Rodis v. City and County Sf ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODEL E. RODIS, 
Plaintiff-Appellee,
v.
CITY AND COUNTY OF SAN
FRANCISCO, a municipality,
Defendant-Appellant, No. 05-15522
LIDDICOET, San Francisco Police
Officer; BARRY, San Francisco  D.C. No.
CV-04-00314-MMC
Police Sergeant; ALEX FAGAN, San
Francisco Police Chief, OPINION
Defendants-Appellants,
and
SAN FRANCISCO POLICE
DEPARTMENT,
Defendant.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
On Remand From The United States Supreme Court*
Filed March 9, 2009
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Cormac J. Carney,** District Judge.
*This case is hereby resubmitted.
**The Honorable Cormac J. Carney, United States District Judge for
the Central District of California, sitting by designation.
2955
2956 RODIS v. SAN FRANCISCO
Opinion by Judge D.W. Nelson
2958 RODIS v. SAN FRANCISCO
COUNSEL
Scott D. Wiener, San Francisco, California, for the
defendants-appellants.
Lawrence W. Fasano, Jr., San Francisco, California, for the
plaintiff-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Rodel E. Rodis brought suit under 42 U.S.C. § 1983
against, inter alia, two San Francisco police officers, alleging
RODIS v. SAN FRANCISCO 2959
a violation of his Fourth Amendment rights during a February
2003 arrest. The district court rejected the assertion of quali-
fied immunity by the police officers. Defendants filed an
interlocutory appeal, and, in 2007, we affirmed. The Supreme
Court granted Defendants’ petition for a writ of certiorari,
vacated our decision, and remanded for further consideration,
in light of Pearson v. Callahan, 555 U.S. ___, No. 07-751,
slip op. 1 (Jan 21, 2009). We now reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On February 17, 2003, Rodel E. Rodis, an attorney and a
locally elected public official, entered a drugstore near his
office to purchase a few items. He tendered a 1985 series
$100 bill, which lacked the security thread, watermarks,
microprinting, and other anti-counterfeiting features of cur-
rent $100 bills.
The cashier examined the bill for authenticity, and asked
the store manager, Dennis Snopikov, for assistance. Because
he suspected that the bill was counterfeit, Snopikov took it to
the store office to compare it to other $100 bills in the store’s
safe. While Snopikov was in the office, Rodis pulled another
$100 bill from his wallet and paid the cashier. After determin-
ing that the second bill was authentic, the cashier gave Rodis
his change, his receipt, and the purchased items. Snopikov
returned to the front of the store, and tested the bill with a
counterfeit detector pen, which indicated that it was authentic.
He remained suspicious, however, because of the bill’s
appearance and texture, and told Rodis that he was going to
call the police so that they could settle the issue. Rodis was
frustrated with the delay, but remained in the store willingly
until the officers arrived.
Sergeant Jeff Barry, Officer Michelle Liddicoet, and two
other police officers arrived on the scene. Snopikov conveyed
his suspicions, and some of the officers examined the bill
themselves. The officers tried the counterfeit detector pen on
2960 RODIS v. SAN FRANCISCO
a folder — the marking, however, indicated that the folder
was also genuine United States currency. The officers con-
cluded that the bill was probably counterfeit, but, because
they were uncertain, decided it would be necessary to call the
United States Secret Service to get an expert opinion. Because
they believed it would be easiest to continue the investigation
from the police station, they arrested Rodis on suspicion of
violation 18 U.S.C. § 472, which criminalizes the possession
and use of counterfeit currency. No effort was made to inves-
tigate Rodis’s state of mind.
Liddicoet and another officer handcuffed Rodis and trans-
ported him to the police station. Rodis was restrained while
the officers called the Secret Service hotline and left a mes-
sage. After approximately thirty minutes, a Secret Service
agent returned the call. The police and the agent discussed the
details of the bill in question for five to ten minutes, during
which the agent confirmed that the bill was, in fact, genuine.
The officers released Rodis from custody, removed his hand-
cuffs, and drove him back to the drugstore. The entire incident
lasted about one hour.
On October 1, 2003, Rodis filed suit against the City and
County of San Francisco, the San Francisco Police Depart-
ment, the police chief, and Sergeant Barry and Officer Liddi-
coet. The complaint alleged false arrest and use of excessive
force in violation of Rodis’s Fourth Amendment rights, con-
spiracy to violate Rodis’s rights, as well as several state law
claims, including false arrest and intentional and negligent
infliction of emotional distress.
On February 11, 2005, the defendants moved for summary
judgment. The District Court granted the motion as to Rodis’s
conspiracy, municipal liability, and injunctive relief claims,
and denied the motion in all other respects. The court held
that because Barry and Liddicoet (“Defendants”) lacked evi-
dence of Rodis’s intent to defraud, there was no probable
RODIS v. SAN FRANCISCO 2961
cause and the arrest was unlawful. It also found that the ille-
gality of the arrest was clearly established at the time.
Defendants filed an interlocutory appeal to this court, and
we affirmed the District Court’s order. Defendants subse-
quently petitioned for a writ of certiorari. The Supreme Court
granted the petition, vacated our decision, and remanded for
further consideration in light of Pearson v. Callahan, 555
U.S. ___, No. 07-751, slip op. 1 (Jan. 21, 2009).
JURISDICTION
“As a general rule, interlocutory appeals from determina-
tions of qualified immunity are permissible.” Kennedy v. City
of Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006). “[T]he
denial of a defendant’s motion for summary judgment is
immediately appealable where the defendant is a public offi-
cial asserting the defense of qualified immunity, and the issue
appealed concerns whether the facts demonstrated a violation
of clearly established law.” Id. (citing Mitchell v. Forsyth, 472
U.S. 511, 530 (1985)). We therefore have jurisdiction over
this case.
STANDARD OF REVIEW
“We review de novo a district court’s decision denying
summary judgment on the ground of qualified immunity.”
Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th
Cir. 2003). “On appeal, the court of appeals . . . must resolve
any factual disputes in favor of the plaintiff and decide the
legal question as to whether the official’s alleged conduct vio-
lated clearly established law.” Cunningham v. City of Wenat-
chee, 345 F.3d 802, 807 (9th Cir. 2003).
DISCUSSION
A.
[1] “The doctrine of qualified immunity protects govern-
ment officials ‘from liability for civil damages insofar as their
2962 RODIS v. SAN FRANCISCO
conduct does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.’ ” Pearson v. Callahan, 555 U.S. ___, No. 07-751,
slip op. 1, 5-6 (Jan. 21, 2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). “Qualified immunity balances two
important interests - the need to hold public officials account-
able when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Id. at 6. “The
entitlement is an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effec-
tively lost if a case is erroneously permitted to go to trial.”
Mitchell, 472 U.S. at 526.
[2] In Saucier v. Katz, 533 U.S. 194, 200 (2001), the
Supreme Court mandated a two step sequence for resolving
qualified immunity claims. First, a court must decide whether
the alleged facts make out a violation of a constitutional right.
Id. at 201. If the plaintiff satisfies the first step, the court must
then decide whether the right at issue was “clearly estab-
lished” at the time of the alleged misconduct. Id. More
recently, however, the Supreme Court revisited Saucier and
concluded that “while the sequence set forth there is often
appropriate, it should no longer be regarded as mandatory.”
Pearson, slip op. at 10. “The judges of . . . the courts of
appeals should be permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Id. Accordingly, we first turn
to the question of whether the right asserted in this case was
“clearly established.”
B.
Whether an official protected by qualified immunity may
be held personally liable for an allegedly unlawful official
action generally turns on the “objective legal reasonableness”
of the action. Harlow, 457 U.S. at 819. The constitutional vio-
RODIS v. SAN FRANCISCO 2963
lation must be “clearly established” at the time of the alleged
misconduct. CarePartners, LLC v. Lashway, 545 F.3d 867,
882 (9th Cir. 2008).
“The operation of this standard, however, depends substan-
tially upon the level of generality at which the relevant ‘legal
rule’ is to be identified.” Anderson v. Creighton, 483 U.S.
635, 639 (1987). “[T]he right the official is alleged to have
violated must have been ‘clearly established’ in a more partic-
ularized, and hence more relevant, sense: The contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id.
at 640. “[T]he injured party need not establish that the Defen-
dants behavior had been previously declared unconstitution-
al.” CarePartners, 545 F.3d at 882 (internal quotation marks
omitted). “The dispositive inquiry is ‘whether it would be
clear to a reasonable [official] that his conduct was unlawful
in the situation he confronted.’ ” Id. at 883 (quoting Saucier,
533 U.S. at 202).
[3] The Defendants concluded that they had probable cause
to arrest Rodis on suspicion of possession and/or use of coun-
terfeit currency. “To support a conviction for possession of
counterfeit currency with intent to defraud under 18 U.S.C.
§ 472, the government must prove three elements: (1) posses-
sion of counterfeit money; (2) knowledge, at the time of pos-
session, that the money is counterfeit; and (3) possession with
intent to defraud.” United States v. Rodriguez, 761 F.2d 1339,
1340 (9th Cir. 1985); see also Albillo-Figueroa v. INS, 221
F.3d 1070, 1073 (9th Cir. 2000) (reciting the same elements);
United States v. McCall, 592 F.2d 1066, 1068 (9th Cir. 1979)
(per curiam) (same).
[4] “Probable cause to arrest exists when officers have
knowledge or reasonably trustworthy information sufficient to
lead a person of reasonable caution to believe that an offense
has been or is being committed by the person being arrested.”
United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)
2964 RODIS v. SAN FRANCISCO
(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “The probable-
cause standard is incapable of precise definition or quantifica-
tion into percentages because it deals with probabilities and
depends on the totality of the circumstances.” Maryland v.
Pringle, 540 U.S. 366, 371 (2003). Indeed, “probable cause is
a fluid concept - turning on the assessment of probabilities in
particular factual contexts - not readily, or even usefully,
reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S.
213, 232 (1983).
[5] Although “[p]robable cause does not require the same
type of specific evidence of each element of the offense as
would be needed to support a conviction,” Adams v. Williams,
407 U.S. 143, 149 (1972), we have held that “when specific
intent is a required element of the offense, the arresting offi-
cer must have probable cause for that element in order to rea-
sonably believe that a crime has occurred,” Gasho v. United
States, 39 F.3d 1420, 1428 (9th Cir. 1994); see also Easy-
riders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1499
(9th Cir. 1996) (holding that officers must have probable
cause of a motorcyclist’s actual knowledge that a certified
helmet does not comply with helmet safety laws before ticket-
ing).
[6] Possession of counterfeit currency is a specific intent
crime. United States v. Dearing, 504 F.3d 897, 902 (9th Cir.
2007) (upholding a jury instruction defining “intent to
defraud” as “the specific intent to deceive or cheat”); United
States v. Cloud, 872 F.2d 846, 852 n.6 (9th Cir. 1989) (defin-
ing “intent to defraud” as “to act wilfully, and with the spe-
cific intent to deceive or cheat for the purpose of either
causing some financial loss to another, or bringing about
some financial gain to oneself”); United States v. DeFilippis,
637 F.2d 1370, 1373 (9th Cir. 1981) (“The key element of
section 472 is its mens rea, the specific intent to defraud.”).
Thus, it was clearly established that the Defendants were
required to have probable cause of Rodis’s specific intent to
defraud the store for a lawful arrest.
RODIS v. SAN FRANCISCO 2965
In evaluating the totality of the circumstances in this case,
however, we embark on unchartered waters. Defendants
assert that they had probable cause as to Rodis’s intent based
solely on the evidence suggesting that the bill might have
been fake. Rodis contends that without specific evidence of
his intent to defraud, above and beyond the tender of a poten-
tially counterfeit bill, the arrest was unlawful.
[7] This circuit has never addressed this issue.1 All of the
other circuits to have answered this question, however, have
found that “[t]he passing of a counterfeit note coupled with an
identification of the person who passed the note furnishes
probable cause to arrest the individual identified as passing
the note.” United States v. Everett, 719 F.2d 1119, 1120 (11th
Cir. 1983) (per curiam) (collecting cases); see, e.g., United
States v. Armstrong, 16 F.3d 289, 294 (8th Cir. 1994); United
States v. Hernandez, 825 F.2d 846, 849 (5th Cir. 1987);
United States v. Allison, 616 F.2d 779, 782 (5th Cir. 1980);
United States v. Trotter, 433 F.2d 113, 115 (7th Cir. 1970);
United States v. Smith, 357 F.2d 318, 320 (6th Cir. 1966) (per
curiam); cf. United States v. Ayers, 426 F.2d 524, 529 (2d Cir.
1970). In Pearson, the Supreme Court noted that “where the
divergence of views on . . . [the constitutionality of the
alleged misconduct] [i]s created by the decision of the Court
of Appeals in th[e] case, it is improper to subject petitioners
1
Defendants point to United States v. Bates, 352 F.2d 399 (9th Cir.
1965) (per curiam) and United States v. Ford, 461 F.2d 534 (9th Cir.
1972) (per curiam), in which we upheld the probable cause determinations
for arrests on suspicion of possession of counterfeit currency. The factual
descriptions in both opinions, however, are meager, and it is impossible
to determine what facts were deemed sufficient for probable cause. See
Ford, 461 F.2d at 534; Bates, 352 F.2d at 400 (describing “the tow truck
operator . . . who filled in chinks of circumstance to give probable
cause.”); see also United States v. Blum, 432 F.2d 250, 252 (9th Cir. 1970)
(upholding probable cause but not describing the circumstances surround-
ing the passing of the counterfeit bills). Most importantly, all three of
these cases predate Gasho, 39 F.3d at 1428, which was the first case to
address the interplay between specific intent and probable cause.
2966 RODIS v. SAN FRANCISCO
to money damages for their conduct.” Slip op. at 20. Thus,
regardless of whether we determine that evidence beyond the
tender of a counterfeit bill was required, Defendants are enti-
tled to qualified immunity. Were we to decide that there was
a violation, we would create a circuit split and Defendants
would not have been on notice that their conduct was unlaw-
ful. Were we to decide that this evidence was not required,
Rodis’s claim would fail in the first instance. Because it is
unnecessary to disposition of this case, we decline to decide
this question.
[8] Assuming that tender of a counterfeit bill was enough
to establish probable cause, we must decide whether the offi-
cers’ belief that the bill was fake was reasonable. The
Supreme Court has “recognized that it is inevitable that law
enforcement officials will in some cases reasonably but mis-
takenly conclude that probable cause is present.” Anderson,
483 U.S. at 641; see also Hunter v. Bryant, 502 U.S. 224, 228
(1991). “[I]n such cases those officials . . . should not be held
personally liable.” Anderson, 483 U.S. at 641. “The qualified
immunity standard gives ample room for mistaken judgments
by protecting all but the plainly incompetent or those who
knowingly violate the law.” Hunter, 502 U.S. at 229 (internal
quotation marks omitted). It is undisputed that Rodis’s $100
bill looked odd, and that it lacked many modern security fea-
tures. Although the arrest was unfortunate, we cannot say that
the officers belief that it was fake was plainly incompetent.
The arrest, therefore, was not clearly established as unlawful.
CONCLUSION
For the foregoing reasons, we conclude that Defendants
were entitled to qualified immunity. We reverse the District
Court’s order, and remand for entry of judgment.
REVERSED.