Government Liability Update

Police Officers Violated Clearly-Established Law by Using Lethal Force on Suspect Holding Knife to Own Throat

In Singh v. City of Phoenix, published December 26, 2024, the 9th Circuit Court of Appeals reversed summary judgment granted to a police officer in a 42 U.S.C. section 1983 case.  The defendant and another officer responded to a report of an attempted robbery with a knife, and that the knife-wielder was chasing the victim with a knife in a parking lot.  When the officers arrived, the plaintiff was walking through a parking lot and not chasing anyone.  The officers parked their vehicles to form an L-shape around the plaintiff.  Still in her vehicle, the defendant officer ordered the plaintiff to stop and show both hands.  The plaintiff held a knife to his own throat.  The officer got out of her vehicle, ordered the plaintiff to stay where he was, drew her firearm, aimed it at the plaintiff and yelled that she would shoot him if he came any closer.  She repeatedly ordered the plaintiff to drop the knife.  The plaintiff made several statements that he wanted the officer to shoot him.  The plaintiff slowly moved toward the vehicle positioned between the two of them, and the officer moved backward in response.  She told him she did not want to shoot him, and he said he wanted to be shot.  The plaintiff appeared to stop near the front of the vehicle.  The officer shot the plaintiff once, in the abdomen.  Although the officers carried OC spray and tasers, the defendant officer testified she did not believe it was safe to use the taser, due to the parties' positions, and that neither taser nor spray would be effective given the distances between her and the plaintiff.  The officer testified she believed the plaintiff posed a threat to the officers and the public because he failed to follow orders and continued to advance toward her.  The plaintiff sued the officers for violation of his 4th Amendment rights, and also asserted state law claims.  The defendants moved for summary judgment.  The district court granted the defendant officer summary judgment on the section 1983 claim.  The court held that a reasonable jury could find that the officer violated the plaintiff's constitutional rights, but that she was protected by qualified immunity.

The 9th Circuit disagreed that the officer was entitled to qualified immunity.  The facts in the case were closely akin to a 9th Circuit case that sufficed to put the officer on notice that she would violate the plaintiff's 4th Amendment rights by using lethal force against him.  The facts were similar to the prior case in all material respects:  The suspects in both cases held knives to their throats rather than pointing them at anyone; the suspect was not in a physical altercation with anyone; the suspect did not threaten anyone with the knife; no one was trying to get away from him; the plaintiff did not threaten or attack the officers; d a reasonable jury could conclude the officers could have moved farther away at any time if they wanted to; the plaintiff was not committing a serious crime; the plaintiff did not actively resist arrest by trying to flee or attacking anyone; the officers were (or should have been) aware the plaintiff was emotionally disturbed; the officers failed to give the plaintiff effective warnings, because the warnings had no effect on him given his mental state; and there was a genuine issue of fact as to whether less intrusive means of force were available.

Amendment to Bane Act Exempting It from Statutory Immunities Is Not Retroactive

In Wiley v. Kern High School District, ordered partially published on December 20, 2024, the Fifth District Court of Appeal affirmed a demurrer to a claim under Civil Code section 52.1, the Bane Act.  The plaintiff alleged that she engaged in a verbal altercation with various students, staff members, and a school district police officer when she stopped by a district high school to pick up school yearbooks for her children.  She submitted a written complaint about the incident to the high school. The police officer wrote an incident report recommending various charges against the plaintiff.  The plaintiff alleged that the report contained no evidence that could reasonably be construed as constituting probable cause against her, and "cast" her "in an extremely unfavorable light."  A citation was issued against the plaintiff.  A criminal complaint issued against her charging her with misdemeanors.  During the criminal proceedings against the plaintiff, the plaintiff asked the prosecutor why he was not dropping the charges.  The prosecutor allegedly replied to the effect that the plaintiff had angered the district employees involved by threatening a lawsuit against them.  On January 3, 2022, after a mistrial, the court dismissed the misdemeanor charges in the interests of justice.  The plaintiff brought suit against multiple defendants, including the officer who wrote the report.  The trial court sustained the demurrer as to various claims and defendants.  In particular, demurrer was sustained as to all claims against the officer without leave to amend, and he was dismissed.  The plaintiff appealed.

The appellate court affirmed the demurrer as to all causes of action, albeit it reversed for leave to amend as to one cause of action.  The published portion of the decision addressed the plaintiff's Bane Act cause of action.  The plaintiff alleged that the officer who wrote the report was liable for malicious prosecution and abuse of process under the Bane Act.  By alleging the report cast her in an "unfavorable light," the plaintiff failed to plead the elements of malicious prosecution.  She does not allege the officer arrested her without probable cause, submitted false information, omitted material information, knowingly caused erroneous charges to be filed against her, or influenced prosecutors to prosecute her without probable cause.  She does not allege the officer threatened or intimidated her.  She did not allege facts connecting the report to the complaint she made to the school.  Although the officer did not need to obtain the information for his report by threats, intimidation, or coercion to qualify under the Bane Act, the report itself was not inherently coercive, and the plaintiff failed to allege any facts showing that the officer's alleged acts rose to the level of coercion required by the Bane Act.  The Bane Act's language limiting actions based on speech alone counsels that a mere unfavorable portrait of the plaintiff is likely insufficient.  The court further held the officer immune from liability under Government Code section 821.6, immunity to malicious prosecution claims.  In 2022, subdivision (n) was added to section 821.6, removing this immunity for police officers for Bane Act violations.  The court rejected the plaintiff's argument that the amendment applied to the events of this case.  The plaintiff attempted to analogize the amendment to statute of limitations cases, and argued that the elements of her cause of action for malicious prosecution were not completed until January 3, 2022, when her case was dismissed in the interests of justice.  She therefore argued that the amendment was retroactive.  The court disagreed.  Statutes are presumed prospective, unless the statute is procedural.  A statute is not procedural when it deprives a defendant of any defense on the merits.  Statutory immunity for public entities or employees is generally a substantive, rather than procedural, bar to tort immunity.  The removal of an absolute defense to liability is more than a procedural change.  There is no express legislative intent, or evidence of a clear legislative intent, to increase liability for past conduct regarding the 2022 amendment.  Finally, retroactive application of the penalties available under the Bane Act--actual damages, treble damages, punitive damages--would raise a serious constitutional question.

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Pollak, Vida & Barer represented the defendants on appeal in this matter.

 

Officers Were Entitled to Qualified Immunity for Using Force to Disperse Protest

In Puente v. City of Phoenix, published December 19, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part a summary judgment order in a lawsuit brought against police officers, supervisors, and the defendant city.  Then-President Trump held a rally at a city convention center.  Before the event, the police designated a free-speech zone for protest and a public-safety zone.  The police met with various protest organizers to make arrangements for the event.  The police erected a pedestrian fence between the zones, and had nearly 1000 public safety personnel present.  At the event, the crowd began growing violent.  Members thew water bottles, brought protest signs on long poles, passed out items to the crowd, shoved other persons, and appeared to prepare to breach the fences.  When persons who appeared to be Antifa members began pushing at the fence, officers fired pepper balls in front of them.  When members continued shaking the fence, officers fired pepper balls at them.  As the motorcade left the venue, crowd members began throwing rocks, water bottles, a device emitting a gas, and a pyrotechnical device.  Officers fired tear gas, flash-bang grenades, and pepper balls.  The officers declared an unlawful assembly, cleared the protesters by marching toward them, and used more non-lethal weapons on them.  The police chief praised the officers after the event for their professionalism.  After the event, officers circulated a mocking challenge coin depicting a protester receiving a groin injury.  Organizations and individuals sued officers involved, their supervisors, and the city under 42 U.S.C. section 1983.  The district court granted summary judgment on all claims except the 4th Amendment Excessive Force claims against officers who struck plaintiffs with projectiles.

The 9th Circuit held that summary judgment should have been granted as to all of the plaintiffs' claims.  The court held that there was no seizure as to plaintiffs who were subject to airborn irritants, and that the use of force as to those defendants was therefore governed by the 14th Amendment "shocks the conscience" standard rather than the 4th Amendment.  Because the actions at the time were all related to legitimate law enforcement interests, rather than a purpose to harm, the actions did not violate the 14th Amendment.  The post-event issuance of the "challenge coin" was of minimal relevance because it occurred after the event.  The analysis does not apply to the plaintiffs who were actually struck by projectiles. The court declined to determine whether they suffered a temporary seizure that would invoke the 4th Amendment, because under the circumstances the officers who used the projectiles were entitled to qualified immunity because their conduct was reasonable under the circumstances or did not violate clearly-established law.  Cases finding violations were materially distinguishable from the events here, and therefore did not clearly establish the law.  The 9th Circuit rejected the argument that the plaintiffs' 1st Amendment rights were violated because the officers did not issue verbal warnings to the crowd before using force.  The supervising officers were entitled to summary judgment, because where subordinates do not violate clearly-established law, there is no supervisory liability claim.  Finally, the plaintiffs failed to state a Monell claim against the city.

Where Entity Had No Notice of Concealed Trap at Accident Location, There Was No Issue of Fact on Whether Failure-to-Warn Claim Could Defeat Design Immunity

In Kabat v. Department of Transportation, ordered published December 19, 2024, the Fourth District Court of Appeal, Division 3 affirmed summary judgment for Caltrans.  A bicyclist was riding or walking her bike across a non-signalized marked crosswalk that crossed a freeway onramp when a motorist hit and fatally injured her.  There was a pedestrian crossing sign facing traffic 150 feet ahead of the crosswalk and another (with a sign below it of an arrow pointing down) at the north end of the crosswalk. The crosswalk is part of an interchange owned and controlled by Caltrans.  It was originally constructed by Caltrans's predecessor agency based on plans prepared and completed in 1967.  It underwent improvements twice, based on plans completed in 2006 and 2015.  The plaintiffs contended that the crosswalk was a dangerous condition of public property because the posted speed limit was too high, the bike path leading to it was dangerous and unsafe because it did not allow pedestrians and bicyclists a safe way to cross the highway; there were inadequate warnings and signs and insufficient traffic controls; and there was a "trap condition" where motorists approaching the onramp and pedestrians and bicyclists using the crosswalk could not see one another.  The trial court granted Caltrans summary judgment, because Caltrans established design immunity under Government Code section 830.6 and plaintiffs could not overcome the signage immunities under Government Code sections 830.4 and 830.8.  The trial court ruled that plaintiffs had failed to raise a triable issue of fact on the existence of a failure-to-warn claim, based on a concealed trap, that would be actionable despite design immunity.

The appellate court agreed.  It rejected plaintiffs' contention that Caltrans failed to establish the discretionary-approval element of design immunity.  The plaintiffs contended that Caltrans had to establish that the specific engineers who approved the 1967, 2006, and 2015 plans had been delegated or vested with discretionary authority to approve them.  Caltrans presented uncontradicted evidence through the declarations of Caltrans employees and a civil/traffic engineer's declaration that licensed engineers and Caltrans design oversight engineers approved the various plans before construction.  The Legislature has vested Caltrans with discretionary authority to approve highway plans and has required licensed engineers to sign off on them.  Caltrans can act only through its employees or agents.  The plan signatures reasonably support the uncontradicted inference that the plans received Caltrans's discretionary approval.  As for the failure-to-warn claim, public entities are entitled to signage immunity unless the plaintiff establishes that the dangerous condition at issue was a concealed trap, and that the public entity had notice of the dangerous condition.  The plaintiff must establish notice under a failure-to-warn theory even if the defendant entity created the dangerous condition.  Caltrans offered undisputed evidence that it maintains a database tracking the number and type of collisions on its onramps; and that in the decade before and including the day of the accident there were no accidents involving a bicyclist during the same time of day as the accident, despite over 13 million vehicles passing through the onramp.  This evidence established Caltrans had no notice of the alleged dangerous condition. A declaration by plaintiffs' expert that the crosswalk created a false sense of security,  that the lack of a signal constituted a trap because it rendered the area deceptive, and that the Caltrans database was inadequate to provide constructive notice did not raise a triable issue of fact on notice, because the opinions were conclusory.  Finally, the public entity did not have to provide evidence that it used the databases before the accident occurred to establish lack of notice.

Officers Did Not Use Excessive Force in Shooting Suspect Who Approached Them with Toy Sword and Failed to Obey Commands

In Napouk v. Las Vegas Metropolitan Police Department, published December 10, 2024, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for the defendants.  Officers received calls of a man with a "slim jim," "long stick," or "machete" acting suspiciously.  When the defendant officers arrived in the neighborhood, the plaintiffs' decedent came out from between two houses.  He was wearing sunglasses and had headphones in both ears.  He was carrying a long object that the officers thought was a machete.  The officers drew their weapons and ordered the man to drop the object in his hands.  They also ordered him to remove the headphones.  For five minutes, as the man walked slowly around one of the patrol cars, the object in various positions, the officers told the man to drop the sword and warned that they would have to shoot him if he did not. He would occasionally answer threats to shoot him with, "You have to" and, "I know."  Eventually, when the man came within nine feet of the officers and they became concerned about crossfire, the officers both shot him multiple times, killing him.  The object he was holding was a homemade plastic toy sword.  The man's parents sued the officers for violation of the decedent's 4th Amendment rights and their own 14th amendment rights, and asserted a Monell claim against the city.

The majority held that the officers did not violate the 4th Amendment.  The officers reasonably mistook the object in the man's hands for a real machete.  As such, he posed an immediate threat to the safety of the officers.  He was walking toward one of the officers, failing to follow commands to stop or drop the weapon for five minutes, caused them to retreat with increasing frequency, and came within 10 feet of them.  That he was walking slowly at times did not change that he was deliberately advancing on them with what appeared to be a long bladed weapon.  The officers attempted to deescalate the situation and engage with the suspect.  They also attempted to retreat.  By approaching the officers with an apparent weapon, the suspect committed a serious crime.  By refusing the officers' instructions, the decedent was actively resisting arrest or attempting to evade arrest.  SInce the decedent was brandishing what appeared to be a lethal weapon and advancing toward the officers, that he was apparently emotionally disturbed did not negate the threat he exhibited.  If anything, his erratic behavior made him more of a threat.  They also gave effective warnings.  The majority also ruled the officers did not violate clearly-established law.  The majority further rejected the parents' 14th Amendment claim for deprivation of a family relationship.  Since the situation did not provide time for deliberation, only an act with a purpose to harm unrelated to any legitimate law enforcement objectives would violate the 14th Amendment.  Assuming plaintiffs could assert a substantive due process claim based on the death of their 44-year-old son, and could make out an excessive force claim, there is no evidence the officers acted with anything other than legitimate law enforcement objectives of defense of themselves and each other.  FInally, because the officers did not violate the Constitution, the Monell claim fails.

One concurring judge opined that the parents should not have a 14th Amendment claim for the death of their adult son.  A dissenting judge opined that a jury should conclude whether the officers used excessive force under the circumstances.

Because Suit against Individual Defendants for Relief only Entity Can Provide Does Not Serve Public Interest, Public Interest Exemption from Anti-SLAPP Does Not Apply

In Howard Jarvis Taxpayers Association v. Powell, published October 11, 2024, the Fourth District Court of Appeal, Division 2 reversed an award of fees under the Anti-SLAPP statutes and reversed denial of a special motion to strike under Anti-SLAPP.  The plaintiff sued a water district and three of its board members, alleging aquifer replenishment charge assessments violated the law.  The petition and complaint included causes of action against the board members for writ of mandate, conversion, civil conspiracy, and declaratory relief.  All of the defendants demurred, and the individual defendants filed an anti-SLAPP motion.  The trial court denied the motion under Code of Civil Procedure section 425.17's special interest exemption.  The plaintiff was awarded fees under Code of Civil Procedure section 425.16 for an anti-SLAPP motion that was frivolous or solely intended to cause delay.

The appellate court ruled that the trial court erred in applying the public interest exemption, because the plaintiff sued the individual members of an official government body for relief only the government body can provide.  The writ of mandate cause of action sought a writ to direct the defendants to stop collecting charges, vacate resolutions imposing the charges, and returning all amounts collected as unlawful charges.  The conversion cause of action sought a return of those amounts.  All of these are acts only the water district can perform.  There is a distinction between action taken by a government body and the expressive conduct of individual representatives.  Including the individual defendants was gratuitous.  It did not serve the public interest.  It could only serve to expose the individuals to potential costs of having to provide for their own defense as well as the threat of personal liability.  That risk is enough to have a chilling effect, especially against public officials who often serve for little or no compensation.  Without the exemption, the elements of an anti-SLAPP special motion to strike are met:  the officials' acts were protected activity, and there was no probability of success on the merits of the claims.  The civil conspiracy cause of action failed against the board members because the board members were immune from liability under Government Code section 820.2.  The declaratory relief action fails against the individual defendants because it seeks a declaration that does not implicate the individual defendants' rights and duties.

Qualified Immunity Applied to Use of Force to Handcuff Struggling Suspect Who Had Struck Officer, but Not to Kneeling on Subdued Suspect

In Spencer v. Pew, published September 16, 2024, the 9th Circuit affirmed in part and reversed in part summary judgment for the defendant officers.  The vehicle in which the plaintiff rode pulled out of a driveway directly in front of an unmarked police car.  Defendant officers stopped the car for an unsafe maneuver.  The plaintiff appeared nervous, and gave officers a false name.  When the deception was discovered, the officers ordered the plaintiff out of the car and to put his hand behind him, as he was under arrest.  When an officer pulled the plaintiff's wrist behind him, the plaintiff hit the officer in the chest with his shoulder.  The officers then spent three and a half minutes struggling with the plaintiff and putting him in handcuffs.  During the struggle, officers punched, kicked, and repeatedly tased the plaintiff.  After he was double-handcuffed and subdued on the ground, an officer knelt on the plaintiff's back, despite the plaintiff's protests that he could not breathe.  The plaintiff sued the officers under 42 U.S.C. section 1983 for use of excessive force.  The district court granted the officers summary judgment based on qualified immunity, ruling that the officers had not violated clearly-established law.

The 9th Circuit agreed that the officers who struggled to subdue the plaintiff were entitled to qualified immunity.  Under the circumstances, including the plaintiff striking an officer and then resisting arrest for a long period, the use of excessive force was not obvious.  The plaintiff therefore had the burden of identifying case law that was not materially distinguishable and therefore would put the officers on notice that their actions violated the 4th Amendment.  The plaintiff failed to identify any such law.  On the other hand, existing case law put the officer who knelt on the plaintiff's back after he ceased resisting and protested he could not breathe on notice that he was violating the 4th Amendment.  The court rejected an argument that the officers who held the plaintiff while the other officer knelt on him were liable under the integral-participant doctrine.

Legal Developments Favorable to Defendant That Occur After Incident Do Not Affect Whether Law Clearly Established at Time of Incident

In Sanderlin v. Dwyer, published September 4, 2024, the 9th Circuit affirmed the district court's denial of the defendant police officer's summary judgment motion.  During a mass protest, the plaintiff stood in front of the defendant officer, holding a sign.  The officer was equipped with a 40 mm launcher, capable of firing foam baton rounds.  The officer yelled, "I'm going to hit you, dude.  You better move!"  The plaintiff failed to immediately comply.  A few seconds later, the officer fired a foam baton at the plaintiff, striking him in the groin area.  The officer's body cam showed the suspect staggering away from the impact, unable to stand or walk properly.  He sustained severe injuries and required emergency surgery.  The officer contended that he was tracking two subjects who looked like they would throw paint at officers, and that the plaintiff was deliberately blocking the subjects from view.  The plaintiff denied this.  The plaintiff alleged the officer used excessive force against him in violation of both the 1st and 4th Amendment.  The officer moved for summary judgment on both prongs of qualified immunity.  The district court ruled that under the plaintiff's version of the events, a jury could find that the officer violated the plaintiff's rights; and that the violations were clearly established.

The 9th Circuit court agreed.  Regarding the 1st Amendment claim, it was clearly established at the time that police officers may not use their authority to retaliate against individuals for protected speech.  If a factfinder determines the officer's actions were retaliatory, his actions would violate clearly-established law.  Regarding the 4th Amendment claim, the court ruled that a reasonable factfinder could conclude the plaintiff was seized under the 4th Amendment, because the officer intentionally applied physical force and as a result the plaintiff's freedom of movement was restrained, even though he was able to walk away.  That the officer did not subjectively intend to restrain the plaintiff is immaterial, since the focus is on whether the conduct objectively manifests an intent to restrain, rather than on the officer's subjective intent.  There was a triable issue on whether the force used was excessive, and thus whether the use of force violated the 4th Amendment.  On the second prong of qualified immunity, based on 9th Circuit law at the time of the incident, it was clearly established that firing projectiles at non-threatening individuals was objectively unreasonable.  A Supreme Court decision issued after the incident took place limited the 9th Circuit's holding on that point, by holding intentional application of force is not sufficient to establish a seizure unless the force was intended to restrain.  But just as the "clearly-established" analysis disregards legal developments after the incident that are unfavorable to the plaintiff, it disregards subsequent legal developments that are favorable to the defendant.  The focus is on whether the law at the time of the incident gave the officer prior notice that the officer's conduct is unlawful.

Officers' Use of Deadly Force Reasonable when Suspect Attempted to Accelerate Boxed-in Vehicle

In Williams v. City of Sparks, published August 9, 2024, the 9th Circuit Court of Appeals reversed the district court's denial of summary judgment in a 42 U.S.C. section 1983 case.  When officers responded to a report of larceny at a gas station, the plaintiff got into his truck and led officers on a high-speed chase.  During the chase, the suspect drove over 70 mph, drove through a chain-link fence, briefly drove the wrong way on a freeway, drove through red lights, and drove at police vehicles, colliding with three.  The plaintiff's vehicle eventually came to a stop with a patrol vehicle wedged under the vehicle, pinning it against another police vehicle.  The plaintiff's truck's engine then made a loud, continuous noise, and a cloud of dirt and debris formed near the back.  An officer's dash cam showed the truck's wheels spinning.  Officers exited their cars and shouted orders at the truck, including to stop the truck, as they fired multiple rounds into the truck cab for 14 seconds.  Several bullets struck the plaintiff, who eventually left the cab. He sued the officers for alleged use of excessive force.  The district court denied summary judgment based on qualified immunity, finding a genuine issue of fact on whether the plaintiff was trying to accelerate the truck due to the cloud obscuring the back of the truck during the shooting.

The 9th Circuit ruled that the video showed that the tires were spinning as the engine sounded, establishing that the plaintiff was tryin to accelerate.  Because that video evidence contradicted the plaintiff's denial that he was accelerating, it had to be accepted as true for purposes of summary judgment.  Based on that evidence, and the plaintiff's conduct during the chase, the use of deadly force was objectively reasonable due to the threat the suspect posed and the threat that he would escape and continue to pose a threat of harm.  The length of the gunfire did not render the use unreasonable; once deadly force is reasonable to use, an officer need not stop firing until the threat is ended.  The court exercised its right to exercise jurisdiction over the plaintiff's Monell and Nevada state law claims, and ruled that the officers and city were entitled to summary judgment against all claims.

Placing Body Weight on Head and Neck of Compliant Mentally Ill Person Violated Clearly-Established Law, but 14th Amendment Violation Not Clearly Established

In Scott v. Smith, filed July 30, 2024, the 9th Circuit affirmed in part and reversed in part denial of summary judgment based on qualified immunity.  Viewing the disputed facts in the light most favorable to the plaintiffs, the plaintiffs' decedent called 911, complaining of men armed with saws in front of his home.  Police responded.  After they knocked on the door several times, ordering the decedent to come to the door, the decedent opened the door, carrying a metal pipe.  On the officers' command, he dropped the pipe.  Asked if he was carrying any other weapons, he produced a knife from his pocket and handed it handle-first to the officers, apologizing.  The decedent informed the officers that he was mentally ill and paranoid, and asked to be placed in their car.   The officers decided to detain the decedent for a mental health hold. When the officers seized him, he protested and struggled.  The officers pinned him, pressing body weight against his neck and back, despite the decedent's protests growing muffled and incoherent.  The decedent passed away of restraint asphyxia.  His daughter and estate sued for violation of the decedent's 4th Amendment rights by use of excessive force, and the daughter's 14th Amendment right of familial association.

The 9th Circuit ruled that under the plaintiffs' version of the facts, the officers violated the decedent's 4th Amendment rights.  The balancing of interests in use of force did not compel use of deadly force against a mentally ill man who was complying with officer orders and who was not suspected of a crime.  The use of deadly force also violated clearly-established law, as it was well-established at the time under 9th Circuit authority that use of body weight on a mentally ill person who did not pose a threat was excessive force.  The 9th Circuit further determined that because the officers had time to deliberate before using force, and showed deliberate indifference, under the plaintiffs' version of the facts, they violated the daughter's 14th Amendment right to familial relationship.  But because there was no case law finding a 14th Amendment violation under similar circumstances at the time, the officers were entitled to qualified immunity to that claim.