558 F.3d 964 (9th Cir. 2009), 05-15522, Rodis v. City and County of San Francisco

Docket Nº:05-15522.
Citation:558 F.3d 964
Party Name:Rodel E. RODIS, Plaintiff-Appellee, v. CITY and COUNTY OF SAN FRANCISCO, a municipality, Defendant-Appellant, Liddicoet, San Francisco Police Officer; Barry, San Francisco Police Sergeant; Alex Fagan, San Francisco Police Chief, Defendants-Appellants, and San Francisco Police Department, Defendant.
Case Date:March 09, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 964

558 F.3d 964 (9th Cir. 2009)

Rodel E. RODIS, Plaintiff-Appellee,


CITY and COUNTY OF SAN FRANCISCO, a municipality, Defendant-Appellant,

Liddicoet, San Francisco Police Officer; Barry, San Francisco Police Sergeant; Alex Fagan, San Francisco Police Chief, Defendants-Appellants,


San Francisco Police Department, Defendant.

No. 05-15522.

United States Court of Appeals, Ninth Circuit.

March 9, 2009

Page 965

[Copyrighted Material Omitted]

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Scott D. Wiener, San Francisco, CA, for the defendants-appellants.

Lawrence W. Fasano, Jr., San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-04-00314-MMC.

On Remand From The United States Supreme Court.[*]

Before: D.W. NELSON and CONSUELO M. CALLAHAN, Circuit Judges, and CORMAC J. CARNEY,[**]

District Judge.

D.W. NELSON, Senior Circuit Judge:

Rodel E. Rodis brought suit under 42 U.S.C. § 1983 against, inter alia, two San Francisco police officers, alleging a violation of his Fourth Amendment rights during a February 2003 arrest. The district court rejected the assertion of qualified immunity by the police officers. Defendants filed an interlocutory appeal, and, in 2007, we affirmed. The Supreme Court granted Defendants' petition for a writ of certiorari, vacated our decision, and remanded for further consideration, in light of Pearson v. Callahan, 555 U.S. __, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We now reverse.

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On February 17, 2003, Rodel E. Rodis, an attorney and a locally elected public official, entered a drugstore near his office to purchase a few items. He tendered a 1985 series $100 bill, which lacked the security thread, watermarks, microprinting, and other anti-counterfeiting features of current $100 bills.

The cashier examined the bill for authenticity, and asked the store manager, Dennis Snopikov, for assistance. Because he suspected that the bill was counterfeit, Snopikov took it to the store office to compare it to other $100 bills in the store's safe. While Snopikov was in the office, Rodis pulled another $100 bill from his wallet and paid the cashier. After determining that the second bill was authentic, the cashier gave Rodis his change, his receipt, and the purchased items. Snopikov returned to the front of the store, and tested the bill with a counterfeit detector pen, which indicated that it was authentic. He remained suspicious, however, because of the bill's appearance and texture, and told Rodis that he was going to call the police so that they could settle the issue. Rodis was frustrated with the delay, but remained in the store willingly until the officers arrived.

Sergeant Jeff Barry, Officer Michelle Liddicoet, and two other police officers arrived on the scene. Snopikov conveyed his suspicions, and some of the officers examined the bill themselves. The officers tried the counterfeit detector pen on a folder-the marking, however, indicated that the folder was also genuine United States currency. The officers concluded that the bill was probably counterfeit, but, because they were uncertain, decided it would be necessary to call the United States Secret Service to get an expert opinion. Because they believed it would be easiest to continue the investigation from the police station, they arrested Rodis on suspicion of violation 18 U.S.C. § 472, which criminalizes the possession and use of counterfeit currency. No effort was made to investigate Rodis's state of mind.

Liddicoet and another officer handcuffed Rodis and transported him to the police station. Rodis was restrained while the officers called the Secret Service hotline and left a message. After approximately thirty minutes, a Secret Service agent returned the call. The police and the agent discussed the details of the bill in question for five to ten minutes, during which the agent confirmed that the bill was, in fact, genuine. The officers released Rodis from custody, removed his handcuffs, and drove him back to the drugstore. The entire incident lasted about one hour.

On October 1, 2003, Rodis filed suit against the City and County of San Francisco, the San Francisco Police Department, the police chief, and Sergeant Barry and Officer Liddicoet. The complaint alleged false arrest and use of excessive force in violation of Rodis's Fourth Amendment rights, conspiracy to violate Rodis's rights, as well as several state law claims, including false arrest and intentional and negligent infliction of emotional distress.

On February 11, 2005, the defendants moved for summary judgment. The District Court granted the motion as to Rodis's conspiracy, municipal liability, and injunctive relief claims, and denied the motion in all other respects. The court held that because Barry and Liddicoet (" Defendants" ) lacked evidence of Rodis's intent to defraud, there was no probable cause and the arrest was unlawful. It also found that the illegality of the arrest was clearly established at the time.

Defendants filed an interlocutory appeal to this court, and we affirmed the District

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Court's order. Defendants subsequently petitioned for a writ of certiorari. The Supreme Court granted the petition, vacated our decision, and remanded for further consideration in light of Pearson v. Callahan, 555 U.S. __, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).


" As a general rule, interlocutory appeals from determinations of qualified immunity are permissible." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.2006). " [T]he denial of a defendant's motion for summary judgment is immediately appealable where the defendant is a public official asserting the defense of qualified immunity, and the issue appealed concerns whether the facts demonstrated a violation of clearly established law." Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). We therefore have jurisdiction over this case.


" We review de novo a district court's decision denying summary judgment on the ground of qualified immunity." Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir.2003). " On appeal, the court of appeals ... must resolve any factual disputes in favor of the plaintiff and decide the legal question as to whether the official's alleged conduct violated clearly established law." Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th Cir.2003).



" The doctrine of qualified immunity protects government officials ‘ from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Pearson v. Callahan, 555 U.S. __, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). " Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. at 815." The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806.

In Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two step sequence for resolving qualified immunity claims....

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