Knox v. Southwest Airlines, No. 96-16976

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWIGGINS
Citation124 F.3d 1103
Docket NumberNo. 96-16976
Decision Date05 September 1997
Parties, 97 Cal. Daily Op. Serv. 7171, 97 Daily Journal D.A.R. 11,568 Ed KNOX, an individual, Plaintiff-Appellee, v. SOUTHWEST AIRLINES, a Texas corporation, Defendant, and David Swafford; Robert Hopper; City of Phoenix, a municipality, Defendants-Appellants.

Page 1103

124 F.3d 1103
38 Fed.R.Serv.3d 344, 97 Cal. Daily Op. Serv. 7171,
97 Daily Journal D.A.R. 11,568
Ed KNOX, an individual, Plaintiff-Appellee,
v.
SOUTHWEST AIRLINES, a Texas corporation, Defendant,
and
David Swafford; Robert Hopper; City of Phoenix, a
municipality, Defendants-Appellants.
No. 96-16976.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 14, 1997.
Decided Sept. 5, 1997.

Page 1104

Robert L. Greer, Scott A. Alles, Kern and Wooley, Mesa, AZ, for defendants-appelllants.

Evan Haglund, Goodyear, AZ, Nicholas S. Hentoff, Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-95-00526-SMM.

Before: HALL and WIGGINS, Circuit Judges and SHADUR, District Judge. *

WIGGINS, Circuit Judge:

After a dispute at Phoenix's Sky Harbor Airport, plaintiff Ed Knox was arrested by Phoenix police officers David Swafford and Robert Hopper on charges of trespassing and disorderly conduct. Knox sued Swafford, Hopper, and the City of Phoenix for violating his civil rights. The officers bring

Page 1105

this interlocutory appeal from the district court's denial of their motions for summary judgment based on qualified immunity. We hold that we have jurisdiction over the interlocutory appeal, and we affirm.
BACKGROUND

We deal here with an incident that escalated into a regrettable confrontation-one that it would seem could readily have been avoided. Following a heated exchange between Knox and a Southwest Airlines employee at the Southwest counter at the Phoenix airport regarding Southwest's responsibility for damage to Knox's luggage, another employee called security. Swafford and Hopper responded. According to Knox, the officers flanked him as he went to retrieve his garment bag that was nearby. Knox stated that he refused to do business "under those terms." A verbal exchange between Knox and Swafford ensued; each now claims the other was not fully in control of himself. Pointing in the direction of the nearest exit, Swafford told Knox to leave if he was not going to conduct his business properly. Knox initially started that way, but turned around to head towards the center of the airport. Knox's car was parked on the opposite side of the airport, but he did not tell the officers this at the time. He did not return towards the Southwest counter. The officers followed him as he walked.

During the continuing verbal exchange with Swafford as he walked, Knox demanded Swafford's name and badge number. Knox took a piece of paper from the Information Booth in order to write down Swafford's identification. Swafford seized the paper, claiming that he recognized that it contained valuable records as part of the airport's daily log. Swafford, with Hopper's assistance, then arrested Knox because Knox refused to leave immediately and instead continued to criticize Swafford and demand his identification. He was taken to the Madison Street Jail and booked. Knox was ultimately released from custody and was never prosecuted.

Knox filed suit alleging violations of his civil rights and several related claims. The district court denied the officers' initial motion for summary judgment based on qualified immunity on July 25, 1996 ("July 25 order"). It stated,

In the present action, the evidence of whether the officers had probable cause to arrest Knox for trespassing is a question of fact that is disputed by the parties. At this stage of the proceedings, the Court cannot conclude that probable cause existed as a matter of law. Thus, it is a question of fact to be determined by the jury.

The officers did not appeal this denial.

On August 23, 1996, defendants filed another motion for partial summary judgment based on qualified immunity "to supplement" their previous motion "in light of" the July 25 order, supplying as additional evidence an affidavit from Officer Swafford. On August 29, 1996, the court denied this motion, stating that "there is insufficient information before the Court to make a determination of qualified immunity at this time." Defendants ostensibly appealed from the denial of both motions by filing a notice of appeal on September 26, 1996.

ANALYSIS

We review de novo a denial of summary judgment on qualified immunity. Curnow v. Ridgecrest Police, 952 F.2d 321, 323 (9th Cir.1991). Before we consider the merits of this appeal, we must address two threshold questions: (i) whether the officers' appeal was untimely because it arose from the denial of their second successive summary judgment motion and (ii) whether we have jurisdiction to decide the interlocutory appeal.

I. Timeliness of the Appeal From the Denial of the Second of Two Motions for Summary Judgment

Knox contends that we should dismiss the appeal on the grounds that it is untimely under Fed. R.App. P. 4(a)(1), having been filed more than thirty days after the July 25 order denying defendants' first motion for partial summary judgment on qualified immunity. We disagree. The notice of appeal from the August 29 denial of the second

Page 1106

motion was timely filed on September 26. We reject Knox's contention that successive motions for summary judgment on qualified immunity are impermissible. Defendants' failure to file a timely appeal of the July 25 order did not preclude an appeal from the August 29 order.

In Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), the Supreme Court held that there was no jurisdictional bar to successive interlocutory appeals of orders denying successive pretrial motions on qualified immunity grounds. See also Marks v. Clarke, 102 F.3d 1012, 1017 n. 8 (9th Cir.1996) (characterizing Behrens as allowing "two bites at the appellate apple," on a motion to dismiss and on summary judgment). In Behrens, the first motion was a motion to dismiss and the second was a motion for summary judgment. at ----, 116 S.Ct. at 839. We recognize that Behrens did not expressly authorize an interlocutory appeal from each denial of successive motions for summary judgment or, more relevant here, an interlocutory appeal just from the denial of the second motion. Nevertheless, the reasoning in Behrens is consistent with the existence of appellate jurisdiction over an appeal from a second denial of a motion for summary judgment based on qualified immunity.

The Court held that the category of the underlying order determines whether the appeals court has jurisdiction to hear an interlocutory appeal. Behrens, at ----, 116 S.Ct. at 841. In the context of qualified immunity, the denial of a summary judgment order entitles the defendants to an interlocutory appeal. Id. The strength of the appeal does not affect an appeals court's jurisdiction. Id. Courts can prevent potential abuse from defendant officials by establishing summary procedures to weed out frivolous or simply repetitive motions. 1 Id. at ----, 116 S.Ct. at 841-42; see also Enlow v. Tishomingo County, 962 F.2d 501, 506-07 (5th Cir.1992) (stating that successive motions for summary judgment on an expanded record are permissible within the district court's discretion). It is not a matter of jurisdiction. We reject the jurisdictional challenge based on the erroneous argument that an interlocutory appeal from the denial of a successive motion for summary judgment is proper only if timely filed from the district court's decision on the first motion. Thus, we hold that the interlocutory appeal...

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86 practice notes
  • Brewster v. Board of Educ. of Lynwood Unified School Dist., No. 97-55203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 13, 1998
    ...should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997) ("Th[e] test allows ample room for reasonable error on the part of the [government The Supreme Court has also amplified ......
  • Nightlife Partners, Ltd. v. City of Beverly Hills, No. CV01-01563 DDP (SHx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 11, 2004
    ...omitted). A district court Page 1215 has discretion to entertain a second motion for summary judgment. See Knox v. Southwest Airlines, 124 F.3d 1103, 1105-06 (9th Cir.1997) (rejecting contention that successive motions for summary judgment are impermissible). "A renewed or successive summar......
  • Hampsmire v. City of Santa Cruz, Case No. 11–cv–3408 RMW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 28, 2012
    ...officer and a cadet but did not threaten the officer with violence or use words likely to induce violence); Knox v. Southwest Airlines, 124 F.3d 1103, 1109 (9th Cir.1997) ( “Even if his conduct was not entirely deferential and obedient, defendants did not have a reasonable belief as a matte......
  • Moran v. State of Wash., No. 96-36129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 2, 1998
    ...should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997) ("Th[e] test allows ample room for reasonable error on the part of the [government official]."); Romero v. Kitsap County......
  • Request a trial to view additional results
86 cases
  • Brewster v. Board of Educ. of Lynwood Unified School Dist., No. 97-55203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 13, 1998
    ...should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997) ("Th[e] test allows ample room for reasonable error on the part of the [government The Supreme Court has also amplified ......
  • Nightlife Partners, Ltd. v. City of Beverly Hills, No. CV01-01563 DDP (SHx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 11, 2004
    ...omitted). A district court Page 1215 has discretion to entertain a second motion for summary judgment. See Knox v. Southwest Airlines, 124 F.3d 1103, 1105-06 (9th Cir.1997) (rejecting contention that successive motions for summary judgment are impermissible). "A renewed or successive summar......
  • Hampsmire v. City of Santa Cruz, Case No. 11–cv–3408 RMW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 28, 2012
    ...officer and a cadet but did not threaten the officer with violence or use words likely to induce violence); Knox v. Southwest Airlines, 124 F.3d 1103, 1109 (9th Cir.1997) ( “Even if his conduct was not entirely deferential and obedient, defendants did not have a reasonable belief as a matte......
  • Moran v. State of Wash., No. 96-36129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 2, 1998
    ...should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.1997) ("Th[e] test allows ample room for reasonable error on the part of the [government official]."); Romero v. Kitsap County......
  • Request a trial to view additional results

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