Rodis v. City and County of San Francisco, 05-15522.

• Decision Date: 28 August 2007
• Docket Number: No. 05-15522.,05-15522.
• Citation: 499 F.3d 1094
• Parties: Rodel E. RODIS, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, a municipality; Liddicoet, Officer, San Francisco Police Officer; Barry, Sergeant, San Francisco Police Sergeant; Alex Fagan, San Francisco Police Chief, Defendants-Appellants, and San Francisco Police Department, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.3d 1094

Rodel E. RODIS, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, a municipality; Liddicoet, Officer, San Francisco Police Officer; Barry, Sergeant, San Francisco Police Sergeant; Alex Fagan, San Francisco Police Chief, Defendants-Appellants, and San Francisco Police Department, Defendant.

No. 05-15522.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 20, 2007.

Filed August 28, 2007.

Scott D. Wiener of San Francisco, CA, briefed and argued for the defendants-appellants.

Lawrence W. Fasano, Jr. of San Francisco, CA, briefed and argued for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-04-00314-MMC.

Before: D.W. NELSON and CONSUELO M. CALLAHAN, Circuit Judges, and CORMAC J. CARNEY,^* District Judge.

D.W. NELSON, Circuit Judge:

Rodel E. Rodis brought suit against the City and County of San Francisco, the San Francisco Police Department, the police chief, and two police officers under 42 U.S.C. § 1983 alleging a violation of his Fourth Amendment rights during a February 17, 2003 arrest. The district court dismissed the suit against the City and the police chief, but it rejected an assertion of qualified immunity by two of the officers ("Defendants"). Defendants brought an interlocutory appeal, and we affirm, finding the Defendants not entitled to qualified immunity.

I. FACTUAL & PROCEDURAL BACKGROUND

Rodis is an attorney and an elected public official who sits on the Community College Board of the San Francisco City College. On February 17, 2003, Rodis entered a drugstore near his office to purchase a few items. He tendered to the cashier a $100 bill, and she examined it for authenticity. Because it was an old bill (a 1985 series), and because it appeared to have a texture different than bills with which the cashier was familiar, she asked the store manager for assistance. The manager came to the counter and examined the bill. Suspecting that it might be counterfeit, the manager took the bill to an office in the back of the store to compare it to other $100 bills from the store's safe.

While the manager was examining the bill, Rodis pulled another $100 bill from his wallet and paid the cashier. After determining that the second bill was authentic, the cashier gave Rodis his change, receipt, and items. Rodis then waited for the manager to return with his bill. After comparing Rodis's bill with similar bills, the manager returned to the front of the store and tested the bill with a counterfeit detector pen, which indicated it was authentic. Nevertheless, the manager remained suspicious because of the bill's appearance and texture. The manager told Rodis he thought the bill might be fake and he was going to call the police so that they could settle the issue. Rodis was frustrated with the delay but remained in the store willingly until the officers arrived.

Sergeant Jeff Barry and officer Barbara Dullea arrived first on the scene. Officers Michelle Liddicoet and James Nguyen arrived soon thereafter. The drugstore's employees conveyed to the officers their suspicions regarding the bill. The manager told Nguyen he had compared the bill to another and was uncertain about the bill's authenticity. The officers also examined the bill themselves. They concluded it was probably counterfeit, but because they were not certain, the officers decided it would be necessary to call the United States Secret Service to get an expert opinion. Before doing so, however, they arrested Rodis for violating 18 U.S.C. § 472,¹ which criminalizes the possession and/or use of counterfeit currency, because the officers believed it would be easiest to continue the investigation from the police station. Notably, no effort was made to investigate whether Rodis intended to use an ersatz bill or whether he believed the bill to be counterfeit. Furthermore, the officers never asked to see the other $100 bill Rodis had used to complete the purchase, nor did they ask to see the bills the manager stated he had compared with the bill in question.

Liddicoet and Nguyen handcuffed and transported Rodis in the back of a squad car to the police station. Once they arrived, the officers restrained Rodis in a holding area while Nguyen called the Secret Service. Unable to speak with an agent right away, Nguyen left a message requesting assistance, and after twenty to thirty minutes, a Secret Service agent returned the call. Nguyen and the agent discussed the details of the bill in question for five to ten minutes, during which the agent confirmed that the bill was in fact genuine. The officers released Rodis from custody, and Nguyen drove him back to the drugstore.

On October 1, 2003, Rodis filed suit against the City and County of San Francisco, then Chief of Police Alex Fagan, Sergeant Barry, and Officer Liddicoet. The complaint alleged false arrest and excessive force in violation of Rodis's Fourth Amendment rights, conspiracy to violate Rodis's rights, injunctive relief, and several state law claims, including false arrest and intentional and negligent infliction of emotional distress.

On February 11, 2005, the defendants moved for summary judgment, and on March 22, 2005, the district court granted the motion as to Rodis's conspiracy, municipal liability, and injunctive relief claims. The district court denied the motion in all other respects, holding that because the officers lacked evidence regarding Rodis's intent to defraud, probable cause was lacking and the arrest was unlawful. The court also found Barry and Liddicoet not entitled to qualified immunity because the illegality of the arrest was clearly established at the time.

II. DISCUSSION

A. Jurisdiction & Standard of Review

Normally, a district court's interlocutory order denying a motion for summary judgment is not immediately appealable. Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th Cir.2006). There is an exception, however, when a defendant's motion for summary judgment on the basis of qualified immunity is denied. Gausvik v. Perez, 345 F.3d 813, 816 (9th Cir.2003); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Under this exception, we have jurisdiction pursuant to 28 U.S.C. § 1291, Behrens v. Pelletier, 516 U.S. 299, 301, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), and we review the qualified immunity determination de novo. Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996).

B. Defendants are Not Entitled to Qualified Immunity

Qualified immunity serves as a defense to § 1983 claims against government officers "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). To determine whether qualified immunity applies, we engage in a two-part inquiry:

[W]e first must ask whether a constitutional right would have been violated on the facts alleged. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. If a constitutional violation is established, we consider whether that right was clearly established such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. This inquiry is wholly objective. . . .

Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir.2006) (internal citations and quotation marks omitted); see also Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Defendants argue they are entitled to qualified immunity because (1) they did not violate Rodis's constitutional rights, and (2) even if they did not have probable cause to arrest him, at the time of the arrest the law was not clearly established such that a reasonable officer should have known the arrest violated the Fourth Amendment. However, arresting Rodis without any evidence he intended to use the bill to defraud the store or that he knew (or believed) the bill was fake was a violation of his Fourth Amendment rights. Further, it was clearly established at the time of the arrest that Defendants' conduct was unlawful. Thus, both arguments Defendants put forth are without merit.

1. Defendants did not have probable cause to arrest Rodis.

Defendants concede they arrested Rodis without evidence he used the bill with the intention to defraud or that he believed the bill to be fake. They also concede the arrest required probable cause as it was more than merely an investigatory stop. To be entitled to qualified immunity, therefore, Defendants must show probable cause existed absent any evidence of Rodis's intent or knowledge. This they cannot do.

Defendants' argument can be summarized in the following manner. First, they cite our decision in United States v. Thornton, 710 F.2d 513, 515 (9th Cir.1983), for the premise that probable cause does not require specific evidence of every element of an offense. Second, they posit that only where "specific intent" is an element of the offense, is evidence of intent required for probable cause, citing our holding in Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir.1996). Third, Defendants contend that 18 U.S.C. § 472 is not a specific intent crime, and, therefore, evidence regarding Rodis's intent or knowledge was not required to establish probable cause.

By focusing on the distinction between specific and general intent, Defendants lose sight of the principal inquiry: whether they had probable cause to effectuate an arrest. Probable cause cannot be determined by applying "precise definition[s]" or rigid classifications of conduct, as Defendants suggest, "because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d...