DeMarest v. City of Vallejo

• Decision Date: 16 August 2022
• Docket Number: 20-15872
• Parties: David P. DEMAREST, Plaintiff-Appellant, v. CITY OF VALLEJO, CALIFORNIA, a municipality and charter city; Jodi Brown, Police Officer, as an individual and in official capacity; Jeff Tai, Police Officer, as an individual and in official capacity; Herman Robinson, Police Officer, as an individual and in official capacity, Defendants-Appellees, and Joseph Kreins, Former Police Chief, as an individual and in official capacity; Andrew Bidou, Police Chief, in official capacity, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.4th 1209

David P. DEMAREST, Plaintiff-Appellant,

v. CITY OF VALLEJO, CALIFORNIA, a municipality and charter city; Jodi Brown, Police Officer, as an individual and in official capacity; Jeff Tai, Police Officer, as an individual and in official capacity; Herman Robinson, Police Officer, as an individual and in official capacity, Defendants-Appellees,andJoseph Kreins, Former Police Chief, as an individual and in official capacity; Andrew Bidou, Police Chief, in official capacity, Defendants.

No. 20-15872

United States Court of Appeals, Ninth Circuit.

Filed August 16, 2022

Argued and Submitted May 13, 2021 San Francisco, California

David M. Helbraun (argued), Helbraun Law Firm, San Francisco, California, for Plaintiff-Appellant.

Katelyn M. Knight (argued), Assistant City Attorney; Randy J. Risner, Interim City Attorney; Office of the City Attorney, Vallejo, California; for Defendants-Appellees.

Sean Riordan, American Civil Liberties Union Foundation of Northern California, San Francisco, California, for Amicus Curiae American Civil Liberties Union Foundation of Northern California.

Before: J. Clifford Wallace, Jacqueline Nguyen, and Daniel P. Collins, Circuit Judges.

COLLINS, Circuit Judge:

While visiting California from Vermont, David Demarest was asked to produce his driver's license when he pulled up in his rental car to a sobriety checkpoint in the City of Vallejo. Demarest believed that such a request violated his Fourth Amendment rights, and on that express basis he declined an officer's repeated demands to show his license. The officer proceeded to arrest Demarest, although all resulting charges were later dismissed. Demarest then filed this action under 42 U.S.C. § 1983, asserting (as relevant here) that the City and the officer violated the Fourth Amendment by adding license checks to what was concededly a sobriety checkpoint; that Demarest's arrest was not supported by probable cause that he had committed an offense; that the officer had used excessive force in effectuating the arrest; and that the City was liable for these violations of his constitutional rights. The district court granted summary judgment to the City and the officer on all of these claims. We affirm.

I

A

Because Demarest's appeal challenges an order granting summary judgment to the defendants, we must credit his evidence as true and draw all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Tolan v. Cotton , 572 U.S. 650, 651, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). Applying these standards, we take the following facts as established for purposes of this appeal.

Demarest lived in Vermont and was visiting the west coast in late summer 2014. During that visit, he purchased a boat in Bellingham, Washington and from there he sailed to the marina in Vallejo. Due to a staph infection he had developed in his back, Demarest ended up spending a week or two in the Vallejo area, while he visited a "laundry list of healthcare practitioners." On the evening of Friday, September 26, Demarest, who was driving a rental car, set out from the Vallejo marina with some boating equipment that he planned to deliver to someone in the Oakland area. As he was driving through Vallejo, Demarest could see some slowing traffic up ahead, but he was initially unsure whether it was construction or some sort of checkpoint. As he got closer, he saw signs indicating that a "DUI" (i.e. , "Driving Under the Influence") and "Driver's License" checkpoint was ahead, but by that point he did not think there was a legal way that he could have turned to avoid it. Accordingly, he proceeded into the checkpoint at about 7:15 PM.

This particular checkpoint, near the intersection of Sonoma Boulevard and Solano Avenue in Vallejo, had been established pursuant to an advance "DUI Checkpoint Operation Plan." The location was chosen due to the fact that a significant percentage of "DUI collisions in 2010" had occurred "on or near Sonoma Boulevard." Under the pre-arranged checkpoint plan, a "neutral formula" was used under which "all vehicles will be stopped unless the backup exceeds 5 minutes," in which case "all vehicles will be waived through until the backup is cleared." At the checkpoint, which was operated from approximately 6:00 PM until midnight, officers were to "screen drivers for DUI, verify they have a license, and provide educational material in the form of a handout." To advise drivers of the checkpoint, signs were posted stating, "DUI AND DRIVERS LICENSE CHECKPOINT AHEAD" and "HAVE YOUR DRIVERS LICENSE READY." In addition to these signs, "the area was coned off"; "traffic [was] slowed and directed to a single lane"; "there was portable lighting in the area"; and "police vehicles were at the checkpoint with [their] emergency lights on." A press release announcing the checkpoint was issued two days in advance and was reported on the website of a local newspaper. Although driver's licenses were to be checked, it is undisputed that (1) the checkpoint's "purpose ... was to remove intoxicated drivers from the road and to deter intoxicated driving" and (2) "[r]emoving unlicensed drivers from the road and deterring unlicensed driving was not a purpose of the [c]heckpoint" (emphasis added).

As Demarest approached the first officer at the checkpoint, that officer signaled to him to proceed forward to the next officer, Jodi Brown. When Demarest reached Officer Brown, he stopped his car, and she asked to see his driver's license. Instead of giving Officer Brown his license, Demarest asked if he could continue on his way. She responded by asking for his driver's license again. He then asked "something to the effect of" whether she had any cause or reasonable suspicion to stop him. Officer Brown ignored the question and told Demarest that, if he did not produce his license, he would be arrested. Demarest did not produce his license. Officer Brown opened the door of his car, grabbed Demarest's left wrist, removed him from the vehicle, and placed a handcuff on his left wrist. While she was doing so, she informed Demarest that he was under arrest, and she admonished him to "stop resisting." The entire process of pulling him out of the car took only about one or two seconds. At his subsequent deposition, Demarest testified that the "whole arrest process" exacerbated his pre-existing back pain by 10 to 25 percent. He did not experience significant pain in any other part of his body as a result of being pulled out of the car and handcuffed.

After being handcuffed and patted down by Officer Brown, Demarest offered to take a breathalyzer test, but a different officer told him, "[t]hat's not what this is about." Officer Brown turned Demarest over to another officer, Jeff Tai, who then placed him in the back of a police car. After Demarest's Vermont driver's license was located, Officer Tai ran a check on the license and learned that it was valid and that there were no warrants for Demarest's arrest. Demarest asked to speak to a supervisor, and Officer Herman Robinson came to speak with him. Demarest complained to him that he had done nothing wrong and had only exercised his rights under the Fourth Amendment, and Officer Robinson responded with words to the effect of "You win more bees with honey than vinegar."

Demarest was transported to the Vallejo Police Department and booked into jail. During the booking process, Officer Brown noticed a thin rope around Demarest's neck, and she asked what it was. Demarest explained that the rope held a utility knife. The knife was about three inches in length and was encased in a sheath. Demarest explained at his deposition that he kept the knife around his neck so that it would be readily available during sailing. Officer Brown took custody of the knife, and Demarest was then placed in a cell.¹

Demarest was subsequently charged with two misdemeanors: resisting arrest in violation of California Penal Code § 148(a) and possessing a concealed "dirk or dagger" in violation of California Penal Code § 21310. Demarest agreed to participate in a diversion program, and upon his successful completion of that program, the charges were dismissed.

B

Demarest filed this civil action in September 2016. The operative complaint contained ten causes of action and named as Defendants Officers Brown, Tai, and Robinson, in their individual and official capacities, along with the City of Vallejo. However, in rulings that Demarest does not challenge on appeal, the district court dismissed all but the complaint's first cause of action against Officer Brown and its ninth cause of action against the City.² Both claims are asserted under 42 U.S.C. § 1983.

The first cause of action asserts that Officer Brown violated Demarest's Fourth Amendment right to be free from unreasonable searches and seizures in three respects. First, it alleges that, by demanding to see Demarest's license at the sobriety checkpoint and refusing Demarest's request to be allowed to proceed, Officer Brown unlawfully detained Demarest without reasonable suspicion or probable cause. Second, it alleges that Officer Brown arrested Demarest without probable cause. Third, it alleges that Officer Brown used excessive force when removing Demarest from his vehicle.

The ninth cause of action alleges that the City is liable for Officer Brown's asserted Fourth Amendment violations under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As to Officer Brown's initial detention of Demarest, the complaint alleges that she acted unlawfully pursuant to the City's alleged official policy of conducting driver's license checks at "DUI checkpoints," even though such checks have "absolutely nothing to do with preventing the dangers" of drunk driving. As for the alleged wrongful arrest and excessive force in effectuating that arrest, the complaint asserts that the City was liable due to its alleged failure ...