Welfare Code provisions, and no reasonable
officer could believe that there was, she would affirm the
judgment for C.B. on these grounds.
Dissenting in part, Judge Paez in Part II.C.1 of his
opinion, joined by Judge Silverman, disagreed that Chief
McIntosh and Officer Prock were entitled to qualified
immunity on C.B.’s Fourth Amendment seizure claim. Judge
Paez stated that the officers’ decision to seize C.B. and
remove him from school grounds was not reasonable and the
law was clearly established that, at a minimum, police
seizures at the behest of school officials had to be reasonable
in light of the circumstances and not excessively intrusive.

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C.B. V. CITY OF SONORA

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COUNSEL
Stephanie Y. Wu (argued) and Cornelius J. Callahan, Borton
Petrini LLP, Modesto, California, for Defendants-Appellants.
Julia Levitskaia (argued), John F. Martin, and Georgelle
Christina Heintel, Law Offices of John F. Martin, Walnut
Creek, California, for Plaintiff-Appellee.

OPINION
PAEZ, Circuit Judge:
This case arises out of a decision by Sonora City Police
Department officers to handcuff and remove from school
grounds an 11-year-old child with attention-deficit and
hyperactivity disorder (“ADHD”) who was doing nothing
more than sitting quietly and resolutely in the school
playground. After a seven-day trial, a jury found that the City
of Sonora, Sonora Chief of Police Mace McIntosh, and
Officer Harold Prock (collectively “Defendants”) were liable
for violating C.B.’s Fourth Amendment rights and for tortious
acts. The district court subsequently entered judgment on the
verdict, and Defendants appeal.
We must decide two central issues. First, we must decide
whether the district court’s supplemental jury instructions
were proper. To resolve this question, we also must
determine whether litigants may object to civil jury
instructions for the first time on appeal and, if so, what
standard of review governs such challenges. Second, we
must decide whether the district court erred in denying the
individual officers qualified immunity on C.B.’s

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constitutional claims. Additionally, Defendants raise several
evidentiary and post-judgment arguments, which we also
address. After setting forth the factual and procedural
background of the case, we turn to the district court’s
supplemental instructions.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.
On September 28, 2009, sixth-grader C.B. was having a
“rough” day at school. C.B. had been diagnosed with ADHD
and took prescribed medications to manage his symptoms,
but that morning, he had forgotten to take his medications.
As a result, he experienced periods of unresponsiveness
throughout the day; C.B., his parents, and school officials
described this as C.B. “shutting down.” The school was
aware of C.B.’s ADHD and had an accommodation plan
under § 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794, in place for him. The accommodation plan designated
Coach Karen Sinclair’s office as a safe space where C.B.
could go if he was experiencing a “shut down,” to calm
himself and refocus until he was ready to return to class.
Unfortunately, that day, things did not unfold according
to plan. When C.B. experienced a “shut down” during recess,
Coach Sinclair tried to convince him to go to her office, but
C.B. remained unresponsive and refused to leave the
playground. According to Coach Sinclair, during this
exchange, C.B. “reared up” on three different occasions from
the bench where he was sitting. Coach Sinclair then advised
C.B. that if he did not come inside, she would call the police.
To this, C.B. allegedly responded by saying, “call them.”

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C.B., however, testified that he never moved from the bench
or said anything to Coach Sinclair during this interaction.
Coach Sinclair testified that she made the decision to call
the police because she was concerned about C.B.’s safety.
She explained that her concern was based on an incident two
years earlier, during which C.B. had stated that “he was tired
of feeling the way he felt and he wanted to go out into traffic
and kill himself.” Coach Sinclair was particularly concerned
because the street outside the schoolyard was a busy
thoroughfare. Coach Sinclair admitted, however, that C.B.
had never previously attempted to run from her.
At Coach Sinclair’s behest, police were called. The
police dispatcher broadcast notice to the officers of “an out of
control juvenile.” When Chief McIntosh arrived at the
playground, Coach Sinclair whispered to him, “[r]unner[,]
[n]o medicine,” and made corresponding hand signals. Chief
McIntosh testified that he then sat down next to C.B. and
attempted to engage him in conversation, but C.B. was
unresponsive. He further testified that Coach Sinclair then
“started telling [him] that [C.B.] was out of control, had not
taken his medications, was yelling and cussing.” She also
advised Chief McIntosh that she no longer wanted C.B. on
the school grounds. Chief McIntosh did not ask any followup questions about C.B.’s medications or behavior. C.B.
remained completely quiet and unresponsive throughout the
time Chief McIntosh was with him.
Coach Sinclair’s testimony contradicted much of Chief
McIntosh’s account. She did not remember Chief McIntosh
ever making any effort to engage C.B. in conversation.
Beyond her initial statement that C.B. was a “runner” who
had not taken his medication, she could not recall conveying

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any other information to the police until she was subsequently
asked whether she wanted C.B. removed from the school
grounds, to which she said yes. Specifically, she testified that
she did not inform the police why she thought C.B. might run,
what medications he was on, C.B.’s history, or what had
transpired earlier that day. C.B. recalled Coach Sinclair
telling Chief McIntosh only that he was a “runner.”
Within a few minutes of Chief McIntosh’s arrival, Officer
Prock arrived. He testified that when he arrived, C.B. was
sitting quietly, looking at the ground. Coach Sinclair also
advised him that C.B. was a “runner,” but Officer Prock did
not learn that C.B. had not taken his medication until much
later. Officer Prock tried to engage C.B. in conversation, but
he remained unresponsive.
About three and a half minutes after Officer Prock
arrived, Chief McIntosh signaled that Officer Prock should
handcuff C.B. Officer Prock ordered C.B. to stand up, which
he did immediately. He then instructed C.B. to put his hands
behind his back—which C.B. again did immediately—and
handcuffed him. Notwithstanding the fact that C.B. had not
disobeyed a single police order, the officers did not explore
alternative options for handling the situation before
handcuffing him. When Officer Prock handcuffed C.B., C.B.
began to cry, believing that he was being taken to jail.
Once C.B. was handcuffed, the officers and Coach
Sinclair escorted him off the playground. Officer Prock then
pulled his police vehicle around and directed C.B.—still in
handcuffs—into the back seat. C.B. complied immediately.
During this entire time, no one spoke to C.B. or explained to
him why he had been handcuffed, that he was not under
arrest, or where the police were taking him. Officer Prock

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then transported C.B. to his uncle’s business.1 Although
Officer Prock’s vehicle was equipped with safety locks,
making it impossible for C.B. to escape, C.B. remained
handcuffed during the approximately thirty-minute ride to his
uncle’s place of business. C.B. testified that the handcuffs
caused him pain and left red marks.
Coach Sinclair, who was also the school disciplinarian,
testified that in the three years before this incident, she had
summoned police to Sonora Elementary School about fifty
times. Of those fifty times, police used handcuffs about
twenty times, even though about thirteen of those twenty
instances did not involve any known or suspected criminal
activity. When Officer Prock was handcuffing C.B., Coach
Sinclair asked whether the handcuffs were “really necessary,”
to which one of the officers replied that it was “procedure.”2
She further testified that she knew this was the police
department’s procedure because, in her experience, “any time
that the police have to take a child off of campus, whether it
be medical, drugs, fight, the child is handcuffed.” Officer
Prock also testified that he understood the police
department’s policy to permit officers to handcuff any
individual they were transporting in the back of a police
vehicle.

1
According to Officer Prock, when he called the business number on
C.B.’s emergency contact list, C.B.’s uncle advised him that C.B.’s
parents were out of town and unreachable and that he was currently taking
care of C.B.
2

At trial, Chief McIntosh and Officer Prock did not recall this exchange.

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C.B. V. CITY OF SONORA

Following this incident, C.B. experienced a host of
psychological and emotional problems, including difficulty
sleeping, low self-esteem, anger, irritability, and depression.
B.
C.B. filed this action against the Sonora School District,
Coach Sinclair, the City of Sonora, Sonora Chief of Police
McIntosh, and Officer Prock, alleging violations of his Fourth
Amendment rights, the Americans with Disabilities Act, the
Rehabilitation Act, and a number of state law tort claims.
C.B. settled his claims against the Sonora School District and
Coach Sinclair. After the district court denied Defendants’
motion for summary judgment on the basis of, inter alia,
qualified immunity, the case proceeded to trial against the
City of Sonora, Chief McIntosh, and Officer Prock on the
following claims: unlawful seizure and excessive force in
violation of the Fourth Amendment under 42 U.S.C. § 1983
and false arrest and intentional infliction of emotional distress
(“IIED”) under state law.
On the sixth day of trial, the jury returned its first verdict,
determining that: (1) Defendants were not liable for either
§ 1983 claim; (2) C.B. had proved that Chief McIntosh’s and
Officer Prock’s conduct intentionally caused him emotional
distress, and C.B. suffered harm as a result; (3) Chief
McIntosh and Officer Prock had established privilege, an
affirmative defense to the IIED claim; and (4) C.B. was
entitled to damages on the IIED claim. The verdict form also
left unanswered the verdict on the false arrest claim.
Realizing that the verdict on the IIED claim was internally
inconsistent, the district court proposed resubmitting the case
to the jury with clarifying instructions. Specifically, the court
recommended explaining to the jury that: (1) if it were to

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find the affirmative defense of privilege, it could not award
damages for IIED; (2) Question 11C, rather than Question
11D, corresponded to the IIED damages; and (3) it must
answer the question about false arrest. Counsel for both sides
agreed.
The court next addressed the jury, explaining that the
verdict contained “an inconsistency” and instructing the jury
that “[i]f you don’t find the [affirmative defense of] privilege,
then you can award damages, but you can’t award damages
if you find that the conduct is privileged.” The court also
noted a typographical error on page 9 of the verdict form
regarding where the jury was to record damages, if any, for
IIED, and directed the jury that it needed to respond to the
question about false arrest.3 After this instruction, the jury
again began deliberating.
Not long thereafter, the jury sent the judge the following
written question:
Clarify question 8
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?
Jury Instruction 20 set out the elements of the affirmative
defense of privilege to the IIED claim, and Question 8 on
page 9 on the verdict form asked for the jury’s verdict on
whether the officers’ conduct was privileged. At a

3

Although the court said that it would provide corrected verdict forms,
the final verdict form still referenced the wrong damages question in
relation to the IIED claim.

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conference with counsel, the court proposed answering the
question in the affirmative. Counsel for Defendants
requested that the court also explain again that if the jury
were to find privilege, it must move on to the next claim and
not award damages for IIED, which the court agreed to do.
When the jury returned to the courtroom, the court
described the framework for IIED claims. The court first
explained C.B.’s case-in-chief. Then, it discussed the three
elements of the affirmative defense of privilege, as set out in
Jury Instruction 20, stating that “if you find yes as to all of
those three things, in light of the elements of the intentional
infliction of emotional distress, that is called a complete
defense and it eliminates liability for damages.” Turning
specifically to the jury’s question, the court further explained,
“so your inquiry here on question number . . . 8, which is the
affirmative defense[,] is have the defendants proved the
things that are required to be proved on page 23, which is jury
instruction 20, the privilege defense.” Having clarified that
Question 8 on the verdict form corresponded to Jury
Instruction 20, the court again discussed the relationship
between a finding of privilege and damages. Finally, the
court reminded the jury that it needed to answer the question
about false arrest, and indicated that it would provide a new
page 11 of the verdict form because of a second typographical
error.4
4

Question 10, on page 11 of the verdict form, concerned probable cause,
the affirmative defense for the false arrest claim. Earlier, C.B.’s counsel
had advised the court that the verdict form incorrectly directed the jury to
answer Question 11D, the damages question for false arrest, if it found
that Defendants had proved probable cause. The court agreed that the
instruction should have read: “‘If you answer yes as to any defendant’ –
then it should be do not answer 11D. If you answer the question no as to
– it should be either defendant, answer question 11D.” Consequently,

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The jury then asked a follow-up question while it was still
in the courtroom.
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?
Questions 6 and 7 asked whether C.B. had met his burden of
proof on the elements of IIED. The jury was essentially
asking whether it could find that C.B. proved his case-inchief and still find that Defendants proved their affirmative
defense.
The court responded by again explaining the framework
for IIED claims. Noting that the jury had effectively found
that C.B. met his burden of proving liability, the court
explained that “then the question becomes is there an award
of damages.” The court went on: “However, under the law,
the defendants are entitled to assert what is called an
affirmative defense. And an affirmative defense has the legal
effect of negating the finding of liability.” While not the
most direct response, this statement informed the jury that it
could, in fact, answer yes to Questions 6 and 7 and still find
privilege. The court again set out the elements of privilege,

after responding to the jury’s question, the court advised the jury of this
error and indicated it would provide a corrected page 11. The final verdict
form does, in fact, reflect the correct instruction on page 11.

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concluding by telling the jury that “[i]f you find those things,
then that negates, if you will, the intentional infliction of the
emotional distress.”
Juror Number 8, apparently still confused, asked, “[a]nd
that is not a conflict?” To this, the court responded:
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. In other words, you have to decide
what -- what was being thought, what was
observed and what was being done under the
totality of the circumstances, recognizing
what the law is that tells the officers what they
can and can’t do in dealing with the plaintiff.
Remember, this is measured objectively
by what a reasonable officer in the position of
the two defendants would do knowing
everything that they knew on the scene with
what was happening there. It’s an objective
standard.
And this, particularly, examines their
conduct in light of the law, in light of what
they knew and what they, in good faith,
believed and what they did. 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

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it. The attorneys have told you how to do it in
their arguments, but it’s for you to make the
ultimate decisions.
Again, the court’s explanation, although somewhat longwinded, made clear that a finding of privilege was consistent
with a finding of IIED if the facts sustained Defendants’
assertions. Shortly after asking another question about
privilege, the jury went home for the evening.
The following morning, at a conference outside the jury’s
presence, Defendants’ counsel urged the court to instruct the
jury to resume their deliberations with Question 9. The court
rejected the requested instruction. Instead, it proposed to
instruct the jury “simply to re-deliberate on the questions that
are still open.” Once the jury entered the courtroom, the
court stated that it “wanted to review briefly where we are so
that hopefully you understand and are clear.” The court
instructed the jury as follows:
[O]ur suggestion to you is that you consider
the findings that you’ve made to the prior
questions, you consider the evidence in light
of the instruction that you’re being asked to
answer when you are on the verdict form.
And that is you have questions 6 and you
have questions 7, which you’ve already
answered. You’ve answered question 8. And
then you have correct instructions on question
number 8 as to which questions you should be
answering in question 11. You then have a
claim that you’ve not decided, and that is the

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C.B. V. CITY OF SONORA
false arrest claim. And that’s question 9A and
B. And you have a revised instruction on that.

The court then discussed in greater detail some changes that
were made to the instruction regarding false arrest.
Following this supplemental instruction, the jury requested to
receive the prior day’s instructions on privilege again,
indicating “that’s where we’re really fighting right now.”
At a sidebar with counsel, the court advised the parties
that it would make “an overarching statement” to “consider[]
the elements affirmatively and defensively on each side.”
The court began by summarizing all of the claims, stating:
You have four claims that are brought by
the plaintiff. You have two civil rights
claims. One for the use of excessive force and
one for the use -- or the unlawful seizure in
the taking into temporary custody and the
length of the detention and all the
circumstances of the detention that the
temporary custody involved.
Those are federal claims.
After this brief mention of the federal claims, the court
focused on the state law claims and affirmative defenses.
With respect to IIED, the court stated:
And so, in looking at the two state claims,
you have the intentional infliction of
emotional distress.
And then, in jury
instruction number 20, you have the defense

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of privilege and the elements that have to be
proved by a preponderance of the evidence.
So when you are considering that defense,
you consider the totality of the circumstances.
You consider what went in to the claims that
you analyzed, the elements of those claims
and all the evidence that bears on that. Then
you analyze the elements of the defense, all
the evidence that bears on that.
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.
Then, the court went on to address false arrest.
The jury deliberated for about four more hours before
returning a verdict for C.B. on all claims. The district court
denied Defendants’ motions for judgment as a matter of law,
a new trial, and remittitur and entered judgment in favor of
C.B.
Defendants appeal, arguing: (1) the district court’s
supplemental jury instructions were so coercive and
confusing as to warrant a new trial; (2) the individual officers
are entitled to qualified immunity with respect to C.B.’s
§ 1983 Fourth Amendment claims; (3) several of the district
court’s evidentiary rulings were erroneous and warrant
reversal; and (4) the district court erred in denying an offset
against the overall damages award by the amount of C.B.’s

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settlement with the Sonora School District. Without
specifying the standard of review it applied, a three-judge
panel of this court unanimously held that the district judge’s
supplemental jury instructions and colloquy were sufficiently
misleading as to require a new trial. C.B. v. City of Sonora,
730 F.3d 816, 823–24 (9th Cir. 2013); see also id. at 827
(McKeown, J., dissenting) (agreeing with the majority on this
point). In a split decision, a majority of the panel also held
that the individual officers were entitled to qualified
immunity. Id. at 824–27 (Maj. Opin.); see also id. at 827–31
(McKeown, J., dissenting).5 Upon a majority vote of eligible
judges, the court granted rehearing en banc. C.B. v. City of
Sonora, 755 F.3d 1043 (9th Cir. 2014).
II. DISCUSSION
A.
1.
We must first decide the standard of review that governs
Defendants’ challenge to the district court’s jury instructions.
Historically, we have refused to review jury instructions in a
civil case in the absence of a timely objection under Federal
Rule of Civil Procedure 51(c). See Voohries-Larson v.
Cessna Aircraft Co., 241 F.3d 707, 713–14 (9th Cir. 2001);
Larson v. Neimi, 9 F.3d 1397, 1399 (9th Cir. 1993). In 2003,
however, Rule 51 was amended to provide for plain error
review when a party fails to preserve an objection. Fed. R.
Civ. P. 51 advisory committee’s note. We have since

5

Because the three-judge panel opinion vacated and remanded for a new
trial, it did not reach the remainder of Defendants’ arguments. C.B.,
730 F.3d at 824 n.4.

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indicated, in dictum, that this amendment abrogated our prior
case law, see Hunter v. Cnty. of Sacramento, 652 F.3d 1225,
1230 n.5 (9th Cir. 2011), and we now so hold. We also take
this opportunity to clarify the scope of plain error review
under Rule 51. We conclude that the plain error standard of
review in the civil context is similar to, but stricter than, the
plain error standard of review applied in criminal cases.6
Federal Rule of Civil Procedure 51(d)(2) states that “[a]
court may consider a plain error in the instructions that has
not been preserved as required by Rule 51(d)(1) if the error
affects substantial rights.” The advisory committee’s note
explains that subsection (d)(2) was adopted to capture the
existing rule in many of our sister circuits that errors in jury
instructions not preserved under Rule 51(d) “may be
reviewed in exceptional circumstances.” Fed. R. Civ. P. 51
advisory committee’s note. Although the precise rule varied
somewhat from circuit to circuit, most of our sister circuits at
the time applied a standard of review that resembled the plain

6

Although we have previously refused to review jury instructions in the
absence of a timely objection at trial, we have reviewed for plain error
evidentiary, closing argument, and attorney misconduct challenges that
were not contemporaneously raised at trial. See, e.g., Settlegoode v.
Portland Pub. Sch., 371 F.3d 503, 516–17 (9th Cir. 2004); Hemmings v.
Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002); Bird v. Glacier
Electric Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001); Beachy v. Boise
Cascade Corp., 191 F.3d 1010, 1016 (9th Cir. 1999); McClaran v. Plastic
Indus., Inc., 97 F.3d 347, 357 n.9 (9th Cir. 1996). The standard that we
adopt now for reviewing belated objections to civil jury instructions is
consistent with our standard for reviewing other untimely objections in
civil cases.

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error standard in criminal cases.7 Moreover, “[t]he language
adopted to capture these decisions in subdivision (d)(2) is
borrowed from [Federal] Rule [of Criminal Procedure] 52.”
Fed. R. Civ. P. 51 advisory committee’s note; see also Fed.
R. Crim. P. 52(b). Finally, the advisory committee’s note
suggests that the plain error standard of review in the criminal
context should inform our inquiry. See Fed. R. Civ. P. 51
7

Compare United States v. Olano, 507 U.S. 725, 732 (1993) (explaining
that before a court will consider a forfeited objection in the criminal
context, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s]
substantial rights,’” and, even then, “the decision to correct the forfeited
error [is] within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings’” (some
alterations in original) (quoting United States v. Young, 470 U.S. 1, 15
(1985))), with Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc.,
314 F.3d 48, 61 (2d Cir. 2002) (explaining that in the civil context review
is limited to “fundamental error,” which is an error that is “so serious and
flagrant that it goes to the very integrity of the trial” (internal quotation
marks omitted)), Babcock v. Gen. Motors Corp., 299 F.3d 60, 64–65 (1st
Cir. 2002) (recognizing that reversal for plain error in the civil context
requires that “(1) there be error; (2) the error was ‘plain’ (i.e.[,] obvious
and clear under current law); (3) the error affected substantial rights; and
(4) the error threatened a miscarriage of justice”), Cozzo v. Tangipahoa
Parish Council–President Gov’t, 279 F.3d 273, 293–94 (5th Cir. 2002)
(stating that to reverse for plain error in civil jury instructions, the court
“must find an obviously incorrect statement of law that was probably
responsible for an incorrect verdict, leading to substantial injustice”),
Black v. M & W Gear Co., 269 F.3d 1220, 1232 (10th Cir. 2001) (“[T]his
court will not review instructions given to which no objections were
lodged before the jury retired for deliberation unless they are patently
plainly erroneous and prejudicial.” (internal quotation marks omitted)),
and Fashauer v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1289
(3d Cir. 1995) (“[W]e should notice the error only if it is fundamental and
highly prejudicial or if the instructions are such that the jury is without
adequate guidance on a fundamental question and our failure to consider
the error would result in a miscarriage of justice.” (internal quotation
marks and brackets omitted)).

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advisory committee’s note (setting forth the plain error
standard of review in criminal cases and citing Johnson v.
United States, 520 U.S. 461, 466–67, 469–70 (1997)).
Yet, the advisory committee’s note accompanying the
amended Rule 51 also cautions that “the context of civil
litigation often differs from the context of criminal
prosecution” and instructs that “actual application of the
plain-error standard takes account of the differences.” Id.
After setting out the plain error standard under Federal Rule
of Criminal Procedure 52, the advisory committee’s note
highlights four factors to consider in applying plain error
review in the civil context: (1) the obviousness of the
mistake; (2) the importance of the error; (3) the costs of
correcting an error; and (4) “[i]n a case that seems close to
the fundamental error line, . . . the impact a verdict may have
on nonparties.” Id. While the first two factors roughly
correspond to the plain error standard of review governing
criminal cases, the latter two factors are not part of the
standard plain error inquiry. See Puckett v. United States,
556 U.S. 129, 135 (2009); Johnson, 520 U.S. at 466–67;
Olano, 507 U.S. at 732.
Following the 2003 amendments, several circuits have
reaffirmed that plain error review in the civil context is
similar to the plain error standard governing criminal cases.8
8

See, e.g., Bauer v. Curators of Univ. of Mo., 680 F.3d 1043, 1045 (8th
Cir. 2012) (relying on Olano for the plain error standard of review under
Rule 51); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006)
(“To succeed under the plain error standard, defendants must show that:
(1) an error was committed; (2) the error was plain (i.e.[,] obvious and
clear under current law); (3) the error was prejudicial (i.e.[,] affected
substantial rights); and (4) review is needed to prevent a miscarriage of
justice, meaning that the error seriously impaired the fairness, integrity, or

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We now join our sister circuits and hold that, when reviewing
civil jury instructions for plain error, we must consider, as we
do in the criminal context, whether (1) there was an error;
(2) the error was obvious; and (3) the error affected
substantial rights. See Johnson, 520 U.S. at 466–67; Olano,
507 U.S. at 732. The text of Federal Rule of Civil Procedure
51(d)(2), which bears a significant resemblance to the text of
Federal Rule of Criminal Procedure 52(b), supports this
standard. Compare Fed. R. Civ. P. 51(d)(2) (“A court may
consider a plain error in the instructions that has not been
preserved as required by Rule 51(d)(1) if the error affects
substantial rights.”), with Fed. R. Crim. P. 52(b) (“A plain
error that affects substantial rights may be considered even
though it was not brought to the court’s attention.”).
Moreover, the advisory committee’s note also weighs in favor
of this standard. Fed. R. Civ. P. 51 advisory committee’s
note; see Schiavone v. Fortune, 477 U.S. 21, 31 (1986)
(recognizing that the advisory committee’s notes on the
Federal Rules of Civil Procedure are “of weight” (internal
quotation marks omitted)); United States v. Petri, 731 F.3d
833, 839 (9th Cir.) (consulting the advisory committee’s
notes accompanying an amendment to the Federal Rules of
Criminal Procedure in interpreting the amendment), cert.
denied, 134 S. Ct. 681 (2013).
But we also recognize that the stakes are lower in the civil
context and, consequently, plain errors should “encompass[]
only those errors that reach the pinnacle of fault envisioned
by the standard set forth above.” Hemmings, 285 F.3d at

public reputation of judicial proceedings.” (internal quotation marks
omitted)); Higbee v. Sentry Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006)
(“The Advisory Committee notes to the new Rule 51 make clear that we
should be guided by the principles of plain error in the criminal context.”).

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1193 (internal quotation marks omitted).9 Accordingly, when
reviewing civil jury instructions for plain error, we find it
appropriate to consider the costs of correcting an error,
and—in borderline cases—the effect that a verdict may have
on nonparties. See Fed. R. Civ. P. 51 advisory committee’s
note; Schiavone, 477 U.S. at 31; Petri, 731 F.3d at 839.
Finally, we also hold that the decision whether to correct
a plain error under Federal Rule of Civil Procedure 51(d)(2)
is discretionary. This conclusion flows from the permissive
text in Federal Rule of Civil Procedure 51(d)(2). Fed. R. Civ.
P. 51(d)(2) (“A court may consider a plain error . . . .”
(emphasis added)); see also Conlon v. United States, 474 F.3d
616, 624–25 (9th Cir. 2007) (explaining that use of the word
“may” in Federal Rule of Civil Procedure 36(b) suggests that
the district court has discretion in ruling on Rule 36 motions).
Moreover, the permissive text of Federal Rule of Civil
Procedure 51 parallels Federal Rule of Criminal Procedure
52(b). See Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered . . . .” (emphasis added)).
It is well-established that a court of appeals has discretion to
correct a forfeited error under Federal Rule of Criminal
Procedure 52(b), and should do so only if the error
“‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Olano, 507 U.S. at 732 (quoting
Young, 470 U.S. at 15); see also Johnson, 520 U.S. at
9

We are not alone in recognizing that Rule 51’s plain error standard is
stricter than its criminal counterpart. See, e.g., Quigley v. Winter,
598 F.3d 938, 950 (8th Cir. 2010) (“Plain error is a stringently limited
standard of review, especially in the civil context . . . .” (internal quotation
marks omitted)); SEC v. DiBella, 587 F.3d 553, 569 (2d Cir. 2009) (noting
that the standard of review in the civil context “is more stringent than the
plain error standard applicable to criminal appeals under Federal Rule of
Criminal Procedure 52(b)” (internal quotation marks omitted)).

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466–67; United States v. Alferahin, 433 F.3d 1148, 1154 (9th
Cir. 2006). Furthermore, a number of our sister circuits agree
that the decision to correct a plain error under Federal Rule of
Civil Procedure 51(d)(2) is discretionary.10 We therefore
conclude that we should exercise our discretion to correct
errors under Rule 51(d)(2) only if “review is needed to
prevent a miscarriage of justice, meaning that the error
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.” Diaz-Fonseca, 451 F.3d at 36
(internal quotation marks omitted); see also Olano, 507 U.S.
at 732.
2.
With these principles in mind, we turn to the particulars
of this case.11 Defendants argue that the judgment on the
10

See Jimenez v. Wood Cnty., 660 F.3d 841, 845 (5th Cir. 2011) (en
banc) (explaining that the court has discretion to correct an unpreserved
error if it meets the plain error standard); Higbee, 440 F.3d at 409
(recognizing that plain error review is discretionary); Franklin
Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 341 (3d Cir. 2005)
(“Plain error review is discretionary—it should be exercised sparingly and
should only be invoked with extreme caution in the civil context.”
(internal quotation marks omitted)).
11

Defendants contend that plain error review should not govern this case
because (1) they lacked the opportunity to object to the district court’s
extemporaneous instructions, (2) their request that the district court direct
the jury to begin re-deliberating with the question regarding false arrest
served as adequate notice to the court of the nature of their objection, and
(3) C.B. waived any argument that Defendants did not preserve their
objections to the jury instructions by failing to raise it before the district
court.
We reject these arguments. First, Defendants are correct that C.B.
failed to argue, in opposition to Defendants’ Motion for a New Trial, that

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verdict should be reversed because the supplemental jury
instructions were confusing and coerced the jury to reverse its
initial verdict. C.B. contends that the district court’s
supplemental instructions were accurate and that nothing the
court said misled or influenced the jury to revise its findings
as to the other claims. We conclude that the district court’s
supplemental jury instructions fall far short of plain error.
Defendants identify four errors in the district court’s
supplemental instructions. First, they contend that the court
confused the jury by referring to the initial verdict as
“inconsistent” without explaining what it meant by that term.
The record belies this argument. In the course of telling the
jury that the verdict contained “an inconsistency,” the court
explained that “[i]f you don’t find . . . privilege, then you can
award damages, but you can’t award damages if you find that
the conduct is privileged.”

Defendants did not preserve their objections to the district court’s
supplemental jury instructions. However, we may consider C.B.’s
argument nonetheless because it raises a purely legal question and
Defendants have offered no reason why C.B.’s failure to raise this
argument in his post-trial briefs has prejudiced them. See Zhang v. Am.
Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Second,
Federal Rule of Civil Procedure 51(c)(2) provides that an objection to a
jury instruction is timely if a party was not informed of an instruction in
advance, and the party objects promptly after the instruction has been
given. Defendants therefore could have objected to the supplemental
instructions after they were given, but they failed to do so. Finally,
Defendants’ request that the jury be instructed to begin deliberating with
the question on false arrest, falls far short of Rule 51(c)(1)’s requirement
that a litigant “stat[e] distinctly the matter objected to and the grounds for
the objection.” Fed. R. Civ. P. 51(c)(1); see also Hunter, 652 F.3d at 1231
(recognizing that “‘objections to a charge must be sufficiently specific to
bring into focus the precise nature of the alleged error’” (quoting Palmer
v. Hoffman, 318 U.S. 109, 119 (1943))).

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Second, Defendants argue that the district court’s
response to the jury’s request for clarification was confusing
and coercive because it fell “far outside the scope of the
jury’s” question. The jury initially asked whether it should
answer yes to Question 8 on the verdict form, the question
about privilege, if it found that all of the elements of privilege
as set out in Jury Instruction 20, were present. This question
could have been answered with a simple “yes.” Defendants,
however, asked the court to provide a more complete
explanation of the relationship between a finding of privilege
and an award of damages. At Defendants’ own request then,
the court responded to the jury’s question with an overview
of the IIED claim. Moreover, in giving this instruction, the
court answered the jury’s specific question, stating, “[a]nd so
your inquiry here on question number . . . 8, which is the
affirmative defense[,] is have the defendants proved the
things that are required to be proved on page 23, which is jury
instruction 20, the privilege defense.” A district court has
“wide discretion” in responding to jury questions, Arizona v.
Johnson, 351 F.3d 988, 994 (9th Cir. 2003), and the
explanation here was well within the court’s discretion.
Although Defendants complain that the court “went on for an
additional 8 pages of transcript,” the only other statements
that the court volunteered were a reminder that the jury also
had to answer the question about false arrest and that the jury
would be given a corrected verdict form. All other
instructions were in response to follow-up questions posed by
the jury.
Third, Defendants argue that the supplemental
instructions given in response to the follow-up questions were
confusing because they told the jury to consider the “totality
of the circumstances”—a phrase that appears in the court’s
instruction on probable cause—in determining whether the

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individual officers’ conduct was privileged. We find no error
in this statement. This instruction did nothing more than
admonish the jury to consider all of the facts that bear on the
question of privilege. The court’s use of the phrase “totality
of the circumstances” was tailored to the supplemental
instructions and was not a veiled suggestion to revisit the
Fourth Amendment claims.
Finally, Defendants argue that the court’s instruction that
certain findings should be consistent erroneously implied that
the jury must return a verdict uniformly in favor of one party.
We conclude that the court’s instructions did no such thing;
the court’s comment about “consistency” was clearly tethered
to its discussion of the state IIED claim. On the final day of
deliberations, the court provided the jury with a brief
overview of the “two civil rights claims,” but concluded its
discussion of those claims by stating:
Those are federal claims.
Then you have two claims, the third and
the fourth claims. One is for intentional
infliction of emotional distress and the other
is for false arrest. . . .
And so as to the two state law claims, the
defendants assert what are called affirmative
defenses.
After providing this framework for the state law claims, the
court directed the jury’s attention to the IIED claim,
explaining:

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And so, in looking at the two state claims,
you have the intentional infliction of
emotional distress.
And then, in jury
instruction number 20, you have the defense
of privilege and the elements that have to be
proved by a preponderance of the evidence.
So when you are considering that defense,
you consider the totality of the circumstances.
You consider what went in to the claims that
you analyzed, the elements of those claims
and all the evidence that bears on that. Then
you analyze the elements of the defense, all
the evidence that bears on that.
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.

In this context, the court’s reference to “consistency” could
mean only that the jury’s factual findings had to be internally
consistent and reconcilable with its ultimate conclusion as to
the IIED claim and the privilege defense. The court’s
statement may not be a model of clarity, but we are confident
that no reasonable jury could have understood it as a direction
to return a verdict wholly in favor of one party.
In sum, Defendants have not identified any error in the
district court’s supplemental jury instructions, let alone a
plain error.

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B.
Defendants also challenge several of the district court’s
evidentiary rulings. We review a district court’s evidentiary
rulings for abuse of discretion. Gribben v. United Parcel
Serv., Inc., 528 F.3d 1166, 1171 (9th Cir. 2008). We will
reverse on the basis of an erroneous evidentiary ruling only
if the error was prejudicial. Harper v. City of L.A., 533 F.3d
1010, 1030 (9th Cir. 2008); Tritchler v. Cnty. of Lake,
358 F.3d 1150, 1155 (9th Cir. 2004). Here, the district court
did not abuse its discretion in excluding testimony that Coach
Sinclair thought that C.B. might be suicidal and in allowing
testimony about past incidents in which police had used
handcuffs at Sonora Elementary School.
It is undisputed that Coach Sinclair did not, at any point,
tell the officers that she thought C.B. might be suicidal, nor
did the officers otherwise learn that information. The district
court correctly reasoned that testimony that Coach Sinclair
thought C.B. might be suicidal was irrelevant; information
that the officers did not know could not justify their decision
to seize C.B. See Moreno v. Baca, 431 F.3d 633, 640 (9th
Cir. 2005) (recognizing that an outstanding arrest warrant for
the plaintiff could not be used to justify his arrest where the
arresting officers had no knowledge of the warrant).
Moreover, the court stated that if Coach Sinclair’s motive for
calling the police was questioned, she would be able to testify
about the incident in which C.B. told her he wanted to run out
into traffic. The court, however, concluded that the
prejudicial effect of testimony characterizing C.B. as
“suicidal” outweighed any probative value such testimony
might have. Where “[t]he record reflects that the court
conscientiously weighed the probative value against the
prejudicial effect for each piece of evidence,” we will not

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reverse. Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th
Cir. 2009).
The district court also did not abuse its discretion in
allowing Coach Sinclair to testify about past incidents of
handcuffing at Sonora Elementary School. To prove his
Fourth Amendment claim against the City of Sonora, C.B.
had to prove that the city maintained an unlawful custom or
practice that was a cause of his constitutional injury. See
Fairley v. Luman, 281 F.3d 913, 916 (9th Cir. 2002) (per
curiam) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690–91 (1978)). Here, C.B. sought to do just that by
introducing testimony from Coach Sinclair that the Sonora
Police Department, as a matter of routine procedure,
employed handcuffs any time it removed an elementary
school child from school grounds. “We have long recognized
that a custom or practice can be inferred from widespread
practices or evidence of repeated constitutional violations for
which the errant municipal officers were not discharged or
reprimanded.” Hunter, 652 F.3d at 1233 (internal quotation
marks omitted)); see also Menotti v. City of Seattle, 409 F.3d
1113, 1147–48 (9th Cir. 2005) (holding that testimony from
individuals whom officers prohibited from wearing anti-WTO
buttons created a genuine issue of material fact as to whether
Seattle had an unconstitutional policy of restricting only antiWTO speech).
The district court properly rejected
Defendants’ contention that Coach Sinclair’s testimony about
prior incidents of handcuffing at Sonora Elementary School
was irrelevant. Nor can Defendants protest that the evidence
was unduly prejudicial because it created an inference of an
unlawful municipal custom or policy; that was the very

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purpose of the evidence. Because the district court’s
evidentiary rulings were not an abuse of discretion, we will
not reverse the judgment on this basis.
C.
Next we turn to Chief McIntosh’s and Officer Prock’s
qualified immunity arguments. We review de novo a district
court’s qualified immunity order denying judgment as a
matter of law. LaLonde v. Cnty. of Riverside, 204 F.3d 947,
958–59 (9th Cir. 2000); see also A.D. v. Cal. Highway Patrol,
712 F.3d 446, 453 (9th Cir.), cert. denied, 134 S. Ct. 531
(2013).12 In doing so, we “view all evidence in the light most
favorable to the nonmoving party, draw all reasonable
inferences in favor of the non-mover, and disregard all
evidence favorable to the moving party that the jury is not
required to believe.” Harper, 533 F.3d at 1021. To
determine whether an individual officer is entitled to
qualified immunity, we ask (1) whether the official violated
a constitutional right and (2) whether the constitutional right
was clearly established. Pearson v. Callahan, 555 U.S. 223,
232, 236 (2009); A.D., 712 F.3d at 453–54.

12

C.B. argues that Chief McIntosh and Officer Prock waived their
Federal Rule of Civil Procedure 50(b) qualified immunity argument
because they failed to make a timely Rule 50(a) motion. Because C.B.
failed to raise this argument below, it is waived. See Graves v. City of
Coeur D’Alene, 339 F.3d 828, 838–39 (9th Cir. 2003) (holding that when
a party does not raise its opponent’s failure to abide by Rule 50(a) in
district court, on appeal, the procedural flaw in the Rule 50(b) motion is
waived), abrogated on other grounds by Hiibel v. Sixth Judicial Dist.
Court, 542 U.S. 177 (2004).

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1.13
a.

C.B. argues that his seizure violated the Fourth
Amendment because the officers lacked probable cause to
arrest him. The Fourth Amendment provides: “The right of
the people to be secure in their persons . . . against
unreasonable searches and seizures[] shall not be violated
. . . .” As a general principle, “Fourth Amendment seizures
are reasonable only if based on probable cause to believe that
the individual has committed a crime.” Bailey v. United
States, 133 S. Ct. 1031, 1037 (2013) (internal quotation
marks omitted). The Supreme Court has recognized a narrow
exception to the Fourth Amendment’s probable cause
requirement “when special needs, beyond the normal need for
law enforcement, make the . . . requirement impracticable.”
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)
(internal quotation marks omitted).
In New Jersey v. T.L.O., the Court first recognized that
“[t]he school setting . . . requires some modification of the
level of suspicion of illicit activity needed to justify a search.”
469 U.S. 325, 340 (1985). Acknowledging that the “privacy
interests of school children” must be balanced against the
“substantial need of teachers and administrators for freedom
to maintain order in the schools,” the Court held that, in the
school setting, a search by teachers or school officials need
only be reasonable under all the circumstances. Id. at 341.
It explained the reasonableness inquiry as follows:

13

Part II.C.1, in which Judge Silverman joins, is Judge Paez’s dissent
from the majority’s holding that Chief McIntosh and Officer Prock are
entitled to qualified immunity on C.B.’s Fourth Amendment seizure claim.

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Determining the reasonableness of any search
involves a twofold inquiry: first, one must
consider whether the . . . action was justified
at its inception; second, one must determine
whether the search as actually conducted was
reasonably related in scope to the
circumstances which justified the interference
in the first place.
Under ordinary
circumstances, a search of a student by a
teacher or other school official will be
justified at its inception when there are
reasonable grounds for suspecting that the
search will turn up evidence that the student
has violated or is violating either the law or
the rules of the school. Such a search will be
permissible in its scope when the measures
adopted are reasonably related to the
objectives of the search and not excessively
intrusive in light of the age and sex of the
student and the nature of the infraction.
Id. at 341–42 (internal quotation marks, citations, and
footnotes omitted). We, and several of our sister circuits,
have extended T.L.O. to seizures of students by school
officials. Doe ex rel. Doe v. Haw. Dep’t of Educ., 334 F.3d
906, 909 (9th Cir. 2003); see also Wallace ex rel. Wallace v.
Batavia Sch. Dist. 101, 68 F.3d 1010, 1012–14 (7th Cir.
1995); Hassan ex rel. Hassan v. Lubbock Indep. Sch. Dist.,
55 F.3d 1075, 1079–80 (5th Cir. 1995); Edwards ex rel.
Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989).
T.L.O. is distinguishable from this case in a critical
respect:
T.L.O. involved the conduct of school
administrators, not law enforcement officers. 469 U.S. at

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328.
We have not yet decided whether T.L.O.’s
reasonableness standard or, instead, traditional Fourth
Amendment rules apply to law enforcement searches and
seizures in school settings, and there is no need to do so
today.14 At the time of the incident, at least two of our sister
circuits had held that T.L.O.’s reasonableness standard
governs law enforcement conduct concerning school-related
incidents in school settings. See Gray ex rel. Alexander v.
Bostic, 458 F.3d 1295, 1304 (11th Cir. 2006) (applying
T.L.O. in analyzing an unlawful seizure claim against deputy
at an elementary school); Shade v. City of Farmington,
309 F.3d 1054, 1060–61 (8th Cir. 2002) (applying T.L.O. to
evaluate the legality of a search conducted by law
enforcement officers in conjunction with school officials).
Consequently, at the time of this incident, an officer could
have reasonably believed that T.L.O. governed law
enforcement searches and seizures on school grounds for
school-related purposes.
Nonetheless, applying T.L.O.’s reasonableness standard
does not aid Chief McIntosh and Officer Prock. Taking the
facts in the light most favorable to C.B., see Harper, 533 F.3d
14
As to law enforcement searches and seizures that pursue law
enforcement objectives, we held in Greene v. Camreta that the “special
needs” doctrine did not apply to seizures on school grounds in which “law
enforcement personnel and purposes were . . . deeply involved.” 588 F.3d
1011, 1026–27 (9th Cir. 2009). The Supreme Court vacated that holding
as moot, but did not disapprove our reasoning. Camreta v. Greene, 131
S. Ct. 2020, 2026–27 (2011); see also Jones v. Hunt, 410 F.3d 1221, 1228
(10th Cir. 2005) (holding that because a seizure by a deputy sheriff on
school grounds “does not involve efforts by school administrators to
preserve order on school property, it does not implicate the policy
concerns addressed in T.L.O. and therefore does not merit application of
the T.L.O. standard,” but declining to specify which Fourth Amendment
standard does apply).

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at 1021, the officers knew only the following when they
decided to handcuff C.B. and remove him from school
grounds: (1) the school had reported an “out of control”
juvenile; (2) C.B. was a “runner”—whatever that may
mean—who had not taken some unknown medication;
(3) C.B. sat quietly looking at the ground and never made any
movements the whole time police were present; (4) C.B. was
unresponsive in the three and a half minutes during which
Officer Prock tried to engage with him; and (5) Coach
Sinclair wanted C.B. removed from the school grounds.
The officers acted reasonably at the outset by seeking to
engage with C.B. to investigate the dispatch that they had
received about an “out of control” minor. What they found,
though, was a quiet but nonresponsive child. During the
entire time police were present, the child did nothing
threatening or disobedient. Although Coach Sinclair
mentioned that C.B. was a “runner” who had not taken his
medication, the officers did not ask a single follow-up
question to learn what Coach Sinclair meant and never
inquired what had prompted the dispatch. Nor did they
consider any less intrusive solutions, such as ordering C.B. to
return inside the school building, or asking a guardian to pick
up the child.15 See T.L.O., 469 U.S. at 342 (explaining that a
search must not be “excessively intrusive in light of . . . the
nature of the infraction”). When viewed in relation to these
15

In fact, C.B.’s uncle testified that Officer Prock reached him on the
telephone, and informed him that “the school had called the police
department out and [C.B.] could be picked up or needed to be transported
to our business.” C.B.’s uncle responded, “Well, I would normally pick
him up,” to which the officer replied, “Well, we’ve already got him in the
car and we’d like to bring him to you. We want to bring him to your place
of business.” C.B.’s uncle recalled “agree[ing] to that, wanting to comply
with the police department.”

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circumstances, the officers’ decision to seize C.B. and
remove him from school grounds was not reasonable.
Judge Gould contends that this approach overlooks
T.L.O.’s instruction that a school official’s judgment about
the rules necessary to maintain school order is entitled to
deference. Gould Concurrence at 64–65. No one seriously
questions that principle. Coach Sinclair and other school
officials set the rules that govern student behavior, and they
may require students to obey their instructions, to take their
prescribed medications, to not run away, and so on. The
adoption of such rules “presumably reflects a judgment on the
part of school officials that such conduct is destructive of
school order or of a proper educational environment.” T.L.O.,
469 U.S. at 343 n.9. “Absent any suggestion that the rule
violates some substantive constitutional guarantee,” we will
defer to the school officials’ judgment that the rule furthers
school order. Id. Coach Sinclair’s statement—“[r]unner[,]
[n]o medicine”—was so vague, however, that it failed to
establish that C.B. was even suspected of violating any school
rule.16
That detail notwithstanding, at issue here is the
reasonableness of the response to a purported violation of a
school rule, not the reasonableness of the rule. Judge Gould
would defer to Coach Sinclair’s determination that C.B.
16

This does not mean that police officers cannot rely on school officials’
statements. School officials undoubtedly possess valuable information
that would assist police in determining the proper course of action in many
cases. But where the school official offers only cursory and ambiguous
statements that do not explain what happened and the officers do not
observe any behavior that might shed light on what happened, it is
unreasonable for the officers to simply presume a safety threat warranting
seizure and removal from school grounds.

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should be removed from campus. Gould Concurrence at
65–66. But T.L.O. does not mandate any deference to a
school official’s judgment about the appropriate response to
a rule violation.17 Instead, T.L.O. requires assessing the
reasonableness of the school official’s search or seizure in
response to a rule violation by asking whether it was justified
at its inception and whether it was reasonably related in scope
to the circumstances that justified the initial intervention.
469 U.S. at 341. There is no question that if Coach Sinclair
had removed C.B. from school grounds, our decision would
not be based on any deference to her belief that such a seizure
was appropriate. If the scope of a school official’s search or
seizure is not entitled to any deference, then surely, the same
search or seizure carried out by a police officer at the behest
of that school official must, at minimum, be subject to the
same standards; that is, the scope of the ultimate search or
seizure must be justified by objective circumstances, not a
school official’s judgment about the proper course of action.
Just because Coach Sinclair wanted C.B. removed from
school grounds cannot ipso facto make such a seizure
reasonable.18 To suggest otherwise is to eviscerate T.L.O.’s
17
Deferring to a school official’s judgment that C.B. should be removed
from school grounds is not the kind of “‘common-sense conclusion’ that
T.L.O. was intended to permit.” Gould Concurrence at 66 (quoting T.L.O.,
469 U.S. at 346). T.L.O. was referring to the reasonable conclusion that
a suspected smoker might be stowing cigarettes in her purse. 469 U.S. at
346. No additional facts were necessary to justify searching the purse
because common sense suggested that the purse was a natural place to
check. The parallel between that scenario and this one is illusive at best.
18
Judge Gould characterizes Coach Sinclair’s request as “facially
reasonable.” Gould Concurrence at 65. Yet her request was
unaccompanied by any meaningful explanation of what C.B. had done to
prompt calling the police, and C.B. remained calm and quiet during the
entire time police were present. If these circumstances render a request to

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requirement that a search or seizure be “reasonably related in
scope to the circumstances,” id., and effectively to insulate
searches and seizures sanctioned by school officials from any
review.
Judge Gould also suggests that the need to act quickly
prevented the officers from learning more.
Gould
Concurrence at 65–66. Certainly, in some circumstances, the
need to respond swiftly trumps the need to obtain more
information. But here, C.B. was calm, surrounded by
multiple adults, and, by Chief McIntosh’s own
characterization, “[n]ot likely” to run away. Nothing about
the situation demanded an immediate response. Under these
circumstances, the officers could have, and should have,
asked some simple follow-up questions that would have
enabled them to determine an appropriate response.
Nor does this position require police officers to engage in
an “uncabined investigation” before responding to unfolding
events, as the majority intimates. M. Smith Opin. at 57. This
approach only requires police officers to act reasonably under
the circumstances. The standard is a familiar one, see Terry
v. Ohio, 392 U.S. 1, 21 (1968), and local police officers are
quite capable of applying it in the real world.19 There is
nothing remarkable about concluding that, in some
circumstances, reasonableness requires asking a follow-up
question to assess the circumstances before initiating a
seizure.

remove a child from school grounds “facially reasonable,” what must
transpire before a request would be labeled facially unreasonable?
19

T.L.O.’s standard is based on Terry’s reasonable suspicion standard.
See T.L.O., 469 U.S. at 341.

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In sum, taking the evidence in the light most favorable to
C.B., a reasonable jury could conclude that Chief McIntosh
and Officer Prock violated C.B.’s Fourth Amendment rights
when they seized him and took him into custody.
b.
We next consider whether it was clearly established on
September 28, 2009, that removing C.B. from school grounds
was a violation of the Fourth Amendment. “For a
constitutional right to be clearly established, its contours must
be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks
omitted). “This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful,” Wilson v.
Layne, 526 U.S. 603, 615 (1999) (internal quotation marks
omitted); indeed, “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances,” Hope, 536 U.S. at 741. We should be
“particularly mindful of this principle in the context of Fourth
Amendment cases, where the constitutional standard—
reasonableness—is always a very fact-specific inquiry.”
Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (en
banc). However, where there is no case directly on point,
“existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011).
At the time of C.B.’s seizure, the law was clearly
established that, at a minimum, police seizures at the behest
of school officials had to be reasonable in light of the
circumstances and not excessively intrusive. See, e.g.,

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T.L.O., 469 U.S. at 341–42; Doe, 334 F.3d at 909; Gray,
458 F.3d at 1304; Jones, 410 F.3d at 1228; Shade, 309 F.3d
at 1060–61. Although the application of this constitutional
principle may not be clear in certain circumstances, see
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364,
378–79 (2009), this “general constitutional rule . . . may
[still] apply with obvious clarity to the specific conduct in
question, even though ‘the very action in question has [not]
previously been held unlawful,’” United States v. Lanier,
520 U.S. 259, 271 (1997) (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
This is such a case. The removal from school grounds of
a compliant and calm 11-year-old child—a decision that was
made sans any police investigation, without any knowledge
of disobedience, and after only minutes on the scene—is an
obvious violation of the constitutional principle that the
nature of the seizure of a schoolchild must be justified by the
circumstances. Even without on-point case law, it is beyond
dispute that police officers cannot seize a schoolchild who
they do not know to have committed any wrongdoing, who
does not appear to pose any threat to himself or others, and
who engages in no act of resistance the entire time the
officers are present.20

20

The Supreme Court’s holding in Safford that a school official’s
decision to strip search a middle school child suspected of bringing drugs
to school, without any suspicion that the child was hiding the drugs in her
underwear, was not an obvious violation of clearly established law, see
557 U.S. at 377–79, does not warrant a contrary outcome. In Safford, the
Court indicated that, in novel circumstances, T.L.O.’s general standards
will rarely make obvious the boundaries of a constitutional search. See id.
But this is not a case that turns on the boundaries of a reasonable search
or seizure in light of the circumstances. See Gray, 458 F.3d at 1305, 1307
(explaining that handcuffing for at least five minutes a 9-year-old who did

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Chief McIntosh and Officer Prock do not argue that
T.L.O. justified seizing C.B. In fact, they argue that they are
entitled to qualified immunity only because they reasonably,
even if mistakenly, believed they had “reasonable cause”21 to
take C.B. into custody pursuant to California Welfare &
Institutions Code sections 601(a) and 625(a). An officer who
reasonably but mistakenly believes that his actions are
warranted under state law may be entitled to qualified
immunity. Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty.
Sheriff Dep’t, 533 F.3d 780, 791–93 (9th Cir. 2008);
Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.
1994). California Welfare & Institutions Code section 601(a)
provides:
Any person under the age of 18 years who
persistently or habitually refuses to obey the
reasonable and proper orders or directions of
his or her parents, guardian, or custodian, or
who is beyond the control of that person . . . is
within the jurisdiction of the juvenile court
which may adjudge the minor to be a ward of
the court.

not pose a threat to anyone was “well beyond the hazy border that
sometimes separates lawful conduct from unlawful conduct” (internal
quotation marks omitted)). Rather, this case involves a scenario where,
on the facts known to the officers, there was simply no basis for any kind
of seizure. At the very least, T.L.O. makes obvious that there must be
some basis for a search or seizure of any scope.
21
Defendants expend a great deal of energy arguing about the
difference between “reasonable cause” as used in the California Welfare
& Institutions Code and the traditional concept of “probable cause.” If
there is a difference between the standards, this case does not turn on it.

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Section 625(a) provides that “[a] peace officer may, without
a warrant, take into temporary custody a minor . . . [w]ho is
under the age of 18 years when such officer has reasonable
cause for believing that such minor is a person described in
Section 601.”
Chief McIntosh and Officer Prock contend that they
reasonably thought that C.B. was “beyond the control” of the
relevant school officials, who they understood to be the
custodians of C.B. during school hours. However, taking the
facts in the light most favorable to the nonmoving party, no
reasonable officer could have thought that C.B. was “beyond
the control” of anyone. California case law makes clear that
“by itself, a single act in violation of parental authority is
ordinarily insufficient to establish that the minor is beyond
parental control.” McIsaac v. Bettye K. (In re Bettye K.),
285 Cal. Rptr. 633, 636 (Ct. App. 1991). In In re Henry G.,
the California Court of Appeal found insufficient evidence
that Henry G. was beyond the control of his mother where he
did not tell her where he was going, stayed out until 3 a.m.,
and struck her when she attempted to physically stop him
from leaving the house. Kirkpatrick v. Henry G. (In re Henry
G.), 104 Cal. Rptr. 585, 587, 589–90 (Ct. App. 1972).
Similarly, in In re D.J.B., the court explained that a single act
may show that a minor is beyond control only when it is
sufficiently serious, and the court held that a single instance
of leaving home without parental consent did not rise to such
a level. Bayes v. D.J.B. (In re D.J.B.), 96 Cal. Rptr. 146, 149
(Ct. App. 1971). Cases in which a single instance of defiance
was sufficient to find that a minor was beyond the control of
a parent involved an extraordinarily serious act of defiance.
See Bayes v. David S. (In re David S.), 91 Cal. Rptr. 261, 263
(Ct. App. 1970) (holding that a minor who had told his
mother he would be spending the weekend with friends about

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40 miles from home but who was actually found about 600
miles away from home attempting to cross the border into
Mexico was beyond the control of his parents); see also In re
Bettye K., 285 Cal. Rptr. at 636–37.
Here, when viewed in the light most favorable to C.B., the
officers did not know of even a single instance of
disobedience, much less one serious enough to trigger
sections 601(a) and 625(a). C.B. did not take his medicine,
but the officers had no basis to conclude that he had refused
to do so and did not know what kind of medication it was.
C.B. was purportedly a “runner,” but the officers had no
information that he had actually attempted to run from
anyone that day. During the brief period before the officers
decided to handcuff him, C.B. did not disobey any of their
orders. And, as soon as they initiated the process of
handcuffing and removing him from the school grounds, C.B.
complied with all of their instructions. In sum, the officers
knew of no defiant act by C.B.; any belief that C.B. was
beyond the school’s control was not reasonable because it
lacked any basis in fact. Moreover, even assuming it was
reasonable to believe that C.B. had earlier defied a school
official by refusing medicine and running, it was apparent
that C.B. had not run off school grounds and was, instead,
sitting calmly in the school playground. Such a singular
instance of disobedience does not even come close to
satisfying the statutory requirement that the minor be
“beyond the control” of his custodian. See In re Bettye K.,
285 Cal. Rptr. at 636–37; In re Henry G., 104 Cal. Rptr. at
587, 589–90; In re D.J.B., 96 Cal. Rptr. at 149; In re David
S., 91 Cal. Rptr. at 263. An officer who enforces a state
statute “in a manner which a reasonable officer would
recognize exceeds the bounds of the [statute] will not be
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declaring the [statute] or the officer’s particular conduct
unconstitutional.” Grossman, 33 F.3d at 1210.22
Chief McIntosh and Officer Prock argue that their belief
that sections 601(a) and 625(a) applied in this instance was
reasonable because Coach Sinclair allegedly told Chief
McIntosh that C.B. was “out of control,” “would run off
campus,” and was “yelling and cussing.”23 Whatever the
merits of the argument that a reasonable officer might have
believed that sections 601(a) and 625(a) justified taking a
child into custody in light of these additional facts, that is not
the scenario presented here. Neither Coach Sinclair nor
C.B.—the other witnesses present during this purported
exchange—recalls Coach Sinclair making these statements.
Although it is possible that C.B.’s and Coach Sinclair’s
recollections are incomplete, when taking the facts in the
light most favorable to C.B., see Harper, 533 F.3d at 1021, it
must be assumed that it is Chief McIntosh’s account that is
inaccurate.24
Based on the foregoing, Chief McIntosh and Officer
Prock are not, in my view, entitled to qualified immunity with
respect to C.B.’s unlawful seizure claim.

22

Because C.B.’s conduct could not possibly satisfy the “beyond the
control” prong of the statute, there is no need to consider whether the term
“custodian” as used in section 601(a) includes school authorities.
23

Notably, neither the officers nor Coach Sinclair ever testified that
Coach Sinclair told Chief McIntosh that C.B. would “run off campus.”
24

Accordingly, there is no need to decide whether, under the version of
events most favorable to the officers, Chief McIntosh and Officer Prock
were justified in seizing C.B. pursuant to sections 601(a) and 625(a),
although that is a dubious proposition.

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2.
a.
C.B. also argues that the officers used excessive force in
violation of the Fourth Amendment when, upon removing
him from school grounds, they handcuffed C.B. for twentyfive to thirty minutes. The Fourth Amendment guarantees the
right to be free from an arrest effectuated through excessive
force. Graham v. Connor, 490 U.S. 386, 394–95 (1989);
Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004).
C.B. argues that the officers’ conduct was unreasonable under
the test set out in Graham. Under Graham, whether the
amount of force employed was excessive depends on “the
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to he safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” 490 U.S. at 396.
We have previously applied T.L.O.’s reasonableness
standard to evaluate whether a school official was entitled to
qualified immunity from an excessive force claim. See
Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175,
1179–81 (9th Cir. 2007). Additionally, at the time of the
incident, at least two of our sister circuits had held that
T.L.O.’s reasonableness standard governs law enforcement
searches and seizures concerning school-related incidents in
school settings. See Gray, 458 F.3d at 1304; Shade, 309 F.3d
at 1060–61. We have not yet considered whether Graham or
T.L.O. applies to law enforcement officers’ use of force
against a student in a school setting, and we do not resolve
that question today. But we believe that Preschooler II,
Gray, and Shade could have led a reasonable officer to

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conclude that T.L.O. governs police use of force in response
to school-related incidents as well. In no event, however, do
we think that an officer could have reasonably believed that
T.L.O. governs police use of force once a student is in police
custody and outside the confines of the school setting, as C.B.
was throughout the commute to his uncle’s place of business.
Ultimately, in our view, whether T.L.O. or Graham
governed Chief McIntosh’s and Officer Prock’s actions at any
given moment is of little consequence. Chief McIntosh’s and
Officer Prock’s use of handcuffs on a calm, compliant, but
nonresponsive 11-year-old child was unreasonable under
either standard. Other than an assertion that they were told
C.B. might run away, Chief McIntosh and Officer Prock offer
no justification for their decision to use handcuffs on C.B.
During the entire incident, C.B. never did anything that
suggested he might run away or that he otherwise posed a
safety threat. He weighed about 80 pounds and was
approximately 4’8’’ tall—by no means a large child.
Moreover, he was surrounded by four or five adults at all
times. The police department’s own policy manual cautions
against using handcuffs on children under the age of 14
unless the child has committed “a dangerous felony or when
they are of a state of mind which suggests a reasonable
probability of their desire to escape, injure themselves, the
officer, or to destroy property.” Even Chief McIntosh
admitted that it was “[n]ot likely” that C.B. could run away.
In these circumstances, we conclude that the decision to use
handcuffs on C.B. was unreasonable, notwithstanding Coach
Sinclair’s unexplained statement that C.B. was a “runner.”
The further decision to leave C.B. in handcuffs for the
duration of the half-hour commute to his uncle’s business—a
commute that took place in a vehicle equipped with safety

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locks that made
unreasonable.

escape

impossible—was

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clearly

Judge Smith counters that the use of handcuffs was
justified because C.B. might have attempted to run at various
points during their interaction, risking serious harm to
himself. M. Smith Opin. at 59–60. But there is no evidence
that C.B. was likely to run; even Chief McIntosh himself
thought it unlikely that C.B. would be able to flee. See Tolan
v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam)
(overturning grant of qualified immunity because the lower
court did not view the evidence in favor of the nonmoving
party). “Anything is possible” is not a sufficient basis to
handcuff a child who poses no likely threat of any kind.
b.
At the time of the incident, the law was also clearly
established that, at a minimum, police use of force in
response to school-related incidents had to be reasonable in
light of the circumstances and not excessively intrusive. See
T.L.O., 469 U.S. at 341–42; Preschooler II, 479 F.3d at
1179–81. And the law was clearly established that, as a
general matter, police use of force must be carefully
calibrated to respond to the particulars of a case, including the
wrongdoing at issue, the safety threat posed by the suspect,
and the risk of flight. See Graham, 490 U.S. at 396.
Although these general standards “cannot always, alone,
provide fair notice to every reasonable law enforcement
officer that his or her conduct is unconstitutional,” Mattos,
661 F.3d at 442, “in an obvious case, these standards can
‘clearly establish’ the answer, even without a body of relevant
case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004)
(per curiam).

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Applying handcuffs to C.B., and keeping him handcuffed
for the approximately thirty minutes it took to drive to his
uncle’s business, was an obvious violation of these standards.
It is beyond dispute that handcuffing a small, calm child who
is surrounded by numerous adults, who complies with all of
the officers’ instructions, and who is, by an officer’s own
account, unlikely to flee, was completely unnecessary and
excessively intrusive. Moreover, none of the Graham factors
even remotely justified keeping C.B. handcuffed for
approximately thirty minutes in the back seat of a safetylocked vehicle.
Chief McIntosh and Officer Prock argue that because they
were reasonable in taking C.B. into custody pursuant to the
California Welfare & Institutions Code sections 601(a) and
625(a), their use of handcuffs was also reasonable because
California Penal Code section 835 provides that an individual
under arrest “may be subjected to such restraint as is
reasonable for his arrest and detention.” Even if California
law permitted the level of force used here¯which it does
not¯that would have no bearing on whether the officers
violated clearly established federal law. See Ramirez v. City
of Buena Park, 560 F.3d 1012, 1024–25 (9th Cir. 2009).
California Penal Code section 835 cannot shield the officers
from liability for a clear constitutional violation.
In sum, we hold that Chief McIntosh and Officer Prock
are not entitled to qualified immunity for handcuffing C.B.
D.
Finally, we turn to Defendants’ argument that they are
entitled to an offset against damages because of C.B.’s
settlement with the Sonora School District. Defendants argue

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that they are entitled to an offset under California Code of
Civil Procedure section 877.25 Section 877 provides that,
when a plaintiff enters into a settlement with one or more
joint tortfeasors, “it shall reduce the claims against the other[]
[tortfeasors] in the amount stipulated by the [settlement].”
“Whether individuals are joint tortfeasors under [section] 877
depends upon whether they caused ‘one indivisible injury’ or
‘the same wrong.’” Decker v. Tramiel (In re JTS Corp.),
617 F.3d 1102, 1116 (9th Cir. 2010) (quoting May v. Miller,
278 Cal. Rptr. 341, 344 (Ct. App. 1991); see also Lafayette v.
Cnty. of L.A., 208 Cal. Rptr. 668, 672 (Ct. App. 1984)). C.B.
contends that Defendants are not entitled to an offset because
the Sonora School District caused a distinct injury. We need
not resolve this issue because Defendants have not met their
burden to show that they are entitled to an offset for another
reason.
California Civil Code section 1431.2(a) provides that
liability for economic damages is joint and several, but
liability for noneconomic damages is apportioned according

25

It is not clear that California law, as opposed to federal law, governs
Defendants’ settlement offset claim in a case such as this one, which
involves both federal and state law claims. See Corder v. Brown, 25 F.3d
833, 839–40 (9th Cir. 1994) (recognizing that courts are split as to whether
state law or federal common law determines a defendant’s entitlement to
an offset in suits involving federal claims but declining to resolve the split
because the text of the particular federal statute at issue permitted an
offset). Defendants argue only that they are entitled to an offset under
California Code of Civil Procedure section 877. As we explain in text,
even if section 877 applied here, Defendants would not be entitled to an
offset. Accordingly, we need not decide whether state or federal law
applies.

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to the principles of comparative fault.26 California courts
have interpreted California Civil Code section 1431.2 as
limiting California Code of Civil Procedure section 877 to
economic damages only. See Greathouse v. Amcord, Inc.,
41 Cal. Rptr. 2d 561, 564 (Ct. App. 1995) (“It is now well
established that Code of Civil Procedure section 877 allows
[the defendants] to set off settlement payments only for
economic damages against the jury’s verdict. Settlement
payments attributable to non-economic damages are not
subject to the setoff.”); Espinoza v. Machonga, 11 Cal. Rptr.
2d 498, 502 (Ct. App. 1992) (explaining that there can be no
offset for noneconomic damages because a “plaintiff’s valid
‘claim’ against one . . . tortfeasor for non-economic damages
can never be the liability of ‘the others’” (quoting Cal. Civ.
Code § 1431.2)). Consequently, in calculating offsets,
California courts look to the percentage of the jury’s award
that is attributable to noneconomic damages and reduce the
award by that same proportion of the settlement. See Conrad

26

California Civil Code section 1431.2(b) defines economic and
noneconomic damages as follows:
(1) For purposes of this section, the term
“economic damages” means objectively verifiable
monetary losses including medical expenses, loss of
earnings, burial costs, loss of use of property, costs of
repair or replacement, costs of obtaining substitute
domestic services, loss of employment and loss of
business or employment opportunities.
(2) For the purposes of this section, the term
“non-economic damages” means subjective,
non-monetary losses including, but not limited to, pain,
suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of
consortium, injury to reputation and humiliation.

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v. Ball Corp., 29 Cal. Rptr. 2d 441, 443 (Ct. App. 1994);
Espinoza, 11 Cal. Rptr. 2d at 504. But, where “the special
verdict [does] not specify economic and noneconomic
damages, but merely award[s] an undifferentiated lump sum,”
and the defendant failed to propose such a special verdict, the
defendant is deemed to have waived any right to any offset.
Conrad, 29 Cal. Rptr. 2d at 443–44. This is because “[a]
defendant seeking an offset against a money judgment has the
burden of proving the offset.” Id. at 444.
Here, Defendants initially did propose a jury instruction
that distinguished between economic and noneconomic
damages. However, when the court provided its proposed
jury instructions and verdict form, Defendants did not object
to the exclusion of their proposed allocation. The court
specifically asked Defendants if they had any objections to
either the proposed jury instructions or the verdict form, and
Defendants objected to unrelated portions of the jury
instructions, but not the omission of their proposed question
about damages on the verdict form. By failing to object to an
undifferentiated verdict form, Defendants have not met their
burden to show what portion of the jury’s award was for
economic damages. See Conrad, 29 Cal. Rptr. 2d at 443–44;
cf. Grosvenor Props. Ltd. v. Southmark Corp., 896 F.2d 1149,
1152–53 (9th Cir. 1990) (recognizing that mere submission
of an alternative proposed instruction is insufficient to
preserve for appeal an objection to the instruction given).
Consequently, the district court did not err in refusing to
award Defendants a $20,000 offset against the jury’s damages
award.

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III. Conclusion

We conclude that Defendants have not identified any
plain error in the district court’s jury instructions, the district
court’s evidentiary rulings were not an abuse of discretion,
and Defendants have not shown they are entitled to a
settlement offset. Furthermore, we hold that Chief McIntosh
and Officer Prock are not entitled to qualified immunity
because no officer could have reasonably believed that their
use of handcuffs to remove C.B. from school grounds
complied with the Fourth Amendment. However, as set forth
in Judge M. Smith’s majority opinion, the district court’s
ruling on Chief McIntosh’s and Officer Prock’s motion for
judgment as a matter of law denying them qualified immunity
on C.B.’s Fourth Amendment unlawful seizure claim is
reversed.
The judgment of the district court is affirmed in part,
reversed in part. The judgment against Chief Mace McIntosh
is reduced by $15,000. The judgment against Officer Hal
Prock is reduced by $5,000.
AFFIRMED IN PART AND REVERSED IN PART.
C.B. shall recover his costs on appeal against the City of
Sonora; no costs are awarded against Chief McIntosh and
Officer Prock.

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M. SMITH, Circuit Judge, concurring in part, and dissenting
in part, with whom O’SCANNLAIN, TALLMAN, and
BYBEE, Circuit Judges, join in full, and with whom
KOZINSKI, Chief Judge, and GRABER and GOULD,
Circuit Judges, join as to Part I, which is the opinion of the
court:
A majority of the en banc court agrees that Chief
McIntosh and Officer Prock (the officers) are entitled to
qualified immunity with respect to C.B.’s unlawful seizure
claim. A reasonable officer would not have known that
taking a child in C.B.’s situation into temporary custody was
unreasonable, and therefore unconstitutional. However, I
respectfully dissent from the majority’s conclusion denying
the officers qualified immunity with respect to C.B.’s
excessive force claim. In my view, the officers are entitled to
qualified immunity on both of C.B.’s Fourth Amendment
claims because the constitutional rights at issue in this case
were neither clearly established nor “obvious” at the time
C.B. was taken into temporary custody.
To determine whether an officer is entitled to qualified
immunity, we consider (1) whether he violated a
constitutional right and (2) whether the constitutional right
was clearly established. Pearson v. Callahan, 555 U.S. 223,
232, 236 (2009). “[C]ourts should define the ‘clearly
established’ right at issue on the basis of the ‘specific context
of the case.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). Our court, however, has been singled out and
chastised by the Supreme Court for our propensity to
improperly find “clearly established” rights. Specifically, the
Court has mandated that “courts—and the Ninth Circuit in
particular—not . . . define clearly established law at a high

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level of generality.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2084 (2011) (emphasis added) (internal citation omitted).
Despite the Court’s clear instruction that we not “define
clearly established law at a high level of generality,” the
majority’s hurried discussion of the second prong of the
qualified immunity analysis does just that. Specifically, the
majority defines the relevant law as requiring the use of force
to be “carefully calibrated to respond to the particulars of a
case . . . .”1 But this very general statement clearly does not
provide “fair warning” to a reasonable officer that
handcuffing C.B. to take him into temporary custody violates
his Fourth Amendment rights. See Tolan, 134 S. Ct. at 1866;
Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004) (per
curiam).
I respectfully disagree with the majority’s
characterization of these facts as an “obvious violation” of
C.B.’s constitutional rights, and with its conclusion that this
case is not therefore subject to the Court’s admonitions
against defining “clearly established law” in overly general
terms. I acknowledge that the Court has recognized that
general standards can create a “clearly establish[ed]” right in
an “obvious case,” even “without a body of relevant case
law.” See Brosseau, 543 U.S. at 199. But the facts of this
case, even when viewed in the light most favorable to C.B.,
see Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th
Cir. 2008), do not come close to constituting an “obvious”

1

The Supreme Court has explained that “[t]he general proposition . . .
that an unreasonable search or seizure violates the Fourth Amendment is
of little help in determining whether the violative nature of particular
conduct is clearly established.” al-Kidd, 131 S. Ct. at 2084.

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violation of a “clearly establish[ed]” right. See Brosseau,
543 U.S. at 199.
I. Unlawful Seizure Claim
Assuming New Jersey v. T.L.O.’s reasonableness standard
applies, as my colleagues do, C.B. cannot show that a
reasonable officer would have understood that taking him into
temporary custody was unreasonable, and therefore
unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739
(2002); New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
When analyzing whether an individual’s Fourth
Amendment rights were violated, we must determine whether
the seizure was reasonable under “all the circumstances.”
T.L.O., 469 U.S. at 341. Qualified immunity insulates the
officers from liability unless “existing precedent . . . ha[s]
placed the statutory or constitutional question beyond
debate.” al-Kidd, 131 S. Ct. at 2083.
Viewed in its entirety, the record reveals that the situation
confronting the officers did not present an “obvious”
violation of C.B.’s constitutional rights. The circumstances
facing the officers when they decided to take C.B. into
temporary custody are as follows. First, officers knew that
school officials had reported that C.B. was a “runner” and
“out of control.” Second, although Judge Paez describes C.B.
as “compliant,” C.B. himself admitted that he completely
ignored Officer Prock’s questions for three and a half
minutes. Third, the officers did not know exactly which
medication C.B. had failed to take. But a reasonable officer
would have evaluated Coach Sinclair’s statements in context,
and would likely have believed that Coach Sinclair stated that
C.B. did not take his medication because it was related to his

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behavior—the very reason why the officers were called to the
school in the first place.
A reasonable officer in this situation, faced with a
juvenile who (a) was reportedly a “runner,” (b) was “out of
control,” (c) ignored the officer’s questions, and (d) had not
taken his medication, would not have known that taking such
a juvenile into temporary custody in order to transport him
safely to his uncle was an “obvious” violation of his
constitutional rights.
Judge Paez attempts to characterize this situation as an
“obvious” violation of C.B.’s constitutional rights by
emphasizing that C.B. was a “compliant and calm 11-year-old
child,” and that the officers had “[no] knowledge of
disobedience.” However, C.B. had resisted the officers by
ignoring their questions and was reported by the school as out
of control, regardless of how he appeared at the exact
moment when the officers took him into temporary custody.
And although a reasonable officer would have observed that
C.B. was young, age alone does not impose a complete bar on
taking an individual into temporary custody, or on believing
a school official’s report.
Judge Paez also notes that the decision to take C.B. into
temporary custody was made “sans any police investigation.”
Respectfully, this characterization fails to address several
important points. The facts show that the officers did
investigate by obtaining information from Coach Sinclair and
attempting to question C.B., who refused to respond.
Additionally, taking C.B. into custody without any further
investigation was not an obvious violation of his
constitutional rights because clearly established law at the
time of the seizure did not mandate any additional

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investigation, nor did it preclude reasonable reliance on the
statements of school officials. See T.L.O., 469 U.S. at 346.
If we were to hold that the officers’ conduct was an
“obvious violation,” we would effectively establish a new
rule that police officers in a situation similar to this one must
undertake an independent investigation whenever they
observe behavior that appears in any way inconsistent with a
school official’s report. Such a requirement would be
unworkable in the real world of law enforcement and school
administration. Does an officer who is told by a school
official that a student is a runner and has not taken his
medications, but who later encounters the student seated and
quiet, need to undertake an investigation because the student
is not running or “out of control” at that time? What would
that investigation entail? Would it require reviewing the
student’s record with school officials to determine what being
a “runner” means in that particular student’s situation?
Would it involve talking with school counselors, teachers, or
physicians who have dealt with the student to better
understand the severity of the student’s problems? By
characterizing the officers’ conduct as an “obvious violation”
of constitutional rights, the dissent would require an officer
to undertake such an uncabined investigation prior to
responding to these situations, or risk personal financial
liability if he did not. It would disincentivize officers from
responding to calls for help from school officials under
similar circumstances.
But the officers’ conduct was not an “obvious violation”
of C.B.’s constitutional rights. Under “all the circumstances,”
T.L.O., 469 U.S. at 341, a reasonable officer would not have
understood that taking C.B. into temporary custody violated
his rights. The Supreme Court has been pellucidly clear that

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the purpose of qualified immunity is to give officers
“breathing room” in uncertain situations. Stanton v. Sims,
134 S. Ct. 3, 5 (2013) (per curiam) (quoting al-Kidd, 131 S.
Ct. at 2085). Accordingly, the officers are entitled to
qualified immunity on the unlawful seizure claim.2
II. Excessive Force Claim
I respectfully disagree with the majority’s conclusion that
the scope of C.B.’s right to be free from excessive force was

2

Judge Berzon states that our case law requires police officers to have
some cause to take children into custody. She cites language from Crowe
v. County of San Diego, that a police officer was not entitled to qualified
immunity when he “failed to provide any justification” for a seizure.
608 F.3d 406, 439 (9th Cir. 2010). At issue there was the detention at a
police station of the parents of a murder victim. Id. Additionally, it was
the district court that had denied summary judgment due to the officer’s
failure to provide any justification. We affirmed, but on the ground that
the parents did not consent to the detention because the officer had pointed
a gun at them.
In Henderson v. Mohave County, also cited by Judge Berzon, we
denied qualified immunity to officers who seized a child after ignoring her
mother’s court order showing that she had custody. 54 F.3d 592, 595 (9th
Cir. 1995).
Relying on these cases, Judge Berzon concludes that no reasonable
officer would have believed that there was cause to take C.B. into custody
under section 601 of the Welfare and Institutions Code. Even assuming
Crowe applies here, it does not require that a state law provide
justification for the seizure. Rather, under the Fourth Amendment, the
seizure need only be reasonable under all the circumstances. See T.L.O.,
469 U.S. at 341. Unlike in Henderson, where the officers had no
justification for their actions, here, a reasonable officer would have
believed he was justified in taking C.B. into temporary custody based on
the information available to him, including the school’s report that he was
out of control and had not taken his medication.

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clearly established. The majority gives inadequate weight to
the Court’s directive that “clearly established law” not be
defined at a high level of generality, see al-Kidd, 131 S. Ct.
at 2084, for it was far from “obvious” that handcuffing
C.B.—a known “runner” reported to be “out of
control”—constituted excessive force. Rather, assuming
without deciding that Graham v. Connor, 490 U.S. 386, 396
(1989), controls in this situation, handcuffing C.B. was
clearly reasonable when balanced against the need to ensure
C.B.’s safety by preventing him from fleeing or injuring
himself.
The “reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id. at
396 (internal quotation marks omitted). The force used by
officers must be objectively reasonable under the
circumstances, and need not be the least intrusive means
available to them. Id. at 397, 399; Luchtel v. Hagemann,
623 F.3d 975, 982 (9th Cir. 2010). “The calculus of
reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 397–98. In
determining whether force, including the use of handcuffs, is
reasonable, we consider, among other things, whether the
individual poses an immediate threat to the safety of the
officers or others, and whether he is attempting to evade
arrest by flight. See id. at 396.
There is no clearly established law indicating that
handcuffing C.B. to transport him safely from school grounds
to his uncle’s business was not objectively reasonable under

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the circumstances. See id. at 399. The majority characterizes
C.B. as a “small, calm child.” But when the officers
encountered C.B., the school had reported that C.B. was “out
of control,” and Coach Sinclair had stated that he was a
“runner.” Particularly in light of C.B.’s refusal to answer the
officers’ questions, a reasonable officer would have taken the
school officials’ concerns seriously. The fact that C.B. was
sitting at the time the officers encountered him does not
contradict Coach Sinclair’s statement that he was a runner.
A reasonable officer would not have known that encountering
C.B. sitting down and not responding to questions would
necessitate a detailed investigation into the veracity and
meaning of Coach Sinclair’s statement before using
handcuffs, especially in light of the fact that the
reasonableness inquiry allows officers to make split-second
judgments in uncertain situations. See id. at 397–98.
Finally, although the majority characterizes C.B.’s
unresponsiveness to Officer Prock’s questioning as mere
silent obedience, a reasonable officer could have viewed
C.B.’s refusal to answer the questions as an act of defiance.3
Indeed, officers are trained that such unresponsive behavior
may be a “cue[] to escalation,” indicating that the individual
may be looking for an opportunity to flee. Because a busy
roadway abuts C.B.’s schoolyard, the consequences of
ignoring Coach Sinclair’s warning and C.B.’s unresponsive
behavior, and spending time conducting an investigation,
could have been serious, or even fatal.
In this situation, a reasonable officer, relying on the
statement of Coach Sinclair that C.B. is a “runner,” see
3

C.B. admitted that he completely ignored Officer Prock’s questions for
three and a half minutes.

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T.L.O., 469 U.S. at 346, could have determined that C.B.
would pose a danger to himself if he ran into the roadway,
and that he would be at risk of injury if he had to be
apprehended while running. A reasonable officer, relying on
precedent establishing that handcuffs may be appropriate to
prevent flight, see id.; Meredith v. Erath, 342 F.3d 1057,
1063 (9th Cir. 2003), would not have known that it was a
constitutional violation to place C.B. in handcuffs to ensure
his safety.4
Additionally, it was not clearly established that keeping
a juvenile in C.B.’s situation handcuffed for approximately
thirty minutes while the officers transported him to his uncle
was unconstitutional. A reasonable officer could have
believed that it was permissible to keep C.B. handcuffed to
ensure his safety in light of the fact that C.B. could have hurt
himself in the car, or attempted to flee while the officer was
removing the handcuffs before placing C.B. in the car.
Moreover, handcuffing C.B. to prevent flight comports with
standard police procedure. Although the City of Sonora’s
policy recommends that handcuffs generally should not be
used for a juvenile under the age of 14, it also provides that
officers may in their discretion handcuff a juvenile if he is of
the state of mind that suggests a reasonable probability of his

4

Judge Paez notes that Chief McIntosh believed that it was not likely
that C.B. could run away from the officers. However, Chief McIntosh’s
subjective beliefs are not relevant as “[t]he Fourth Amendment inquiry is
one of objective reasonableness under the circumstances, and subjective
concepts . . . have no proper place in that inquiry.” Graham, 490 U.S. at
399 (internal quotation marks omitted). Moreover, even if C.B. could not
have succeeded in running away, a reasonable officer could have believed
it was likely that C.B. would have tried to run away, given his history as
a runner. In such a case, the officer would have needed to apprehend
C.B., which would have posed a risk of injury.

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desire to escape or that he may injure himself. This policy is
fully consistent with Supreme Court precedent. See Graham,
490 U.S. at 396.
Although handcuffing a juvenile is not a matter to be
taken lightly, neither is the juvenile’s safety. Under the
majority’s reasoning, officers’ legitimate concerns for a
child’s safety are no longer sufficient to justify handcuffing,
and officers are now potentially liable for monetary damages
if they use handcuffs out of concern for a child’s safety. But
had an officer in this situation not handcuffed C.B., and had
C.B. run into the roadway and been killed or injured by a
passing vehicle, the officer, knowing that C.B. was a runner,
would surely have been liable due to his failure to ensure
C.B.’s safety. Under the majority’s new rule, officers are
now damned if they do, and damned if they don’t, when
dealing with schoolchildren who are known runners.
Because this case is not an “obvious” one where general
standards clearly establish C.B.’s rights, a reasonable officer
would not have known that handcuffing C.B. to safely take
him into temporary custody violated his constitutional rights.
The Supreme Court has taught that qualified immunity
protects “all but the plainly incompetent or those who
knowingly violate the law.” al-Kidd, 131 S. Ct. at 2085
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).5 Here,
5

The Supreme Court’s recent case law illustrates the substantial
protection that qualified immunity affords police officers. Although each
case is decided based on its specific facts, the reality is that the Supreme
Court in the recent past has rarely denied qualified immunity to police
officers. As one scholar has observed, before the recent reversal of a grant
of qualified immunity in Tolan, 134 S. Ct. 1861, the Court had not ruled
against a police officer in a qualified immunity case since Groh v.

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because there is no indication that the officers knowingly
violated the law, the majority, in denying qualified immunity,
must view the officers as “plainly incompetent.” I find no
evidence that either officer is “plainly incompetent.” Because
C.B.’s constitutional rights were not clearly established, the
district court improperly denied qualified immunity to the
officers. I therefore respectfully dissent from the majority’s
contrary conclusion denying qualified immunity to the
officers with respect to C.B.’s excessive force claim.

GOULD, Circuit Judge, with whom KOZINSKI, Chief Judge,
and GRABER, Circuit Judge, join, concurring in part in
Judge Paez’s opinion and concurring in part in Judge M.
Smith’s opinion:
I join Parts I, II.A, II.B, II.C.2, and II.D of Judge Paez’s
opinion, concerning the factual background, rejection of the
challenges to jury instructions and to evidentiary rulings, and
the conclusions that Chief McIntosh and Officer Prock used
excessive force in violation of the Fourth Amendment when,
in removing C.B. from school grounds, they handcuffed him
for 25 to 30 minutes and that they are not entitled to qualified
immunity for handcuffing C.B.

Ramirez, 540 U.S. 551 (2004), decided nearly a decade earlier. See Will
Baude, Tolan v. Cotton — when should the Supreme Court interfere in
‘factbound’ cases?, The Washington Post, The Volokh Conspiracy (May
7, 2014, 9:40 AM), http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/05/07/tolan-v-cotton-when-should-the-supremecourt-interfere-in-factbound-cases/?tid=pm_national_pop (last visited
September 22, 2014).

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I join in Part I of Judge M. Smith’s opinion, concerning
the unlawful seizure claim, concluding that the officers are
entitled to qualified immunity as to the seizure of C.B.
On the issue of unlawful seizure: T.L.O.’s reasonableness
standard requires that a search be “justified at its inception”
and, “as actually conducted,” be “reasonably related in scope
to the circumstances which justified the interference in the
first place.” New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)
(internal quotation marks omitted). We should give weight
to the parts of the Court’s opinion in T.L.O. that gave its
reasons for holding that “the school setting requires some
easing of the restrictions to which searches by public
authorities are ordinarily subject.” Id. at 340.
The Court’s primary concern in T.L.O. was balancing the
“privacy interests of schoolchildren with the substantial need
of teachers and administrators for freedom to maintain order
in the schools.” Id. at 341. The need for order in the school
setting permits searches when reasonable grounds exist to
suspect violations not just of law, but of “the rules of the
school.” Id. at 342. When a court examines the rules of a
school, it “should, as a general matter, defer” to the school’s
judgment that the rule is necessary to prevent “conduct [that]
is destructive of school order or of a proper educational
environment.” Id. at 343 n.9. In applying this standard to the
facts of T.L.O.’s case, the Court approved of a school
administrator’s use of “the sort of common-sense
conclusio[ns] about human behavior upon which practical
people—including government officials—are entitled to
rely.” Id. at 346 (internal quotation marks omitted).
In concurrence, Justices Powell and O’Connor stressed
the “special characteristics” of the school environment,

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noting that “teachers have a degree of familiarity with, and
authority over, their students that is unparalleled except
perhaps in the relationship between parent and child.” Id. at
348. Based on this relationship, the concurring Justices
concluded that “[t]he primary duty of school officials and
teachers . . . is the education and training of young people. A
State has a compelling interest in assuring that the schools
meet this responsibility. Without first establishing discipline
and maintaining order, teachers cannot begin to educate their
students.” Id. at 350 (Powell and O’Connor, JJ., concurring).
Reasonable officers could have believed that the
Constitution allows them to remove a student from school
grounds based on a facially reasonable request from school
officials. This conclusion is reinforced by the facts. Coach
Sinclair, the requesting official, was the school’s official
disciplinarian, the person most responsible for maintaining
order at Sonora Elementary. Coach Sinclair’s request was
supported by contentions that C.B. was a runner and had not
taken his medicine. The allegations supported the notion that
C.B. was violating the rules of the school or impairing
discipline and maintenance of order, prerequisites to
educating students. See id. Finally, the police officers were
on campus for less than five minutes before taking C.B. into
custody. This brief visit to the school environment could not
safely give them such information as would be necessary to
overrule the considered judgment of a school official,
particularly given the close relationship between teachers and
students. See id. at 348.
In the modern world, delay in the school setting can pose
grave dangers to many, an unfortunate fact that may at times
require police to act promptly upon arrival. In the context of
dangers presented to students at schools, rather than require

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officers to make an independent investigation when they
arrive at a school, a reasonable police officer could believe
that the Constitution would allow him or her to rely on
responsible school officials. Here, the officers could
reasonably have believed that relying on Coach Sinclair over
what they personally saw in their brief and isolated visit was
the kind of “common-sense conclusion” that T.L.O. was
intended to permit. Id. at 346 (majority opinion). When a
school official makes a determination that it is necessary to
remove a student from campus to maintain order, protect that
student or others, or otherwise to prevent the destruction of
the “proper educational environment,” id. at 343 n.9, in my
view a reasonable officer could have believed that he or she
was entitled to rely on that judgment.
On the issue of excessive force by handcuffing: Police
officers may reasonably believe that the Fourth Amendment
permits them to give deference to a school official’s request
that a student be removed from campus. But that reasonable
belief in deference does not extend to the level of force that
they may use to accomplish the removal. See, e.g., Acosta v.
City of Costa Mesa, 718 F.3d 800, 826 (9th Cir. 2013) (per
curiam) (analyzing separately a claim of unreasonable seizure
or arrest and “whether the officers employed excessive force
when enacting the seizure and arrest”). The officers violated
the Fourth Amendment by handcuffing C.B., and they are not
protected from C.B.’s excessive force claim by qualified
immunity. None of the reasons motivating the Supreme
Court’s decision in T.L.O. bears on police officers’ use of
force. Neither the need for compliance with school rules, nor
the close relationship between teachers and students, nor the
importance of maintaining the educational environment has
any connection with the amount of force permissibly used by

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officers in carrying out an otherwise reasonable request from
school officials.
The Supreme Court was explicit in Graham v. Connor,
490 U.S. 386, 396 (1989), that the application of Fourth
Amendment reasonableness to excessive force claims
“requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” C.B.
was not charged with or suspected of any crime. There is no
evidence that C.B. posed an immediate safety risk to himself,
to the officers, or to anyone else on the scene. And there was
no testimony that C.B. tried to escape, nor did the officers
believe that there was any reasonable possibility that he could
or would attempt to do so. Finally, the officers’ unreasonable
decision to use handcuffs was compounded by their decision
to leave the handcuffs on during a 30-minute trip in which
C.B. was secured in the back of a police cruiser with no
possibility of escape or harm to himself or others.
The Supreme Court’s jurisprudence has firmly established
that the force police officers apply must be reasonable.
Under the totality of the circumstances, it was not reasonable
to handcuff a small and docile 11-year-old child. The
Supreme Court’s law requiring that a reasonable level of
force be used against the citizenry is crystal clear and well
established.

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BERZON, Circuit Judge, with whom Judge THOMAS joins,
concurring in part and dissenting in part:
I concur in Judge Paez’s opinion, with one exception: as
to C.B.’s unlawful seizure claim, I concur in the result
reached by Judge Paez but would reach that result via
different reasoning.
As to the seizure issue, the reliance on New Jersey v.
T.L.O, 469 U.S. 325 (1985), in the three other opinions in this
case is, in my view, entirely beside the point. The police
officer defendants have consistently maintained that they
seized C.B. because they had reasonable cause to believe he
was a child covered by California Welfare and Institutions
Code section 601(a). But section 601(a) does not cover
C.B.’s circumstance, nor could a reasonable police officer
have thought it did. As the defendants have never suggested
that they could, or did, seize C.B. to enforce the school’s own
rules and disciplinary needs, we should be reviewing their
actual defense, not manufacturing one for them.
I.
We are reviewing a judgment entered after a jury trial.
Over the course of that trial, the police officers repeatedly
explained that they took C.B. into custody pursuant to the
Welfare and Institutions Code. Officer Prock, for example,
acknowledged that he “arrest[ed]” C.B. under section 601.
So did Officer McIntosh. The officers’ expert witness
testified as to whether the circumstances allowed them to take
C.B. into temporary custody under section 601(a).
Furthermore, the testimony at trial established that at the
time of C.B.’s seizure, the understanding of both the officers

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and the school was that he was being put in handcuffs and
carried away for law enforcement or mental health reasons,
not school discipline. C.B. thought he was going to jail; no
one told him otherwise. Coach Sinclair testified that she
“[a]bsolutely” believed the officers were taking C.B. to the
hospital pursuant to Welfare and Institutions Code section
5150, which enables a “peace officer” to take a person into
custody for seventy-two hours when there is probable cause
to believe the person “is a danger to others, or to himself,” “as
a result of a mental health disorder.”1 Officer Prock testified
that the plan was to take C.B. to the probation department
before releasing him to a family member. See Cal. Welf. &
Inst. Code § 626(d). It was only after C.B. was seized that
Officer Prock realized that he had a prior existing business
relationship with C.B.’s uncle and so decided, with Chief
McIntosh’s permission, to drive C.B. directly to the uncle’s
home.
In closing argument, counsel for the officers pointed the
jury to sections 625 and 601 of the Welfare and Institutions
Code and described this statutory authority as their “primary
defense” to C.B.’s constitutional claims. As to the
unconstitutional seizure claim, counsel for the officers
explained: “[W]e’re saying that the law authorizes us to take
the plaintiff into custody without a warrant because he’s
beyond the control of his guardian.” Counsel for the officers
went on to argue that the evidence showed C.B. was “beyond
the control of the school,” and that the officers were for that
reason “allowed to take him into temporary custody without

1

That such a seizure would have required probable cause was clearly
established and beyond dispute by 2008. See Bias v. Moynihan, 508 F.3d
1212, 1220 (9th Cir. 2007).

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a warrant . . . . under the Welfare [and] Institutions Code
[sections] 625 and 601.”
The jury was instructed in accord with the proffered
defense that “seizure . . . without an arrest warrant is
reasonable if the officers . . . had probable cause to believe
that the person was subject to temporary custody without a
warrant,” and that “[w]hether the defendant officers had
probable cause to conclude that [the] plaintiff was a juvenile
who was subject to temporary custody under the Welfare
[and] Institutions Code, as that law is described in these
circumstances, should be determined by you under the totality
of the circumstances.”2 (Emphasis added.)
After the jury returned a verdict in favor of C.B., the
officers moved for judgment as a matter of law on the ground
that they were entitled to qualified immunity for C.B.’s
unlawful seizure claim. Their argument was that “the officers
were authorized to take [C.B.] into custody under [s]ection
625 and 601 of the California Welfare and Institutions Code.”
On appeal, the police officers continue to maintain that
they took C.B. into “temporary custody under Welfare [and]
Institutions Code sections 601 and 625.” They contend that
they “arrested Plaintiff C.B.” pursuant to this statutory
authority “based on reasonable cause to believe C.B. was
beyond the control of the school.” And, although the three
other opinions in this case cite T.L.O. as alternately barring or
justifying C.B.’s seizure, the officers themselves in their
appellate filings have never cited T.L.O. at all. In their
response to the petition for rehearing en banc, the officers
noted that the panel opinion “accurately identif[ied] Section
2

The officers offered no objection to this instruction.

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601(a) and 625(a) as the authority invoked and relied upon by
the Officers[ ] in taking C.B. into temporary custody.”
Simply put, the police officers are defending against
C.B.’s allegations on the ground that they behaved as law
enforcement officers, not school administrators or officials,
when they arrested C.B. pursuant to their asserted statutory
authority to do so. The officers do not purport to have been
enforcing school disciplinary policies as agents of the school.
We should not be evaluating the officers’ seizure of C.B. by
recourse to a justification that they neither offer as authority
for their conduct nor endorse.
II.
The officers’ sole contention, then, is that they had cause
to take C.B. into custody because he was “beyond the control
of” his “custodian” under section 601(a). They had no such
cause for two reasons: (1) the school is not C.B.’s custodian,
and (2) he was not “beyond the control” of his parents,
guardian, or custodian.
Subsections (a) and (b) of section 601 provide:
(a) Any person under the age of 18 years who
persistently or habitually refuses to obey the
reasonable and proper orders or directions of
his or her parents, guardian, or custodian, or
who is beyond the control of that person, or
who is under the age of 18 years when he or
she violated any ordinance of any city or
county of this state establishing a curfew
based solely on age is within the jurisdiction

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of the juvenile court which may adjudge the
minor to be a ward of the court.
(b) If a minor has four or more truancies
within one school year as defined in Section
48260 of the Education Code or a school
attendance review board or probation officer
determines that the available public and
private services are insufficient or
inappropriate to correct the habitual truancy
of the minor, or to correct the minor’s
persistent or habitual refusal to obey the
reasonable and proper orders or directions of
school authorities, or if the minor fails to
respond to directives of a school attendance
review board or probation officer or to
services provided, the minor is then within the
jurisdiction of the juvenile court which may
adjudge the minor to be a ward of the court.
However, it is the intent of the Legislature
that no minor who is adjudged a ward of the
court pursuant solely to this subdivision shall
be removed from the custody of the parent or
guardian except during school hours.

As Judge McKeown concluded in her dissent to the
original panel opinion in this case: “On its face, the term
‘custodian’ does not apply to school officials.” C.B. v. City
of Sonora, 730 F.3d 816, 828 n.2 (9th Cir. 2013) (McKeown,
J., dissenting). When the California legislature referred to
school authorities in section 601, it did so expressly, in
subsection (b). That subsection delineates the precise
circumstances under which the juvenile court may assert
jurisdiction over a minor for misbehavior at school.

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Of particular relevance to C.B.’s situation, subsection
601(b) specifies that a minor may come under the juvenile
court’s jurisdiction “[i]f . . . a school attendance review board
or probation officer determines that the available public and
private services are insufficient or inappropriate . . . to correct
the minor’s persistent or habitual refusal to obey the
reasonable and proper orders or directions of school
authorities.” Cal. Welf. & Inst. Code § 601(b). C.B.’s
“refusal to obey the . . . orders or directions of school
authorities” spurred his seizure.
But there was no
“determin[ation]” made by those statutorily empowered to do
so that “available . . . services [were] insufficient” to correct
C.B.’s disobedience.
And there certainly was no
determination made that C.B.’s disobedience was “persistent
or habitual.” Accordingly, the provision of section 601 which
specifically applies to schools does not support C.B.’s
seizure. The officers do not argue that it does.
The complete absence from subsection (b) of a provision
allowing a juvenile court to assert jurisdiction over a minor
who “is beyond the control” of school authorities without a
proper determination being made by the appropriate persons
is telling. As “judicial interpreter[s],” we are “call[ed] on . . .
to consider the entire text, in view of its structure and of the
physical and logical relation of its many parts.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 167 (2012). When confronted with a general
provision and a specific provision that cannot be reconciled,
the specific provision prevails. Id. at 183. Here, even if
school authorities are properly considered C.B.’s custodian’s
during school hours, subsection (b) is the more specific
provision, and so must govern. Otherwise, whenever a minor
“persistently or habitually refuses to obey the reasonable and
proper orders or directions” of school authorities, he could be

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within the juvenile court’s jurisdiction, leaving subsection
(b)’s procedural requirement a nullity.
That subsection (a) does not include minors who are
beyond the control of school authorities is confirmed by
review of the statute’s legislative history. An earlier version
of section 601 expressly applied to minors who were “beyond
the control of” “school authorities.” That version of the
statute read in full:
Any person under the age of 21 years who
persistently or habitually refuses to obey the
reasonable and proper orders or directions of
his parents, guardian, custodian or school
authorities, or who is beyond the control of
such person, or any person who is a habitual
truant from school within the meaning of any
law of this State, or who from any cause is in
danger of leading an idle, dissolute, lewd, or
immoral life, is within the jurisdiction of the
juvenile court which may adjudge such person
to be a ward of the court.
1961 Cal. Stat. 3471 (emphasis added); see also In re David
S., 12 Cal. App. 3d 1124, 1126 (Ct. App. 1970). In 1974, the
legislature amended section 601 by deleting “school
authorities,” as well as “or any person who is a habitual truant
from school within the meaning of any law of this state.”
1974 Cal. Stat. 2629. Section 601 was amended by the same
bill that added Article 9 to Chapter 6 of Division 9 of the
Education Code, creating “School Attendance Review
Boards.” 1974 Cal. Stat. 2624. The legislature’s “intent”
“[i]n enacting this article . . . [was] that intensive guidance
and coordinated community services. . . be provided to meet

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the special needs of pupils with school attendance problems
or school behavior problems.” Id.
At the same time, and as part of the same legislation that
created school attendance review boards and that amended
section 601, the legislature added section 601.1 to the
Welfare and Institutions Code. 1974 Cal. Stat. 2629. That
section specifically governed disobedience of school
authorities, and required “persistent[] and habitual[] refus[al]”
in order for a minor to be “beyond the control of such
authorities”:
(a)
Any person under the age of 18 years
who persistently or habitually refuses to obey
the reasonable and proper orders or directions
of school authorities, and is thus beyond the
control of such authorities, or who is a
habitual truant from school within the
meaning of any law of this state, shall, prior to
any referral to the juvenile court of the
county, be referred to a school attendance
review board pursuant to Section 12404 of the
Education Code.
(b) If the school attendance review board
determines that the available public and
private services are insufficient or
inappropriate to correct the insubordination or
habitual truancy of the minor, or if the minor
fails to respond to directives of the school
attendance review board or to services
provided, the minor is then within the
jurisdiction of the juvenile court which may
adjudge such person to be a ward of the court.

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Id. The legislature thus required that minors who disobey
school authorities be referred to a school attendance review
board before coming within the juvenile court’s jurisdiction.
In the context of this legislative scheme, it is clear that the
deletion of “school authorities” and “habitual truan[cy]” from
section 601 was a purposeful excision. The legislature’s
considered judgment was that school discipline and
attendance problems should go to the school attendance
review boards before the child is referred to juvenile court,
and that only “persistent[] or habitual[] refus[al] to obey . . .
school authorities” would suffice. As already discussed, the
present version of 601 embodies this same basic structure.
In sum, “custodian” and “school authorities” have long
held separate meanings in this statute. The non-inclusion of
minors who are beyond the control of school authorities from
section 601(a) was no mistake.
There is still more evidence of the total implausibility of
the officers’ interpretation of section 601. The current
provision requires that minors adjudged a ward of the court
under subsection (b) may only be removed from a parent or
guardian during school hours. If “custodian” in subsection
(a) includes school authorities, then a minor may be removed
from his home if he is adjudged a ward of the court for
“persistently or habitually refus[ing] to obey” school
authorities or, as here, for being “beyond the control of”
school authorities — a result plainly contrary to subsection
(b)’s considered prohibition against such a practice. Thus,
even if custodian is a general term that could, in some
circumstances, encompass school officials, the context in
which the term appears and the evolution of the statute
indicate that it does not serve this role in section 601.

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Moreover, all the cases applying 601(a) to minors who
disobey or are beyond the control of their custodians refer to
persons charged with overall custody of a minor, not school
officials. See, e.g., In re Ronnie P., 10 Cal. App. 4th 1079,
1083 (Ct. App. 1992); In re Rita P., 12 Cal. App. 3d 1057,
1059, 1060 (Ct. App. 1970). Where “custodian” appears
elsewhere in the California Welfare and Institutions Code and
the cases applying it, review of its use illustrates that it does
not refer to schools.
For example, Welfare and Institutions Code section 777
requires a noticed hearing before “changing or modifying a
previous order by removing a minor from the physical
custody of a parent, guardian, relative, or friend.” Cal. Welf.
& Inst. Code § 777 (emphasis added). And section 601(a)’s
grouping of custodian with “parents” and “guardian” is
replicated in Ex parte Moilanen, which holds that “[p]arents,
guardians or others in whose custody a minor child may be
found, are entitled to notice of hearings in proceedings
instituted for the purpose of separating children from
custodian[s].” 104 Cal. App. 2d 835, 842 (Dist. Ct. App.
1951). School administrators and authorities generally do not
have the type of liberty interest in their relationship with their
students that carries due process protection.
Finally, a minor, even one identified as a “runner,” cannot
properly be deemed “beyond the control of” his custodian for
refusing to come inside after recess on a single occasion. As
Judge Paez recounts, examination of the cases interpreting
section 601(a) illustrates that this section mostly applies to
runaways — minors who are quite literally “beyond the
control” of their parents, guardians, or custodians, and for that
reason properly may be adjudged a ward of the state. See,
e.g., In re Bettye K., 234 Cal. App. 3d 143, 150 (Ct. App.

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1991); In re Ronald S., 69 Cal. App. 3d 866, 872 (Ct. App.
1977) (“As a matter of fact, the overwhelming number of
601's are runaways.”); In re D.J.B., 18 Cal. App. 3d 782, 787
(Ct. App. 1971); In re David S., 12 Cal. App. 3d at 1128; In
re Rita P., 12 Cal. App. 3d at 1059. Construing “beyond the
control of” a parent, guardian, or custodian to mean a single
incident of misbehavior, such as sitting on a bench nonresponsively and refusing to come indoors, would eviscerate
the critical requirement that out-of-control conduct
amounting to disobedience must be “persistent[] or
habitual[]” to fall under 601(a)’s purview.
In sum, section 601(a) has not been applied to include and
does not include a single act of defiance of school officials.
The officers simply had no cause to take C.B. into custody
under this provision.
III.
Nor does qualified immunity insulate the officers from
C.B.’s Fourth Amendment claims.
“A police officer, who violates another’s constitutional
right, will receive qualified immunity from suit under
42 U.S.C. § 1983 if the right the officer violated was not
protected by clearly established law at the time he acted.”
A.D. v. California Highway Patrol, 712 F.3d 446, 449 (9th
Cir. 2013). “To be clearly established, the . . . law only must
have been sufficiently clear that a reasonable official would
understand that what he [was] doing violate[d] [a
constitutional] right.” Id. (internal quotation marks omitted,
all but first alteration in original).

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“By defining the limits of qualified immunity essentially
in objective terms,” the aim is not to “license . . . lawless
conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
To the contrary: “Where a reasonable official could be
expected to know that certain conduct would violate . . .
constitutional rights, he should be made to hesitate.” Id. The
standard of objective legal reasonableness thus acts to
safeguard “[t]he public interest in deterrence of unlawful
conduct and in compensation of victims,” without tying the
hands of officials acting in situations “in which clearly
established rights are not implicated.” Id.
The officers do not argue that, because he was a student,
C.B. had no Fourth Amendment protections. Nor could they:
Students do not “shed their constitutional rights . . . at the
schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 506 (1969); see T.L.O., 469 U.S. at 336.
Thus, the clearly established law at issue in this case is the
Fourth Amendment right to be free from unreasonable
seizures and, more particularly, its individualized suspicion
requirement. This constitutional guarantee protects “the right
of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless
by clear and unquestionable authority of law.” Terry v. Ohio,
392 U.S. 1, 9 (1968).
When law enforcement officials effect a seizure of a
person without a warrant, as the officers did here, the
reasonableness requirement generally is satisfied if probable
cause exists to believe the person is violating the law.
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 625,
624 (1989); Beier v. City of Lewiston, 354 F.3d 1058, 1071
(9th Cir. 2004). But a warrantless seizure may, in narrow
circumstances, survive Fourth Amendment scrutiny where

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probable cause does not exist. T.L.O., 469 U.S. at 340. In
such circumstances, involving, for example, the need to
investigate and deter possible criminal activity, seizures
based on “reasonable” suspicions not rising to the level of
probable cause satisfy the Fourth Amendment. Terry,
392 U.S. at 22.
That the Fourth Amendment guarantee is secured in
general terms does not assure the officers immunity:
“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002). And while the general
terms of the Fourth Amendment’s proscription against
unreasonable seizures call out for further specificity, Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2084 (2011), case law provided
this further specificity by the time of C.B.’s 2008 seizure.
By 2008, the law was clearly established that the
constitution requires police officers to have some legal cause
to take children into custody. Crowe v. County of San Diego
held that a police officer was not entitled to qualified
immunity for a claim that the 1998 detention of two children
after the murder of the children’s sister violated the children’s
Fourth Amendment rights, as the officer “failed to provide
any justification” for the children’s seizure, 608 F.3d 406,
439 (9th Cir. 2010); Henderson v. Mohave County rejected
law enforcement’s assertion that qualified immunity
protected them against a section 1983 suit for taking a child
into custody, even for the purpose of transporting the child
from one parent to another, where there was “no excuse” for
the officers’ seizure of the child, 54 F.3d 592, 595 (9th Cir.
1995).

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Here, the officers acknowledged that their seizure of C.B.
amounted to an arrest. In assessing the circumstances under
which a law enforcement officer may take a child into
temporary custody for being “beyond the control” of a parent,
guardian, or custodian, the California legislature arrived at a
reasonable cause standard. Cal. Welf. & Inst. Code § 625(a).
Thus, when law enforcement officers have reasonable cause
to believe a child falls within the ambit of section 601, they
may hold the child in temporary detention. Id. As the
officers explained during their testimony, this temporary
custody could involve transferring custody to the probation
department or to a private shelter. Cal. Welf. & Inst. Code
§ 626.
In my view, the police officers could not reasonably have
believed that they had cause, reasonable or otherwise, to take
C.B. into custody under section 601(a). I will therefore
assume that the state statute’s adoption of a reasonable, rather
than probable, cause standard, is consistent with the
constitutional guarantee, and will further assume that
“reasonable cause” is less than “probable cause,” which is not
self-evident. Still, if the officers could not reasonably have
believed some cause existed under section 601(a), qualified
immunity offers them no protection.
No reasonable officer would have believed that he had
any cause to take C.B. into custody pursuant to section 601.
The officers were told that that day C.B. was “out of control,”
a runner who had not taken his medication, and, in response
to questioning, that he was not wanted on school grounds.
But Sonora Elementary obviously was not C.B.’s parent,

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C.B. V. CITY OF SONORA

guardian, or custodian: For the reason I have explained, there
is just no sensible reading of the statute otherwise.3
Moreover and separately, the officers’ account assuredly
did not provide reasonable cause to believe C.B. “persistently
or habitually refuse[d] to obey . . . reasonable and proper
orders or directions.” Cal. Welf. & Inst. Code § 601(a). Nor
did it provide reasonable cause to believe that C.B. was
“beyond the control” of anyone. California law is clear that
a single act of defiance is generally insufficient to find that a
minor is beyond the control of a parent, guardian, or
custodian absent some extraordinarily serious act of defiance.
See Paez, J., Opin. at 43–44 (citing In re David S., 12 Cal.
App. 3d at 1128 (holding that a minor who had told his
mother he would be spending the weekend with friends about
40 miles from home but who was actually found about 600
miles away from home attempting to cross the border into
Mexico was beyond the control of his parents) and In re
Bettye K., 234 Cal. App. 3d at 149).
In short, there was no cause, probable, reasonable, or
otherwise, to take C.B. into temporary custody under section
601, and no reasonable officer could have believed otherwise.
As the defense proffered by the officers in this case
confirms, law enforcement officers enforce the law, not runof-the-mill school discipline.4 And law enforcement officers

3
While there was testimony from the defense expert witness that the
police officers were trained otherwise, flatly erroneous training does not
establish qualified immunity. See Cal. Att’ys for Criminal Justice v. Butts,
195 F.3d 1039, 1049–50 (9th Cir. 1999).
4

T.L.O. notes this distinction. 469 U.S. at 341 n.7.

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alone are authorized to take a child into temporary custody
upon reasonable cause to believe the child is in violation of
section 601(a). Cal. Welf. & Inst. Code § 625. Because there
was no cause to believe C.B. could be detained under these
Welfare Code provisions, and no reasonable officer could
believe that there was, I would affirm the judgment for C.B.
on these grounds. I would not manufacture a T.L.O.–based
law-enforcement-officers-as-school-disciplinarians defense
never argued to the jury, or us.