Shotland

MEMORANDUM *

Plaintiffs sue for damages under 42 U.S.C. § 1983 . Appellants, two police officers, bring an interlocutory appeal of the district court’s denial of their motion for summary judgment based on qualified immunity. We review such a denial de novo. See Lee v. Gregory, 363 F.3d 931, 932 (9th Cir.2004). The parties are familiar with the facts, and we do not repeat them in detail here.

At issue is whether the district court erred in determining that a reasonable officer would have known that their warrantless, unconsented intrusion into the Shotland residence was not excused by the exigent circumstance exception to the *616 Fourth Amendment warrant requirement. See Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001); United States v. Kunkler, 679 F.2d 187, 192 (9th Cir.1982). Based on the record before it, including all the evidence introduced by appellants, the experienced district court judge determined that a reasonable officer would have known that the intrusion was not excused by exigent circumstances.

In their brief to this court, appellants represent that a Los Angeles County Superior Court Judge in a suppression hearing found that exigent…

dissenting.

I must respectfully part company with the majority.

First, I believe that we should have granted the appellants’ motion for judicial notice. The advisory committee’s note to Rule 201 of the Federal Rules of Evidence, which governs judicial notice, distinguishes between “legislative” facts and “adjudicative” facts. See Fed.R.Evid. 201 advisory committee’s note. Adjudicative facts are defined as “simply the facts of the particular case,” while legislative facts “are those which have relevance to legal reasoning and the lawmaking process, ... [such as a] ruling by a judge or court....” Id. The committee notes state that the court’s “access to legislative facts” is “unrestricted,” and that the parties “control no part of the process.” Id. (quoting Edward M. Morgan, Judicial Notice, 57 Harv. L.Rev. 269, 270-71 (1944)).

To resolve this case, the state court decision need not be considered for its “adjudicative” value — i.e., as evidence that the search in this case complied with the Fourth Amendment. Instead, we need only consider it as proof of the “legislative” fact that a reasonable jurist, i.e., the state court judge, concluded that the search was constitutional.…