98 F.3d 1181 (9th Cir. 1996), 94-56685, Washington v. Lambert

Docket Nº:94-56685.
Citation:98 F.3d 1181
Party Name:D.A.R. 13,034 George WASHINGTON; Darryl Hicks, Plaintiffs-Appellees, v. Skystone-Eagle LAMBERT; City of Santa Monica, Defendants-Appellants, and Bob Grant, Defendant.
Case Date:October 28, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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98 F.3d 1181 (9th Cir. 1996)

D.A.R. 13,034

George WASHINGTON; Darryl Hicks, Plaintiffs-Appellees,


Skystone-Eagle LAMBERT; City of Santa Monica, Defendants-Appellants,


Bob Grant, Defendant.

No. 94-56685.

United States Court of Appeals, Ninth Circuit

October 28, 1996

Argued and Submitted May 6, 1996.

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Jeanette Schactner, Deputy City Attorney, Santa Monica, CA, for defendants-appellants.

David D. Lawrence, Franscell, Strickland, Roberts & Lawrence, Pasadena, CA, for amicus curiae City of Chino, Chief of Police Richard Sill, et al.

Martin J. Mayer, Mayer, Coble & Palmer, Long Beach, California, for amicus curiae Americans for Effective Law Enforcement, et al.

Mary F. Gibbons, Tappan, NY, for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California, Harry L. Hupp, District Judge, Presiding. D.C. No. CV-92-1884 HLH.

Before: REINHARDT, KOZINSKI, and HAWKINS, Circuit Judges.

REINHARDT, Circuit Judge:

"The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society."

Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359 [1361], 93 L.Ed. 1782 (1949).

In this case we apply the Fourth Amendment's promise of security in one's being to what is, unfortunately, an all too familiar set of circumstances--an intrusive law enforcement stop and seizure of innocent persons on the basis of suspicions rooted principally in the race of "the suspects." 1 On June 25,

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1991, several Santa Monica police officers in police cruisers, including appellant, Skystone Lambert, followed George Washington and Darryl Hicks, two African-American men, as they drove into the parking garage of their hotel. The police shone searchlights on their car, ordered them out at gunpoint, handcuffed their hands behind their backs and placed them in separate police cars for a period of from five to 25 minutes. 2 Only after the officers frisked the two men, searched their car and checked their identification did they release "the suspects." 3

Asserting that their Fourth Amendment rights had been violated, Washington and Hicks filed suit under, inter alia, 42 U.S.C. § 1983. The district court granted them judgment as a matter of law after denying Lambert's pre-trial and trial motions for judgment on the basis of qualified immunity.

The defendant justifies his actions against the plaintiffs primarily on the ground that the men bore a resemblance to a general description of two African-American suspects--namely, one fairly tall, one fairly short. The description was contained in a police bulletin. We find this an insufficient basis for such an intrusive stop. Because Lambert clearly violated Washington and Hicks' Fourth Amendment rights, we affirm both the denial of qualified immunity and the grant of judgment as a matter of law.


Around midnight on June 25, 1991, Washington, a picture editor with Sports Illustrated, and Hicks, a senior program analyst at the Bank of New York, who were visiting the Los Angeles area from New York, were returning from a baseball game at Dodger Stadium. Perhaps not reflecting the best gustatory judgment, they decided to stop at a Carl's Jr. restaurant in Santa Monica to get some food to take back to their hotel. Their decision proved to be an unfortunate one. Skystone Lambert, a uniformed Santa Monica police officer, had also chosen to visit Carl's Jr. that evening. He observed Hicks and Washington and thought they resembled the description of two suspects being sought for 19 armed robberies, most of which had taken place in the western part of the vast Los Angeles metropolitan area. Lambert also thought that Washington appeared nervous. 4 None of the robberies had occurred in the City of Santa Monica, and the most recent had occurred six days earlier.

Police knowledge of the suspects in the robberies consisted of the following. They were described as two African-American males, aged 20-30, one tall (6' to 6'2") and 150-170 pounds, and the other short (5'5" to

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5'7") and 170-190 pounds. They were known to have driven a variety of get-away cars--including a Porsche 911, a BMW and a stolen, white Oldsmobile Cutlass. The police bulletin also stated that they were considered armed and dangerous.

Neither Washington nor Hicks fit the specifics of the descriptions of the suspects. Washington was 6'4" and weighed 235 pounds. He was taller and far heavier than the "tall suspect." Hicks was 5'7 1/2" and weighed 135-140 pounds. He was much thinner than the "short suspect."

Based principally on what appeared to him to be physical similarities between Washington and Hicks and the two suspects, Lambert called for back-up and followed Washington and Hicks out of the fast-food restaurant. Hicks noticed they were being followed and told Washington. Washington and Hicks entered a white Plymouth Dynasty, which bore a rental car company sticker on the back bumper, and drove off. Lambert followed in his squad car. A second police car soon joined Lambert in following Hicks and Washington. Washington looked back several times, which Lambert found suspicious. While following the car, Lambert requested a check on the license plate, which revealed that it had not been reported stolen.

Washington and Hicks reached their hotel and entered the underground parking garage. Lambert did not immediately follow them into the garage because he did not observe them make the turn into the garage entrance. Thus, the police cars did not arrive until Washington and Hicks were preparing to get out of their car. The officers shone spotlights on the two men and pointed their guns at them. 5 Using the police vehicle's speaker system, Lambert ordered Hicks to open the car door and get out, raise his hands and interlock his fingers behind his head, face the wall, and close the car door with his feet. Lambert repeated the instructions for Washington. He ordered Washington and Hicks one by one, to walk backward toward him. He then handcuffed their hands behind their backs, patted them down, and placed them in separate police cars. Washington and Hicks complied with all orders and offered no resistance.

The officers searched the rental car and opened up Hicks' fanny-pack/pouch where he found identification. Lambert then reached into Washington's pants and retrieved his wallet. The officers looked at the men's identification and may have run a computer check. If so, it failed to reveal any outstanding warrants or other problems. 6 In any event, shortly after the officers concluded their investigation, they released the two men.

In total, three or four police cars gathered in the hotel garage in order that the officers assigned to them could help detain Washington and Hicks. Washington estimated that there were about seven officers at the scene. Sergeant Grant, a supervisor who arrived at the end of the incident, testified that he believed that four officers were present when he arrived. No one disputes that one of the policemen was a K-9 officer with a police dog in tow.

Washington and Hicks filed suit under 42 U.S.C. § 1983 alleging a violation of their Fourth Amendment rights. Defendant Lambert moved for summary judgment on the basis of qualified immunity. The district judge, the Honorable Harry L. Hupp, denied the motion. The case went to trial, and on the third day of trial, Judge Hupp again denied defendant's motion for a judgment of qualified immunity, granted a directed verdict for the plaintiffs, and left only the issue of damages for the jury. The district judge believed he was bound under this circuit's precedent to grant the directed verdict because, on the undisputed facts, the detention constituted an arrest, the officers lacked probable cause, and the law was clearly established. 7 The jury deadlocked and was

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unable to reach a verdict on damages. The defendants subsequently filed a motion to reconsider the previous order denying dismissal on the basis of qualified immunity. The district judge denied the motion as to Officer Lambert, again rejecting his argument that he had only performed a Terry stop and finding instead that he had made what a reasonable officer should have known was an arrest without probable cause. The judge granted qualified immunity as to the other officers on the ground that Lambert was the lead officer and the others had reasonably relied on his orders in carrying out the investigatory stop.

In October 1994, a second trial commenced solely on the question of damages. The jury returned a verdict for Washington and Hicks, awarding them $10,000 each plus costs and attorney fees. Lambert appeals both the directed verdict and the district court's refusals to grant qualified immunity.

I. Was the police detention of Washington and Hicks a valid investigatory stop or an arrest that violated defendants' Fourth Amendment rights?

We review the propriety of a directed verdict de novo, Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th Cir.1991) (en banc), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992), and view the evidence in the light most favorable to the non-moving party, drawing all inferences in favor of that party. The case must go to the jury if conflicting inferences can be drawn from the facts. Id.

The principal question at issue in the directed verdict (aside from qualified immunity, which we discuss infra ) was whether the police action constituted a Terry stop or an arrest. Lambert argues that the stop of Washington and Hicks was a valid investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Washington and Hicks contend that...

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