Richard Collender v. Shawn Neel

FILED

NOT FOR PUBLICATION MAR 25 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD A. COLLENDER, individually No. 13-55438 and as successor in interest to Julian Stanley Collender; YEN P. COLLENDER, D.C. No. 8:11-cv-00530-AG- individually and as successor in interest to MLG Julian Stanley Collender, Santa Ana Plaintiffs - Appellees,

v. MEMORANDUM*

CITY OF BREA,

Defendant,

and

SHAWN NEEL, individually; et al.,

Defendants - Appellants.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted February 12, 2015 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,** Senior District Judge.

City of Brea Police Department Detective Shawn Neel (“Neel”) appeals the

district court’s denial of his motion for summary judgment based on qualified

immunity. We have…

MEMORANDUM **

City of Brea Police Department Detec-five Shawn Neel (“Neel”) appeals the district court’s denial of his motion for summary judgment based- on qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Because the parties are familiar with the procedural history, we need not recount it in detail here.

I.

Detective Neel was off duty shortly before midnight on June 30, 2010, when his partner Detective Michael Johnson (“Johnson”) called him asking for help with an investigation. An armed robbery had allegedly taken place earlier that night, and Julian Collender (“Julian”) 1 was the suspect. Johnson told Neel the suspect “had committed a robbery with a handgun and had threatened to kill the victim’s family.” Johnson, concerned that Julian might go to the victim’s home, asked Neel to assist only with surveillance of Julian’s residence *626 to make sure Julian didn’t leave. Johnson gave Neel Julian’s address in Yorba Linda and a description of Julian’s red Nissan. He also told Neel that Julian had no history of violence.

Neel arrived at Julian’s street address shortly after midnight driving an unmarked grey Cadillac, and he observed a red…

dissenting:

I respectfully dissent. Qualified immunity should protect Neel from liability. See Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 4-5 , 187 L.Ed.2d 341 (2013) (per curiam) (“ ‘The doctrine of qualified immu-. nity protects government officials from liability for civil damages insofar as their *630 conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” (quoting Pearson v. Callahan, 555 U.S. 223, 231 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009))). Qualified immunity is meant to protect government officials from litigation; it is an immunity from suit, not merely a defense. Pearson, 555 U.S. at 231 , 129 S.Ct. 808 . Moreover, the protection applies even if the defendant made a mistake of fact. Id.

The majority relies on a series of factual disputes that are not relevant to the question whether qualified immunity applies. The majority notes, for example, that the parties dispute whether Collender’s left hand actually entered his left front pants pocket. Maj. at 629. The majority also points out that the parties offer “alternative reasons why [Collender] moved his hand downward.” Id. at 627. But those facts…