Richard Pike v. J. Hester , 891 F.3d 1131 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD PIKE, No. 16-16764
Plaintiff-Appellee,
D.C. No.
v. 3:12-cv-00283-
RCJ-VPC
J. BRAD HESTER, in his official and
individual capacities,
Defendant-Appellant, OPINION
and
SEAN MUNSON, in his official and
individual capacities; RICK KEEMA,
in his official and individual
capacities; JIM PITTS, in his official
and individual capacities; ELKO
COUNTY SHERIFF’S OFFICE, a
government entity; ELKO COUNTY,
Nevada, a government entity,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
2 PIKE V. HESTER
Submitted October 10, 2017*
San Francisco, California
Filed June 6, 2018
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge O’Scannlain
*
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
PIKE V. HESTER 3
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
denying qualified immunity to a sheriff’s sergeant in an
action brought pursuant to 42 U.S.C. § 1983 alleging that the
sergeant violated plaintiff’s Fourth Amendment rights when
he conducted an after-hours dog search of plaintiff’s locked
office.
Prior to filing his § 1983 action, plaintiff had petitioned
a county justice court for a temporary restraining order
against the sergeant, which the state court justices initially
granted, and subsequently extended for two months. The
district court determined that issue preclusion did not apply,
but that on the merits, the search violated the Fourth
Amendment, and that a reasonable officer would have been
aware that the search was unlawful. Accordingly, the district
court denied qualified immunity to the sergeant.
The panel held that issue preclusion did apply and that the
panel was bound by the state justice’s conclusion that the
sergeant violated the Fourth Amendment. Applying Nevada
issue preclusion law, the panel determined that: (1) the
alleged Fourth Amendment violation was at issue in the state
court proceeding; (2) the sergeant was a party; (3) the state
justice’s order extending the protective order was final for
issue preclusion purposes; and (4) the state justices actually
and necessarily litigated the Fourth Amendment issue and
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PIKE V. HESTER
found that the search was not lawful. The panel further held
that it was clearly established at the time of the search that the
sergeant’s conduct violated plaintiff’s rights.
Dissenting, Judge O’Scannlain disagreed with the
majority’s holding that a two-month restraining order,
granted by a state court of limited jurisdiction, has issue-
preclusive effect with respect to a § 1983 cause of action
premised on a constitutional violation and requesting
compensatory and punitive damages. Judge O’Scannlain
stated that plaintiff failed to properly raise issue preclusion
on appeal, that issue preclusion was not applicable in any
event, and that because the issue of whether the sergeant had
permission to search was critical, he would reverse the
district court’s summary judgment and remand for further
proceedings.
COUNSEL
Katherine F. Parks, Brian M. Brown, and Kevin A. Pick,
Thorndal Armstrong Delk Balkenbush & Eisinger, Reno,
Nevada, for Defendant-Appellant.
John Neil Stephenson, Stephenson Law PLLC, Reno,
Nevada, for Plaintiff-Appellee.
PIKE V. HESTER 5
OPINION
TASHIMA, Circuit Judge:
In 2011, J. Brad Hester, a sheriff’s sergeant, conducted an
after-hours dog search of Richard Pike’s locked office. Pike
successfully petitioned a state court for an order of protection
against Hester. Pike later sued Hester in federal district court,
claiming that the search violated his Fourth Amendment
rights. In district court, Pike moved to preclude from
relitigation certain issues he said the state court had already
decided. The district court granted the motion in part. Pike
later moved for offensive summary judgment on his Fourth
Amendment claim. The district court granted the motion,
concluding that Hester’s search violated the Fourth
Amendment and that Hester was not entitled to qualified
immunity because Pike’s right to be free from such a search
was clearly established. Hester appealed.
We too conclude that Hester violated Pike’s clearly
established constitutional rights, although we depart from the
district court’s analysis in some respects. First, we hold that
the state justice court’s conclusion that Hester violated the
Fourth Amendment is precluded from relitigation. Second,
because it was clearly established at the time of the search
that Hester’s conduct violated Pike’s rights, Hester is not
entitled to qualified immunity. We affirm.
I. Factual Background
In 2011, Hester was a sergeant in the Elko County
Sheriff’s Office. Pike was the Elko County recreation
director and the assistant high school football coach in the
Elko County unincorporated town of Jackpot, Nevada. In his
6 PIKE V. HESTER
role as recreation director, Pike worked out of an office –
shared with his assistant – at the Jackpot Recreation Center
(the “Center”) in Jackpot. Pike and Hester did not have a
friendly relationship, which Hester attributed to Pike’s
alleged mistreatment of one of Hester’s sons in 2007. Hester
and Pike’s relationship soured in October 2007, when, Hester
alleges, Pike hit Hester’s son, a high school football player,
during a football game that Pike was coaching. Hester’s son
was then benched for the second half of the game and
suspended for the following game for arguing with Pike.
A. The Search of Pike’s Office
In August or September 2011, Hester activated the sirens
on his patrol car to pull over Lynn Forsberg, the county
director of public works and Pike’s boss. Hester had a request
for Forsberg. Hester told Forsberg that he believed that
certain Center employees, including Pike, were “dealing
drugs” out of the building.1 Hester asked Forsberg if he
“would care” if Hester searched the Center. Forsberg and
Hester dispute how Forsberg responded. Forsberg says he
told Hester that “if he wanted to search the recreation center,
1
Although Hester does not contend the search was supported by
probable cause, he said in a deposition that he had received information
about drug activity at the Center from Richard Pickers, a state law
enforcement investigator. Pickers testified that an informant told him
about drug activity at the Center, but Pickers did not recall the informant
mentioning a specific Center employee’s name. By contrast, Hester
testified that Pickers identified someone else as a Center employee who
was dealing drugs. Pike became a target based on information Hester
received from lay sources, including Pike’s ex-girlfriend. Notably,
Pickers passed his information to Hester before Pickers left the Nevada
Investigation Division in April 2011 – at least several months before the
search.
PIKE V. HESTER 7
he could call me, I would come up and let him in.” Hester
says that Forsberg gave him unconditional permission to
search the Center “‘[a]nytime, day or night.’” Hester also
told Forsberg that he already had a key to the Center, which
prompted Forsberg to change the Center’s locks.
Soon thereafter, and without further talking to Forsberg,
Hester led a nighttime search of the Center.2 Hester, who was
off duty and in plainclothes, was accompanied by Deputy
Sean Munson, K-9 Deputy Mike Moore, and Moore’s drug
dog. Hester used his key to unlock the Center. The dog
searched the entire building in about ten minutes. As part of
the search, Hester unlocked the door to Pike’s office and
entered with Moore and the dog. The dog did not alert to
drugs anywhere in the office. The officers did not open any
drawers or touch any items in the office. Hester asked Moore
to have the dog sniff a file cabinet outside Pike’s office a
second time because the dog had scratched it on the first pass,
but the dog did not alert on the second pass. The officers did
not take any notes during the search and did not file a report
afterward.
The animosity between Pike and Hester escalated. Pike
learned of the search a few weeks later and filed a grievance
with the sheriff’s office. Some time after the search, Hester
met with the high school athletic director, Kim Smith, to
complain about Pike’s conduct as a football coach. Hester
also told Smith that Pike was “one of the biggest potheads in
town.” When Pike learned about that conversation, he asked
2
None of the parties or witnesses recalls the exact date of the search,
but it must have occurred shortly after Hester and Forsberg’s conversation,
as Forsberg changed the Center’s locks only “a few days” after learning
that Hester had a key.
8 PIKE V. HESTER
Smith to write a letter documenting her meeting with Hester.
Pike then complained to a sheriff’s office lieutenant a second
time.
In January 2012, after an internal affairs investigation, the
sheriff’s office suspended Hester without pay for 30 hours
because the search of Pike’s office was “conduct
unbecoming” an officer. The letter informing Hester of the
discipline did not mention the Smith meeting.
B. Justice Court Proceedings
On November 15, 2011, Pike petitioned the Elko County
Justice Court for a temporary restraining order (“TRO”)
because, he alleged, Hester was stalking him in violation of
state law. Nevada Revised Statutes § 200.575(1) provides:
A person who, without lawful authority,
willfully or maliciously engages in a course of
conduct that would cause a reasonable person
to feel terrorized frightened, intimidated,
harassed or fearful for the immediate safety of
a family or household member, and that
actually causes the victim to feel terrorized,
frightened, intimidated, harassed or fearful for
the immediate safety of a family or household
member, commits the crime of stalking.
Among the bases for Pike’s TRO petition was Hester’s search
of Pike’s office. Pike also claimed that after he had filed the
second grievance, Hester “repeatedly drove by [Pike’s]
residence and/or stopped and stared at him.” Without holding
a hearing, the justice court issued a TRO.
PIKE V. HESTER 9
Pike then applied for a two-month extension of the
protective order. The justice court held a hearing on
December 12, 2011, at which Pike, Hester, Forsberg, and
other witnesses testified. The court extended the protective
order and explained its decision in an addendum. It was not
disputed that Pike actually felt intimidated by Hester; thus,
the court explained, “The issue . . . is really whether Hester
‘without lawful authority’ willfully engaged in a course of
conduct that would cause a reasonable person to feel
intimidated.” The justice court continued:
Neither party disputes that Hester directed
a “dog sniff” search of the Jackpot Recreation
Center without a warrant and outside the
presence of Forsberg . . . .
Given Forsberg’s testimony, and
especially given the animosity that existed
between Pike and Hester at the time of the
search, the court concludes that Hester did not
have lawful authority to search Pike’s office.
In a footnote, the court elaborated:
The court certainly cannot conclude that there
was probable cause to search Pike’s office on
this record. On this record, the court
concludes that Hester’s desire to search was
colored by his animosity toward Pike. At this
point, the court cannot conclude that the
search was either lawful under the Fourth
10 PIKE V. HESTER
Amendment . . . or done with NRS 200.571
“lawful authority.”
(Emphasis in original.)
The justice court extended the protective order once again
in March 2012. Hester did not appeal from either justice
court order.
C. District Court Proceedings
In May 2012, Pike sued Hester and other defendants in
federal court, claiming, inter alia, that the office search
violated the Fourth Amendment. Pike then moved the district
court to apply issue preclusion based on the justice court’s
conclusions that “Forsberg did not give Defendant Hester
authority to search the Jackpot Recreation Center outside of
Mr. Forsburg’s [sic] presence” and “Defendant Hester did not
have lawful authority at the time of the search.” The district
court granted the motion in part, explaining, “The justice
court also found that . . . ‘Hester did not have lawful authority
to search Pike’s office.’ . . . These specific findings, except
for the last finding insofar as it concerns an ultimate Fourth
Amendment violation, are precluded from relitigation.” In a
footnote, the district court clarified why it was not granting
preclusive effect to the justice court’s Fourth Amendment
conclusions:
Although the alleged Fourth Amendment
violation was not directly at issue in the
justice court, the justice court does appear to
have held that Hester exceeded his lawful
authority as a Nevada peace officer to conduct
the search. Still, because the ultimate issue
PIKE V. HESTER 11
(whether to issue an [extended protective
order]) did not require a finding of a Fourth
Amendment violation, that issue was not
necessarily determined.
Pike then moved for offensive summary judgment on his
Fourth Amendment claim. Initially, the district court granted
the motion without the benefit of responsive briefing, as the
court had concluded that defendants failed to timely respond.
On appeal, this court vacated the order because the district
court had miscalculated the due date of defendants’
opposition and remanded for the district court to consider
Pike’s motion in light of defendants’ brief. Pike v. Munson,
623 F. App’x 887 (9th Cir. 2015).
On remand, the district court granted Pike’s motion for
summary judgment against Hester. In so doing, the district
court noted that in its earlier issue preclusion order it had
concluded that the “ultimate issue of a Fourth Amendment
violation had not been directly litigated” and was not
precluded. The district court then assessed, on the merits,
whether Hester’s search violated the Fourth Amendment.
The court determined that Pike had a reasonable expectation
of privacy in his office and that Forsberg never consented to
the search. The district court further held that “it would have
been clear to a reasonable officer in Hester’s position that the
warrantless dog sniff of Plaintiff’s private office space was
unlawful.” As a result, the district court granted Pike’s
motion for summary judgment and denied Hester qualified
immunity. Hester timely appealed.3
3
The court granted summary judgment based on qualified immunity
to the other sheriff’s office defendants. They are not parties to this appeal.
12 PIKE V. HESTER
II. Standard of Review
We have jurisdiction under 28 U.S.C. § 1291 and review
de novo the district court’s grant of summary judgment and
denial of qualified immunity. Furnace v. Sullivan, 705 F.3d
1021, 1026 (9th Cir. 2013). “Summary judgment is
appropriate only if, taking the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
non-moving party, there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of
law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th
Cir. 2011). We may affirm a grant of summary judgment on
any basis supported by the record. McSherry v. City of Long
Beach, 584 F.3d 1129, 1131 (9th Cir. 2009).
We review questions of issue preclusion de novo. Clark
v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir.
1992).
III. Discussion
We are asked to decide whether Hester is entitled to
qualified immunity for his search of Pike’s office. A
government official is entitled to qualified immunity if his
“conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Our inquiry thus has two steps: “(1) whether the defendant
violated a constitutional right, and (2) whether that right was
clearly established at the time of the alleged violation.”
Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th
Cir. 2017). A court may address either step first. Pearson,
555 U.S. at 236.
PIKE V. HESTER 13
A. Constitutional Violation & Issue Preclusion
We first assess whether Hester violated Pike’s Fourth
Amendment rights. The Fourth Amendment prohibits
“unreasonable searches and seizures” by government
officials. U.S. Const. amend. IV. “[A] Fourth Amendment
search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.”
United States v. Gonzalez, 328 F.3d 543, 546 (9th Cir. 2003)
(alteration in original) (quoting Kyllo v. United States,
533 U.S. 27, 33 (2001)). A warrantless search is
presumptively unreasonable, but valid consent is an exception
to the warrant requirement. United States v. Ziegler, 474 F.3d
1184, 1190–91 (9th Cir. 2007); see also Georgia v. Randolph,
547 U.S. 103, 106 (2006) (“The Fourth Amendment
recognizes a valid warrantless entry and search of premises
when police obtain the voluntary consent of an occupant who
shares, or is reasonably believed to share, authority over the
area . . . .”).
On appeal, Hester challenges Pike’s Fourth Amendment
claim on multiple substantive grounds.4 We decline to reach
Hester’s other arguments because we determine that issue
preclusion applies, and that we are bound by the justice
court’s conclusion that Hester violated the Fourth
Amendment.5
4
Specifically, Hester contends that Pike had no reasonable
expectation of privacy in his shared office, that the search was actually a
de minimis “sweep” not subject to the Fourth Amendment, and that even
if the Fourth Amendment applies, Forsberg consented to the search.
5
The dissent asserts that Pike “explicitly abandon[ed]” this argument,
Dissent at 25–26, but cites only a portion of Pike’s brief in which he
describes the district court’s conclusions. At any rate, we may affirm
14 PIKE V. HESTER
Hester contends that the district court’s grant of summary
judgment for Pike should be reversed because, at least in part,
the court wrongly applied issue preclusion to Pike’s Fourth
Amendment claim based on the justice court’s finding that
Pike was entitled to an extended protective order. In fact, the
district court expressly disclaimed doing so in both its
original order applying preclusion and in the summary
judgment order on remand, explaining that the “ultimate issue
of a Fourth Amendment violation” was not precluded. The
district court instead granted Pike summary judgment on the
merits. However, on appeal we conclude – contra the district
court – that issue preclusion resolves whether Hester violated
the Fourth Amendment.
Issue preclusion, or collateral estoppel, precludes
relitigation of an issue already litigated and determined in a
previous proceeding between the same parties. Clark,
966 F.2d at 1320. A federal court applying issue preclusion
“must give state court judgments the preclusive effect that
those judgments would enjoy under the law of the state in
which the judgment was rendered.” Far Out Prods., Inc. v.
Oskar, 247 F.3d 986, 993 (9th Cir. 2001). In this case,
because we examine the preclusive effect of a Nevada state
court decision, we apply Nevada issue preclusion law.
Under Nevada law, issue preclusion applies when four
elements are met: the issues in both cases are identical, the
first ruling was “on the merits and . . . final,” the party against
whom preclusion is sought was a party to or in privity with a
party to the previous case, and “the issue was actually and
necessarily litigated” in the previous case. Five Star Capital
summary judgment on any ground supported by the record. McSherry,
584 F.3d at 1131.
PIKE V. HESTER 15
Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008). The party
seeking to apply issue preclusion bears the burden of proving
that it applies. Bower v. Harrah’s Laughlin, Inc., 215 P.3d
709, 718 (Nev. 2009). Issue preclusion applies equally to
issues of fact or law. Univ. of Nev. v. Tarkanian, 879 P.2d
1180, 1191 (Nev. 1994).
First, we ask whether the Fourth Amendment was at issue
in the justice court. The issues in two cases may be identical
“even though the causes of action are substantially different,
if the same fact issue is presented.” LaForge v. Nev., Univ.
& Cmty. Coll. Sys. of Nev., 997 P.2d 130, 134 (Nev. 2000).
Thus it does not matter that Pike’s cause of action in the first
case was for stalking, while in this case he claims a Fourth
Amendment violation.
Under the Nevada stalking statute, a person stalks another
only if, among other things, he lacks “lawful authority” for
his actions. Nev. Rev. Stat. § 200.575(1).6 The statute
defines actions taken with lawful authority to include “acts
which are otherwise protected or authorized by constitutional
or statutory law . . . including, but not limited to . . . [t]he
activities of a person that are carried out in the normal course
of his or her lawful employment.” Id. § 200.575(9)(f)(3).
Pike contended that Hester stalked him via the search, while
Hester contended that Forsberg authorized the search. Thus,
whether the search violated Pike’s Fourth Amendment rights
– in the form of whether Hester had lawful authority for his
action – was at issue before the justice court. Indeed, the
justice court explicitly stated, “At this point, the court cannot
6
The justice court concluded that the other elements of stalking,
including that Pike felt intimidated by Hester, were met.
16 PIKE V. HESTER
conclude that the search was . . . lawful under the Fourth
Amendment.”
Second, Hester contends that the parties to the justice
court action were not identical to those before the district
court because, in federal court, Pike sued additional officers
and Elko County entities. However, Nevada law only
requires that the party against whom preclusion is sought
have been a party to the first proceeding. Five Star Capital,
194 P.3d at 713. Hester, against whom Pike seeks to apply
preclusion, was a party to the justice court case.
Hester contends that the third element of issue preclusion
is not satisfied because the justice court’s decision was not
final. “[T]he initial ruling must have been on the merits and
become final.” Id. Nevada courts have not confronted the
precise question of whether an extended protective order is
final for issue preclusion purposes. In developing the state’s
preclusion law, the Nevada Supreme Court has sought
guidance from the Restatement of Judgments. See, e.g.,
Tarkanian, 879 P.2d at 1191. That authority counsels, “that
the parties were fully heard, that the court supported its
decision with a reasoned opinion, that the decision was
subject to appeal or was in fact reviewed on appeal, are
factors supporting the conclusion that the decision is final for
the purpose of preclusion.” Restatement (Second) of
Judgments § 13 (1982). All those factors are present in this
case. The justice court held a hearing,7 reached the merits of
Pike’s stalking claim, and issued an order explaining its
decision. Hester had a statutory right to appeal the justice
court’s extended order, although he did not do so. See Nev.
7
A court is required to hold an adversarial hearing before issuing an
extended order. Nev. Rev. Stat. § 200.591(3).
PIKE V. HESTER 17
Rev. Stat. § 200.591(4). As a result, we conclude that the
justice court’s extended order is clearly final for issue
preclusion purposes.
Lastly, we assess whether the Fourth Amendment issue
was “actually and necessarily litigated” in the justice court.
The justice court’s decision of the issue must have been
“necessary to the judgment.” Alcantara ex rel. Alcantara v.
Wal-Mart Stores, Inc., 321 P.3d 912, 918 (Nev. 2014)
(emphasis omitted) (quoting Tarkanian, 879 P. 2d at 1191).
If the deciding court could have reached its conclusion
without resolving the disputed issue, the issue was not
necessary to the judgment. Frei ex rel. Frei v. Goodsell,
305 P.3d 70, 73 (Nev. 2013). In addition, the party against
whom preclusion is sought must have actually litigated the
issue. Howard v. Sandoval (In re Sandoval), 232 P.3d 422,
424 (Nev. 2010). For example, “[w]hen a default judgment
is entered where an answer has not been filed, the issue
presented was not actually and necessarily litigated[.]” Id. at
425.
In the protective order proceeding, the justice court
concluded that the search was not “lawful under the Fourth
Amendment.” The court concluded that Hester lacked
probable cause for the search and that “[g]iven Forsberg’s
testimony,” Hester did not have permission to search the
building. To determine that Hester lacked probable cause and
consent, the justice court necessarily determined that Pike had
a reasonable expectation of privacy in his office and that the
Fourth Amendment applied to Hester’s search. If the Fourth
Amendment were not implicated, Hester would not have
needed consent to search the office. See Ziegler, 474 F.3d at1190–91 (addressing government’s consent justification only
18 PIKE V. HESTER
after determining that employee had a reasonable expectation
of privacy in his office).
In this case, the district court concluded – without
explanation – that the “ultimate issue of a Fourth Amendment
violation” was not precluded from relitigation because it was
not essential to the justice court’s ruling. At the same time,
the district court held that the justice court’s conclusion that
“Hester did not have lawful authority to search Pike’s office”
was precluded from relitigation. However, the justice court’s
two conclusions necessarily go hand-in-hand, both were
essential to the judgment. The court could only have issued
the protective order if it concluded that Hester lacked lawful
authority – meaning the search was not “protected or
authorized by constitutional or statutory law,” such as the
Fourth Amendment – to take the actions in question. See
Nev. Rev. Stat. § 200.575(9)(f). The justice court’s
conclusion that Hester’s search was not “lawful under the
Fourth Amendment” was therefore essential to its lawful
authority determination.
Moreover, the justice court’s conclusion that the search
was conducted without lawful authority was essential to the
judgment. Although the search was one of three factual bases
for Pike’s protective order petition, the justice court discussed
only the search at any length. The justice court also explicitly
tethered Hester’s search to the Nevada statute at issue,
concluding that Hester “did not have lawful authority to
search Pike’s office.” See Nev. Rev. Stat. § 200.575(1). As
to the other bases for Pike’s application, the justice court
concluded that testimony about Hester’s “stop-and-stare”
activities was credible, but did not conclude that Hester
lacked lawful authority to so act. The justice court did not
even discuss Hester’s meeting with Smith. Only the search
PIKE V. HESTER 19
supports the justice court’s stalking finding. The justice
court’s resolution of the Fourth Amendment issue was
therefore essential to the extension of the protective order.
The issue was also actually litigated. Both Pike and
Hester presented witness testimony at a one-day hearing.
Forsberg and Hester testified about whether Forsberg
consented to Hester’s search. The justice court found that
Forsberg was credible and rejected Hester’s version of the
events.
Finally, Hester had an incentive to litigate in the justice
court. See Restatement (Second) of Judgments § 28 (1982).
Although the dissent seizes on Pike’s attorney’s statement in
the justice court that “there was no Fourth Amendment rights
violated here,” Pike’s attorney went on to emphasize that
“[t]he question is what was the basis for the search” and to
contend that Hester lacked Forsberg’s consent. As the dissent
acknowledges, “whether Hester had permission to search is
critical to this case.” Dissent at 32. Setting aside whether
Pike’s attorney’s statement bears on Hester’s incentive to
litigate, it is clear that whether Hester had consent to search
– and thus whether he violated the Fourth Amendment – was
at issue in the justice court and that Hester had every
incentive to litigate it.8
8
The dissent also contends that the issuance of a protective order on
the basis of criminal stalking against Hester, a law enforcement officer,
was such small potatoes that Hester had no incentive to litigate it. Dissent
at 29–30. However, Hester might face imprisonment or a fine if he
violated the order. This case is not one in which Hester “had good reason
not to contest an issue vigorously during the first action.” Maciel v.
Comm’r, 489 F.3d 1018, 1023 (9th Cir. 2007).
20 PIKE V. HESTER
Accordingly, the justice court’s conclusion that Hester’s
search was not lawful under the Fourth Amendment meets
Nevada’s requirements for issue preclusion. We are bound
by that court’s conclusion.
B. Clearly Established Law
The conclusion that Hester violated Pike’s constitutional
rights does not end our qualified immunity inquiry. We must
also ask whether Hester’s conduct violated clearly established
law. If the right was not clearly established, Hester is entitled
to qualified immunity.
For qualified immunity purposes, a right is clearly
established if “[t]he contours of that right [are] sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.” Calabretta v. Floyd, 189 F. 3d
808, 812 (9th Cir. 1999) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1984)). An exact factual match is not
required; rather, “the unlawfulness must be apparent.” Id.;
see also Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065
(9th Cir. 2006) (holding that preexisting law must provide
“fair warning”). Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.”
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
Hester first contends that no single case has held that “a
consensual K-9 sniff-sweep of a public employee’s shared
office” is unlawful. However, the justice court concluded the
search was not consensual. The relevant question is whether
a no-consent dog search of a public employee’s office was
clearly unlawful in 2011, when the search occurred. Supreme
Court and Ninth Circuit precedent easily resolve that question
PIKE V. HESTER 21
in the affirmative. See Chappell v. Mandeville, 706 F.3d
1052, 1056 (9th Cir. 2013) (stating that a court should look
first to binding precedent to determine if a right is clearly
established).9
In O’Connor v. Ortega, 480 U.S. 709 (1987), the
Supreme Court held that “[s]earches . . . by government
employers or supervisors of the private property of their
employees . . . are subject to the restraints of the Fourth
Amendment.” Id. at 715; see also Mancusi v. DeForte,
392 U.S. 364, 369 (1968) (holding that employee enjoyed a
reasonable expectation of privacy in a shared office); Ziegler,
474 F.3d at 1191 (holding that officers’ search of a private
office violated the Fourth Amendment, absent consent).
Hester had fair warning that Pike enjoyed a reasonable
expectation of privacy in his office.
The fact that Hester’s search involved a dog does not
affect that conclusion. In 2011, it was clearly established that
dog sniff searches are exempt from Fourth Amendment
protection only when the dog and accompanying officer are
lawfully present. In United States v. Place, 462 U.S. 696,
707 (1983), the Court stated that a dog sniff of luggage “in a
public place” was not a Fourth Amendment search. See also
United States v. Beale, 736 F.2d 1289 (9th Cir. 1984) (en
banc) (holding that dog sniff of luggage in a public place is
not a Fourth Amendment search). Subsequently, courts have
9
For this reason, we also dispose of Hester’s argument that he is
protected by qualified immunity because he relied on a county dog search
policy. It is not clear that Hester’s search of Pike’s private locked office
accords with the policy, which permits searches only in “public facilities
or places.” Regardless, an officer may not rely on a department policy
that is contrary to clearly established law. Way v. Cty. of Ventura,
445 F.3d 1157, 1163 (9th Cir. 2006).
22 PIKE V. HESTER
upheld dog searches only when the dogs were in public places
or the target of the search was already lawfully detained. See,
e.g., Illinois v. Caballes, 543 U.S. 405, 409 (2005) (the “use
of a well-trained narcotics-detection dog” during lawful
traffic stop does not implicate the Fourth Amendment);
United States v. Lingenfelter, 997 F.2d 632 (9th Cir. 1993)
(dog sniff of commercial warehouse from public alley did not
implicate Fourth Amendment). Hester cites no case
extending dog sniff searches beyond those bounds.10
Accordingly, it was clearly established in 2011 that a dog
search of a public employee’s private office violates the
Fourth Amendment, absent consent. See Ziegler, 474 F.3d at
1191. Hester’s conduct violated Pike’s clearly established
right; therefore, he is not entitled to qualified immunity.
• ! •
The judgment of the district court is
AFFIRMED. The case is REMANDED to the district
court for a trial or other determination of damages on Pike’s
Fourth Amendment claim against Hester, and for a
determination of Pike’s remaining state law claims.
10
In Florida v. Jardines, 569 U.S. 1 (2013), decided after Hester’s
search, the Court held that a dog sniff on a homeowner’s curtilage was a
Fourth Amendment search because the dog and officer intruded on a
protected area. Id. at 11. The dissenting Justices did not dispute the pre-
Jardines principle that a dog sniff is a search if the dog is not lawfully
present; rather, they dissented on the basis that the dog and officer in
Jardines were lawfully present. See id. at 24 (Alito, J., dissenting).
PIKE V. HESTER 23
O’SCANNLAIN, Circuit Judge, dissenting:
The majority holds that a two-month restraining order,
granted by a state court of limited jurisdiction, has issue-
preclusive effect with respect to a § 1983 cause of action
premised on a constitutional violation and requesting
compensatory and punitive damages. This cannot be right.
I
A
The saga began in the Elko County Justice Court (Justice
Court), which has jurisdiction to issue protective orders
against “a person alleged to be committing the crime of
stalking, aggravated stalking or harassment.” Nev. Rev. Stat.
Ann. § 4.370(1)(q) (West 2017). The Justice Court has
authority to issue temporary or extended orders of protection
against stalking. See Nev. Rev. Stat. Ann. § 200.591(3) (West
2017).
On November 15, 2011, Richard Pike, an Elko County
recreation director and assistant high school football coach,
applied for a temporary restraining order against Elko County
sheriff’s sergeant J. Brad Hester. Pike applied on behalf of
himself and his two children, and the application rested on
several bases.
First, he alleged that Hester made false statements about
Pike to others. Hester apparently told Kim Smith, the high
school athletic director, that Pike was “one of the biggest
potheads in town.”
24 PIKE V. HESTER
Second, Pike alleged that Hester improperly searched his
office. See Majority Op. Part I.A. The genesis of this dispute
dates back to August 2011, when Hester and two deputies
conducted a search of the Jackpot Recreation Center (Center),
which included walking a drug dog through Pike’s office in
the Center. The search of the Center lasted 10 minutes and
uncovered no drugs. Hester claims that Lynn Forsberg—the
county supervisor and Pike’s boss—authorized him to search
the Center “[a]nytime, day or night.” Forsberg claims that he
told Hester “if he wanted to search the recreation center, he
could call me, I would come up and let him in.” Pike
acknowledges that, under County policy, Forsberg has
authority to search his office.
Third, Pike alleged that on at least several occasions,
Hester drove by Pike’s house and glared at him and his
family. Pike also claims that Hester drove by his place of
employment in a similar manner. This final incident
prompted Pike to file an application for a restraining order
against Hester.
The Justice Court issued an ex parte temporary restraining
order (TRO) against Hester on November 15, 2011. The TRO
was converted into a two-month extended order of protection
(EOP) on December 14, 2011. In granting the EOP, the
Justice Court explained that it could not “conclude that the
search was either lawful under the Fourth Amendment or
done with NRS 200.571 ‘lawful authority.’” But the Justice
Court also relied on “testimony about Hester’s ‘stop and
stare’ activities in front of Pike’s residence,” finding
testimony on the incident “both reliable and credible.”
Additionally, the court credited the testimony of Smith, to
whom Hester made the disparaging remarks about Pike. Thus,
PIKE V. HESTER 25
the Justice Court concluded that “for all of the foregoing
reasons,” the EOP would be granted for two months.
B
Pike later filed this suit against Hester and other
defendants in the District of Nevada, alleging, inter alia, that
Hester violated the Fourth Amendment pursuant to 42 U.S.C.
§ 1983. Pike seeks compensatory damages expected to
exceed $10,000, as well as punitive damages.
Pike moved the district court to give issue-preclusive
effect to several of the Justice Court’s findings. The district
court, while granting issue preclusion on some findings,
declined to grant issue preclusion on Pike’s constitutional
claim, since “the ultimate issue (whether to issue an EOP) did
not require a finding of a Fourth Amendment violation, that
issue was not necessarily determined.” Thus, the Justice
Court’s conclusion that Hester did not have lawful authority
to search Pike’s office was not precluded from relitigation
“insofar as it concern[ed] an ultimate Fourth Amendment
violation.”
Pike later moved for summary judgment on the question
of qualified immunity. The court granted summary judgment
in favor of Pike, finding that there was no genuine question
of material fact that Hester’s search violated clearly
established Fourth Amendment law. However, the court
reaffirmed that “the ultimate issue of a Fourth Amendment
violation had not been directly litigated” in the Justice Court.
Pike does not argue that the district court erred by
refusing to grant issue-preclusive effect to the Justice Court’s
Fourth Amendment determination; indeed, Pike explicitly
26 PIKE V. HESTER
abandons any argument to this effect, admitting that “[t]he
findings by the Elko Justice Court in its extended protection
order were entitled to preclusive [effect] against Mr. Hester
but only as to Mr. Pike’s invasion of privacy and intentional
infliction of emotional distress torts, not his Fourth
Amendment claim under §1983.”
On appeal, Hester instead challenges the merits of the
district court’s order granting summary judgment to Pike on
the issue of qualified immunity. Nonetheless, the majority,
fashioning an argument that Pike declines to raise, affirms the
district court’s summary judgment order by stretching the
issue preclusion doctrine to cover a situation that neither
party, nor the district court, presses upon us. Because I cannot
agree with the majority’s opinion, I respectfully dissent.
II
A
Federal courts “can give the state proceedings no greater
preclusive effect than the state courts would.” Shaw v. State
of Cal. Dep’t of Alcoholic Bev. Control, 788 F.2d 600, 607
(9th Cir. 1986) (citing Marrese v. Am. Acad. of Orthopaedic
Surgeons, 470 U.S. 373, 386 (1985)). Thus, in determining
whether the EOP should be preclusive in the instant action,
we are bound by Nevada law. See Allen v. McCurry, 449 U.S.
90, 96 (1980).
Under Nevada law, the following four factors are
necessary for the application of issue preclusion: “‘(1) the
issue decided in the prior litigation must be identical to the
issue presented in the current action; (2) the initial ruling
must have been on the merits and have become final; (3) the
PIKE V. HESTER 27
party against whom the judgment is asserted must have been
a party or in privity with a party to the prior litigation;’ and
(4) the issue was actually and necessarily litigated.” Five Star
Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008)
(alterations omitted) (quoting Univ. of Nevada v. Tarkanian,
879 P.2d 1180, 1191 (Nev. 1994)). The burden to make this
showing falls on Pike. See Bower v. Harrah’s Laughlin, Inc.,
215 P.3d 709, 718 (Nev. 2009).
B
Additionally, the application of issue preclusion is
premised on the widely recognized understanding that the
precluded party “have an adequate opportunity or incentive
to obtain a full and fair adjudication in the initial action.”
Restatement (Second) of Judgments § 28 (Am. Law. Inst.
1982).1
This fundamental exception to the issue preclusion
doctrine has roots in Nevada law, as issue preclusion “is
based upon the sound public policy of limiting litigation by
preventing a party who had one full and fair opportunity to
litigate an issue from again drawing it into controversy.”
Bower, 215 P.3d at 718 (internal quotations omitted)
(emphasis added). And “[t]he most general independent
concern reflected in the limitation of issue preclusion by the
full and fair opportunity requirement goes to the incentive to
1
The Supreme Court of Nevada has a “long-standing reliance on the
Restatement (Second) of Judgments in the issue and claim preclusion
context.” Alcantara ex rel. Alcantara v. Wal-Mart Stores, Inc., 321 P.3d
912, 917 (Nev. 2014). It has favorably looked to the Restatement (Second)
of Judgments § 28 in the issue preclusion setting. See Personhood Nevada
v. Bristol, 245 P.3d 572, 576 (Nev. 2010).
28 PIKE V. HESTER
litigate vigorously in the first action.” 18 Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4423 (3d ed. 2017) (emphasis
added). Therefore, Nevada’s requirement that a party have a
“full and fair opportunity to litigate,” Bower, 215 P.3d at 718,
recognizes the common law concern that, in some instances,
“[t]he stakes in the first action may be so small that extensive
effort is not reasonable.” 18 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure
§ 4423 (3d ed. 2017).
Appreciating this concern, the Supreme Court has
cautioned that “[i]ssue preclusion may be inapt if ‘the amount
in controversy in the first action was so small in relation to
the amount in controversy in the second that preclusion
would be plainly unfair.’” B & B Hardware, Inc. v. Hargis
Indus., Inc., 135 S. Ct. 1293, 1309 (2015) (alterations
removed) (quoting Restatement (Second) of Judgments § 28
cmt. j). As the Court noted, “few litigants would spend
$50,000 to defend a $5,000 claim.” Id. (quoting 18 Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 4423 (2d ed. 2002)).
Following this course, every federal court of appeals
considers one’s incentive to litigate in the collateral estoppel
context. See, e.g., Canonsburg Gen. Hosp. v. Burwell,
807 F.3d 295, 306 (D.C. Cir. 2015); DeGuelle v. Camilli,
724 F.3d 933, 935 (7th Cir. 2013); Kosinski v. Comm’r,
541 F.3d 671, 677 (6th Cir. 2008); Maciel v. Comm’r,
489 F.3d 1018, 1023 (9th Cir. 2007); Jean Alexander
Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 250 (3d
Cir. 2006); Salguero v. City of Clovis, 366 F.3d 1168, 1174
(10th Cir. 2004); Simmons v. O’Brien, 77 F.3d 1093, 1095
(8th Cir. 1996); In re Belmont Realty Corp., 11 F.3d 1092,
PIKE V. HESTER 29
1097 (1st Cir. 1993); Sun Towers, Inc. v. Heckler, 725 F.2d
315, 322 n.7 (5th Cir. 1984); Cotton States Mut. Ins. Co. v.
Anderson, 749 F.2d 663, 666 (11th Cir. 1984); Wickham
Contracting Co. v. Bd. of Educ. of City of New York, 715 F.2d
21, 28 (2d Cir. 1983); Prosise v. Haring, 667 F.2d 1133, 1141
(4th Cir. 1981).
C
I respectfully suggest that the majority’s failure to
consider this foundational principle of collateral estoppel is
fatal to its conclusion.
First, and most importantly, the Fourth Amendment was
mentioned just once over the course of the one-day hearing
and such invocation was when Pike’s counsel admitted that
“there was no Fourth Amendment rights violated here.” If
Pike’s counsel conceded at the EOP hearing that Hester
didn’t violate the Fourth Amendment, how could Hester be
said to have had any incentive—let alone a vigorous one—to
litigate such question?
Second, the Justice Court is designed to resolve small
claims in an efficient and prompt manner. See Nev. Rev. Stat.
Ann. § 4.370 (West 2017) (limiting jurisdiction to claims
under $15,000, protective orders against harassment or
stalking, and certain misdemeanors). Indeed, the entire
hearing over the EOP lasted just one day. And at the one-day
hearing, Hester’s counsel told the judge that he would not
argue about “silly stuff”—such as objecting when cross-
examination went beyond the scope of direct
examination—so the judge could “rule and we can go all
home on a Monday.” In this vein, the judge noted at the
outset that “[t]hese hearings are pretty darn informal.” Alas,
30 PIKE V. HESTER
according to the majority, such a breezy proceeding,
dispensing with basic rules of evidence, was a suitable setting
for Hester to litigate vigorously constitutional law.2
Moreover, the application of issue preclusion in this
setting is especially unwise, as it threatens to turn Justice
Court proceedings—tailored to the prompt resolution of small
claims and other disputes—into full-blown trials tasked with
uncovering whether or not a purported search violated the
Fourth Amendment.
Collateral estoppel “is an equitable doctrine,” not an
inexorable command. 46 Am. Jur. 2d Judgments § 469
(2018). Pike’s counsel conceded that the Fourth Amendment
was not at issue, neutering any prospect that Hester could
have harbored a strong incentive to litigate vigorously the
merits of that question. Therefore, I believe it improper to
grant issue preclusive effect to the EOP in this setting.
III
Instead of giving preclusive effect to the Justice Court’s
Fourth Amendment determination, we should reverse the
district court’s grant of summary judgment and remand for
trial. As the record shows, conflicting testimony over Hester’s
authority to search Pike’s office plainly creates a genuine
2
Pike’s attorney’s statement that “the question is what was the basis
for the search” is hardly illuminative, contrary to the majority’s view. The
attorney was referring to the basis for Hester’s suspicion of Pike, not
whether Forsberg consented to the search. As the attorney put it, “[t]he
issue is not just a semantics having to do with day or night with Mr.
Forsberg. It has to do with what information that the deputy gave to Mr.
Forsberg to get him to okay the search.”
PIKE V. HESTER 31
dispute of material fact. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
A
Forsberg testified that he told Hester, “if [Hester] wanted
to search the recreation center, he could call me, I would
come up and let him in.” Hester, on the other hand, testified
that Forsberg told Hester he could conduct a search
“[a]nytime, day or night.”3
As the non-moving party, evidence must be construed in
the light most favorable to Hester. Tolan v. Cotton, 134 S. Ct.
1861, 1866, 188 L. Ed. 2d 895 (2014) (“Our qualified-
immunity cases illustrate the importance of drawing
inferences in favor of the nonmovant.”). Yet, the district court
utterly ignored Hester’s testimony—not even bothering to
construe it at all, let alone in a favorable light—and simply
adopted wholesale Forsberg’s recollection of events. Yet,
Hester offered a completely different version of their
conversation, which creates a genuine dispute of fact as to
whether Hester was authorized to search Pike’s office.4
3
It appears uncontested that the search occurred within a few days of
this conversation.
4
This also corrupts the majority opinion’s discussion on clearly
established law. As the Supreme Court has noted, “courts must take care
not to define a case’s ‘context’ in a manner that imports genuinely
disputed factual propositions.” Tolan, 134 S. Ct. at 1866 (2014) (quoting
Brosseau v. Haugen, 543 U.S. 194, 195, 198 (2004) (per curiam)). By
asking whether a “no-consent dog search of a public employee’s office
was clearly unlawful,” the majority’s opinion imports the dispute over
consent into the description of the right at issue.
32 PIKE V. HESTER
B
And, indeed, whether Hester had permission to search is
critical to this case. Anderson, 477 U.S. at 248 (holding that
a factual dispute is material if it “might affect the outcome of
the suit”). If Hester received consent from Forsberg to search
Pike’s office, there was likely no Fourth Amendment
violation. “The Fourth Amendment recognizes a valid
warrantless entry and search of premises when police obtain
the voluntary consent of an occupant who shares, or is
reasonably believed to share, authority over the area.”
Georgia v. Randolph, 547 U.S. 103, 106 (2006). Pike
admitted that he understood that the County handbook policy
allowed Forsberg—his boss—to search his office. We have
held that an employee’s privacy interest “may be subject to
the possibility of an employer’s consent to a search of the
premises.” United States v. Ziegler, 474 F.3d 1184, 1191 (9th
Cir. 2007). Indeed, in Ziegler, “Frontline, as the employer,
could consent to a search of the [employee’s] office.” Id. at
1192. And the search here involved only a drug dog briefly
sniffing the exterior of a desk in Pike’s office, and a file
cabinet outside Pike’s office—hardly Pike’s personal
belongings. See O’Connor v. Ortega, 480 U.S. 709, 716
(1987) (plurality opinion) (“The appropriate standard for a
workplace search does not necessarily apply to a piece of
closed personal luggage, a handbag or a briefcase that
happens to be within the employer’s business address.”).
Under these circumstances, Forsberg, similar to the employer
in Ziegler “could give valid consent to a search . . . because
the [desk] is the type of workplace property that remains
within the control of the employer ‘even if the employee has
placed personal items in it.’” Id. at 1191 (alterations
removed) (quoting O’Connor, 480 U.S. at 716). As a result,
PIKE V. HESTER 33
under these circumstances, Forsberg could give valid consent
to search Pike’s office.5
IV
I would reverse the district court’s grant of summary
judgment and remand to the district court for further
proceedings. Whether a Fourth Amendment violation
occurred should be resolved at trial. See Tortu v. Las Vegas
Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th Cir. 2009).
5
Although Forsberg had actual authority to search Pike’s office, the
government may alternatively obtain valid consent from a third party
when the officer “reasonably believe[s] that the third party has actual
authority to consent.” United States v. Fultz, 146 F.3d 1102, 1105 (9th
Cir. 1998). Hester asked Forsberg’s permission because Forsberg had
“final say” over the building. This was not an unreasonable conclusion
given that Forsberg is the county supervisor and Pike’s boss.