Mackinney v. Nielsen

• Decision Date: 06 November 1995
• Docket Number: No. 94-15438,94-15438
• Citation: 69 F.3d 1002
• Parties: 95 Cal. Daily Op. Serv. 8557, 95 Daily Journal D.A.R. 14,802 Christopher MACKINNEY, Plaintiff-Appellant, v. Garon NIELSEN, Dash Butler, Al Littles, and City of Berkeley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1002

69 F.3d 1002

95 Cal. Daily Op. Serv. 8557, 95 Daily Journal

D.A.R. 14,802

Christopher MACKINNEY, Plaintiff-Appellant, v. Garon NIELSEN, Dash Butler, Al Littles, and City of Berkeley, Defendants-Appellees.

No. 94-15438.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1995.

Decided Nov. 6, 1995.

Maureen Laflin, Supervising Attorney, Sheryle Musgrove, and Arthur Bistline, University of Idaho Legal Aid Clinic, Moscow, Idaho, for plaintiff-appellant.

Matthew J. Orebic, Deputy City Attorney, Berkeley, California, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: PREGERSON, KOZINSKI and LEAVY, Circuit Judges.

PREGERSON, Circuit Judge:

OVERVIEW

Christopher Mackinney appeals the district court's grant of summary judgment in favor of defendants Garon Nielsen, Dash Butler, Al Littles, and the City of Berkeley in his 42 U.S.C. Sec. 1983 action. Mackinney alleges that his constitutional rights were violated when he was arrested and detained for writing on a sidewalk with chalk. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse in part.

FACTS

Mackinney is a resident of Berkeley, California. On September 17, 1992, Mackinney and a friend wrote on a public sidewalk in Berkeley with "sidewalk chalk," an allegedly washable, non-permanent material. Mackinney wrote: "A police state is more expensive than a welfare state--we guarantee it." As he was finishing writing this message, Berkeley police officers Davis and Tejada, driving in an unmarked car on their way to serve a search warrant, saw Mackinney and ordered him to stop writing. Before complying with this order, Mackinney underlined the last phrase of his message.

The officers pulled their car up to the sidewalk. Officer Davis stepped out of the car and told Mackinney that if he did not stop writing on the sidewalk he would be arrested. Mackinney, though he had already stopped writing, refused to agree to stop writing, asserting that his actions were legal. During this exchange, Berkeley Police Sergeant Nielsen arrived. Nielsen rushed to the scene and asked what Mackinney had said. Mackinney said that he told officer Davis that he was violating Mackinney's civil rights. Nielsen responded by grabbing the chalk from Mackinney's hand and throwing it behind him. He allegedly said to Mackinney, "I don't give a f--k about your civil rights."

Sergeant Nielsen ordered the officers to arrest Mackinney. Officer Davis arrested Mackinney and charged him with violating California Penal Code Sec. 594, which prohibits defacing "with paint or any other liquid" or damaging property that is not one's own. The officers took Mackinney to the Berkeley jail and kept him there for three to four hours. He was then released on bail. He was not prosecuted for violating Sec. 594 or any other statute.

Mackinney filed this suit under 42 U.S.C. Sec. 1983 in the United States District Court for the Northern District of California. ¹ Mackinney alleged that his constitutional rights were violated because he was arrested without probable cause, and because he was arrested for exercising his First Amendment right to free speech. The district court granted summary judgment in favor of the defendants. Mackinney now appeals.

ANALYSIS

A. Standard of Review.

We review a grant of summary judgment de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We must determine whether the evidence viewed in a light most favorable to the

non-moving party presents any genuine issues of material fact and whether the district court correctly applied the law. Id. We review the district court's order granting qualified immunity de novo. Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989).

B. Qualified Immunity for Defendant Nielsen.

The district court found that Sergeant Nielsen is entitled to qualified immunity. Qualified immunity protects law enforcement officials who reasonably believe they are acting lawfully in carrying out their duties. Act Up! Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). Whether a defendant is entitled to qualified immunity turns on a two part inquiry: "(1) Was the law governing the official's conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?" Id. The analysis under these two prongs will necessarily involve an inquiry into the substantive issue of whether Nielsen violated Mackinney's Fourth Amendment rights by arresting him without probable cause.

On the merits, the district court found that Nielsen did not have probable cause to arrest Mackinney under California Penal Code Sec. 594, which prohibits damaging property. Instead the district court found that Nielsen did have probable cause to arrest Mackinney under California Penal Code Sec. 148 for obstructing the officers in their line of duty. As to qualified immunity, the district court found Nielsen to be immune from suit because he "reasonably believed" his conduct to be lawful when he ordered Mackinney's arrest. We disagree and find that Nielsen is not entitled to qualified immunity and that he did not have probable cause to arrest Mackinney for violating either Sec. 594 or Sec. 148 of the California Penal Code.

1. California Penal Code Sec. 594.

It is undisputed that the Fourth Amendment, applicable to the states through the Fourteenth Amendment, prohibits an officer from making an arrest without probable cause. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir.1984). Probable cause exists when "the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime." United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 80, 112 L.Ed.2d 52 (1990) (citing United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.1986), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986)).

Section 594, as it was worded in 1992, made it illegal to (1) deface "with paint or any other liquid," (2) damage or (3) destroy any real or personal property that is not one's own. It was not reasonable for Sergeant Nielsen to arrest Mackinney for a violation of Sec. 594. Mackinney wrote on the sidewalk with chalk. Chalk is not "liquid," and there is no evidence that the sidewalk was "damaged." No reasonable person could think that writing with chalk would damage a sidewalk. In addition, if writing with chalk constitutes "damage," it is hard to imagine any defacement "with paint or other liquid" that would not also constitute damage. This reading would collapse the "defacement" provision of Sec. 594 into the "damage" provision, violating the prohibition against construing statutes so as to render any of their provisions superfluous. See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991).

2. California Penal Code Sec. 148.

Section 148 provides that: "Every person who willfully resists, delays, or obstructs any public officer ... in the discharge or attempt to discharge any duty of his or her office or employment" is criminally punishable.

a. The act of underlining.

A reasonable officer could not have believed that he or she had probable cause to arrest Mackinney under Sec. 148 because he underlined the last part of his chalk message before complying with the police order to stop. Ruling on the merits, the district court found that the act of underlining the last word of his message "obstructed" the officers in the course of their duties because it interfered Mackinney's act does not establish probable cause for an arrest under Sec. 148, and no reasonable officer could have thought otherwise. First, when the officers yelled to Mackinney to stop writing, they were still in their unmarked car. Mackinney makes the plausible claim that he did not know that it was the police who gave the order; because we are reviewing a grant of summary judgment against Mackinney, we must resolve any doubt about this issue in his favor. Jesinger, 24 F.3d at 1130. In People v. Lopez, the California Court of Appeals found that "[b]efore one can be found culpable [for resisting arrest under Sec. 148] ... he or she must know, or through the exercise of reasonable care should have known, that the person attempting to make the arrest is an officer." 188 Cal.App.3d 592, 599, 233 Cal.Rptr. 207 (1986). The same reasoning applies to obstructing justice under Sec. 148. No reasonable officer could have thought that he or she had probable cause to arrest Mackinney when it was apparent that Mackinney probably did not realize that the order he was failing to obey came from the police.

                with their order that Mackinney stop committing an act made illegal by an anti-graffiti statute, California Penal Code Sec. 640.5(a). 2  The district court stated, "defendant Nielsen possessed the requisite probable cause to order the arrest of plaintiff for Penal Code Sec. 148 when plaintiff refused to stop defacing the sidewalk."   We disagree
                

Second, when he was ordered to stop writing on the sidewalk, Mackinney refused to comply for only a few seconds. He finished underlining then immediately turned around. No reasonable officer could have thought that complying with a police order slowly could be a violation of Sec. 148. It is well established under California law that even "an outright refusal to cooperate with police officers cannot create adequate grounds for [police] intrusion" without more. People v. Bower, 24 Cal.3d 638, 649, 156 Cal.Rptr. 856, 597 P.2d 115 (1979). Here the officers had no grounds on which to arrest Mackinney other than his disobedience, which is insufficient under Bower.

Furthermore, in People v. Cressey, 2 Cal.3d 836, 841 n. 6, 87 Cal.Rptr. 699, 471 P.2d 19 (1970), the California Supreme Court stated that the refusal to open a door upon a proper police request,...