Scott Gillen, husband and VERONICA GILLEN, wife v. Town of Hayden, a political subdivision;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT GILLEN, husband and
VERONICA GILLEN, wife,
Plaintiffs-Appellees,
v.
TOWN OF HAYDEN, a political
subdivision; et al.,
Defendants,
and
W. WHITE; et al.,
Defendants-Appellants.
No. 17-16617
D.C. No. 2:15-cv-00460-ROS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted March 8, 2019
Phoenix, Arizona
Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.
FILED
APR 04 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Weston White, Matthew Engwis, and Matthew Bowling (collectively,
“defendants”) appeal the district court’s order denying their motion for summary
judgment on Scott Gillen’s state and federal claims for false imprisonment and
false arrest. We have jurisdiction under 28 U.S.C. § 1291. See Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th Cir. 2017).
Gillen has failed to “identify a case where an officer acting under similar
circumstances” as defendants was found to have exceeded the categorical authority
of officers announced in Michigan v. Summers, 452 U.S. 692 (1981), to detain
incident to the execution of a search warrant. Sharp v. Cty. of Orange, 871 F.3d
901, 916 (9th Cir. 2017) (emphasis omitted) (quoting White v. Pauly, 137 S. Ct.
548, 552 (2017) (per curiam)). None of the cases cited by Gillen involved, let
alone settled beyond debate, the question whether Summers and Muehler v. Mena,
544 U.S. 93 (2005), authorized officers to detain an individual returning to his
residence, where (as here) law enforcement officers were surveilling the premises
shortly before a SWAT team was to arrive to ensure that execution of the search
warrant could take place when the individual was not present. Cf. Bailey v. United
States, 568 U.S. 186 (2013); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983).
Nor do any of the cases cited by Gillen clearly establish that officers who detain an
individual at the premises to be searched are prohibited from transporting that
2

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individual, for the duration of the search, to a nearby location. Cf. Bailey, 568 U.S.
186; Taylor, 716 F.2d 701.1
Given that defendants could have reasonably believed their actions were
authorized under Summers, they are also entitled to qualified immunity on Gillen’s
analogous state law claims. See Chamberlain v. Mathis, 729 P.2d 905, 912 (Ariz.
1986).2
REVERSED.
1 White’s mistaken belief that an arrest warrant existed is immaterial because
the inquiry into whether officer action was permitted under the Fourth Amendment
is objective. See Scott v. United States, 436 U.S. 128, 138 (1978).
2 Gillen does not argue that Arizona law confines the authority to detain
incident to a search more narrowly than does Summers and its progeny.
3

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