FILED

NOT FOR PUBLICATION FEB 11 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SHAREE BUTLER, No. 08-17551

Plaintiff - Appellant, D.C. No. 2:07-cv-00755-LKK-

DAD

v.

CITY OF SACRAMENTO; MICHELLE MEMORANDUM *

PEREZ; CITY OF SACRAMENTO

POLICE DEPARTMENT,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding

Submitted February 9, 2010 ** San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.

Sharee Butler sued the City of Sacramento, the Sacramento Police

Department, and Sacramento Police Officer Michelle Perez. She alleged violations

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of her Fourth and Fifth Amendment rights under 42 U.S.C. § 1983, and violations

under several state-law provisions. The district court dismissed or granted

summary judgement in favor of the defendants with respect to each of Butler’s

claims. Butler appeals only the district court’s ruling that Perez is entitled to

qualified immunity with respect to Butler’s Fourth Amendment claim, and

accordingly, none of her other claims are before us. As the facts are known to the

parties, we will not repeat them here except to the extent necessary to explain our

decision.

I

Perez is entitled to qualified immunity unless (1) the facts, viewed in the

light most favorable to Butler, demonstrate a violation of a constitutional right and

(2) that right was clearly established at the time of the defendant’s misconduct.

Pearson v. Callahan, 129 S. Ct. 808, 815–16 (2009). This court may address these

questions in any order it chooses. Id. at 818.

Assuming, without deciding, that Perez violated Butler’s Fourth Amendment

rights by continuing to detain her after completing the search of her vehicle, this

right was not clearly established in 2005, and Perez is therefore entitled to qualified

immunity. A government official is immune from liability for discretionary

functions, so long as the official’s conduct “does not violate clearly established

2 statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity shields “all

but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). “It is not necessary that the alleged acts have

been previously held unconstitutional, as long as the unlawfulness [of defendant’s

actions] was apparent in light of pre-existing law.” Malik v. Brown, 71 F.3d 724,

727 (9th Cir. 1995).

Butler cites no case directly demonstrating that the asserted right was clearly

established in 2005.1 She contends that in 2005 it was clearly established that “a

seizure becomes unlawful when it is more intrusive than necessary to accomplish

the objectives that justified the seizure in the first place.” Be that as it may, the

circumstances of Butler’s arrest do not demonstrate that her detention was

unconstitutionally intrusive. To the contrary, it was established that Perez could

detain Butler during the search of her car and home. See Michigan v. Summers,

452 U.S. 692, 705 (1981) (holding that officers may detain the occupants of a

house while executing a search warrant); see also Maryland v. Wilson, 519 U.S.

1 Indeed, many of the cases she cites were decided after her 2005 arrest, and therefore cannot possibly demonstrate that Perez’s actions violated a clearly established Fourth Amendment right. See, e.g., Arizona v. Johnson, 129 S. Ct 781 (2009); Los Angeles County v. Rettele, 550 U.S. 609 (2007); United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007).

3 408, 414–15 (1997) (holding that officers may detain the occupants of a vehicle

while executing a search warrant). Thus, we cannot say that, at the time of Butler’s

arrest, “the unlawfulness [of Perez’s actions] was apparent in light of preexisting

law.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002) (internal quotation

marks omitted).

II

Accordingly, the judgment of the district court is

AFFIRMED.

4