110 F.3d 1363 (9th Cir. 1996), 95-15737, Collins v. Jordan

Docket Nº:95-15737, 95-15738, 95-15739.
Citation:110 F.3d 1363
Party Name:Rhonda COLLINS; Barbara Hall; Suzanne Jacks; Ileana Bergere; Chris Martin; Natalie Nickle; Sandra Perpignani; Thomas Stolmar, Plaintiffs-Appellees, v. Frank JORDAN, Defendant, James Arnold; John Newlin; Walter Cullop, Defendants-Appellants. Rhonda COLLINS; Barbara Hall; Suzanne Jacks; Ileana Bergere; Chris Martin; Natalie Nickle; Sandra Perpignani;
Case Date:December 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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110 F.3d 1363 (9th Cir. 1996)

Rhonda COLLINS; Barbara Hall; Suzanne Jacks; Ileana

Bergere; Chris Martin; Natalie Nickle; Sandra

Perpignani; Thomas Stolmar, Plaintiffs-Appellees,


Frank JORDAN, Defendant,

James Arnold; John Newlin; Walter Cullop, Defendants-Appellants.

Rhonda COLLINS; Barbara Hall; Suzanne Jacks; Ileana

Bergere; Chris Martin; Natalie Nickle; Sandra

Perpignani; Thomas Stolmar, Plaintiffs-Appellees,


Frank JORDAN, Defendant-Appellant.

Rhonda COLLINS; Barbara Hall; Suzanne Jacks; Ileana

Bergere; Chris Martin; Natalie Nickle; Sandra

Perpignani; Thomas Stolmar, Plaintiffs-Appellees,


Frank JORDAN, Defendant,

Richard Hongisto, Defendant-Appellant.

Nos. 95-15737, 95-15738, 95-15739.

United States Court of Appeals,Ninth Circuit.

December 4, 1996

Argued and Submitted June 12, 1996.

As Amended March 21, 1997.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Andrew K. Gordon and Patrick J. Mahoney, Deputy City Attorneys, San Francisco, CA, for defendants-appellants.

Rachel Lederman, Bayside Legal Advocates, San Francisco, CA, for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding. D.C. No. CV 93-00741 CW.


The panel makes the following amendments to its published opinion reported at 102 F.3d 406:

Before: REINHARDT and HALL, Circuit Judges and MERHIGE, Jr., District Judge. [*]

REINHARDT, Circuit Judge:

Four hundred to five hundred people were arrested in San Francisco on the evening of May 1, 1992, two days after the announcement of the jury verdicts in the state criminal trial of the Los Angeles police officers who beat Rodney King. Among those were the named plaintiffs, who subsequently filed a class action against the City and County of San Francisco, then-Mayor Frank Jordan, and a number of highly-ranked San Francisco police officers, including then-Police Chief Richard Hongisto. Defendants moved for summary judgment on the merits and on the ground of qualified immunity. 1 With minor

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exceptions, the district judge denied the motions. Defendants (other than the City and County of San Francisco) appeal the district court's refusal to grant them qualified immunity. 2 The appeals raise important First and Fourth Amendment issues. We affirm in part and dismiss in part for lack of jurisdiction.


On April 30, 1992, the day after the verdict in the first Rodney King beating trial was announced, a number of peaceful, though angry, demonstrations occurred in various parts of San Francisco. There was also a large not-so-peaceful demonstration in the downtown Civic Center area that led to a number of violent incidents, mostly involving property damage, although a few involved minor injuries, as well. 3 That evening, Mayor Jordan declared a local emergency and imposed a 9:00 p.m. curfew. The next day, May 1, 1992, he presented an Emergency Order to the Board of Supervisors, which approved it, with certain modifications. The order stated in pertinent part:

All peace officers under the command of the Sheriff or the Chief of Police of San Francisco are hereby authorized and directed to take all steps necessary to cause the dispersal and prevent the continuation of any gatherings of people anywhere in the City and County of San Francisco whenever the peace officer on the scene has reason to believe that the gathering endangers or is likely to endanger persons or property.

Officers are hereby authorized and directed to implement a policy of custodial arrests, rather than citations, for violations of any orders issued by the Mayor pursuant to the aforementioned emergency proclamation.

Any person who fails to comply with any order issued by a peace officer pursuant to this order commits a misdemeanor and is subject to immediate arrest.

The facts recited below concerning the events that occurred on May 1 are all set forth in the district court's order.

The Mayor and the police became aware that a demonstration was planned for the BART (Bay Area Rapid Transit) Plaza area at 24th and Mission Street, at 7:00 p.m. A contested, though not dispositive, factual issue is what the defendants learned in advance about the demonstration, and whether or not they had seen inflammatory fliers or possessed other information that might have given them reason to believe that some of the demonstrators intended to engage in violent or illegal actions.

Some people began to gather at the Plaza at about 6:30 p.m. Police officers were present at that location. They were also stationed one block north, just off 23rd and Mission, and one block east on 24th between Mission and Bartlett. Some time earlier that day, Commander Cullop had inspected the Plaza area and subsequently had gone back and forth between that location and others. When Commander Newlin arrived at the Plaza, he took command of the situation from Cullop. Chief Hongisto arrived at the scene at about 6:40 p.m. Newlin testified in his deposition that he reported his observations to Hongisto. There is, however, a factual dispute as to whether Newlin merely conveyed his impressions of the situation to Hongisto, or whether he actually recommended that the assembly be dispersed. In either event, included in his oral report was the following: There was a crowd that numbered in the hundreds; some members of the crowd had signs on dowels that he believed could be used as clubs; aggressive banter transpired that he believed to be similar to what he had heard the night before; and, finally, he believed the crowd to be hostile. Cullop said in his deposition that the crowd was much smaller (about 30) than Newlin claimed and that he had not observed anyone there doing anything illegal.

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Shortly after Hongisto's arrival at the Plaza, he directed that a dispersal order be given. About 6:45 p.m., Newlin told Cullop to read the order, and Cullop did so. According to Commander Arnold, Newlin told him a few minutes later that Chief Hongisto had directed that the order be given and that people be arrested. The district judge noted that "[t]he videotape taken by the police shows that prior to the dispersal order, there were few people on the plaza and almost no activity." A number of other dispersal orders were subsequently given, both in English and in Spanish. The parties dispute, on the basis of conflicting testimony and videotape evidence, whether the people who had assembled by the time of the dispersal orders did or did not disperse, in whole or in part, following the issuance of the orders. The district court order cites the apparently conflicting deposition testimony of two of the defendants: "According to Captain Newlin, the crowd failed to disperse. Commander Cullop testified that the majority of the crowd ran from the plaza, and that only a few people remained in the plaza and were arrested there." At some point, some objects were thrown, including a beer can, which struck a policeman.

Shortly after the dispersal orders were given, a number of police officers moved into the Plaza. There is no dispute that following the announcement of the orders, some people who had been in the Plaza headed north on Mission, others east on 24th towards Bartlett Street. The parties do dispute whether these were organized groups that were refusing to obey the dispersal orders or simply individual people trying to leave an area they had been ordered to leave. Subsequently, a number of people who had been moving north on Mission, either as an organized group, as defendants contend, or as a diffuse body of individuals, as plaintiffs allege, were encircled and arrested at 23rd and Mission.

Cullop also spoke with Sergeant Hall, who was at 24th and Bartlett. Cullop directed Hall to encircle and arrest people at that location. While there was some testimony that some of the people had come from the Plaza, if so, they were heading away from downtown. Another very large group of about 200 to 300 people, which formed after the arrests at 23rd and Mission, was later encircled and arrested on Mission Street between 21st and 22nd. This group included people who appeared to be moving north in the direction of the Civic Center en masse, as well as ordinary bystanders and passersby. Finally, a separate group of people was encircled and arrested on Hartford Street between 17th and 18th, which is about a mile from the Plaza and west of the downtown area.

There are, as is evident from the above, substantial factual disputes concerning much of what occurred at or about the time of the mass arrests. As is usually the case with quick-moving, emotional and confrontational occurrences, the perceptions and recollections of the various witnesses differ drastically in both important and unimportant respects.

All of the persons arrested on the evening of May 1 were booked and held originally at Pier 38 in San Francisco, but were later sent to Santa Rita Jail, located across the East Bay, in a different county, where they were held for one or two nights. Plaintiffs contend and defendants do not dispute that the arrestees were finally released between 9:40 p.m. on May 2 and 5:30 a.m. on May 3. After being informed of the events that had transpired, the Board of Supervisors rejected Jordan's and Hongisto's recommendation to extend the Emergency Order. Instead, it rescinded the order early on the afternoon of May 2.

Plaintiffs' Claims and Defendants' Motions

The named plaintiffs filed a class action alleging violations of the First and Fourth Amendments. 4 The First Amendment claims were to the effect that then-Mayor Frank Jordan and then-Police Chief Richard Hongisto had individually and acting together decided to ban all demonstrations, peaceful and otherwise, effective May 1, 1992, and to arrest all...

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