Liberal v. Estrada

Decision Date19 January 2011
Docket NumberNo. 08–17360.,08–17360.
PartiesKesner Junior LIBERAL, Plaintiff–Appellee,v.Eduardo R. ESTRADA, individually and in his capacity as a Menlo Park police officer; Jeff Keegan, individually and in his capacity as a Menlo Park police officer; Richard Wheaton, individually and in his capacity as a Menlo Park police officer; Jaimee Tassio, individually and in his official capacity as a Menlo Park police officer; Ronald Prickett, individually and in his capacity as a Menlo Park police officer; Jaime Romero, individually and in his capacity as a Menlo Park police officer; Barbara Ayres, individually and in her capacity as a Menlo Park police officer, Defendants–Appellants,andCity of Menlo Park, Defendant.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

John L. Flegel, Jorgenson, Siegel, McClure & Flegel, LLP, Menlo Park, CA, for the defendants-appellants.Anthony Boskovich, Law Offices of Anthony Boskovich, San Jose, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV 07–0024 SBA.Before: A. WALLACE TASHIMA, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge TASHIMA.

OPINION

GRABER, Circuit Judge:

Plaintiff Kesner Liberal sued the City of Menlo Park (“City”) and seven of its police officers, individually and in their official capacities, under 42 U.S.C. § 1983, for violations of his civil rights arising from a traffic stop and subsequent events. He also brought several claims under California law against the City and its officers. Defendants filed a motion for summary judgment, asserting federal qualified immunity and state statutory immunity. The district court denied several officers' claims of qualified immunity on Plaintiff's § 1983 claims. With regard to the state-law claims, the district court denied the City and several officers state statutory immunity. The individual officer-defendants filed this interlocutory appeal. We dismiss in part, affirm in part, and remand.

FACTUAL BACKGROUND
A. The Initial Traffic Stop

On an October night in 2005, at about 1:40 a.m., Plaintiff, an African–American male, was acting as the designated driver for two friends after a night out. His passengers were Keith Hamilton, who also is African–American, and Tony Martinez, who is Mexican–American. Plaintiff testified that his front driver- and passenger-side windows were not tinted and that they were rolled down and therefore not visible.1 His rear driver- and passenger-side windows and rear windshield had a reflective tint. Traffic was light, and Plaintiff was obeying all traffic laws as he traveled north at approximately 30 miles per hour on El Camino Real, an arterial road in Menlo Park, California.

Officer Estrada was on duty in his patrol car. He was stopped at a red light in the southbound left-turn lane of El Camino Real. Plaintiff testified that Officer Estrada could see into Plaintiff's car through the rolled-down front window because, as Plaintiff passed the police car, the officer “follow[ed] [him] with his eyes.”

As Plaintiff continued north, Officer Estrada turned on the lights of his patrol car, but not its siren, and made a U-turn through the red light to follow Plaintiff. Not knowing whether the officer was attempting to pull over his car, but suspecting that he might be, Plaintiff made a right turn at the next light while the officer was approximately 300 feet behind him. Then, almost immediately, Plaintiff made a left turn into an unlit parking lot behind a walk-up burger stand. He parked near a dumpster and turned off his headlights. Officer Estrada followed Plaintiff's car into the parking lot at high speed. The officer parked behind Plaintiff and shined his spotlight at the car.

Officer Estrada testified that he was “agitated,” “a little pumped up,” and “a little scared” as he approached Plaintiff's car with his hand on his gun. He ordered Plaintiff and his passengers to put their hands up and out of the windows of the car. They complied. Officer Estrada then requested Plaintiff's driver's license and registration, which Plaintiff provided. Plaintiff asked why he had been pulled over. In response, Officer Estrada accused Plaintiff of trying to flee, which Plaintiff denied.

The police dispatch logs show that Officer Estrada reported making this traffic stop at 1:43 a.m. Within one minute of that time, he asked for a DMV check on Plaintiff's license plate, called in Plaintiff's driver's license and date of birth, reported that three subjects were trying to flee, and requested backup, which was dispatched immediately. Officer Keegan, the first backup officer to arrive on the scene, was there by 1:44:47 a.m. Officer Keegan testified that Plaintiff was “verbally confrontational,” making statements such as, “You stopped me for no reason.” Over the next several minutes, Officers Ayres, Romero, Tassio, and Wheaton, and Sergeant Prickett—essentially the entire Menlo Park Police watch—arrived on the scene.

B. Plaintiff and Martinez Are Handcuffed

Throughout the stop, Tony Martinez had been sitting in the right rear passenger seat, talking on his cell phone. After running Plaintiff's information, Officer Estrada approached the rear passenger window and began yelling at Martinez to get off the phone.

At that point, Officer Estrada, Officer Keegan, or both, ordered Plaintiff to get out of his car. There is some uncertainty as to which officer handcuffed Plaintiff or whether one assisted the other. As Plaintiff began to step out of the car, an officer grabbed him by the wrist, pulled him out of the car, spun him around, and pushed him against the rear door of the car. Plaintiff was shoved against the door with enough force to rock the car, but the impact did not “knock [his] breath away.” He was then handcuffed and led to sit on the front bumper of Officer Keegan's police car. Officer Estrada asked Martinez to get out of the car, handcuffed Martinez, and sat him on the trunk of Plaintiff's car.

C. The Tape Recording

Officer Estrada continued to yell at Martinez and Plaintiff, demanding to know why they had tried to flee. At that point, Plaintiff made comments to the effect that the traffic stop constituted harassment because of his race, that Martinez did not have to answer Officer Estrada's questions, and that Plaintiff was going to contact his lawyer. Officer Keegan then pulled out an audio recorder, showed it to Plaintiff, and began recording.

The audio recording reveals that Officer Keegan partially Mirandized Plaintiff, telling him that “everything you say can and will be used against you in a court of law.” Plaintiff believed at that time that he was under arrest. Officer Estrada, not knowing that the conversation was being recorded, returned to speak to Plaintiff:

[Officer Estrada]: Here's the deal, ok? This is the way I do business, ok. If you would have pulled over and not tried to ditch me [inaudible], ok, then you and I would have been having a more decent conversation, ok. But you tried to ditch me, I get behind you, and then you start shooting off your mouth to me, and then your friends are joining along. I got to make a decision here.

[Plaintiff]: Um.

[Officer Estrada]: Let me finish.

[Plaintiff]: Yeah, I, that's why I [inaudible] I thought you was done sir.

[Officer Estrada]: Don't interrupt. I need to make, I need to make a decision here. I'm going to decide whether I'm going to let three little punks walk all over me, and the reason I call you punks is you're acting that way. I ['m] gonna have to decide whether I'm going to let three little punks walk all over me or whether or not to sit on you real fast and let you know that I'm the one in charge here, not you, ok. You understand me? Now, let me explain something else to you too. You may be able to get away with smarting off to some of the younger cops, you're not going to do that with me and I'll explain to you why, ok. Because, since I had no desire to become sergeant, I really don't give a rat's ass who I piss off. I don't care about complaints.

[Plaintiff]: I know you don't care I can see that.

[Officer Estrada]: Ok, so, so, so, it's a lot of things in that Penal Code that I could arrest you right now for if I wanted to, so if I was you, I would just keep your mouth shut, don't try to, don't try to get smart with me, and we might have a better evening, you understand me? Do you understand me?

The audio recording captured Officer Estrada repeatedly accusing Plaintiff of trying to “ditch” him and of lying about it. Plaintiff denied the officer's accusations and claimed that he had made the right turn off El Camino Real, before he realized that Officer Estrada was trying to pull him over, because that was the way to his friend's house.

The tape also captures Officer Estrada uncuffing Plaintiff after requiring Plaintiff to answer verbatim that he would “remain a gentleman.” Plaintiff estimates that he was handcuffed for approximately 25 to 30 minutes during the 45–minute stop.

At one point, Sergeant Prickett told Plaintiff that he was “just being damn right ignorant” by pulling over into a darkened alley. Sergeant Prickett continued, “I mean stop, stop on the road because if this officer is not sure what's going on and you do something stupid once he comes up on you, it's very easy to get shot, you know, his safety is in jeopardy. Really, especially, you know, doing the whole routine back here.”

D. The Search of Plaintiff's Car

Plaintiff saw up to six officers searching the area around his car, including the nearby dumpster. He concluded that they were looking for drugs. After uncuffing Plaintiff, Officer Estrada grabbed Plaintiff by the arm, led him to his car, and asked him whether he owned the car and whether the officers could...

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