Dubner v. City & County of San Francisco

• Decision Date: 04 September 2001
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,No. 99-17319,99-17319
• Citation: 266 F.3d 959
• Parties: (9th Cir. 2001) ROBIN A. DUBNER,, v. CITY AND COUNTY OF SAN FRANCISCO; MICHAEL HENNESSEY, SHERIFF; FRED LAU, POLICE CHIEF, SAN FRANCISCO POLICE DEPARTMENT; LT. EHRLICH, BADGE #1367, SAN FRANCISCO POLICE DEPARTMENT; DEPARTMENT OF PUBLIC HEALTH; JAIL HEALTH SERVICES; NARDA ZIEGLER, SGT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 959

266 F.3d 959 (9th Cir. 2001)

ROBIN A. DUBNER, PLAINTIFF-APPELLANT, v. CITY AND COUNTY OF SAN FRANCISCO; MICHAEL HENNESSEY, SHERIFF; FRED LAU, POLICE CHIEF, SAN FRANCISCO POLICE DEPARTMENT; LT. EHRLICH, BADGE #1367, SAN FRANCISCO POLICE DEPARTMENT; DEPARTMENT OF PUBLIC HEALTH; JAIL HEALTH SERVICES; NARDA ZIEGLER, SGT. DEFENDANTS-APPELLEES.

No. 99-17319

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 9, 2001

Filed September 4, 2001

[Copyrighted Material Omitted] Walter K. Pyle, Berkeley, California, for the appellant.

Lisa B. Berkowitz and Louise H. Renne, City Attorney's Office, San Francisco, California, for the appellees.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-98-01075-PJH(JL)

Before: Mary M. Schroeder, Chief Judge, Dorothy W. Nelson, and Johnnie B. Rawlinson, Circuit Judges.

D.W. Nelson, Circuit Judge

Robin Dubner ("Dubner") appeals the district court's decision for defendants after a bench trial in her 42 U.S.C. §§ 1983 claim for unlawful arrest against the City and County of San Francisco ("City"), police officers Narda Ziegler ("Ziegler") and John Ehrlich ("Ehrlich"), and Chief of Police Fred Lau ("Lau"). The trial judge dismissed Dubner's claim because she failed to prove Ziegler and Ehrlich were the officers who arrested her and, therefore, could not establish lack of probable cause for her arrest. Since Dubner could not prove the underlying constitutional violation, the trial judge concluded that the City could not be held liable under Monell v. Dep't of Social Svcs., 436 U.S. 658 (1978). We have jurisdiction under 28 U.S.C. §§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 1996, the American College of Surgeons ("ACS") held a convention at the Moscone Convention Center in San Francisco. The Moscone Center is owned by the City of San Francisco. During the convention, ACS leased the entire facility and controlled who was allowed into the building. That morning approximately twenty members of the animal rights group, In Defense of Animals, gathered outside the entrance to protest medical experimentation on animals. Dubner, an attorney and amateur photographer, went to the demonstration intending to take photographs, perhaps meet a potential client, and serve as a "legal observer, " but not as a participant.

The Moscone Center consists of two buildings (Moscone North and Moscone South). The demonstrators focused their attention on the entrance to Moscone North where there is a half circle driveway for cars and buses to drop off and pick up conventioneers. Between this driveway and the street--inside the half circle created by the driveway--is a pedestrian island. During the course of the demonstration, protestors alternatively stood on this pedestrian island waving placards, distributing literature, and shouting at conventioneers, or stood in the driveway and in front of the entrance to the convention center thereby impeding the conventioneers from entering and exiting the building.

At approximately 12:30 p.m., Sgt. Ziegler received word that a demonstration was taking place and proceeded to the Moscone Center. Ziegler first spoke to Gayle Grimes, who she believed was the organizer of the protest, and explained that they could continue the demonstration so long as they did not block traffic or prevent conventioneers from entering and exiting the building. Soon thereafter, Grimes and the other protestors tried to enter Moscone North, but were stopped by convention center security guards who locked the doors. Ziegler witnessed the protestors' attempts to enter the building and called for back up. Approximately fifteen officers responded to her call, including Lieutenant Ehrlich and Captain Dennis Martel. After several minutes of chanting slogans outside the convention center doors, the demonstrators returned to the pedestrian island.

As the demonstration continued, several officers spoke to Felix Niespodziewanski, the Manager of the Convention and Meetings Division of ACS, who expressed concerned about the demonstrators blocking the driveway and entrance to the building. The circular driveway and sidewalk in front of the building are considered private property of the Moscone Center, whereas the pedestrian island is public property. There are no barriers or signs indicating that the driveway and sidewalk are private property. Moreover, as Ehrlich testified, it would be difficult for anyone to tell where the private property line starts unless that person had specialized knowledge.

The officers informed Niespodziewanski that the sidewalk and driveway were considered private property controlled by ACS and asked if he wanted the police to make arrests. Niespodziewanski said that the demonstration could continue, but that he wanted the demonstrators to stay on the pedestrian island. At that point, an officer showed Niespodziewanski a citizen's arrest form and told him that if he signed it, "those people" would be arrested. The form provided space where the name of the offender and the relevant offense could be written in, but these were blank when Niespodziewanski signed the form.¹ Several officers testified that it was common practice to have the complainant sign the form and then fill in the name of one of the arrestees later followed by "et al." Niespodziewanski told the officers that he wanted the demonstrators kept on the pedestrian island, and that he wanted any person standing on the sidewalk or the driveway who was not wearing a convention badge to be arrested, regardless of whether that person was a demonstrator, passer-by, or convention attendee not wearing a badge.

After the citizen's arrest form was signed, Captain Martel directed Ehrlich to give a dispersal order using a bull-horn. Ehrlich gave the dispersal order two or three times standing in different locations outside the Moscone Center. Ehrlich testified that the dispersal order was not the "textbook" version because the language in that order applies to dispersal orders given in public streets. He recalled using words to the effect of "I ask you to leave the area in front of the doors and go to the pedestrian island. You can no longer remain on private property. Go to the public sidewalk. If you do not leave the area you will be arrested." The dispersal order did not specifically mention the protestors because Ehrlich's goal was to get "all non-credentialed people" out of the area.

At that point, some of the protestors moved to the pedestrian island and others remained on the driveway and sidewalk. Several convention attendees also remained near the entrance. Martel directed Ehrlich and Captain Tachini to start arresting people, and then pointed out a few individuals to arrest first "because they were more animated. " Martel assumed it would be obvious to the officers who to arrest because they were dressed differently than the conventioneers or because they had signs and leaflets. Sixteen people were arrested, including Dubner.

Dubner was at the demonstration for approximately one hour. For most of that time she was positioned on the sidewalk near the entrance to Moscone North, taking photographs of the protestors, and speaking with both demonstrators and conventioneers. At one point, Dubner entered the doorway to the convention center to take photographs of the protestors through the glass doors and was mistakenly locked inside. After being let out of the building, Dubner moved 8-10 feet to the east of the line of glass doors, and approximately 8-10 feet out from the building where she remained standing on the sidewalk that runs along the curved driveway. There is no evidence in the record that she was carrying any signs or leaflets.

According to her testimony, prior to the arrest Dubner was talking to one of the convention attendees and did not hear any dispersal order or anyone ask her to move to the pedestrian island. A male police officer came up to her and told her she would have to leave. She replied, "Excuse me? " and the officer repeated his statement. Dubner asked "Does this gentleman have to leave, too?," referring to the convention attendee. At that point, the officer said, "Arrest her," and two other officers handcuffed Dubner and took her into custody. Dubner is unable to identify either the first male officer who said, "Arrest her," or the two officers who handcuffed her. The only information available as to the identity of these officers is her arrest report which lists Ehrlich and Ziegler as the arresting officers. Dubner and the other fifteen people arrested were then transported to the county jail where they were booked and detained.²

Dubner filed suit in state court against Officers Ziegler and Ehrlich, Police Chief Lau, and the City and County of San Francisco asserting several state law claims, and a§§ 1983 claim for unlawful arrest. The case was removed to federal court where both parties agreed to a bench trial before Magistrate Judge Phyllis J. Hamilton. Before trial, defendants filed a number of motions in limine including a motion to dismiss Chief Lau, which the court granted based on the absence of respondeat superior liability.

At trial and in deposition testimony, Ziegler and Ehrlich did not remember whether they had arrested Dubner. Ziegler explained that her name was listed as the arresting officer for fourteen or fifteen of the sixteen people arrested because she was the first officer on the scene. She testified that she did not arrest all fourteen or fifteen people for whom she was listed as the arresting officer. At the close of plaintiff's evidence, the trial judge dismissed Dubner's punitive damages claim because there was "simply insufficient evidence to support an allegation as to punitive damages." After all the evidence, Judge Hamilton issued...