Cornell v. City and County of San Francisco ( 2017 )


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  • Filed 11/17/17 (unmodified opinion attached); Reposted 11/21/17 to retain format of filed opinion
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    BRET CORNELL,
    Plaintiff and Respondent,
    A141016 & A142147
    v.
    CITY AND COUNTY OF SAN                                         (City & County of San Francisco
    FRANCISCO, et al.,                                             Super. Ct. No. CGC11509240)
    Defendants and Appellants.
    THE COURT:
    It is ordered that the opinion filed herein on November 16, 2017, be modified as
    follows, with the modifications to be carried out in the following sequence:
    1.      On page 33, move footnote 27 from the end of page 33 after “(Id. at p. 953.)”
    to page 35 after the sentence ending in “in short, jail overdetention” so that the
    text reads as follows:
    Thus, the nub of his Section 52.1 theory was not unlawful arrest, but rather
    his continued incarceration despite a judicial release order—in short, jail
    overdetention.27
    2.      On page 11, delete the reference to footnote 7 that appears in the following
    sentence:
    With liability for false arrest and negligence established in Phase I, the jury
    returned a Phase II special verdict finding liability on the tortious
    interference and Section 52.1 claims,7 awarding total damages of $575,231,
    including $234,007 in past economic damages, $266,224 in future
    economic damages, and $75,000 in past non-economic damages, with
    judgment entered accordingly.8
    After deleting footnote 7, all subsequent footnotes shall be renumbered.
    1
    There is no change in the judgment.
    Dated: _________________                  _____________________________, P.J.
    2
    Filed 11/16/17
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    BRET CORNELL,
    Plaintiff and Respondent,
    A141016 & A142147
    v.
    CITY AND COUNTY OF SAN                               (City & County of San Francisco
    FRANCISCO, et al.,                                   Super. Ct. No. CGC11509240)
    Defendants and Appellants.
    Police officer trainee Bret Cornell, while off-duty and in street clothes, went for a
    run one morning in Golden Gate Park, stopping for a brief rest on a knoll called Hippie
    Hill. Two uniformed patrol officers in the area spotted him, thought he looked
    “worried,” and grew suspicious because the bushes on Hippie Hill are known for illicit
    drug activity. As the patrolmen began to approach Cornell, but before they reached him
    or said anything to him, he resumed his run. The officers gave chase, joined in pursuit by
    two other officers who responded to a call for backup. One of the officers, with his gun
    drawn, eventually caught up to Cornell on a trail in some nearby woods.
    Cornell claims he had no idea he was being chased or that the officers wished to
    speak with him. On the trail, he says he heard a shout from behind, “I will shoot you,”
    and looked over his shoulder to see a dark figure pointing a gun at him. He darted away,
    ultimately finding what he thought was refuge with a police officer awaiting his arrival
    some distance away at the top of a stairway in AIDS Memorial Grove. But to his surprise
    when he arrived there, that officer ordered him to the ground. He was arrested at gun-
    point and searched, taken in handcuffs to a stationhouse for interrogation, and eventually
    to a hospital for a drug test, which was negative.
    1
    In the meantime, a team of officers went back to Golden Gate Park, spoke to
    people who had seen Cornell that morning, and conducted a search of the areas where he
    was known to have been, and of his parked truck. No evidence of involvement with
    drugs turned up, and after nearly six hours in custody, Cornell was released. As he was
    leaving the stationhouse, he was given a criminal citation for evading arrest in violation
    of Penal Code section 148. Other than cursory questioning by the officers who issued the
    citation, no one in a position of higher authority ever interviewed him or asked for his
    side of the story. Cornell was never prosecuted, but he lost his job as a result of the arrest
    and citation.
    To recover for the damage done to him, Cornell sued the four arresting officers,
    the Chief of Police, and the City and County of San Francisco. Following phase one of a
    bifurcated jury trial on special verdict forms, the trial court, relying on findings of fact by
    the jury in the initial phase, determined that Cornell was arrested without probable cause,
    thereby establishing liability for false arrest, and prompting the defense to stipulate to
    liability for negligence. In phase two, the jury returned a verdict for Cornell on two
    remaining claims, tortious interference with economic advantage, and violation of Civil
    Code section 52.1 (Section 52.1), awarding total damages of $575,231. Following trial,
    the court added $2,027,612.75 in attorney’s fees and costs on the Section 52.1 claim.
    These consolidated appeals are from the ensuing judgment and the award of
    attorney’s fees and costs. The appellants argue 1) as a matter of law, the jury’s phase one
    findings do not support the trial court’s determination that probable cause was lacking,
    2) the trial court should have declared a mistrial when the jury deadlocked on one of 18
    questions put to it in the phase one special verdict form, 3) the trial court failed to address
    their argument that, under Penal Code section 847, subdivision (b), they are immune from
    claims for false arrest, and 4) even if the verdict on the tort claims is upheld, the Section
    52.1 verdict and accompanying award of fees and costs must be reversed because there
    was insufficient evidence to submit that claim to the jury.
    Seeing no error, we affirm.
    2
    I.   BACKGROUND
    A.     The Evidence at Trial
    In July 2010, Bret Cornell, a recent graduate of the police academy employed by
    the San Francisco Police Department as a field officer trainee, went for a morning jog in
    Golden Gate Park at around 7:00 a.m., after finishing a night shift. He was dressed in
    gray canvas pants cut off at mid-ankle, a plaid fleece jacket over a dark t-shirt, and
    running shoes. After running a considerable distance, at around 8:00 a.m., he ran across
    Sharon Meadow and stopped to rest at the top of Hippie Hill, just as a police cruiser
    drove through the trees up to the crest of the hill along a pedestrian pathway. He looked
    at the car, and not wanting to interfere with whatever the officers were doing, walked
    down to the bottom of the hill.1
    The two uniformed officers in the cruiser, David Brandt and Richard “Brett”
    Bodisco, considered Hippie Hill to be a high crime area. Both officers had made
    numerous narcotics arrests there, mostly involving drug transactions in the bushes, and
    there had been a homicide in the park a few days earlier. According to Officers Brandt
    and Bodisco, they drove up the pathway to gauge the reaction of people on the other side
    of the crest who could not see them coming. Cornell, a stranger to the officers, glanced at
    their car when they came into view, and then looked away. Cornell was by himself, not
    talking to anyone, had nothing in his hands, and was not doing anything specific to
    arouse suspicion. Officer Brandt described Cornell as having a “clean-cut” look, which
    he said was consistent with someone who was a recent parolee.2 Because Cornell
    1
    Cornell testified that when he saw the officers’ car, he thought it “odd” they were
    driving on a pedestrian path, “figured . . . they were doing some kind of official
    operation,” and wanted to avoid them because “I didn’t need to get myself involved in
    any official operations” while off-duty. He explained that “in field training we are not
    allowed to have any off-duty contact. We are not supposed to be getting involved in
    official police matters if we can avoid it.”
    2
    On cross-examination, Officer Brandt admitted Cornell’s appearance was also
    consistent with that of a recent graduate of the police academy.
    3
    appeared to be “worried” in their presence, Officers Brandt and Bodisco turned their car
    toward him and decided to initiate a consensual encounter. They did not activate their
    lights, or say anything to him over their loudspeaker.
    As the officers turned toward Cornell, and as he walked away from them, headed
    downhill, he looked back briefly in their direction and then began running. With their
    suspicions aroused, the officers decided to chase Cornell and detain him. Officer
    Bodisco jumped out of the car and made a radio call for backup to assist in setting up a
    perimeter to cut Cornell off from any escape. The call, which drew the assistance of two
    more uniformed officers, Jesse Farrell and Sergeant Wallace Gin, included a description
    of Cornell and the direction he was headed, but no other details. When Officer Bodisco’s
    call for backup went out, the police dispatcher asked “What’s the want?” Officer
    Bodisco responded, simply, “[R]unning.” According to Officer Brandt, the call gave no
    specifics because at that point “we didn’t have anything specific.” Surveying the area
    from the top of the hill to see where Cornell went, Officer Bodisco testified he saw
    Cornell go off path through some bushes, reappearing below the hill without his plaid
    jacket and wearing only a dark shirt, which the officers took to be an attempt to throw
    them off his track.
    When Cornell left Hippie Hill, he was unaware the officers wanted him to stop.
    His explanation for discarding his fleece jacket was that, after an hour’s run, he was
    feeling hot. Having unsuccessfully tried to tie his fleece jacket around his waist while
    running at an earlier point on his route, he folded it and placed it on a tree stump to
    retrieve later. He said he had done that before and had no problem with anyone taking it,
    and even if someone did take it, the garment was inexpensive and easily replaceable.
    Once the officers caught sight of Cornell from their vantage point on Hippie Hill, Officer
    Bodisco set out after him on foot. Officer Brandt, still in the cruiser, drove down and
    around the hill, past some tennis courts, and along nearby Bowling Green Drive. As he
    drove, Officer Brandt stopped to ask two people along the way if they had seen someone
    4
    matching Cornell’s description; one person claimed to have seen someone running near
    the tennis courts, and another said he had heard some rustling in bushes up a winding dirt
    trail nearby.
    Continuing in the direction these park users pointed out, Officer Brandt’s search
    took him to the bottom of a trail known as the High Path, a dirt pathway lined on both
    sides by trees and brush, leading up a hill beyond Bowling Green Drive at the entrance to
    the AIDS Memorial Grove. Officer Farrell arrived and joined Officer Brandt at the
    bottom of the High Path, and the two of them began proceeding up the trail, with Officer
    Brandt in the lead. Officer Brandt described the trail as dark and having a “cave[-like]
    appearance.” He unholstered his gun at this point and held it in a “low ready” position,
    not because of any specific threat, but because of “fear of the unknown.” Officer Farrell,
    for his part, perceiving no threat, left his gun holstered.
    Officer Brandt caught sight of Cornell walking up ahead and eventually came
    close enough to confront him. Officer Farrell was directly behind Officer Brandt, could
    see that Cornell appeared to be “clean cut,” was not armed, had nothing in his hands, and
    was doing nothing threatening. Officer Brandt shouted something at Cornell. Both
    officers recall Officer Brandt unmistakably ordering Cornell to stop at that point,3
    causing Cornell to pause, half turn in their direction, look at them squarely, and then dash
    away at full speed, taking a route downhill through the trees in a clear effort to evade
    capture.
    Cornell—who testified he still had no idea he was being pursued by police officers
    during the encounter on the High Path—said he heard a “disturbance” behind him and
    then heard the words “I will shoot you,” which prompted him to glance over his shoulder
    and see a dark figure pointing a gun. He said he took off sprinting in desperate flight
    3
    What exactly Officer Brandt shouted was disputed (Officer Brandt—“stop[,]
    police”; Farrell—“some sort of command,” cannot recall exact words; Cornell—“I will
    shoot you,” and did not think whoever said it was a police officer because “I will shoot
    you” is not an appropriate police command), but there is no dispute he yelled at least the
    words “I will shoot you.”
    5
    from an unknown, armed attacker, and then tripped and fell down a steeply pitched slope
    through some trees, tumbling into the AIDS Memorial Grove. Standing at the top of a
    stairway across the meadow from where Cornell landed was Sergeant Gin. Cornell began
    to run toward the stairway, thinking he had found protection from the unknown assailant
    who had just accosted him on the High Path. To Cornell’s surprise when he reached the
    bottom of the stairway, Sergeant Gin ordered him to stop and put his hands up.
    At this point, Cornell surrendered without any protest or struggle. He raised his
    hands as directed, but Sergeant Gin testified that as Cornell began walking up the stairs
    he lowered his right hand to shoulder height, at which point Sergeant Gin drew his gun
    and ordered him to the ground. Cornell again complied. As he lay prone on the steps,
    Officers Bodisco, Brandt and Farrell arrived, and Officer Bodisco handcuffed him, with
    the cuffs binding his hands behind his back. Cornell remained cooperative and compliant
    throughout the handcuffing process.
    Upon being handcuffed, Cornell was not advised he was under arrest or the basis
    of the arrest. None of the officers dispute, however, that he was under arrest. Having
    made the arrest, the officers conducted a full search incident-to-arrest. The search turned
    up nothing except Cornell’s police identification and a standard-issue set of handcuffs in
    his back pocket. It was not until this point—some seven minutes after the initial
    encounter on Hippie Hill—that Cornell told the arresting officers he was a police officer
    and that he was just out for a run. When asked where his gun was, Cornell said it was in
    his truck, which was parked near Stowe Lake. Sergeant Gin decided at this point to take
    Cornell to Park Station for further interrogation. Cornell was then escorted up the steps
    and loaded into the back of a transport wagon, still bound in handcuffs behind his back.
    As Cornell was being driven to Park Station, he began to feel light-headed, had
    trouble breathing, and he requested a double set of handcuffs to relieve discomfort. He
    repeatedly asked the driver for assistance, but was ignored. After the transport wagon
    left, headed for Park Station, several officers conducted a search in Golden Gate Park,
    6
    looking for incriminating evidence. They found Cornell’s plaid jacket discarded in the
    bushes, but there was nothing in it. They also located Cornell’s truck, which was parked
    on Conservatory Drive, some distance from Stowe Lake where Cornell said he parked it;
    his gun was inside, where he had indicated it could be found.
    Upon arrival at Park Station, Cornell still had not been told why he was under
    arrest. Officers Bodisco and Brandt surreptitiously recorded an interview of him and
    during the questioning Officer Brandt told Cornell “[y]ou’re going to end up hanging
    yourself pretty hard by lying. I can tell you that right now.” Cornell’s repeated question,
    “What’s the charge?,” went unanswered. Responding to Cornell’s insistence that he had
    been unaware he was being pursued by police and that no officer ever issued a command
    to stop running, Officer Brandt accused him of being a “professional”—meaning
    someone who has an “extensive history of criminal misconduct” who seeks to “work the
    system for their benefit”—and brushed off Cornell’s denial of wrongdoing with the
    comment, “you can talk to them downtown.”
    While held in custody at Park Station, Cornell was handcuffed to a bench in full
    view of many officers, the “entire watch” as he put it, and he overheard several of them
    chuckling about him being a field officer trainee, which elicited comments such as “not
    anymore” and “another one bites the dust.” Cornell continued to report being in physical
    distress while at Park Station, so paramedics were called, and he was taken to a hospital.
    In the ambulance, while the paramedics were taking Cornell to the hospital, Officer
    Brandt arranged to place a hidden audio recording device near him, “because [he] might
    say something stupid.” The recording captured nothing incriminating. At the hospital, a
    sample of Cornell’s blood was taken and tested for the presence of narcotics. The blood
    draw was negative.
    Upon receiving medical clearance at the hospital, Cornell was returned to Park
    Station, where he was eventually released at 1:50 p.m., after nearly six hours in custody.
    While processing him for release, Officer Brandt said to Cornell “you know the drill” and
    7
    handed him a misdemeanor citation accusing him of violating Penal Code section 148,
    subdivision (a), for resisting or delaying an officer in the course of his duties. The
    citation, signed by Officer Bodisco, and approved by Sergeant Gin, specified Hippie Hill
    as the location of the offense. No criminal charges were ever brought, but two days later,
    pursuant to a policy requiring termination for misconduct of any officer trainee—trainees
    are probationary employees—the San Francisco Police Department summarily released
    Cornell from its employ, ending his career as a San Francisco police officer and
    effectively disqualifying him from obtaining a law enforcement position with other
    departments or agencies.
    B.     Claims and Trial Proceedings
    Cornell brought this action against Officers Brandt, Bodisco and Farrell, Sergeant
    Gin, San Francisco Police Chief George Gascon, and the City and County of San
    Francisco (the City). In his complaint, as amended, he pleaded claims for violation of
    Section 52.1, negligence, assault and battery, false arrest and imprisonment, and tortious
    interference with contract and/or economic advantage.4 The remaining defendants at
    trial—and the appellants here—were Officer Brandt, Officer Bodisco, Officer Farrell,
    Sergeant Gin, and the City.
    The case was tried to a jury over the course of 23 trial days in October and
    November 2013. At the close of the evidence, jury deliberations were bifurcated into two
    phases, with the first phase addressing the claims of assault and false arrest. A special
    verdict form for Phase I presented a series of 18 questions, beginning with a question
    asking the jury to decide whether Cornell had proved his assault claim, followed by a
    4
    Prior to trial, the court granted summary judgment to Chief Gascon because there
    was no evidence of his personal involvement in the alleged acts giving rise to liability. It
    initially granted summary adjudication to all defendants on Cornell’s Section 52.1 claim,
    but due to an intervening change in the applicable law, reconsidered that ruling and
    granted Cornell leave to amend, resulting in a second amended complaint upon which the
    case was tried.
    8
    series of 17 factual questions pertinent to the legal issue of probable cause to arrest.5 The
    court adopted this bifurcated mode of submitting the case to the jury based on the
    expectation that the Phase I findings would dictate what, if anything, remained to be
    decided in Phase II.
    After a day and a half of Phase I deliberations, the jury reported being “hopelessly
    stuck” on two of the questions submitted to it. The court admonished the jury to keep
    trying. Late that afternoon, a Friday, the jury again reported it was still stuck on two
    questions, this time adding that there was “no other testimony or evidence that will
    change any of our minds.” With the jury at an impasse, the court recessed for the
    weekend, after first excusing a juror who had a schedule conflict and substituting an
    5
    The specific questions, crafted jointly by the parties with input from the court,
    were as follows: (1) Do you find by a preponderance of the evidence that a defendant
    assaulted plaintiff? (2) Did either or both Officer Brandt or Bodisco see Cornell running
    across Sharon Meadow before they saw him on Hippie Hill? (3) Was Hippie Hill known
    to Officer Brandt and Bodisco as a high crime area? (4) Was it reasonable for the officers
    to believe that Cornell had come out of the bushes on Hippie Hill? (5) Did the officers
    have knowledge of the types of criminal activity in the Hippie Hill area that could lead
    them to believe that Cornell may be involved in criminal activity near Hippie Hill?
    (6) Did the officers reasonably believe that Cornell appeared nervous or evasive on
    Hippie Hill because of the presence of the officers? (7) Did the officers do or say
    anything on Hippie Hill that would have communicated to Cornell that they wanted to
    contact him? (8) Did the officers reasonably believe that Cornell fled from them on
    Hippie Hill? (9) Did the officers reasonably believe that Cornell removed his jacket to
    change his appearance in order to avoid detention? (10) Did the officers observe Cornell
    run off trail through the bushes? (11) Were Officer Brandt’s only words said to Cornell,
    “I will shoot you!”? (12) Did Officer Brandt or Farrell do or say anything on the path
    above the AIDS Memorial Grove that would have communicated to Cornell that they
    wanted him to stop? (13) Did the officers see Cornell glance back on the path above the
    AIDS Memorial Grove? (14) Did the officers reasonably believe that Cornell knew or
    should have known that they were police officers? (15) Did Officer Farrell see Officer
    Brandt pointing his gun in Cornell’s direction? (16) Would an objectively reasonable
    officer believe that Cornell ran away from Officer Brandt in order to resist the use of
    unreasonable force? (17) Did Cornell go down the hill into the Grove accidentally or
    intentionally? (18) Was it reasonable for the officers to believe that Cornell went down
    the hill into the Grove with the intent of evading them?
    9
    alternate juror. The reconstituted jury began deliberations anew the following week, but
    after two additional days of deliberating, remained hung, though on only one question.
    The court decided to take the Phase I verdict at that point despite the unanswered
    question, over an objection from the defense.6
    In its Phase I verdict, the jury found unambiguously for the appellants on the
    assault claim. Beyond that, however, the results were mixed, with some findings tending
    to favor the officers’ version of events, and some findings tending to favor Cornell’s
    version. In the findings favorable to Cornell, the jury found that Officers Brandt and
    Bodisco never said anything or otherwise communicated to Cornell their desire to speak
    to him on Hippie Hill; that it was not reasonable for them to believe Cornell had come
    out of the bushes on Hippie Hill; and that, contrary to Officer Bodisco’s testimony, they
    did not see Cornell run off trail through the bushes when he left Hippie Hill. The jury
    deadlocked on the question whether it was reasonable for Officers Brandt and Bodisco to
    believe Cornell fled from them on Hippie Hill.
    In the findings favoring the defense, on the other hand, the jury found that Officers
    Bodisco and Brandt considered Hippie Hill to be a high crime area; that the officers’
    knowledge of the types of crimes committed there “could lead them to suspect” Cornell
    may have been engaged in criminal activity; that the officers reasonably believed that
    Cornell appeared “nervous or evasive” when he saw them; that they reasonably believed
    Cornell shed his jacket in an effort to avoid being detected; that when Officers Brandt
    and Farrell encountered Cornell on the High Path, they reasonably believed he knew they
    were police officers; that a reasonable officer would not have believed Cornell was
    fleeing from the use of unreasonable force against him by Officer Brandt; that, contrary
    6
    Defense counsel objected “for the record” to this procedure and insisted upon
    answers to all of the Phase I special verdict questions. In a colloquy with the court when
    the jury first reported an impasse on November 8, counsel had previously taken the
    position the court had discretion to decide “what facts the Court needs to make” a
    probable cause determination.
    10
    to Cornell’s testimony, he went down the hill from the High Path into the AIDS
    Memorial Grove intentionally, not accidentally; and that it was reasonable for the officers
    to believe he was trying to evade capture in doing so.
    Based on the jury’s Phase I findings, the court ruled as a matter of law that
    defendants did not have reasonable suspicion to detain Cornell and that he was arrested
    without probable cause. In the hiatus between Phases I and II, the defense stipulated to
    liability on the part of all defendants on the negligence claim, leaving only the tortious
    interference with economic advantage claim and the Section 52.1 claim for decision in
    Phase II. Moving on to the next phase of the jury deliberations, the court posed a series
    of Phase II questions pertaining to these two claims and to issues of causation and
    damages on all claims. With liability for false arrest and negligence established in Phase
    I, the jury returned a Phase II special verdict finding liability on the tortious interference
    and Section 52.1 claims,7 awarding total damages of $575,231, including $234,007 in
    past economic damages, $266,224 in future economic damages, and $75,000 in past non-
    economic damages, with judgment entered accordingly.8 The court then granted
    Cornell’s motion to tax costs, awarding him $2,027,612.75 in attorney’s fees under
    Section 52.1.
    These timely appeals followed, from the judgment and from the attorney’s fee
    award.
    8
    In the Phase II verdicts, the jury found liability against only Officers Brandt and
    Bodisco on the intentional interference claim and against only Officer Brandt and
    Sergeant Gin on the Section 52.1 claim. Based on the verdicts for Phase I and Phase II
    and on the stipulation by all appellants to liability for negligence, judgment was entered
    against all appellants on the false arrest claim and the negligence claim, against Officer
    Brandt, Sergeant Gin and the City on the Section 52.1 claim, against Officers Brandt and
    Bodisco on the intentional interference with economic relations claim, and in favor of all
    appellants on the assault claim. The judgment awards the total damages jointly and
    severally against all appellants.
    11
    II.     DISCUSSION
    A.      Probable Cause to Arrest
    Where the facts are not in conflict, the issue of probable cause is a question of law
    reviewable de novo on appeal. (Giannis v. City and County of San Francisco (1978) 
    78 Cal. App. 3d 219
    , 225; People v. Tyler (1961) 
    193 Cal. App. 2d 728
    , 735.) We look to
    whether facts known to the arresting officer “at the moment the arrest was made” (Beck v.
    Ohio (1964) 
    379 U.S. 89
    , 90) “ ‘would persuade someone of “reasonable caution” that
    the person to be arrested has committed a crime.’ ” (People v. Zaragoza (2016) 1 Cal.5th
    21, 57; see Dunaway v. New York (1979) 
    442 U.S. 200
    , 208, fn. 9.) “The rule of probable
    cause is a practical, nontechnical conception” that turns on an assessment of the facts
    gathered by the arresting officer in the field (Brinegar v. United States (1949) 
    338 U.S. 160
    , 176) and is not governed by courtroom standards of proof. (Ibid.) Many verbal
    formulae have been used to describe it, but distilled to their essence “ ‘[t]he substance of
    all the definitions . . . is a reasonable ground for belief of guilt’ ” (
    id. at p.
    175), where the
    belief is “particularized with respect to the person to be . . . seized.” (People v.
    Thompson (2006) 
    38 Cal. 4th 811
    , 818.)
    The legal standard we apply to assess probable cause is an objective one in which
    the subjective motivations of the arresting officers have no role. (Whren v. United States
    (1996) 
    517 U.S. 806
    , 813; Gillan v. City of San Marino (2007) 
    147 Cal. App. 4th 1033
    ,
    1045 (Gillan); Johnson v. Lewis (2004) 
    120 Cal. App. 4th 443
    , 454.) But it is an
    overstatement to say that what is in the mind of an arresting officer is wholly irrelevant,
    for the objective test of reasonableness is simply a measure by which we assess whether
    the circumstances as subjectively perceived by the officer provide a reasonable basis for
    the seizure. (Agar v. Superior Court (1971) 
    21 Cal. App. 3d 24
    , 29; see Devenpeck v.
    Alford (2004) 
    543 U.S. 146
    , 153.)
    Of course, temporary detention on grounds short of probable cause is also
    constitutionally permissible in some circumstances. (Terry v. Ohio (1968) 
    392 U.S. 1
    ,
    20–21, 27.) A “brief, investigatory stop” is justified where an officer has “reasonable,
    articulable suspicion that criminal activity is afoot,” implicating the suspect. (Illinois v.
    12
    Wardlow (2000) 
    528 U.S. 119
    , 123 (Wardlow); see In re Tony C. (1978) 
    21 Cal. 3d 888
    ,
    893.) While the more demanding standard of probable cause requires a basis to suspect
    someone of having committed a particular crime, reasonable suspicion to detain only
    requires facts connecting the suspect to “criminal activity” more generally. (People v.
    Campbell (1981) 
    118 Cal. App. 3d 588
    , 594.) Like the probable cause determination, the
    applicable test courts use to assess reasonable suspicion is an objective one, specific to
    the detainee. (People v. Perrusquia (2007) 
    150 Cal. App. 4th 228
    , 233.)
    Our Supreme Court recently explained that “ ‘[a] detention is reasonable under the
    Fourth Amendment when the detaining officer can point to specific articulable facts that,
    considered in light of the totality of the circumstances, provide some objective
    manifestation that the person detained may be involved in criminal activity.’ [Citation.]
    Such reasonable suspicion cannot be based solely on factors unrelated to the defendant,
    such as criminal activity in the area.” (People v. Casares (2016) 
    62 Cal. 4th 808
    , 837–
    838 (Casares).) Reasonable suspicion must rest on objective particulars tying a
    particular person to criminal activity, rather than on a mere “hunch” that something is
    odd or unusual about the person detained. (Id. at p. 838; see People v. Bower (1979) 
    24 Cal. 3d 638
    , 647 [officer’s suspicions about white man found late at night in a “high
    crime,” largely black neighborhood insufficient to justify detention where the officer
    testified he had never seen a white person in that area at that time “for an innocent
    purpose”].)
    Cornell was arrested for the offense of “willfully resist[ing], delay[ing], or
    obstruct[ing] [a] . . . peace officer . . . in the discharge . . . [of a] duty of his or her office”
    under Penal Code section 148, subdivision (a). To violate this statute, the obstructive
    conduct must impede the lawful performance of an officer’s duty. (People v. Curtis
    (1969) 
    70 Cal. 2d 347
    , 354; People v. Rodriguez (2012) 
    207 Cal. App. 4th 1540
    , 1543.)
    Thus, the analysis here focuses, at its core, on whether there was reasonable suspicion
    justifying Cornell’s detention at any point between the time he was spotted on Hippie Hill
    and the time he was arrested in AIDS Memorial Grove. If there was not, Officers Brandt
    and Bodisco—and their fellow officers, since all of the officers involved in pursuing
    Cornell constructively shared the same pool of information under the collective
    13
    knowledge doctrine9—were acting outside the lawful course of their duties when they
    sought to detain him. That analysis drives the probable cause analysis, for if there was no
    objectively reasonable basis to believe Cornell had violated Penal Code section 148,
    subdivision (a) or any other law, probable cause to arrest was lacking as well. 
    (Casares, supra
    , 62 Cal.4th at p. 838 [“The detention being unlawful, the subsequent searches of
    defendant’s person and the car he had been sitting in were also unlawful.”].)
    We agree with the trial court that there was no reasonable suspicion to detain and
    hence no probable cause to arrest. This incident took place in broad daylight in one of
    the most heavily used public recreation areas in San Francisco. The jury found that when
    the chase commenced, Officers Brandt and Bodisco knew little more than that they had
    seen Cornell at a location where drug crimes often took place, but with nothing
    connecting him to any criminal activity. The man had nothing in his hands, made no
    furtive movements, and was speaking to no one. Nothing about the way he was dressed
    indicated he might be hiding something under his clothing, and Officers Brandt and
    Bodisco gave him no directions that he disobeyed. (See 
    Casares, supra
    , 62 Cal.4th at
    p. 838 [“[officer] described no furtive movement or other behavior by defendant
    suggestive of criminal activity”].) They did not claim they recognized Cornell as
    someone with previous involvement in criminal activity. They had no tip that a drug
    transaction was about to take place in which he fit the description of someone likely to be
    involved. And they saw no activity on Hippie Hill, by anyone, indicating that drug
    activity was currently taking place or about to take place there.
    On the strength of testimony from Officer Bodisco that Cornell “looked worried”
    and avoided making eye contact with him and his partner, the jury found the officers
    reasonably believed Cornell seemed “nervous or evasive.” But “ ‘[l]ooking at a police
    officer and then looking away does not provide the officer with “a particularized and
    objective basis for suspecting the person stopped of criminal activity.” ’ ” (People v.
    Pitts (2004) 
    117 Cal. App. 4th 881
    , 888.) “In general, although eye contact, or the lack
    thereof, may be considered as a factor establishing reasonable suspicion, . . . whether the
    9
    See, e.g., People v. Ramirez (1997) 
    59 Cal. App. 4th 1548
    , 1552–1556.
    14
    contact is suspicious or not ‘is highly subjective and must be evaluated in light of the
    circumstances of each case.’ [Citations.] The skepticism with which this factor is treated
    is in large part due to the fact that reliance upon ‘suspicious’ looks can so easily devolve
    into a case of damned if you do, equally damned if you don’t. [Citations.] Accordingly,
    . . . that factor is ‘of questionable value . . . generally.’ ” (United States v. Montero-
    Camargo (9th Cir. 2000) 
    208 F.3d 1122
    , 1136.)
    The jury’s finding that the officers’ knowledge of Hippie Hill as a hotspot for
    crime “could lead them to suspect that Cornell may be involved in criminal activity” was
    equally true of anyone else in the vicinity. Because these two officers had insufficient
    information to do anything more than seek a consensual encounter with Cornell as they
    watched him on Hippie Hill (see 
    Casares, supra
    , 62 Cal.4th at p. 838 [“when . . . officer
    initiated the identification procedure, . . . he had no factual basis for a reasonable
    suspicion, as opposed to a mere hunch, that defendant was then engaged in any criminal
    activity”]), the critical sequence of events took place when the chase began. At that
    point, as Officers Brandt and Bodisco turned their car toward Cornell—without saying
    anything over their loudspeaker or otherwise signaling an intent to approach—Cornell
    was already walking away, which he was entitled to do. (See People v. Souza (1994) 
    9 Cal. 4th 224
    , 234 (Souza) [“a person approached by police for questioning may decline to
    answer the questions and ‘may go on his way’ ”].) Even assuming Cornell was
    deliberately trying to avoid Officers Brandt and Bodisco as he ran off, that did not change
    things. Not every effort to avoid an encounter with police warrants detention. If it did,
    anyone who turns off the freeway in haste after spotting a police car in the rearview
    mirror could be stopped for trying to avoid being pulled over.
    Pointing to the fact Cornell shed his jacket after starting to run, a move the jury
    found gave Officers Brandt and Bodisco reasonable grounds to believe he was trying to
    “avoid detection,” appellants emphasize that evasive flight can provide reasonable
    suspicion, especially when the experience of officers with crime in a particular area
    connects a fleeing person to illicit activity. It is true that, in a high crime area,
    “unprovoked flight upon noticing the police” may provide reasonable suspicion in some
    circumstances 
    (Wardlow, supra
    , 528 U.S. at p. 124), and that “headlong flight wherever
    15
    it occurs”—which can be considered the “consummate act of evasion”—will justify a
    stop. (Ibid.) But the High Court has declined to adopt a “ ‘bright-line rule’ authorizing
    the temporary detention of anyone who flees at the mere sight of a police officer.” (Id. at
    p. 126 (conc. & dis. opn. of Stevens, J.)), favoring instead a totality of the circumstances
    approach that requires consideration of flight along with other objective indicators
    connecting a suspect to criminal activity. (See also 
    Souza, supra
    , 9 Cal.4th at p. 239
    [“No single fact—for instance, flight from approaching police—can be indicative in all
    detention cases of involvement in criminal conduct. Time, locality, lighting conditions,
    and an area’s reputation for criminal activity all give meaning to a particular act of flight,
    and may or may not suggest to a trained officer that the fleeing person is involved in
    criminal activity. Consequently, a ‘bright-line’ rule applicable to all investigatory stops
    . . . would be improper.”].)
    What is important here is whether the circumstances known to the officers, in
    totality, connected Cornell to suspected criminal activity, not whether, as a standalone
    matter, they perceived him to be fleeing from them when he began to run. The jury made
    no finding, and there was no evidence, that Cornell was carrying something Officers
    Brandt and Bodisco thought could be contraband and discarded it as he ran. Nor was
    there any finding that Cornell was desperate, panicked or in “[h]eadlong flight”
    
    (Wardlow, supra
    , 528 U.S. at p. 124), suggesting consciousness of guilt. The special
    verdict questions bearing on how Cornell ran, to be sure, are somewhat ambiguous, but in
    interpreting them—after considering the same evidence the jury did—the trial court’s
    ultimate legal conclusion shows it read the findings as accepting Cornell’s version of
    what happened at the start of the chase (after a “cool down” break he resumed his run
    along a pedestrian path, removed his jacket while running, and took enough time along
    the path to fold it and place it on a nearby stump), rather than the officers’ version (he
    suddenly broke into a “full blown sprint,” ran off-trail, and “dumped” his jacket while
    running through the bushes).10 Because the findings suggest the jury saw key details in
    10
    The trial court’s function is to draw legal conclusions from the facts found by
    special verdict (Code Civ. Proc., § 624), and, unless the findings are incomplete,
    16
    the officers’ reported perceptions of Cornell at this crucial juncture as embellishments,
    we see no reason to disagree that the more benign view of the facts known to them is the
    best interpretation of what the jury found.11
    Appellants rely heavily on People v. 
    Rodriguez, supra
    , 
    207 Cal. App. 4th 1540
    ,
    where a man jumped from a car and ran from an officer who was attempting to make a
    stop. Another officer who heard a radio broadcast about the fleeing suspect saw him a
    minute later, walking nearby. The second officer shined a spotlight on the suspect and
    got out of his patrol car, at which point the suspect sprinted away, crossing traffic lanes,
    reaching into his pocket while he ran, and then throwing an item over a chain-link fence.
    Upon being chased down and detained, the suspect admitted he “knew he was running
    from a police officer” but ran because he had “an outstanding warrant and a digital scale
    in his pocket.” (Id. at p. 1543.) On these facts the court concluded there was more than
    enough justification to detain, closing its opinion with the remark, “This is not a case
    where appellant was out for an evening jog.” (Id. at p. 1544, italics added.) Here,
    nothing contradicts Cornell’s testimony that he was, in fact, out for a jog. Nor are there
    any of the particulars we see in Rodriguez, where the officers had cause to detain at the
    outset—in the traffic stop—which led the suspect to flee at a full sprint, putting himself at
    risk in traffic while he ran.
    Shifting their focus slightly, appellants point to Cornell’s later actions on the High
    Path, where he defied an order to stop and launched into a sprint through the woods with
    inconsistent or “hopelessly ambiguous”—which is not the case here—the court may
    interpret the verdict in view of the pleadings, evidence and instructions. (Woodcock v.
    Fontana Scaffolding & Equipment Co. (1968) 
    69 Cal. 2d 452
    , 456–457 [trial judge’s
    function is to interpret the verdict “ ‘from its language considered in connection with the
    pleadings, evidence and instructions’ ”; if trial court’s interpretation is incorrect,
    appellate court will interpret the verdict if it is possible to give a correct interpretation].)
    We review any such interpretation de novo. (Ibid.)
    11
    The jury answered “No” to Question No. 10, which indicates it did not find
    credible the testimony from Officer Bodisco that Cornell ran off-trail through the bushes,
    consistent with its earlier “No” response to Question No. 4, indicating it had also rejected
    the officers’ testimony that they believed Cornell emerged from the bushes at the top of
    Hippie Hill when they first saw him.
    17
    desperate abandon, scrambling down the side of a hill into the AIDS Memorial Grove.
    This sequence of events on the High Path, they say, was part of a fluid series of events
    leading up to the moment of arrest. By then, appellants contend, the jury’s findings
    establish without doubt that Cornell was in full flight, clearly indicating consciousness of
    guilt. They argue that, given the evolving nature of the situation, we must not limit the
    question to what Officers Brandt and Bodisco knew at the outset of the chase, but must
    consider all the circumstances known to them prior to Cornell’s surrender. We agree, but
    the problem for appellants is that what happened on the High Path was provoked. The
    jury’s finding that Officers Brandt and Farrell reasonably perceived Cornell to be running
    away from them at that point does not negate the obvious: Foolishly or not, Cornell ran
    away at the point of a gun and a threat of “I will shoot you.” Other than this panicked
    reaction—which Officer Brandt brought about—there was no greater cause to detain
    Cornell on the High Path than there was on Hippie Hill.12
    Granted, the better and certainly the safer course for Cornell was to surrender on
    the High Path, but in order for his defiance to constitute a violation of Penal Code section
    148, Officers Brandt and Farrell still had to be acting in the lawful performance of their
    duties, which places the focus back on what happened at the beginning of the chase.
    Because Officers Brandt and Bodisco did not have reasonable suspicion to detain in the
    first place, the trial court properly concluded that none of the appellant officers acted in
    the lawful course of his duties at later points in time. Thus, when Cornell darted away on
    the High Path, it made no difference whether he took off out of fright, still unaware he
    was being chased by police officers (as he claims), or out of a desire not to be caught,
    despite having looked straight at two uniformed officers, in defiance of their command to
    12
    We might have been inclined to conclude otherwise if the jury had found that
    Cornell, in reaction to a command from Officer Brandt to stop, had committed some
    crime posing a threat to any of the appellant officers or to the public. Under Brown v.
    Illinois (1975) 
    422 U.S. 590
    , that would have attenuated the taint of the unjustified
    attempt to detain him. But merely fleeing on foot from a show of force does not bring
    Brown doctrine into play. (United States v. Brodie (D.C. Cir. 2014) 
    742 F.3d 1058
    , 1063
    [Brown attenuation doctrine not applicable where detainee, in response to officers’ orders
    to put his hands on car hood preparatory to a search of his person, “fled on foot, and the
    manner of his flight in itself posed no incremental threat to anyone”].)
    18
    stop (as the officers claim). Officer Brandt chased down and trained a weapon on a
    running man about whom he knew virtually nothing, except that this was someone who
    had the temerity to try to elude capture. Without something objectively tying him to
    criminal activity, we conclude that none of the appellant officers had a legal basis to
    detain—much less probable cause to arrest—on Hippie Hill, on the High Path, or in
    AIDS Memorial Grove.
    B.    Incomplete Phase I Special Verdict
    In addition to claiming there was reasonable suspicion to detain and thus probable
    cause to arrest, appellants challenge the Phase I verdict on procedural grounds. After
    many days of deliberation in Phase I, and after the jury had sent multiple messages to the
    court asking about specific questions posed on the Phase I Verdict Form, and after
    repeatedly reporting an inability to reach a verdict on a number of those questions, the
    jury finally managed to reach a verdict on all but one question, Question No. 8.
    Appellants argue that this question—which asked the jury to find whether Officers
    Brandt and Bodisco reasonably believed Cornell was fleeing from them when he began
    running on Hippie Hill—was so material to the issue of reasonable suspicion that it was
    reversible error to accept the Phase I verdict without an answer to it. On that basis, they
    contend it was an abuse of discretion to deny their motion for a mistrial. We cannot
    agree.
    Even assuming the acceptance of an incomplete Phase I Verdict Form was error,
    we do not see the factual issue presented by Question No. 8 as so material to the total mix
    of facts that it would have changed the outcome on the issue of reasonable suspicion had
    it been decided in favor of appellants. Cornell would have been entitled to walk away
    had the officers approached him on Hippie Hill, as we note above. Our analysis of the
    circumstances when he left Hippie Hill assumes Officers Brandt and Bodisco did
    perceive he ran from them, as they testified, and as Question No. 8 asked the jury to find,
    but even granting that assumption we do not think the totality of what they knew at that
    stage points to anything more than a hunch that he could have had some connection to
    criminal activity on Hippie Hill. We thus conclude the court did not abuse its discretion
    by denying appellants’ motion for a mistrial. (See Blumenthal v. Superior Court (2006)
    19
    
    137 Cal. App. 4th 672
    , 679 [“ ‘A trial court should grant a mistrial only when a party’s
    chances of receiving a fair trial have been irreparably damaged, and we use the
    deferential abuse of discretion standard to review a trial court ruling denying a
    mistrial.’ ”)
    C.       Statutory Immunity Under Penal Code Section 847, Subdivision (b)
    Next, appellants argue we should reverse because the trial court never
    “specifically addressed” whether the appellant officers are statutorily immune for the
    false arrest of Cornell. Penal Code section 847, subdivision (b) provides that “[t]here
    shall be no civil liability on the part of, and no cause of action shall arise against, any
    peace officer . . . , acting within the scope of his or her authority, for false arrest or false
    imprisonment arising out of any arrest” under specified circumstances, and one of those
    circumstances, set forth in subdivision (b)(1), is that “[t]he arrest was lawful, or the peace
    officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.”
    We see no error here either. California courts speak of “reasonable cause” and
    “probable cause” interchangeably (Pool v. City of Oakland (1986) 
    42 Cal. 3d 1051
    , 1069;
    O’Toole v. Superior Court (2006) 
    140 Cal. App. 4th 488
    , 510), and appellants cite no case
    recognizing any meaningful distinction in the two phrases. The statutory scheme of
    which Penal Code section 847 is part,13 much of which was enacted in 1872 as part of the
    Field Code, uses both terms without differentiation, and the few cases that apply
    subdivision (b)(1)—which first appeared in language added by amendment in 195714—
    give no separate consideration to its reach after completing their analyses of probable
    cause. (See O’Toole, at pp. 511–513; Hamilton v. City of San Diego (1990) 
    217 Cal. App. 3d 838
    , 844 (Hamilton).) Thus, the trial judge here was not alone in perceiving
    no need to undertake an analysis of appellants’ statutory immunity argument, separate
    from her probable cause analysis.
    13
    Penal Code Part 2, Title 3, Chapter 5, section 833 et seq.
    14
    Statute 1957, chapter 2147, section 5, page 3806; Assembly Bill No. 1857,
    approved by Governor July 8, 1957 (1957 Reg. Sess.).
    20
    While novel, appellants’ argument has worthy bona fides. It is based on a reading
    of the language of Penal Code 847, subdivision (b), that was first advocated in 1963 by
    the eminent scholar of governmental immunity in California, Professor Arvo Van
    Alstyne. Focusing his attention on the fact that the statute, by its literal terms, affords
    immunity for false arrest if “the arrest was lawful, or the peace officer, at the time of the
    arrest, had reasonable cause to believe the arrest was lawful” (italics added), Professor
    Van Alstyne argued that the disjunctive phrase “reasonable cause to believe” would be
    surplusage if it did not defeat liability for unlawful arrests as well as lawful ones. (See
    “A Study Relating to Sovereign Immunity” (Jan. 1963) 5 Cal. Law Revision Com. Rep.
    (1963), at pp. 407–408 (1963 Van Alstyne Study).) To trigger the protection of the
    statute, he argued, an officer should only be required to show he in fact believed the
    arrest was justified. (Id. at p. 408.)15
    Giving a modern twist to what was, in effect, a call for immunity by Professor Van
    Alstyne based on a standard of subjective good faith, appellants suggest we read into
    Penal Code section 847, subdivision (b), the federal standard for qualified immunity that
    has evolved in the last three decades, which is based on an objective appraisal of whether
    an officer facing civil suit violated “clearly established” law, and is not simply a test of
    subjective good faith. (See Estate of Lopez v. Gelhaus (9th Cir. 2017) 
    871 F.3d 998
    ,
    1005, 1017–1018.) This immunity doctrine, developed by the federal courts in the
    context of Fourth Amendment claims under 42 U.S.C. section 1983 (Section 1983),
    deriving it from the common law with no statutory foundation, is purely judge-made.
    (Anderson v. Creighton (1987) 
    483 U.S. 635
    , 645 (Anderson); see Harlow v. Fitzgerald
    15
    “At the Legislature’s request, the California Law Revision Commission
    submitted a comprehensive report in 1963, which gave rise to the statutory system that
    now governs the field of public entity tort liability. . . .[¶] Professor . . . Van Alstyne was
    the California Law Revision Commission’s chief consultant and much of his work gave
    rise to the present statutory system.” (Mary M. v. City of Los Angeles (1991) 
    54 Cal. 3d 202
    , 229 (conc. opn. of Baxter, J.) “The 1963 study was authored by Professor . . . Van
    Alstyne and represented [his] views . . . and not necessarily those of the Law Revision
    Commission. (1963 Van Alstyne 
    Study, supra
    , 5 Cal. Law. Revision Com. Rep. at p. 5,
    fn.*.)” (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 182, fn. 10.)
    21
    (1982) 
    457 U.S. 800
    , 813-819; Pierson v. Ray (1967) 
    386 U.S. 547
    , 557.) Citing
    Venegas v. County of Los Angeles (2007) 
    153 Cal. App. 4th 1230
    (Venegas II),16 Cornell
    contends the federal common law doctrine of qualified immunity “does not apply at all to
    state law claims, specifically false arrest claims,” but he never specifically engages with
    appellants’ reading of the text of section 847, subdivision (b).
    Cornell is correct that Venegas II held that the federal qualified immunity “does
    not apply to actions brought under . . . [S]ection 52.1” (153 Cal.App.4th at p. 1246), but
    the appellate panel in that case took care to mention it was not addressing “whether a
    statutory immunity might apply.” (Ibid.) We understand appellants to be taking up the
    issue left open there, using Penal Code section 847 as the statutory basis for their
    argument, while, in effect, bringing in federal qualified immunity, so to speak, “through
    the back door.” Even if we were receptive to the idea of introducing federal qualified
    immunity into California law in this fashion despite the holding in Venegas II—we are
    not, since we view that opinion as soundly reasoned—we reject the premise that Penal
    Code section 847, subdivision (b)(1) adds an extra layer of protection beyond what is
    already afforded by the doctrine of probable cause. Because nothing in the statutory
    scheme for official immunity in California alters the rule that “[u]nder California law, a
    police officer is not granted governmental immunity for false arrest and imprisonment”
    
    (O’Toole, supra
    , 140 Cal.App.4th at p. 510), we see no basis to borrow the federal rule of
    qualified immunity absent specific legislative authorization.
    We do not agree that Penal Code section 847 provides that authorization.
    Subdivision (b)(1) of Penal Code section 847 is coextensive with the doctrine of probable
    cause 
    (Hamilton, supra
    , 217 Cal.App.3d at p. 846), but goes no further. Since at least the
    16
    Venegas II is one of a series of appellate opinions arising out of a suit brought
    by plaintiff David Venegas against the County of Los Angeles and various deputies of the
    Los Angeles Sheriff’s Department seeking damages in connection with his alleged
    wrongful detention and arrest. It was decided on remand following the California
    Supreme Court’s opinion in Venegas v. County of Los Angeles (2004) 
    32 Cal. 4th 820
    , 843 (Venegas), which, as we discuss below, is central to our analysis of the
    appellant’s claim of error in connection with the Section 52.1 verdict here.
    22
    early 1950s, it has been settled that a “police officer who makes an arrest without a
    warrant and without justification may be held civilly liable for false arrest and
    imprisonment.” (Dragna v. White (1955) 
    45 Cal. 2d 469
    , 471 (Dragna).)17 When the
    language of Penal Code section 847, subdivision (b) was added to the Penal Code by
    amendment in 1957, nothing in the legislative history suggests it was intended to reverse
    or supersede Dragna. Quite to the contrary, what little discussion there was of this
    specific amendment as Assembly Bill No. 1857 moved through the Legislature indicates
    it was understood as a codification of then-existing law. (See Sen. Interim Judiciary
    Com. (1955–1957), Fourth Progress Report to the Legislature, Rep. on Assem. Bill No.
    1857, at p. 427 [Senate Interim Judiciary Committee Report], quoting statement of the
    District Attorneys Association concerning Assembly Bill No. 1857 [“[t]his bill seeks to
    amend the Penal Code sections on arrest—to make them reflect the law of arrest as
    declared and interpreted by the appellate courts of California—and to incorporate parts of
    the Uniform Arrest Act, with the intention that the statutory law of California shall be a
    17
    (See also Miller v. Glass (1955) 
    44 Cal. 2d 359
    , 363; Hughes v. Oreb (1951) 
    36 Cal. 2d 854
    .) Even in their era, the Dragna line of cases did not break new ground. They
    simply applied in the setting of unlawful arrest and false imprisonment the firmly rooted
    common law principle that where a law enforcement officer engages in tortious acts
    within the scope of his office, he is acting under color of law—meaning under pretense of
    legal authority, even though his acts are illegal—and thus he may be held liable in tort.
    (Abbott v. Cooper (1933) 
    218 Cal. 425
    , 432 [“[W]here a person holding the office of
    sheriff or constable does acts colore officii, though he had no sufficient warrant to do the
    act, he is responsible to third persons in an action for a breach of official duty. Such a
    rule is declared to be supported by the weight of authority.”]; see Steven L. Winter, The
    Meaning of “Under Color of” Law (1992) 91 Mich. L.Rev. 323, at pp. 342–346
    [common law origins of the concept of extra-legal official conduct undertaken “under
    color of law”].) The same concept has long been accepted in law enforcement
    misconduct cases under federal civil rights law. (Monroe v. Pape (1961) 
    365 U.S. 167
    ,
    181–187, overruled on other grounds in Monell v. Department of Social Services of City
    of New York (1978) 
    436 U.S. 658
    .)
    23
    true, accurate and concise guide to the substantive rights and duties of peace officers and
    citizens alike”]; 
    id. at p.
    430 [citing Dragna as established law]).18
    The surplusage argument on which appellants’ proffered interpretation of Penal
    Code section 847 hinges, echoing Professor Van Alstyne, is not persuasive. The
    legislative history makes clear why section 847, subdivision (b) uses the disjunctive in
    referring to a “lawful” arrest “or” an arrest made on “reasonable cause to believe the
    arrest was lawful.” The alternative “reasonable cause” scenario tracks a secondary
    holding of the Dragna case, which addresses liability for unreasonably prolonged jail
    detention prior to arraignment. (See 
    Dragna, supra
    , 45 Cal.2d at p. 473 [“where the
    arrest is lawful, subsequent unreasonable delay in taking the person before a magistrate
    will not affect the legality of the arrest, although it will subject the offending person to
    liability for so much of the imprisonment as occurs after the period of necessary or
    reasonable delay.”].) Thus, the Senate Interim Judiciary Committee Report, citing
    Dragna, explains that, “present legal thinking [citation] indicates that while an arrest,
    based upon reasonable cause, is lawful, . . . a subsequent detention could be unlawful.
    Such would be the case if after arrest, but before the arraignment, the arresting officer
    18
    In response to the California Supreme Court’s landmark decision recognizing
    the exclusionary rule in People v. Cahan (1955) 
    44 Cal. 2d 434
    , Assembly Bill 1857 was
    an effort to update and clarify the statutory rules governing arrest in California. (Senate
    Interim Judiciary Committee Report at pp. 437, 439; see House Resolution No. 184 (May
    19, 1955) [discussing Cahan as the impetus for the bill].) Objections to Assembly Bill
    No. 1857 focused primarily on the fact that, for the first time, broad legislative
    recognition was being given to the power of warrantless detention in circumstances short
    of arrest. (See Senate Interim Judiciary Committee Report at pp. 445–447 [quoting
    comments of the State Bar of California conveyed by letter dated June 4, 1957 from
    Joseph A. Ball, State Bar President, to Hon. Patrick D. McGee, Chairman of the
    Assembly Judiciary Committee and sponsor of Assem. Bill No. 1857].) On our own
    motion, under Evidence Code sections 452, subdivision (c) and 459, we take judicial
    notice of the above-cited legislative history materials, since committee reports and
    legislative resolutions are “indicative of the intent of the Legislature as a whole.”
    (Metropolitan Water Dist. v. Imperial Irrigation Dist. (2000) 
    80 Cal. App. 4th 1403
    , 1425,
    italics omitted (Metropolitan Water).)
    24
    learn[s] of facts which destroy[] the belief upon which his reasonable cause was based.”
    (Senate Interim Judiciary Committee 
    Report, supra
    , at p. 430.)
    Understood within the context provided by the legislative history, therefore, the
    reference to both “lawful arrest” and arrest on “reasonable cause” in section 847,
    subdivision (b)(1), is not surplusage. It is simply descriptive of the two-part holding in
    Dragna that the Legislature recognized as foundational. Shorn of its textual premise, the
    policy rationale for Professor Van Alstyne’s reading of the statutory language—that
    peace officers should have protection from civil liability for arrests made upon reasonable
    mistake—is already fundamental to the modern concept of probable cause and its close
    cousin reasonable suspicion. Without clear and definite legislative authorization, we are
    not inclined to announce that, after all these years, we have discovered in section 847,
    subdivision (b) an additional layer of protection from civil liability beyond what already
    exists through the doctrine of probable cause, or to use section 847 as the statutory basis
    for importing federal qualified immunity into California law.19
    D.     Section 52.1 Claim
    1.     The Bane Act
    On the recommendation of a commission appointed by then Attorney General
    John Van de Kamp, the Tom Bane Civil Rights Act (Stats.1987, ch. 1277, §§ 3–4,
    19
    It is worth noting that the High Court’s decision to create for law enforcement
    officers the added level of protection against Section 1983 liability provided by the
    doctrine of qualified immunity was announced by a closely divided 5-4 vote, over a
    vigorous dissent from Justice Stevens, who pointed out that such an immunity is
    unnecessary because “the probable-cause standard itself recognizes the fair leeway that
    law enforcement officers must have in carrying out their dangerous work. The concept of
    probable cause leaves room for mistakes, provided always that they are mistakes that
    could have been made by a reasonable officer.” 
    (Anderson, supra
    , 
    483 U.S. 635
    , 661
    (dis. opn. of Stevens, J.); 
    id. at p.
    659 [referring to the new rule as a “double standard of
    reasonableness”].) And as recently as this past High Court term, sharp criticism of the
    qualified immunity doctrine from at least one current member of the Court has been
    expressed. (See Ziglar v. Abbasi (2017) 582 U.S. __, 
    137 S. Ct. 1843
    , 1871 (conc. opn. of
    Thomas, J.) [“Our qualified immunity precedents . . . represent precisely the sort of
    ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to
    make.”].)
    25
    pp. 4544–4548) (the Bane Act) was enacted in 1987 “as part of a comprehensive package
    of legislation to combat hate crimes.” (Venegas 
    II, supra
    , 153 Cal.App.4th at p. 1242.)20
    The Bane Act is enforceable criminally, under Penal Code section 422.6 (In re M.S.
    (1995) 
    10 Cal. 4th 698
    , 713, 715), and civilly, under Section 52.1 (Jones v. Kmart Corp.
    (1998) 
    17 Cal. 4th 329
    (Jones).) While Penal Code section 422.6 is focused specifically
    on hate crimes as conventionally understood (i.e. acts of violence or intimidation aimed
    at members of statutorily protected groups), Section 52.1 sweeps much more broadly,
    protecting against all conduct aimed at “ ‘interfer[ing]’ ” with rights “ ‘secured by’ ” the
    constitutional or statutory law of the United States, or of California, where the
    interference is carried out “by threats, intimidation or coercion,” whether or not the
    offending conduct is motivated by discriminatory animus. 
    (Venegas, supra
    , 32 Cal.4th at
    p. 843.)21
    The centerpiece of civil enforcement under the Bane Act is subdivision (a) of
    Section 52.1, which provides, “If a person or persons, whether or not acting under color
    20
    (See Attorney General’s Com. on Racial, Ethnic, Religious and Minority
    Violence, Final Report (April 1986) (Final Report of the Van de Kamp Commission);
    Assem. Bill No. 63 (1987–1988 Reg. Sess.); Letter from John H. Van de Kamp to Hon.
    Larry Stirling, Chairman, Assembly Public Safety Committee (March 18, 1987) [“This
    bill implements the recommendations of the Attorney General’s Commission on Racial,
    Ethnic, Religious and Minority Violence . . . .”].) Attorney General Van de Kamp’s letter
    to Chairman Stirling is included in the Assembly Public Safety Committee’s bill file for
    Assembly Bill No. 63. On our own motion, under Evidence Code sections 452,
    subdivision (c) and 459, we take judicial notice of the Final Report of the Van de Kamp
    Commission as well as the Van de Kamp letter to Chairman Stirling. (See Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal. 4th 826
    , 842, fn. 3 [judicial notice of Attorney
    General’s report on gasoline pricing proper as an official act of executive department for
    use as background material]; Varshock v. Department of Forestry & Fire Protection
    (2011) 
    194 Cal. App. 4th 635
    , 647 [“The report of a commission that proposes a statute
    subsequently adopted is given ‘substantial weight’ in construing the statute . . . .”].)
    21
    The use of parallel criminal and civil enforcement mechanisms follows the
    pattern of post-Civil War federal civil rights legislation. (See 18 U.S.C. § 241 [Section
    241] and 18 U.S.C.§ 242 [Section 242], two criminal statutes which were enacted as
    sections 6 and 17 of the Enforcement Act of 1870, and their civil counterpart statutes,
    respectively, 42 U.S.C. § 1985(3) (Section 1985(3)) and Section 1983, which were
    26
    of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat,
    intimidation, or coercion, with the exercise or enjoyment by any individual or individuals
    of rights secured by the Constitution or laws of the United States, or of the rights secured
    by the Constitution or laws of this state, the Attorney General, or any district attorney or
    city attorney may bring a civil action for injunctive and other appropriate equitable relief
    in the name of the people of the State of California, in order to protect the peaceable
    exercise or enjoyment of the right or rights secured. . . .” Private actions by aggrieved
    individuals are authorized under Section 52.1, subdivision (b), which provides for
    recovery of compensatory and punitive damages, injunctive relief, civil penalties, and
    attorney’s fees. “The creation of civil causes of action by victims of . . . conduct” in
    violation of Section 52.1 is central to the Bane Act’s enforcement scheme. (Stamps v.
    Superior Court (2006) 
    136 Cal. App. 4th 1441
    , 1448 [legislative history shows private
    actions intended to be “at the heart of the legislation”].)
    Claims may be brought under Section 52.1, subdivision (a), against rights-
    interfering conduct by private actors as well as by public officials 
    (Jones, supra
    , 17
    Cal.4th at p. 338), including police officers (Simmons v. Superior Court (2016) 7
    Cal.App.5th 1113 (Simmons)). The word “interferes” as used in Section 52.1 has been
    construed as “violates.” (See 
    Jones, supra
    , 17 Cal.4th at p. 338 [California Supreme
    Court equates “interfere” with “violate”].) “ ‘The essence of a Bane Act claim is that the
    defendant, by the specified improper means (i.e., “threats, intimidation or coercion”),
    tried to or did prevent the plaintiff from doing something he or she had the right to do
    under the law or to force the plaintiff to do something that he or she was not required to
    do under the law.’ ” (Simmons, at p. 1125; accord, Austin B. v. Escondido Union School
    Dist. (2007) 
    149 Cal. App. 4th 860
    , 883.)
    enacted as section 19 of the Civil Rights Act of 1875 and section 2 of the Ku Klux Klan
    Act of 1871. (See Eugene Gressman, The Unhappy History of Civil Rights Legislation
    (1952) 50 Mich L.Rev. 1323, 1333–1334; Frederick M. Lawrence, Civil Rights and
    Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes (1993) 67 Tul. L.Rev.
    2113, 2135–2145 & Appendices [tracing the Post-Civil War civil rights statutes as
    originally enacted through various recodifications in the United States Code].)
    27
    The model for Section 52.1 is a similarly worded Massachusetts statute,
    Massachusetts Civil Rights Act of 1979 (Mass. Gen. Laws Ann., ch. 12, §§ 11H, 11I)
    (MCRA). 
    (Jones, supra
    , 17 Cal.4th at p. 335.) Some courts interpreting and applying
    the MCRA and Section 52.1 have concluded, without close examination, that these
    respective statutes are state law analogues to Section 1983. (See Cameron v. Craig (9th
    Cir. 2013) 
    713 F.3d 1012
    , 1022 [“[T]he elements of the excessive force claim under
    § 52.1 are the same as under § 1983.”]; Batchelder v. Allied Stores Corp. (1985) 
    393 Mass. 819
    , 822–823 [
    473 N.E.2d 1128
    , 1131] [“the Legislature intended to provide a
    remedy under [MCRA], coextensive with 42 U.S.C. § 1983 . . . , except that the Federal
    statute requires State action whereas its State counterpart does not”].) In a broad
    conceptual sense, that is true, since both Section 52.1 and the MCRA are supplements to
    Section 1983, providing state law civil remedies for violation of constitutional and
    statutory rights protected by federal as well as state law. But the most similar federal
    civil rights statute to Section 52.1, textually and structurally—similar enough to suggest
    that it, not Section 1983, was the original template our Legislature drew from—is Section
    241. (See Final Report of the Van de Kamp Commission, Chptr. 3, “Proposed California
    Civil Rights Act,” at p. 23 & p. 24, fn. 4 [“The Massachusetts Civil Rights Act is
    patterned after federal civil rights statutes that protect rights guaranteed by federal laws
    and the Constitution,” citing to Section 241, with no mention of Section 1983].)22
    22
    While the citation to Section 241 in the Final Report of the Van de Kamp
    Commission provides fairly clear evidence of the genesis of Section 52.1, the language of
    Section 52.1 is also traceable to Section 241 by direct comparison. Section 52.1 adopts
    the signature structure of Section 241, which prohibits interference with the “free
    exercise” or “enjoyment” of a broadly-defined class of “secured” civil rights. And
    Section 52.1, like Section 241, targets the use of fear-inducing conduct to carry out the
    interference. Where Section 52.1 prohibits “interfere[nce]” by “threats, intimidation or
    coercion,” Section 241 prohibits attempts to “injure, oppress, threaten, or intimidate”
    someone in the exercise of protected rights. In addition, the modern adaptation of
    Section 241’s rights-interference structure in other federal legislation can be seen in the
    Voting Rights Act of 1965, which uses language nearly identical to that of Section 52.1.
    (See 52 U.S.C. § 10101(b) [“No person, whether acting under color of law or otherwise,
    shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other
    28
    2.     Appellants’ Contentions
    Appellants argue we should reverse the finding for Cornell on his Section 52.1
    claim along with the accompanying award of statutory attorney’s fees because there was
    insufficient evidence to submit that claim to the jury. This attack on the Section 52.1
    verdict here is three-pronged. First, appellants point out that since the jury rejected
    Cornell’s assault claim, it necessarily rejected his claim of excessive force. Relying on
    the requirement that a Section 52.1 claim must rest on evidence of “threat[], intimidation
    or coercion,” they contend it was error for the trial court to submit this statutory claim to
    the jury. We reject the premise of this argument. Nothing in the Phase I Special Verdict
    Form required the jury to make any express finding on the issue of unreasonable force.
    The Phase I jury instruction on assault defined unreasonable force using the Fourth
    Amendment multifactor articulation of excessive force in Graham v. Connor (1989) 
    490 U.S. 386
    (Graham), and listed the use of unreasonable force, so defined, as one of six
    elements of assault.23 Because the use of unreasonable force was only one element of the
    person for the purpose of interfering with the right of such other person to vote or to vote
    as he may choose . . .”].)
    By contrast, the text of Section 1983 and its criminal counterpart Section 242—
    statutes which are limited to state action, and focus on “depriv[ation]’” of rights instead
    of interference with rights—bears almost no similarity to Section 52.1, other than
    common use of the phrase “under color of law.” Section 1985(3), the civil counterpart to
    Section 241, also differs significantly from Section 241. Section 1985(3) is limited to
    private acts of “conspir[ing] or go[ing] in disguise on the highway or on the premises of
    another, for the purpose of depriving . . . any person or class of persons of the equal
    protection of the laws . . . .” Based on its limiting language, a requisite element of any
    Section 1985(3) claim is that it must be based on “some racial [or] . . . otherwise class-
    based, invidiously discriminatory animus behind the conspirators’ action” (Griffin v.
    Breckenridge (1971) 
    403 U.S. 88
    , 102), which is the very limitation our Supreme Court
    held in Venegas does not apply to Section 52.1. 
    (Venegas, supra
    , 32 Cal.4th at p. 843.)
    This compare-and-contrast exercise thus leaves Section 241 as the most closely
    comparable statute to Section 52.1 among its historical antecedents in federal civil rights
    law.
    23
    The court’s assault instruction, adapted from Judicial Council Of California
    Civil Jury Instructions (CACI) Nos. 1301 (Assault—Essential Elements) and 1305
    29
    assault instruction, the jury may have rejected the assault claim while still believing there
    was unreasonable force here.
    Cornell’s theory was that Officer Brandt and Sergeant Gin committed an assault
    by pointing a gun at him, putting him in fear of being shot. In support of this theory, he
    presented evidence that the gun-pointing by both officers in a low-threat level situation
    violated the San Francisco Police Department’s policy on the use of deadly force and
    officer training standards for handling weapons. Indulging all inferences in favor of
    reconciling the Phase I and Phase II verdicts, as we must, a rational jury in Phase II could
    have concluded that, under the circumstances, the threatened use of deadly force was
    unreasonable (see Robinson v. Solano County (9th Cir. 2002) 
    278 F.3d 1007
    , 1013
    [officers’ conduct in pointing gun at detainee at close range presents triable issue of fact
    on excessive force claim]), while at the same time concluding in Phase I that the gun-
    pointing—standing alone—was not a substantial factor in the “harm” caused to Cornell.
    On this reading of the jury’s verdicts, what accounts for the Phase II findings against
    Officer Brandt and Sergeant Gin on the Section 52.1 claim is that the gun-pointing
    combined with the unlawful arrest, the baseless Penal Code section 148 citation, and all
    of the other mistreatment of Cornell following the arrest, caused the harm.
    The explanation for the finding against Cornell on the assault claim, but in his
    favor on the Section 52.1 claim, may also be one of timing. In resolving the assault
    claim, the jury may have decided in Phase I that Officer Brandt and Sergeant Gin were
    privileged to use force under Penal Code section 835a [“[a]ny peace officer who has
    reasonable cause to believe . . . [an arrestee] has committed a public offense may use
    reasonable force to effect the arrest]”, but then, following the court’s determination of no
    (Battery by Police Officer), advised the jury that, to prove assault, Cornell must establish
    that (1) a defendant threatened to touch him in a harmful or offensive manner, (2) it
    reasonably appeared to him the threat was about to be carried out, (3) the threat
    constituted unreasonable force, (4) he did not consent to the touching, (5) he was harmed,
    and (6) the threatening conduct was a substantial factor in causing his harm.
    30
    probable cause, concluded in Phase II that there was no such privilege.24 For both of
    these reasons, we do not accept the premise that the jury’s adverse assault verdict in
    Phase I destroyed the basis for Section 52.1 liability in Phase II. (See Bender v. County
    of Los Angeles (2013) 
    217 Cal. App. 4th 968
    , 978 (Bender) [where an arrest is unlawful
    and excessive force is used in effectuating it, there is coercion within the meaning of
    Section 52.1].)
    Second, appellants argue that Cornell proved a false arrest, at most, and that
    liability under Section 52.1 cannot be based on false arrest alone. (See Allen v. City of
    Sacramento (2015) 
    234 Cal. App. 4th 41
    , 67, 69 (Allen) [rejecting claim that an arrest
    without probable cause constitutes “coercion” within the meaning of Section 52.1].) We
    have more here than a simple false arrest. Cornell’s arrest was carried out with threats of
    violence and was just the start of a series of events suggesting an intent to demean him
    and set him up for termination, without regard to whether the suspicions that led to the
    arrest were well-founded. After an interrogation by Officer Brandt at Park Station during
    which Brandt accused Cornell of lying, over his protestations he had done nothing wrong,
    Cornell was finally released, nearly six hours following his arrest. By that time, a team
    of officers had undertaken a fruitless hunt for incriminating evidence in Golden Gate
    Park; a secret recording device was placed next to Cornell in an ambulance “because [he]
    might say something stupid,” which yielded nothing; and a hospital drug test turned up
    negative.
    Then, upon Cornell’s release, he was cited for the misdemeanor offense of
    violating Penal Code section 148, subdivision (a). That citation was referred to the
    24
    The trial court gave a Phase I instruction under Penal Code section 835a in
    connection with the assault claim, but did not re-instruct on Penal Code section 835a in
    Phase II. Appellants contend the omission of a Penal Code section 835a instruction in
    Phase II was error, but they made no specific request for such an instruction in Phase II,
    and as a result, they have waived the issue. Even had they made one, however, they
    would not have been entitled to another Penal Code section 835a instruction, since, as
    noted, by that point—given the trial court’s no probable cause determination at the
    conclusion of Phase I—the requirement in Penal Code section 835a that Officer Brandt
    and Sergeant Gin acted with “reasonable cause to believe the person to be arrested has
    committed a public offense” was lacking.
    31
    internal affairs unit of the San Francisco Police Department, and without further
    investigation by internal affairs, the citation became the basis of a misconduct charge,
    resulting in Cornell’s firing. Officer Brandt, who gave Cornell the citation, admitted not
    knowing the factual basis for the Penal Code section 148 charge, and Sergeant Gin, who
    approved the citation, admitted he had no independent knowledge about why it was
    issued. According to Alice Villagomez, the head of Human Resources in the San
    Francisco Police Department, any experienced officer would have understood the citation
    would likely result in Cornell’s termination. All of this evidence supports an inference
    not only that Officer Brandt and Sergeant Gin arrested Cornell unlawfully, but that they
    acted spitefully toward him as well since they knew or should have known the career-
    ending Penal Code section 148 citation they gave him upon his release was baseless.25
    Third, appellants invoke Shoyoye v. County of Los Angeles (2012) 
    203 Cal. App. 4th 947
    (Shoyoye), on which Bender and Allen both rely. We are told that
    Shoyoye “requires a showing of coercion independent from the coercion inherent in the
    wrongful detention itself” (Shoyoye, at p. 959), and that, because none of the
    mistreatment of Cornell is meaningfully segregable or discrete from his arrest, appellants
    still must prevail as a matter of law on the Section 52.1 claim. We think appellants read
    too much into Shoyoye. There, the plaintiff was arrested on outstanding bench warrants
    for two minor offenses, one based on a theft by someone posing as him, and upon a
    subsequent court appearance he was ordered released. (Id. at pp. 950–951.) Due to a
    computer error, however, he remained in Los Angeles County jail on a parole violation
    hold order meant for someone else. (Id. at pp. 951–953.) Kafkaesque is an overused
    25
    Cf. 
    Gillan, supra
    , 147 Cal.App.4th at pages 1047, 1052–1053 (affirming jury
    finding of liability against police defendants on Section 52.1 claim by high school girls’
    basketball coach who was arrested without cause on an unfounded molestation charge
    that district attorney declined to prosecute for lack of evidence, while reversing damages
    award because the trial court erroneously submitted to the jury defamation and intentional
    infliction of emotional distress claims for which defendants had official immunity,
    allowing the jury to award nearly $4.5 million in damages in lump sum on all claims).
    32
    term, but it fairly describes plaintiff Shoyoye’s 16-day incarceration.26 After the mistake
    was finally discovered and he was released, plaintiff Shoyoye sued the county for
    keeping him in custody despite the release order, alleging a false imprisonment claim for
    his wrongful incarceration as well as a Section 52.1 claim on the theory that the county’s
    failure to discover the mistaken hold order violated his right under the Fourth
    Amendment and under article 1, section 13 of the California Constitution “to be free from
    . . . unreasonable seizure by actual or implied use of threats, intimidation or coercion.”
    (Id. at p. 953.)27
    26
    
    Shoyoye, supra
    , 203 Cal.App.4th at pages 951–952 (“Shoyoye asked a total of
    six to eight people for assistance during his incarceration. . . . [I]nmates were periodically
    permitted to submit one written question on a ‘yellow sheet’ form. Shoyoye submitted
    such a form asking, ‘Why am I here?’ He received the response that he was subject to a
    ‘DCL hold.’ He submitted another form inquiring what a ‘DCL hold’ was, along with
    one other question, and received the response that he was only entitled to ask one
    question and he had asked two. He submitted other yellow sheets indicating he believed
    he should not be there, but he received no helpful responses. [¶] Shoyoye told custody
    assistant Lawrence Wong that he thought he should be released. Wong acknowledged
    that if what he said was true, then there was a problem. Wong told him to talk to Deputy
    Niels Gittisarn. Shoyoye asked him for assistance, and Gittisarn told him, ‘Get back to
    me.’ However, when Shoyoye attempted to speak to him the next day, Gittisarn rebuffed
    him, yelling that he was busy.”).
    27
    No doubt because the issue was never raised, Shoyoye is silent on a key
    threshold question: Did plaintiff Shoyoye assert a legally viable right “secured by the
    Constitution or laws of the United States, or of the rights secured by the Constitution or
    laws of this state”? It is not evident to us that he did. Because the reasonableness of a
    seizure for Fourth Amendment purposes is judged at the time of an arrest or detention,
    once Shoyoye conceded there was probable cause for his arrest he appears to have
    conceded away at the same time any legal basis for a claim of unreasonable seizure
    beyond that point. (See Rivera v. County of Los Angeles (9th Cir. 2014) 
    745 F.3d 384
    ,
    389–390 [“post-arrest incarceration is analyzed under the Fourteenth Amendment”]; Lee
    v. City of Los Angeles (9th Cir. 2001) 
    250 F.3d 668
    , 683–685 [separately analyzing arrest
    under Fourth Amendment and post-arrest incarceration under Fourteenth Amendment].)
    While a post-arrest claim of Fourth Amendment violation may be available where the
    plaintiff seeks to challenge a subsequent pretrial detention by attacking the existence of
    probable cause ab initio (see Manuel v. Joliet (2017) 580 U.S.__ [
    137 S. Ct. 911
    , 915,
    919] [Section 1983 claim asserted by prisoner held for 48 days in pretrial detention
    pursuant to judicial determination of probable cause based on a false statements from the
    33
    Reversing a plaintiff’s jury verdict for Shoyoye on the Bane Act claim while
    affirming on the false imprisonment claim, the appellate panel in Shoyoye set forth its
    analysis of Section 52.1 liability in two steps, first concluding that, “[t]he statutory
    framework of section 52.1 indicates that the Legislature meant the statute to address
    interference with constitutional rights involving more egregious conduct than mere
    negligence.” (
    Shoyoye, supra
    , 203 Cal.App.4th at p. 958; see 
    id. at p.
    959 [“The apparent
    purpose of the statute is not to provide relief for an overdetention brought about by
    human error rather than intentional conduct”].) Although that would have been enough
    to resolve the Section 52.1 claim had it been asserted on a standalone basis without an
    accompanying tort claim, the court went on in a separate section to explain that violation
    of Section 52.1 requires a showing of coercion “independent from the coercion inherent
    in the wrongful detention itself.” (Shoyoye, at pp. 959, 960–961.) While acknowledging
    that plaintiff Shoyoye’s imprisonment may have been “traumatic” and “frightening,” and
    that “County employees certainly were rude to him at times,” the court concluded that
    “they did not threaten or intimidate [him] for voicing his opinion that he should be
    released. They coerced him to remain incarcerated, but they did not for example coerce
    him to stop inquiring about his release, threaten him for doing so, or punish him in any
    way. No one ignored plaintiff deliberately, knowing that he should in fact be released, let
    alone purposefully threaten or intimidate him. At worst they were rude and indifferent to
    his inquiries. But jail officials do not have a duty to be polite.” (Id. at p. 961.) We see
    the case before us differently, for reasons we explain below.
    3.      Shoyoye is a Jail Overdetention Case that Began with A Lawful
    Arrest
    To begin with, the record here supports a finding of more than negligence or lack
    of courtesy. More importantly, we view the second step of the court’s Section 52.1
    analysis in Shoyoye—its independent from inherent coercion test—as inapplicable where,
    as here, a Bane Act plaintiff pleads and proves a constitutionally unlawful arrest. We
    arresting officer is properly analyzed under the Fourth Amendment]), Shoyoye made no
    such claim.
    34
    reach this conclusion upon a close reading of Shoyoye, paying careful attention to its facts
    and to the claims at issue there. The situation leading to plaintiff Shoyoye’s mistaken
    incarceration started with his arrest, and originally he alleged a constitutionally
    unreasonable seizure, but as the case proceeded there was never any dispute that the
    arrest was lawful. In fact, he conceded there was probable cause to arrest him. (
    Shoyoye, supra
    , 203 Cal.App.4th at p. 951, fn. 2.) Thus, the nub of his Section 52.1 theory was not
    unlawful arrest, but rather his continued incarceration despite a judicial release order—in
    short, jail overdetention.
    At trial, Shoyoye presented evidence that, while in jail, he inquired repeatedly
    about why he had not been released, but was ignored by his jailers until, through a friend,
    he managed to have a member of the Legislature look into his circumstances, which
    ultimately triggered his release. (
    Shoyoye, supra
    , 203 Cal.App.4th at pp. 951–953.) On
    that record, the appellate court affirmed the false imprisonment verdict (
    id. at p.
    963),
    consistent with well-established California law that a jailer who “knew or should have
    known of the illegality of the imprisonment” will be liable in tort for false imprisonment.
    (Sullivan v. County of Los Angeles (1974) 
    12 Cal. 3d 710
    , 717–718 (Sullivan).)28 While
    the act of keeping Shoyoye in jail despite his pointed inquiries was sufficient to support
    28
    The test for false imprisonment in jail overdetention cases established in
    Sullivan “requires either that the sheriff have actual knowledge that the imprisonment of
    the plaintiff is unlawful or alternatively that he have some notice sufficient to put him, as
    a reasonable man, under a duty to investigate the validity of the incarceration.” 
    (Sullivan, supra
    , 12 Cal.3d at p. 719.) Shoyoye’s brief discussion of false imprisonment recites its
    requisite elements (“ ‘(1) the nonconsensual, intentional confinement of a person,
    (2) without lawful privilege, and (3) for an appreciable period of time, however brief”
    (
    Shoyoye, supra
    , 203 Cal.App.4th at p. 958, quoting Easton v. Sutter Coast Hospital
    (2000) 
    80 Cal. App. 4th 485
    , 496)), and then concludes without elaboration that “[t]he
    evidence presented at trial was clearly sufficient to establish those elements.” (Shoyoye,
    at p. 958.) The court never mentions Sullivan and appears to assume there is something it
    calls “a tort claim for negligent false imprisonment” (ibid.)—the Sullivan test is actually
    more akin to one requiring at least gross negligence—but the result it reaches, affirming
    the false imprisonment verdict on facts showing that plaintiff Shoyoye repeatedly brought
    his mistaken incarceration to the attention of multiple jail employees, tracks Sullivan’s
    reasoning.
    35
    tort liability, the court saw his jailers’ negligent failure to discover they were holding the
    wrong man—a mistake attributable, at bottom, to computer error—as insufficient to
    support Section 52.1 liability. The difference in the court’s treatment of these two claims
    is key, for any consideration of the breadth of Shoyoye’s Bane Act holding must begin
    with the recognition that maintaining a meaningful distinction between tort and statutory
    liability was fundamental to its reading of Section 52.1.
    When the court announces that Section 52.1 requires “coercion independent from
    the coercion inherent in the wrongful detention itself” (
    Shoyoye, supra
    , 203 Cal.App.4th
    at p. 959), its focus is on whether the requisite level of scienter for Section 52.1 liability
    had been met in a setting where the plaintiff proved negligence, at most. To support
    Section 52.1 liability in that context, the court observes, there must be “an additional
    showing of ill will or blameworthy conduct.” (Id. at p. 958, italics added.) It found no
    evidence that while in jail “any conduct directed at [Shoyoye] was for the purpose of
    interfering with his constitutional rights.” (Id. at p. 961, italics added.) “[Jail] employees
    could reasonably rely on the information in the computer system, based on the reasonable
    assumption that the quality control check would catch errors.” (Ibid.) All of Shoyoye’s
    treatment while in jail, the court concludes, was “reasonable and incident to maintaining
    a jail,” and even if his jailers did something to him that might be characterized as
    “intimidation” or “coercion,” none of it was “carried out in order to effect a knowing
    interference with [his] constitutional rights.” (Ibid., italics added.)
    Shoyoye uses a variety of terms to describe the scienter it has in mind (see 203
    Cal.App.4th at p. 958 [“intentional and callous”]; 
    id. at p.
    959 [“deliberate or spiteful”];
    
    id. at p.
    961 [“knowing and blameworthy”]), but its analysis sheds little light on how the
    required level of scienter should be evaluated in unlawful arrest cases. Bender suggests
    an answer, holding that, on the facts presented there—the plaintiff was arrested without
    probable cause, handcuffed, and then gratuitously beaten and pepper-sprayed while
    offering no resistance—constitutionally excessive force met the required standard. But in
    the end Bender is just as opaque as Shoyoye. Ultimately, the court couches its holding in
    the same analytical framework as Shoyoye (Bender, at p. 981 [“[w]here, as here, an arrest
    is unlawful and excessive force is applied in making the arrest, there has been coercion
    36
    ‘independent from the coercion inherent in the wrongful detention itself,’ ”] original
    italics), thus implicitly accepting the applicability of Shoyoye’s “independ[ence] from
    inherent coercion” test in unlawful arrest cases.
    We agree that the use of excessive force can be enough to satisfy the “threat,
    intimidation or coercion” element of Section 52.1, but we do not accept the premise that
    Shoyoye applies in unlawful arrest cases. Because, read closely, Shoyoye’s discussion of
    coercion “independent from the coercion inherent in the wrongful detention itself” was
    aimed at separating tort liability from statutory liability in the specific context of a jail
    overdetention following a lawful arrest—on a record where no legally viable claim of any
    constitutional violation was pleaded or proved—we view its “independ[ence] from
    inherent coercion” test as simply inapplicable. The case before us is not a jail
    overdetention case. A constitutionally unlawful arrest was proved, and, as noted above,
    we have more than a simple false arrest. Under these circumstances, the better approach,
    in our view, is to focus directly on the level of scienter required to support a Section 52.1
    claim, without the trappings of Shoyoye’s frame of analysis.
    4.      Where an Unlawful Arrest is Properly Pleaded and Proved, the
    “Threat, Intimidation or Coercion” Element of Section 52.1 Requires
    a Specific Intent to Violate Protected Rights
    We acknowledge that some courts have read Shoyoye as having announced
    “independen[ce] from inherent coercion” as a requisite element of all Section 52.1 claims
    alleging search-and-seizure violations, but we think those courts misread the statute as
    well as the import of Venegas.29 By its plain terms, Section 52.1 proscribes any
    29
    (See, e.g., Lyall v. City of Los Angeles (9th Cir. 2015) 
    807 F.3d 1178
    , 1196
    [“[n]umerous California decisions make clear that a plaintiff in a search-and-seizure case
    must allege threats or coercion beyond the coercion inherent in a detention or search in
    order to recover under the Bane Act”], citing 
    Allen, supra
    , 234 Cal.App.4th at p. 69
    [unlawful arrest]; Quezada v. City of Los Angeles (2014) 
    222 Cal. App. 4th 993
    , 1007–
    1008 [unlawful search]; 
    Shoyoye, supra
    , 203 Cal.App.4th at p. 959.) It strikes us as an
    overstatment to say there are “numerous California decisions” for this proposition or that
    our case law is “clear“ on the point. Allen, a pleading case, and the sole published
    California appellate opinion to consider Shoyoye in any depth, ultimately holds only that
    “conclusory allegations of ‘forcible’ and ‘coercive’ interference with plaintiffs’
    37
    “interference with” or attempted “interference with” protected rights carried out “by
    threat, intimidation or coercion.” Nothing in the text of the statute requires that the
    offending “threat, intimidation or coercion” be “independent” from the constitutional
    violation alleged. Indeed, if the words of the statute are given their plain meaning, the
    required “threat, intimidation or coercion” can never be “independent” from the
    underlying violation or attempted violation of rights, because this element of fear-
    inducing conduct is simply the means of accomplishing the offending deed (the
    “interference” or “attempted interference”). That is clear from the structure of the statute,
    which reads, “If a person or persons, whether or not acting under color of law, interferes
    by threat, intimidation, or coercion,” a private action for redress is available. (§ 52.1,
    subd. (a), italics added.)
    In Venegas—which rejected a construction of Section 52.1 limiting its
    applicability to “threat[s], intimidation or coercion” against minorities and other
    statutorily protected groups—the Supreme Court declined to place “added restrictions on
    the scope of section 52.1” beyond its plain language, concluding that that “would appear
    to be more a legislative concern than a judicial one.” 
    (Venegas, supra
    , 32 Cal.4th at
    p. 843.) The same may be said here. Properly read, the statutory phrase “threat,
    intimidation or coercion” serves as an aggravator justifying the conclusion that the
    underlying violation of rights is sufficiently egregious to warrant enhanced statutory
    remedies, beyond tort relief. We see no reason that, in addition, the required “threat,
    intimidation or coercion,” whatever form it may take, must also be transactionally
    “independent” from a properly pleaded—and proved—unlawful arrest.
    The phrase “under color of law” indicates, without doubt, that the Legislature
    intended to include law enforcement officers within the scope of Section 52.1 if the
    requisites of the statute are otherwise met. (See ante, fn. 17.) Much of what law
    constitutional rights are inadequate to state a cause of action for a violation of section
    52.1.” (Allen, at p. 69.) Quezada refers briefly to Shoyoye’s independent from inherent
    coercion test in a background summary of Section 52.1 law, but never applies it, relying
    instead on the fact that no coercion at all was present in the case. (Quezada, at p. 1008).
    38
    enforcement officers do in settings that test the limits of their authority is “inherently
    coercive.” Given that reality, it seems to us inconsistent with an intent to bring law
    enforcement within the scope of the statute—which is what the phrase “under color of
    law” does—to say, categorically, even where an unlawful arrest is properly pleaded and
    proved, that “where[ever] coercion is inherent in the constitutional violation alleged, . . .
    the statutory requirement of ‘threats, intimidation, or coercion’ is not met.” (
    Shoyoye, supra
    , 203 Cal.App.4th at p. 959.) When applied to both lawful and unlawful conduct,
    such a reading of Section 52.1, in effect, creates a judicially-fashioned immunity; and not
    merely a qualified immunity, but an absolute one covering a broad category of activity so
    long as it may be described as “inherently coercive.”
    In federal court, where Section 52.1 claims are frequently brought along with
    Section 1983 claims under federal pendent jurisdiction, “[t]he Bane Act’s requirement
    that interference with rights must be accomplished by threats[,] intimidation or coercion
    ‘has been the source of much debate and confusion.’ ” (McKibben v. McMahon (C.D.
    Cal. Apr. 17, 2015, No. EDCV 14-02171 JGB (SPx)) 
    2015 U.S. Dist. LEXIS 176696
    , at
    p. *7 (McKibben); see also K.T. v. Pittsburg Unified School Dist. (N.D. Cal. 2016) 
    219 F. Supp. 3d 970
    , 982 [“[c]ourts deciding whether the ‘threat, intimidation or coercion’
    [element of Section 52.1] must be distinct from the alleged underlying constitutional or
    statutory violation have come out all over the map”].) We have endeavored to provide
    some clarity.
    In doing so, we are not obliged to follow the construction the Supreme Judicial
    Court of Massachusetts placed on the MCRA in what appears to be some brief, fugitive
    dicta at the end of the opinion in Longval v. Commissioner of Correction (1989) 
    404 Mass. 325
    [
    535 N.E.2d 588
    ] (Longval), which Shoyoye relied upon (
    Shoyoye, supra
    , 203
    Cal.App.4th at p. 960 [discussing Longval]) and which appears to be the original source
    of the confusion. (See 
    Jones, supra
    , 17 Cal.4th at p. 337 [“the rule of deference to
    another state’s interpretation of a statute that provided a model for a California statute
    ‘establishes . . . only a presumption of legislative intent . . . [and] even when the
    presumption properly operates it does not compel the adoption of the judicial
    construction of the other jurisdiction’s statute’ ”].) Longval, a qualified immunity case,
    39
    gave no consideration to the text or structure of the MCRA, much less its origin in federal
    civil rights law.30
    Accordingly, we hold that, where, as here, an unlawful arrest is properly pleaded
    and proved, the egregiousness required by Section 52.1 is tested by whether the
    circumstances indicate the arresting officer had a specific intent to violate the arrestee’s
    right to freedom from unreasonable seizure, not by whether the evidence shows
    something beyond the coercion “inherent” in the wrongful detention. (See In re 
    M.S., supra
    , 10 Cal.4th at p. 713 [adopting for purposes of Pen. Code, § 422.6 the specific
    intent standard first enunciated in Justice Douglas’s plurality opinion in Screws v. United
    States (1945) 
    325 U.S. 91
    (Screws)]; see also People v. Lashley (1991) 
    1 Cal. App. 4th 938
    , 948–949 (Lashley).) The Screws specific intent standard has been an established
    feature of federal civil rights law under Section 241 since the mid-1960s (United States v.
    Price (1966) 
    383 U.S. 787
    , 792, fn. 5; United States v. Guest (1966) 
    383 U.S. 745
    , 753–
    754)31 and, as acknowledged by appellants’ counsel at oral argument, it accomplishes in
    substance the same thing as the independent from inherent coercion test since it ensures
    ordinary negligence is not cognizable under Section 52.1.
    We recognize, obviously, that Section 52.1 is civil, while Section 241 is criminal,
    but in adopting the Screws standard we find it particularly significant that so much of the
    30
    The uncertainty engendered by Shoyoye here in California appears to be
    mirrored among courts applying Longval in Massachusetts. (Compare Nuon v. City of
    Lowell (D. Mass. 2011) 
    768 F. Supp. 2d 323
    , 335, fn. 8, citing Bally v. Northeastern Univ.
    (1989) 
    403 Mass. 713
    , 718 [
    532 N.E.2d 49
    , 52] [arrest without probable cause is covered
    by MCRA]; 
    Batchelder, supra
    , 473 N.E.2d at p. 1131 and Santiago v. Fenton (1st Cir.
    1989) 
    891 F.2d 373
    , 383, with Ciolino v. Eastman (D. Mass. 2015) 
    128 F. Supp. 3d 366
    ,
    380, citing only federal cases, Santiago v. Keyes (D. Mass. 2012) 
    890 F. Supp. 2d 149
    ,
    156; Titus v. Town of Nantucket (D. Mass. 2011) 
    840 F. Supp. 2d 404
    , 416; Goddard v.
    Kelley (D. Mass. 2009) 
    629 F. Supp. 2d 115
    , 129 [“[t]he majority of courts have held that
    in cases involving wrongful arrests . . . , the fact of a Fourth Amendment violation,
    standing alone, does not give rise to a claim under the MCRA”].)
    31
    See Hon. Paul J. Watford, Screws v. United States and the Birth of Federal Civil
    Rights Enforcement (2014) 98 Marq. L.Rev. 465, 481–484.
    40
    text and structure of Section 52.1 appears to descend from Section 241. It seems to us
    that, when our Legislature enacted hate crime legislation in 1987, it chose not to adhere
    strictly to the federal scheme by adopting a civil enforcement statute on the model of
    Section 1983, covering “deprivations” of rights and limiting the statute to public officials
    or other conduct evincing state action. Instead, it used as a model Section 241—a
    criminal conspiracy statute—giving the statute enough breadth to reach a wide range of
    “interference” with “secured rights” by means of fear-inducing conduct, whether
    undertaken by private actors or public officials. In essence, the Legislature created a
    hybrid of the historic federal civil rights enforcement scheme, using Section 241 as a
    unitary model for criminal as well as civil enforcement. The burden of proof is
    fundamentally different in these two arenas, of course, but other than that we see no
    reason why the applicable mens rea element ought to differ.32
    32
    Our reading of Section 52.1 is consistent with the view taken by “the majority of
    federal district courts in California[, which] have held [in Bane Act cases] that ‘[w]here
    Fourth Amendment unreasonable seizure or excessive force claims are raised and
    intentional conduct is at issue, there is no need for a plaintiff to allege a showing of
    coercion independent from the coercion inherent in the seizure or use of force.’ ”
    
    (Simmons, supra
    , 7 Cal.App.5th at p. 1126, quoting Dillman v. Tuolumne County (E.D.
    Cal., May 7, 2013, No. 1:13–CV–00404–LJO–SKO) 
    2013 U.S. Dist. LEXIS 65206
    , at
    p. *58; Morse v. County of Merced (E.D. Cal., June 13, 2016, No. 1:16–CV–00142–
    DAD–SKO) 
    2016 U.S. Dist. LEXIS 76731
    , at p. *38 [this rule is “the weight of authority
    among District Courts in California”]; Mann v. County of San Diego (S.D. Cal. 2015) 
    147 F. Supp. 3d 1066
    , 1092 [“the majority of courts follow this rule”].) These courts have held
    various kinds of low- to mid-level force may meet the coercion element of Section 52.1.
    (See, e.g., Lawrence v. City & County of San Francisco (N.D. Cal. June 15, 2017, No.
    14-cv-00820-MEJ) 
    2017 U.S. Dist. LEXIS 92499
    , at pp. *40-41 [tight handcuffing,
    including handcuffing to a bench]; Johnson v. Shasta County (E.D. Cal. 2015) 
    83 F. Supp. 3d 918
    , 934 [yanking arrestee up from the ground by handcuffs, pointing gun and
    threatening to shoot]; 
    Dillman, supra
    , 
    2013 U.S. Dist. LEXIS 65206
    , at p. *22 [tight
    handcuffing during transport of arrestee]; Stewart v. Saukkola (E.D. Cal. June 22, 2016,
    No. 2:16-cv-00388-KJM-EFB) 
    2016 U.S. Dist. LEXIS 81520
    , at p. *9 [sitting on top of
    prone detainee and kneeing him in back]; Haynes v. City and County of San Francisco
    (N.D. Cal. Jul 28, 2010, No. C 09-0174 PJH) 
    2010 U.S. Dist. LEXIS 76829
    , at p. *18
    [pushing arrestee into a wall].) And in some circumstances, depending on the right
    alleged to have been interfered with, physical force is not required at all. 
    (McKibben, supra
    , 
    2015 U.S. Dist. LEXIS 176696
    , at p. *8 [“coercive choice” forced upon gay,
    41
    5.      Application of the Specific Intent Standard
    The application of the Screws specific intent standard here is straightforward. As
    explained in 
    Lashley, supra
    , 
    1 Cal. App. 4th 938
    , which was cited with approval by our
    Supreme Court in In re 
    M.S., supra
    , 10 Cal.4th at p. 713, this test “ ‘essentially sets forth
    two requirements for a finding of “specific intent” . . . . The first is a purely legal
    determination. Is the . . . right at issue clearly delineated and plainly applicable under the
    circumstances of the case?[33] If the trial judge concludes that it is, then the jury must
    make the second, factual, determination. Did the defendant commit the act in question
    with the particular purpose of depriving the citizen victim of his enjoyment of the
    interests protected by that . . . right? If both requirements are met, even if the defendant
    did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of
    law to have acted [with the requisite specific intent]—i.e., “in reckless disregard of
    constitutional [or statutory] prohibitions or guarantees.” ’ ” (Lashley, at pp. 948–949.)
    Applying the first step of this test here, the “right at issue” is Cornell’s federal and
    state constitutional right to be free from arrest without probable cause. Legally, there is
    nothing vague or novel about that claim under the circumstances of this case. Viewing
    the Phase I evidence in the light most favorable to Cornell, the protected right he asserts
    was “clearly delineated and plainly applicable.” Thus, we reject appellants’ contention
    bisexual or transgender inmates to accept segregated housing with fewer privileges than
    other inmates]; M.H. v. County of Alameda (N.D. Cal. 2013) 
    90 F. Supp. 3d 889
    , 898
    [deliberate indifference to prisoner’s medical needs].) These cases stand in stark contrast
    to others that apply the independent from inherent coercion test—in our view
    incorrectly—outside the confines of jail overdetention, taking that test to the limit of its
    logic. (See, e.g., Bordegaray v. County of Santa Barbara (C.D. Cal. 2016) 2016 U.S.
    Dist. Lexis 172269, at pp.*39–41 [evidence of constitutionally excessive force in police
    shooting case held insufficient to support Section 52.1 claim because, other than being
    shot, the plaintiff failed to show any “threat, intimidation or coercion”].)
    33
    By way of illustration, we observe that the Section 52.1 claim in Shoyoye likely
    would have not have met this first step of the specific intent standard because the plaintiff
    in that case appears to have alleged no viable theory of constitutional violation. (See fn.
    27, ante.) The same is true of a recent case applying Shoyoye, Julian v. Mission
    Community Hospital (2017) 11 Cal.App.5th 360, 395 (“other than the actions necessary
    to detain [plaintiff], which the police had probable cause to take, [plaintiff] alleged
    without explanation that the police defendants ‘engaged in tactics to scare’ her”).
    42
    that, as a matter of law, the Section 52.1 claim never should have been submitted to the
    jury. The second requirement, a question of fact, is whether appellants acted with the
    “particular purpose” of depriving Cornell of his right to be free from arrest without
    probable cause. Subjective “spite” was relevant here, along with all of the objective
    circumstances surrounding the unlawful arrest, both before it and after it. But whether
    the appellant officers understood they were acting unlawfully was not a requirement.
    Reckless disregard of the “right at issue” is all that was necessary.
    In Phase II, the jury was instructed that “Plaintiff Cornell claims . . . Defendants
    Brandt and Gin intentionally interfered with or attempted to interfere with his civil rights
    by threats, intimidation, or coercion.” According to the jury instructions, to return a
    verdict for Cornell on the Section 52.1 claim, the jury was required to find that he proved
    “all of the following: [¶] 1. That the Defendant made threats of violence against Plaintiff
    causing Plaintiff to reasonably believe that if he exercised his right to be free from
    unlawful detention or unlawful arrest, Defendant would commit violence against him and
    that Defendant had the apparent ability to carry out the threats; [¶] 2. That Plaintiff was
    harmed; and [¶] 3. That the Defendant’s conduct was a substantial factor in causing
    Plaintiff’s harm.” (CACI No. 3066.) These instructions properly focused the jury on
    intentional violation of Cornell’s right to be free from unreasonable seizure.
    Although Cornell’s primary theory at trial was that the gun-pointing made his false
    arrest particularly egregious (hence the focus on “threats of violence” in the instructions),
    it must be borne in mind that he also submitted proof that the harm he suffered from the
    arrest—his job loss, in particular—was inflicted out of spite. Considering the evidence
    surrounding Cornell’s arrest in its full context, it seems to us a rational jury could have
    concluded not only that Officer Brandt and Sergeant Gin were unconcerned from the
    outset with whether there was legal cause to detain or arrest him, but that when they
    realized their error, they doubled-down on it, knowing they were inflicting grievous
    injury on their prisoner. On this reading of the evidence, these two officers had every
    opportunity to exercise restraint as it became clearer and clearer that their initial
    suspicions of Cornell were unfounded, but rather than let the matter go when they finally
    released him, they retaliated against him as a way of undermining his ability to claim to
    43
    superiors he was arrested without probable cause. This apparent effort to obstruct
    Cornell’s ability to assert his right to freedom from unreasonable seizure violated Section
    52.1 just as surely as his actual arrest did, while compounding the harm. On this record,
    we have no trouble concluding the specific intent standard was met.34
    III.   DISPOSITION
    The judgment and the award of attorney’s fees and costs are affirmed. Respondent
    shall recover costs on appeal.
    34
    Appellants present no separate argument in support of their appeal of the award
    of statutory attorney’s fees and costs, apart from the contention that the Section 52.1
    verdict should be reversed. Having concluded there is no infirmity in the Section 52.1
    verdict, we will sustain the accompanying award of fees and costs. Appellants also
    suggest in their reply brief that they seek to appeal from the judgment on the negligence
    and interference with economic advantage claims, but there, too, they present no separate
    argument and thus they have waived any defect in the judgment insofar as it rests on
    liability for those claims.
    44
    _________________________
    Streeter, J.
    We concur:
    _________________________
    Ruvolo, P.J.
    _________________________
    Rivera, J.
    A141016, A142147/Cornell v. City & County of San Francisco
    45
    A141016, A142147/Cornell v. City & County of San Francisco
    Trial Court:   City & County of San Francisco Superior Court
    Trial Judge:   Hon. Lynn O’Malley Taylor
    Counsel:
    Haddad & Sherwin, Michael J. Haddad, Julia Sherwin, Genevieve K. Guertin, and T.
    Kennedy Helm for Plaintiff and Respondent.
    Dennis J. Herrera, City Attorney, Cheryl Adams, Chief Trial Deputy, Margaret W. Baumgartner,
    Deputy City Attorney for Defendants and Appellants.
    46