Denise Green v. City & County of San Francisco , 751 F.3d 1039 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENISE GREEN, No. 11-17892
Plaintiff-Appellant,
D.C. No.
v. 3:10-cv-02649-
RS
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO POLICE
DEPARTMENT; JA HAN KIM, OPINION
Sergeant; ESPARZA, Officer;
PEDERSEN, Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted
February 12, 2014—San Francisco, California
Filed May 12, 2014
Before: Stephen Reinhardt and Sidney R. Thomas, Circuit
Judges, and William K. Sessions III, District Judge.*
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
2 GREEN V. CITY & CNTY. OF SAN FRANCISCO
SUMMARY**
Civil Rights
The panel reversed the district court’s order granting
summary judgment in favor of defendants, affirmed the
district court’s order denying partial summary for plaintiff,
and remanded in an action brought pursuant to 42 U.S.C.
§ 1983 alleging wrongful detention, false arrest and excessive
force.
Plaintiff’s lawsuit arose out of a vehicular stop by San
Francisco Police officers after the police department’s
Automatic License Plate Reader mistakenly identified
plaintiff’s Lexus as a stolen vehicle. Without visually
confirming the license plate, a police officer made a
“high-risk” stop during which plaintiff was held at gunpoint
by multiple officers, handcuffed, forced to her knees, and
detained for up to twenty minutes before the mistake was
discovered and she was released.
The panel held that there were triable questions as to
whether: (1) law enforcement had a reasonable suspicion to
justify plaintiff’s initial detention, (2) plaintiff’s detention
amounted to an arrest without probable cause, and (3) police
officers used excessive force in effecting the detention. The
panel further held that viewing the facts in plaintiff’s favor,
it could not make a determination as a matter of law that the
officer who made the initial stop was entitled to qualified
immunity. Because questions of fact remained regarding
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GREEN V. CITY & CNTY. OF SAN FRANCISCO 3
defendants’ conduct, the panel also reversed the district
court’s summary judgment as to the municipal liability and
state law claims and affirmed the district court’s denial of
partial summary judgment as to plaintiff.
COUNSEL
Michael Haddad (argued), Julia Sherwin, and Gina Altomare,
Haddad & Sherwin, Oakland, California, for Plaintiff-
Appellant.
Christine Van Aken (argued) and James F. Hannawalt,
Deputy City Attorneys, Office of the City Attorney, San
Francisco, California, for Defendants-Appellees.
OPINION
SESSIONS, District Judge:
Plaintiff-Appellant Denise Green appeals from the district
court’s judgment granting summary judgment to Defendants-
Appellees dismissing her § 1983 and state law claims for
wrongful detention, false arrest, and excessive force. Green’s
suit arose out of a vehicular stop performed by Sergeant Ja
Han Kim of the San Francisco Police Department (“SFPD”)
after the SFPD’s Automatic License Plate Reader (“ALPR”)
mistakenly identified Green’s Lexus as a stolen vehicle.
Without visually confirming the license plate, Sergeant Kim
made a “high-risk” stop during which Green was held at
gunpoint by multiple officers, handcuffed, forced to her
knees, and detained for up to twenty minutes. She was
released only after officers eventually ran her plate and
4 GREEN V. CITY & CNTY. OF SAN FRANCISCO
discovered the ALPR mistake and that her vehicle was not
stolen.
Green filed suit against the City and County of San
Francisco, SFPD, and Sergeant Kim alleging Fourth
Amendment violations for unreasonable search and seizure
and unreasonable use of force, violation of Cal. Civ. Code
§ 52.1, intentional infliction of emotional distress, assault,
and negligence. The Defendants moved for summary
judgment, arguing that Sergeant Kim merely subjected Green
to an investigatory detention and not an arrest, that he had
reasonable suspicion to stop Green’s vehicle, and that all
force used was reasonable in the context of a lawful
investigatory stop. Green also moved for partial summary
judgment on her Fourth Amendment and § 52.1 claims. The
District Court for the Northern District of California denied
Green’s motion and granted Defendants’ motion. Because a
rational jury could find that Defendants violated Green’s
Fourth Amendment rights and that Sergeant Kim is not
entitled to qualified immunity at this stage, we reverse the
district court’s grant of summary judgment.1
FACTS AND PROCEDURAL HISTORY
This case regards a vehicular stop made by the San
Francisco Police Department following an erroneous read by
its automated license plate reader technology. SFPD’s ALPR
uses mounted cameras on its police cruisers to capture the
license plate numbers of passing vehicles and match the
1
Green also appeals the district court’s denial of her motion to alter or
amend the judgment. As this panel hereby reverses the initial order, the
appeal of the order denying the motion to alter or amend the judgment is
rendered moot.
GREEN V. CITY & CNTY. OF SAN FRANCISCO 5
captured numbers against a database of wanted numbers. If
the ALPR identifies a potential match, it alerts the officer and
displays an image of the plate. It is undisputed that the ALPR
occasionally makes false “hits” by misreading license plate
numbers and mismatching passing license plate numbers with
those listed as wanted in the database. Because of the known
flaws in the system, SFPD officers are trained that an ALPR
hit does not automatically justify a vehicle stop, and SFPD
directs its officers to verify the validity of the identified hit
before executing a stop. Patrol officers are instructed to take
two steps to verify a hit before acting on an ALPR read. The
first step is to visually confirm the license plate (to ensure
that the vehicle actually bears the license plate number
identified by the camera); the second step is to confirm with
the system that the identified plate number has actually been
reported as stolen or wanted.2 Defendants’ expert on ALPR
technology confirmed in deposition that these two steps
should be performed and explained how officers in a “camera
car” (the cruiser operating the ALPR system) would do so,
but did not outright identify any official policy that the
responsibility lies solely with the camera car operator. In
fact, at the time of the events of this case, the SFPD did not
have a policy placing the responsibility of verifying the
ALPR hit with the camera car operator or with the officer
conducting the subsequent stop.
2
The August 2010 International Association of Chiefs of Police
National Law Enforcement Policy Center License Plate Readers Model
Policy similarly states that after an ALPR alert, “Prior to initiation of the
stop,” officers must “a. [v]isually verify that the vehicle plate number
matches the plate number run by the LPR system . . . [and] b. [v]erify the
current status of the plate through dispatch or MDT query when
circumstances allow.”
6 GREEN V. CITY & CNTY. OF SAN FRANCISCO
On the night of March 30, 2009, Appellant Denise Green,
a 47-year-old African-American woman with no criminal
record, was driving her vehicle, a 1992 burgundy Lexus ES
300 with license plate number 5SOW350, on Mission Street
in San Francisco. At approximately 11:15 PM, Green passed
a police cruiser equipped with an ALPR operated by SFPD
Officers Alberto Esparza and Robert Pedersen. When Green
drove past Esparza and Pedersen’s camera car, the ALPR
misread her license plate number3 and identified her plate as
belonging to a stolen vehicle. It was late and dark outside,
which rendered the ALPR photograph blurry and illegible.
As a result, Officer Esparza could not read the ALPR
photograph, nor could he get a direct visual of Green’s
license plate. Because Esparza and Pedersen had a suspect in
custody at the time of the ALPR read, they radioed the hit to
dispatch in case another officer in the vicinity would be able
to act upon the alert. On the radio, Officer Esparza described
the vehicle as a dark Lexus and read the entire plate number
identified by the ALPR (5SOW750, not the license plate
number on the Lexus). He also asked dispatch to confirm that
plate number 5SOW750 was wanted. At no point did Officer
Esparza state on the radio that he had or had not visually
confirmed the plate himself. Dispatch ran plate number
5SOW750 and notified Officer Esparza that it was in fact
wanted and that it belonged to a gray GMC truck.
Sergeant Kim, patrolling nearby, observed Green’s
vehicle pass him. Based on the radio traffic, Sergeant Kim
knew that there had been a hit on a license plate number
5SOW750, that the plate number had been matched to a gray
GMC truck, and that the vehicle the camera car officers had
3
Green’s license plate number is 5SOW350; the ALPR read it as
5SOW750.
GREEN V. CITY & CNTY. OF SAN FRANCISCO 7
seen was a dark Lexus. Sergeant Kim saw that the first three
numbers of Green’s license plate matched the plate read over
the radio, but he did not visually identify all seven numbers
on Green’s license plate. He also radioed Officer Esparza for
a description of the vehicle, and Officer Esparza confirmed
that the vehicle he saw was a dark burgundy Lexus. Sergeant
Kim then decided to make a “high-risk” or “felony” stop.
Officers perform “high-risk” stops when they perceive there
to be a danger to the police effecting the stop. Such stops
typically involve handcuffing the suspect at gunpoint and
require the participation of multiple officers. Because
Sergeant Kim believed that Green posed a risk, he waited for
backup before pulling her over. While he waited, he followed
her vehicle for a brief amount of time and, at one point, even
stopped behind her at a red light. At no point while he was
following or stopped behind Green’s vehicle did Sergeant
Kim visually confirm the entirety of Green’s license plate
number, even though nothing obscured his ability to do so.
Furthermore, Sergeant Kim did not confirm Green’s plate
number with dispatch, but he did hear Officer Esparza inquire
whether the vehicle with the plate number 5SOW750 was
stolen. Sergeant Kim admits that if he had read the full plate,
he would not have had the reasonable suspicion to effect the
stop.
After backup arrived, Sergeant Kim directed Green to pull
over, and she immediately complied. At this point, the
officers all drew their weapons and pointed them at Green.
The number of officers involved in the stop is disputed:
Green estimates as many as six but it is undisputed that there
were at least four. An unknown officer ordered Green to
raise her hands and exit the vehicle and Green complied. As
she exited the vehicle, Green observed a police officer
pointing a shotgun at her. The officers gave her conflicting
8 GREEN V. CITY & CNTY. OF SAN FRANCISCO
orders, and eventually Sergeant Kim took charge in issuing
commands. He holstered his gun while the remaining officers
kept their weapons trained on Green, and he directed her to
lower to her knees where he proceeded to handcuff her. At
the time of the incident, Green was 5’6” and 250 pounds and
experienced knee problems, so she faced some difficulty in
lowering to the ground and in standing back up. Sergeant
Kim had to help her back to her feet. Green says she saw
four officers training their weapons on her while she was
handcuffed; Sergeant Kim does not recall how many officers
were pointing their guns at Green.
Officers then searched Green’s vehicle and performed a
pat-down search of her person. After the searches uncovered
nothing, Sergeant Kim finally ran a check of Green’s entire
plate number. The license plate check confirmed that the
plate belonged to a burgundy Lexus registered to Green that
had never been reported as stolen. Green’s handcuffs were
promptly removed, but she was directed to remain until the
officers had completed paperwork documenting the stop. The
parties dispute the duration of the stop. Green states that she
was handcuffed for at least ten minutes and that the entire
stop lasted 18–20 minutes, while Defendants maintain that
the stop was much shorter. It is undisputed that Green was
wholly compliant and nonresistant for the entirety of the stop
and that there was no indication that she was armed.
Green brought § 1983 claims against the City and County
of San Francisco, SFPD, and Sergeant Kim alleging
violations of her Fourth Amendment rights on the grounds
that the incident constituted an unreasonable search and
seizure and a de facto arrest without probable cause and
involved an unreasonable use of force. Green’s claims
against the City and SFPD are premised on Monell liability,
GREEN V. CITY & CNTY. OF SAN FRANCISCO 9
which allows local governments to be sued under § 1983 for
constitutional deprivations effected pursuant to a
governmental custom. Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658, 690–91 (1978). Green also
brought several claims under California state law. These
included claims under Cal. Civ. Code § 52.14 alleging a
constitutional violation and tort law claims of intentional
infliction of emotional distress, assault, and negligence.
Green moved for partial summary judgment on her Fourth
Amendment claim against Sergeant Kim and on her § 52.1
claim against all Defendants. Defendants moved for
summary judgment on all claims on the basis that Sergeant
Kim had reasonable suspicion to stop Green and that the force
used was reasonable in the context of a lawful investigatory
detention.
The district court granted summary judgment to
Defendants and denied Green’s motion for partial summary
judgment. Despite the lack of a SFPD policy placing the
responsibility of checking the ALPR read on the camera car
operator, the district court determined that it was reasonable
for Sergeant Kim to assume that Officer Esparza had visually
confirmed Green’s plate based on the fact that Officer
Esparza did not expressly state otherwise. The district court
concluded that Sergeant Kim’s belief that the plates had been
matched to the ALPR hit was a “good faith, reasonable
mistake” and that “no reasonable jury could find that Kim
4
California’s Bane Act provides a private right of action under state law
for damages and injunctive relief where a person “interferes by threats,
intimidation, or coercion, or attempts to interfere by threats, 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.”
Cal. Civ. Code § 52.1 (2005).
10 GREEN V. CITY & CNTY. OF SAN FRANCISCO
lacked reasonable suspicion to conduct an investigatory stop.”
Green v. City & County of San Francisco, No. C 10-02649
RS, 2011 WL 4434801, at *5 (N.D. Cal. Sept. 23, 2011). On
the remaining Fourth Amendment claims, the district court
decided that the tactics used by the officers were objectively
reasonable in the context of a lawful investigatory stop and
rejected Green’s unlawful arrest and excessive force claims.
The court also determined that Sergeant Kim was entitled to
qualified immunity based on its finding that Green had not
established a constitutional violation. It dismissed Green’s
Monell and § 52.1 claims on the same grounds: they both
require a showing of unlawful conduct and the district court
found that Green had not made such a showing. Finally, the
court dismissed Green’s state law tort claims based on its
finding that Defendants’ conduct was reasonable pursuant to
a lawful investigatory stop.
After the court’s initial judgment, Green filed a motion to
alter or amend the district court’s order, which the district
court denied. Green appeals both the initial order and the
denial of the motion to alter or amend.
DISCUSSION
I. Standard of Review
We review de novo the district court’s decision on cross
motions for summary judgment. Travelers Prop. Cas. Co. of
Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir.
2008). We apply the standards under Rule 56 to determine
whether there are any genuine issues of material fact and
whether the evidence, viewed in favor of the nonmoving
party, supported judgment as a matter of law. Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
GREEN V. CITY & CNTY. OF SAN FRANCISCO 11
II. Fourth Amendment
On Green’s Fourth Amendment claims, the district court
granted summary judgment to Defendants on the grounds that
Green could not establish a constitutional violation as a
matter of law on her wrongful seizure, false arrest, or
excessive force claims. We reverse because, when viewing
the facts in the light most favorable to Green, it is clear that
a rational jury could find for Green on all three claims.
A. Unlawful Seizure
Green’s first Fourth Amendment claim is that Sergeant
Kim lacked reasonable suspicion to make the investigatory
stop, thereby making it an unlawful seizure in violation of the
Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653
(1979) (detention of automobile is seizure within meaning of
Fourth Amendment). It is well established by the record that
an unconfirmed hit on the ALPR does not, alone, form the
reasonable suspicion necessary to support an investigatory
detention, and Defendants do not contest this. Instead, the
common practice of the SFPD at the time of Green’s seizure
required verifying the information supplied by the system by
(1) visually confirming that the plate number matches that
read by the ALPR system and (2) confirming that the plate
number is actually wanted according to the database. In this
case, Officer Esparza performed the second step, but none of
the officers involved made a visual confirmation, which of
course was the error that kicked off this regrettable sequence
of events. The parties dispute whose responsibility it is to
perform these two steps: Defendants state that it is the
responsibility of the officer in the camera car, while Green
argues that it is reasonable to expect the officer actually
making the stop to perform these steps. The parties cite no
12 GREEN V. CITY & CNTY. OF SAN FRANCISCO
SFPD policy that expressly places the responsibility with
either officer. The question therefore becomes whether it was
reasonable as a matter of law for Sergeant Kim to effect the
stop without making an independent visual verification of the
license plate.
Sergeant Kim may rely on information supplied by
Officer Esparza in determining whether reasonable suspicion
exists. Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005)
(en banc), overruled on other grounds, United States v. King,
687 F.3d 1189 (9th Cir. 2012) (finding that “law enforcement
officers are generally entitled to rely on information obtained
from fellow law enforcement officers”). Such reliance is only
allowed when it is objectively reasonable. Id. at 1082. So,
for example, if Officer Esparza had visually confirmed the
plate erroneously, and Sergeant Kim had relied upon this
erroneous information, such reliance would certainly be
reasonable under Motley. However, this is not that case.
Here, Officer Esparza did not visually confirm the plate nor
did he state that he had. As Green states in her brief, “Kim
assumed reasonable suspicion based on information not
supplied by Esparza, without doing any investigation or
making any appropriate inquiries.” Defendants argue—and
the district court agreed—that Sergeant Kim’s reliance
remained reasonable in this context because “Esparza never
expressed any indication” that he had not made the visual
confirmation. Green, 2011 WL 4434801, at *5. The district
court thus concluded that Sergeant Kim’s belief that Officer
Esparza had confirmed the plate was a good faith, reasonable
mistake and that no rational jury could find that Sergeant Kim
lacked reasonable suspicion as a result.
While the district court’s conclusion is certainly a
plausible one, it does not support a grant of summary
GREEN V. CITY & CNTY. OF SAN FRANCISCO 13
judgment for Defendants because it is based on an inference
in their favor. Viewing the facts in the light most favorable
to Green, as we must, the absence of any express indication
from Officer Esparza that he had verified the plate necessarily
precludes summary judgment for Defendants. At the time of
this incident, there was no SFPD policy placing the ultimate
or sole responsibility of verifying the accuracy of the ALPR
reading on the camera car operator. Absent such a policy, it
is disputable whether an officer conducting a stop could
reasonably rely on a lack of qualifying information from the
camera car operator as a justification for making the stop
without making an independent verification. It thus remains
a triable issue whether it was reasonable for Sergeant Kim to
conclude that Officer Esparza had confirmed the plate in the
absence of any affirmative indication that he had done so.
Even if Sergeant Kim’s initial assumption was reasonable,
the fact that Officer Esparza never verbally expressed that the
plate had been visually confirmed also suggests that Sergeant
Kim should have made an independent confirmation as “[a]ll
officers . . . have an ongoing duty to make appropriate
inquiries regarding the facts . . . if insufficient details are
relayed.” Motley, 432 F.3d at 1081. This need for additional
investigation is further reinforced by the fact that the plate
read by the ALPR belonged to a car with a different make,
model, and color than Green’s and that Sergeant Kim knew
of this discrepancy. While Defendants place no weight on
this detail (inferring instead that it automatically indicates
additional wrongdoing—using stolen plates to avoid detection
for other crimes), the mismatch between the ALPR read and
Green’s vehicle arguably justifies further investigation,
particularly in the context of a system that frequently makes
such mistakes. In fact, Sergeant Kim himself acknowledged
in deposition that it is standard practice to double check an
14 GREEN V. CITY & CNTY. OF SAN FRANCISCO
ALPR hit where practicable. Evidence in the record suggests
that it would have been possible for Sergeant Kim to make
further inquiries: Sergeant Kim had several opportunities to
confirm the license plate number with dispatch and even
spent time stopped behind Green at a red light, and nothing
obscured Green’s license plate throughout the incident. A
rational jury could conclude that it was unreasonable for
Sergeant Kim to fail to double check the plate number in the
absence of express confirmation from Officer Esparza.
As a result, it cannot be established as a matter of law
whether or not reasonable suspicion existed to justify the
investigatory detention, and Defendants’ motion for summary
judgment on this ground was improperly granted. This
conclusion is further supported by our precedent that the
reasonableness of officer conduct should be decided by a jury
where the inquiry turns on disputed issues of material fact.
Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.
2011).
B. De facto arrest without probable cause
Even if reasonable suspicion was satisfied, the parties
additionally disagree on whether the stop amounted to a valid
investigatory detention under Terry v. Ohio, 392 U.S. 1
(1968), or rose to the level of an arrest, as Green contends.
There is no bright-line rule to establish whether an
investigatory stop has risen to the level of an arrest. Instead,
this difference is ascertained in light of the “‘totality of the
circumstances.’” Washington v. Lambert, 98 F.3d 1181, 1185
(9th Cir. 1996) (quoting United States v. Del Vizo, 918 F.2d
821, 824 (9th Cir. 1990)). This is a highly fact-specific
inquiry that considers the intrusiveness of the methods used
GREEN V. CITY & CNTY. OF SAN FRANCISCO 15
in light of whether these methods were “reasonable given the
specific circumstances.” Id.
In this case, the methods used were highly intrusive.
Green was held at multiple gunpoints, handcuffed, and
directed to her knees. In Washington, we considered tactics
that were markedly similar, and we found that “‘handcuffing
substantially aggravates the intrusiveness of an otherwise
routine investigatory detention and is not part of a typical
Terry stop.’” Id. at 1188 (quoting United States v. Bautista,
684 F.2d 1286, 1289 (9th Cir. 1982)). We also noted that
when police draw their guns, it “greatly increases the
seriousness of the stop,” and that physical restraints are an
important factor in measuring the degree of intrusion. Id.
We went on to conclude that “under ordinary circumstances,
when the police have only reasonable suspicion to make an
investigatory stop, drawing weapons and using handcuffs and
other restraints will violate the Fourth Amendment.” Id. at
1187; see also Del Vizo, 918 F.2d at 825.
The question of whether this incident amounted to an
unlawful arrest thus turns on whether it is sufficiently
distinguishable from the “ordinary circumstances” to justify
such tactics. In making such a determination, we have
examined the reasonableness of the conduct in light of certain
factors. Again, while there are no bright-line rules, “we have
only allowed the use of especially intrusive means of
effecting a stop in special circumstances, such as 1) where the
suspect is uncooperative or takes action at the scene that
raises a reasonable possibility of danger or flight; 2) where
the police have information that the suspect is currently
armed; 3) where the stop closely follows a violent crime; and
4) where the police have information that a crime that may
involve violence is about to occur.” Washington, 98 F.3d at
16 GREEN V. CITY & CNTY. OF SAN FRANCISCO
1189; see also Johnson v. Bay Area Rapid Transit Dist.,
724 F.3d 1159, 1176 (9th Cir. 2013) (quoting and applying
Washington factors). These factors should all be considered
in light of the specificity of the information law enforcement
has to suggest both that the individuals are the proper
suspects and that they are likely to resist arrest or police
interrogation. Washington, 98 F.3d at 1189–90. The number
of police officers present is also highly relevant. Id. at 1190.
While these considerations are not exhaustive, they all inform
the ultimate inquiry of whether the officers’ conduct was a
“reasonable response to legitimate safety concerns on the part
of the investigating officers.” Id. at 1186. As in the unlawful
seizure context, because this inquiry is fact specific, it is often
left to the determination of a jury.
When reviewing this case through the lens of Washington,
in the light most favorable to Green, a rational jury could find
that this incident exceeded the limits of an investigative
detention under Terry, and therefore judgment cannot be
granted to Defendants as a matter of law. The tactics used
were extremely intrusive, yet none of the Washington factors
justifying such tactics were present: (1) it is uncontested that
Green was compliant with law enforcement at all times;
(2) the police had no specific information that Green was
armed; (3) the stop did not closely follow a violent crime; and
(4) the police did not have information that a violent crime
was about to occur. All of these factors count against a
finding that the officers’ conduct was a reasonable response
to safety concerns. See Del Vizo, 918 F.2d at 825 (finding
arrest where police drew and pointed guns, handcuffed
suspect, and placed him in police car where defendant was
completely cooperative at the scene).
GREEN V. CITY & CNTY. OF SAN FRANCISCO 17
Furthermore, the officers lacked specific information that
Green was a proper suspect, and there was no indication that
Green posed a threat to the officers necessitating the tactics
employed. There were as many as six officers on the scene,
in comparison to Green, who was alone and visibly
unthreatening. During a portion of the time that the officers
pointed their weapons at her, Green was handcuffed and
secured; moreover, she weighed 250 pounds and was barely
able to rise from her knees without assistance. A jury could
certainly find that it was unreasonable for the officers to
believe that their safety was at risk to the extent that such
intrusive tactics were necessary. Compare United States v.
Thompson, 906 F.2d 1292, 1297 (9th Cir. 1990) (finding
presence of seven squad cars to be a factor in determining
that intrusive actions taken by police against two suspects in
car constituted an arrest); Washington, 98 F.3d at 1190
(finding arrest where two suspects outnumbered by four
officers and police dog because “ratio of officers to suspects”
weighs against reasonableness of intrusive action); with
United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir. 1983)
(finding it reasonable for single officer to order two suspects
out of car at gunpoint shortly after robbery); United States v.
Serna-Barreto, 842 F.2d 965, 968 (7th Cir. 1988) (finding
conduct “prudent” where single officer outnumbered by
suspects).
Defendants argue that the existence of a stolen vehicle, in
and of itself, is enough to satisfy the degree of force used;
however, this is a conclusion over which reasonable jurors
could disagree. In Washington, the unlawful arrest in
question was based on a description of suspects for nineteen
armed robberies. 98 F.3d at 1183. We found that the use of
force was not justified given the totality of the circumstances
in part because the suspects were cooperative and there was
18 GREEN V. CITY & CNTY. OF SAN FRANCISCO
no reason to believe they were dangerous, despite the fact that
the plaintiffs were suspected of a violent crime that involved
weapons. Id. at 1190. We reached a similar conclusion in
Del Vizo where we found that there was no indication that the
suspect was dangerous despite the fact that he was suspected
of drug dealing, another inherently dangerous crime, where
the suspect was compliant and cooperative at all times. See
918 F.2d at 825 (citing United States v. McConney, 728 F.2d
1195, 1206 (9th Cir.) (en banc), cert. denied 469 U.S. 824
(recognizing that the drug trade is often dangerous and
involves weapons)). The fact that Green was stopped on
suspicion of a stolen vehicle does not by itself demonstrate
that she presented a danger to the officers. Furthermore,
numerous factors—that law enforcement lacked any specific
information that she was armed, that Green was compliant
with instructions at all times, that there was no evidence of
recent violence, and that the police significantly outnumbered
Green so as to diminish the risk she posed—count against
such a finding. When viewing the facts in the light most
favorable to Green, a rational jury could find that the tactics
were not reasonable given the totality of the circumstances
and that Green was subject to an arrest.
If the stop amounted to an arrest, it would be unlawful
absent probable cause. At the district court level, Defendants
did not argue that there was probable cause to arrest Green
(and Sergeant Kim himself stated in deposition that he did not
believe there was probable cause); on appeal, Defendants
argue that probable cause can be established. As it remains
a triable question whether law enforcement even had
reasonable suspicion to justify the detention, the existence of
probable cause necessarily also remains a triable question.
Green’s unlawful arrest claim cannot be dismissed as a matter
of law and must be decided by a jury.
GREEN V. CITY & CNTY. OF SAN FRANCISCO 19
C. Excessive Force
Green’s final Fourth Amendment claim asserts that the
officers used excessive force in effecting the investigatory
stop. Under the Fourth Amendment, law enforcement may
use “objectively reasonable” force to carry out such seizures;
as in the unlawful arrest analysis, this objective
reasonableness is determined by an assessment of the totality
of the circumstances. Graham v. Connor, 490 U.S. 386, 397
(1989). Because this inquiry is inherently fact specific, the
“determination whether the force used to effect an arrest was
reasonable under the Fourth Amendment should only be
taken from the jury in rare cases.” Headwaters Forest Def.
v. County of Humboldt, 240 F.3d 1185, 1205–06 (9th Cir.
2000), cert. granted, judgment vacated on other grounds,
534 U.S. 801 (2001); see also Torres, 648 F.3d at 1125
(summary judgment “in excessive force cases should be
granted sparingly”); Liston v. County of Riverside, 120 F.3d
965, 976 n.10 (9th Cir. 1997) (finding that excessive force is
“ordinarily a question of fact for the jury”); Chew v. Gates,
27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a particular
use of force was reasonable is rarely determinable as a matter
of law.”).
In addressing a claim of excessive force, we balance the
“nature and quality of the intrusion” against the
“countervailing governmental interests at stake.” Graham,
490 U.S. at 396. There is no question that the degree of
intrusion here was severe. Green states that she was ordered
out of her vehicle by as many as six officers, many of whom
pointed handguns and a shotgun directly at her. She was
forced to her knees and handcuffed, which she had difficulty
doing due to her knee problems, and officers continued to
train weapons upon her while she was handcuffed on the
20 GREEN V. CITY & CNTY. OF SAN FRANCISCO
ground. She estimates that she was in handcuffs for as many
as ten minutes and states in deposition that the experience has
caused her lasting psychological impact.
The question therefore becomes whether this degree of
intrusion was justified by the governmental interests at stake.
To assess the gravity of the government interests, we have
typically considered “(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the
safety of the officers or others, and (3) whether he is actively
resisting arrest or attempting to evade arrest by flight.”
Chew, 27 F.3d at 1440. Where these interests do not support
a need for force, “any force used is constitutionally
unreasonable.” Lolli v. County of Orange, 351 F.3d 410, 417
(9th Cir. 2003) (internal quotation marks omitted).
The district court stated without further inquiry that “[a]s
these tactics were employed in conducting a lawful
investigatory stop for suspicion of driving with stolen plates,
no reasonable jury could find that Green was subjected to
excessive force.” Green, 2011 WL 4434801, at *6. This
conclusion cannot support summary judgment for Defendants
here for several reasons. First, triable questions remain as to
whether the investigatory stop itself was lawful. Because it
remains a question whether the stop was even justified by
reasonable suspicion, the existence of a “lawful investigatory
stop” cannot support the district court’s finding that the force
was not excessive as a matter of law. Second, even if
reasonable suspicion was established, it alone is not enough
to justify such intrusive tactics. This court has “consistently
applied the principle that drawing weapons and using
handcuffs or other restraints is unreasonable in many
situations” involving investigatory or Terry stops. Robinson
v. Solano County, 278 F.3d 1007, 1015 (9th Cir. 2002); see
GREEN V. CITY & CNTY. OF SAN FRANCISCO 21
also Washington, 98 F.3d at 1187 (“Under ordinary
circumstances, when the police have only reasonable
suspicion to make an investigatory stop, drawing weapons
and using handcuffs and other restraints will violate the
Fourth Amendment.”). Instead, the reasonableness of the
force used must be considered in light of all circumstances.
When applying the factors laid out in Chew, the
reasonableness of the force here cannot be determined as a
matter of law. While the crime at issue (stolen vehicle or
plates) was arguably severe, there was no indication at the
scene that Green posed an immediate threat to the safety of
the officers or others. As in the unlawful arrest context,
Defendants seem to argue that the crime of vehicular theft is
enough in itself to support a finding that Green posed an
immediate threat; however, this is plainly an inference in
Defendants’ favor. Construing the facts in the light most
favorable to Green, a rational jury could find that the ALPR
hit, without more, does not support a finding that Green posed
a threat.
Furthermore, any inference of immediate threat was
diminished once Green was handcuffed and her car was
searched, therein eliminating the possibility of accomplices.
According to Green, several officers continued to point
weapons at her even after she was handcuffed and searched.
Green was also considerably outnumbered, which counts
against a finding that she posed a threat to the multiple
officers at the scene. Finally, neither party suggests that
Green ever actively resisted law enforcement; in fact, the
record makes clear that Green was compliant with the
directions of law enforcement at all times. We have found
excessive force under similar circumstances. See, e.g.,
Hopkins v. Bonvicino, 573 F.3d 752, 776 (9th Cir. 2009)
(finding excessive force where an officer pointed a weapon
22 GREEN V. CITY & CNTY. OF SAN FRANCISCO
at a cooperative, unarmed suspect and did not holster the
weapon until after the suspect was handcuffed, and where the
officers outnumbered the suspect); Robinson, 278 F.3d at
1014 (finding excessive force where misdemeanor suspect
was “apparently unarmed and approaching the officers in a
peaceful way[, t]here were no dangerous or exigent
circumstances apparent at the time of the detention, and the
officers outnumbered the plaintiff”).
Also relevant to the excessive force inquiry is “‘what
other tactics if any were available’ to effect the[] arrest.”
Headwaters Forest Def., 240 F.3d at 1204 (quoting Chew,
27 F.3d at 1443); Smith v. City of Hemet, 394 F.3d 689, 701
(9th Cir. 2005) (explaining that police must consider less
intrusive alternatives). Here, there is evidence on the record
suggesting that the officers had alternatives available; at the
very least, they could have held their weapons at a “low
ready” position rather than pointing them directly at Green.
As the SFPD’s “person most knowledgeable,” Sergeant
Michael Nevin, testified, SFPD officers are trained that
depending on the level of threat they are facing, they should
keep their weapons trained at the ground rather than at a
person because “the weapon should only cover what you’re
willing to destroy.”5 Thus, when all of these facts are
construed in Green’s favor, as must be done at the summary
judgment stage, a rational jury could find that the tactics
amounted to excessive force.
Sergeant Kim contends that he should not be liable for
excessive force here on the basis that officers are generally
5
This deposition was provided in support of Green’s motion to
reconsider and therefore was not before the district court when it
addressed the cross motions for summary judgment.
GREEN V. CITY & CNTY. OF SAN FRANCISCO 23
not liable under the Fourth Amendment for the conduct of
other officers, see Boyd v. Benton County, 374 F.3d 773, 780
(9th Cir. 2004), and are liable only where they are a “integral
participant” in the conduct that caused the constitutional
violation. Blankenhorn v. City of Orange, 485 F.3d 463, 481
n.12 (9th Cir. 2007). Sergeant Kim argues that he cannot be
held liable for excessive force because he was not one of the
officers who pointed his gun at Green while she was in
handcuffs. While an accurate statement of the law, Sergeant
Kim’s position misconstrues the circumstances underlying
Green’s excessive force claim. Green’s assertion of
excessive force is not premised solely on the pointed weapons
but also on the fact that she was held at gunpoint while she
was otherwise restrained. The only reason Sergeant Kim was
not pointing his weapon at Green while she was restrained is
that he was the one restraining her. Even if Sergeant Kim
was not one of the officers actually holding Green at gunpoint
once she was restrained, he was plainly an active participant
in this activity and a jury could find that he was an “integral
participant” under Blankenhorn.
In light of our precedent, it cannot be determined as a
matter of law that Green’s Fourth Amendment rights were not
violated here, and the district court’s grant of summary
judgment on all three grounds must be reversed. However,
while the district court erred in granting summary judgment
for Defendants, we nonetheless affirm the district court’s
denial of partial summary judgment as to Green. As detailed
above, triable issues remain on all of Green’s claims that
preclude judgment as a matter of law in favor of either party.
The district court’s denial of Green’s motion for partial
summary judgment is affirmed, and these claims are to be
determined by a jury.
24 GREEN V. CITY & CNTY. OF SAN FRANCISCO
III. Qualified Immunity
The district court also dismissed Green’s suit on the
grounds that Sergeant Kim was protected by qualified
immunity. “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Stanton v. Sims, 571 U.S. __, 134 S. Ct. 3, 4–5
(2013) (per curiam) (quoting Pearson v. Callahan, 555 U.S.
223, 231 (2009)). “Qualified immunity gives government
officials breathing room to make reasonable but mistaken
judgments,” and “protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Ashcroft v. al–Kidd,
563 U.S. __, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). We have found that an
officer will be denied qualified immunity in a § 1983 action
“only if (1) the facts alleged, taken in the light most favorable
to the party asserting injury, show that the officer’s conduct
violated a constitutional right, and (2) the right at issue was
clearly established at the time of the incident such that a
reasonable officer would have understood her conduct to be
unlawful in that situation.” Torres, 648 F.3d at 1123. In this
case, the district court found that Sergeant Kim was protected
by qualified immunity based on the finding that Sergeant Kim
did not violate any constitutional right. However, as the
preceding analysis makes clear, this remains an open question
for the jury, and Sergeant Kim cannot be granted qualified
immunity at summary judgment on this basis.
Instead, we proceed to the second step of the qualified
immunity inquiry, that is, whether “the right at issue was
clearly established at the time of the incident such that a
reasonable officer would have understood her conduct to be
GREEN V. CITY & CNTY. OF SAN FRANCISCO 25
unlawful.” Id. This requires two separate determinations:
(1) whether the law governing the conduct at issue was
clearly established and (2) whether the facts as alleged could
support a reasonable belief that the conduct in question
conformed to the established law. Act Up!/Portland v.
Bagley, 988 F.2d 868, 873 (9th Cir. 1993). Both are
questions of law to be determined by the court in the absence
of genuine issues of material fact. Id.
Here, the first element is satisfied as a matter of law. It
was established at the time of the incident that individuals
may not be subjected to seizure or arrest without reasonable
suspicion or probable cause, especially when the stop
includes detention and interrogation at gunpoint, and that
highly intrusive measures may not be used absent
extraordinary circumstances. Washington, 98 F.3d at
1192–93. In Washington, we denied qualified immunity on
a similar set of facts, finding:
at the time of [the suspects’] detentions the
law was clearly established that, when making
a Terry stop, officers may not use highly
intrusive measures such as the ones used here,
unless the circumstances reasonably justify
such extraordinary procedures in order to
ensure the officers’ safety. The law was also
clearly established that if the Terry-stop
suspects are cooperative and the officers do
not have specific information that they are
armed or specific information linking them to
a recent or inchoate dangerous crime, the use
of such aggressive and highly intrusive tactics
is not warranted, at least when, as here, there
26 GREEN V. CITY & CNTY. OF SAN FRANCISCO
are no other extraordinary circumstances
involved.
Id. at 1192 (internal citation omitted). Thus, applying
Washington and construing the facts in the light most
favorable to Green, the right against such intrusive measures
was established at the time of Green’s detention.
We must then determine whether an officer, given the
specific facts at issue, “could have reasonably believed at the
time that the force actually used was lawful under the
circumstances.” Torres, 648 F.3d at 1127. This requires us
to look at what Sergeant Kim knew at the time and whether
it was sufficient to support a reasonable officer’s belief that
his actions were lawful. See Washington, 98 F.3d at 1193.
While also generally a question of law to be determined by
the court, there are disputed material facts here that prevent
us from making such a finding at this juncture.
ActUp!/Portland, 988 F.2d at 873 (explaining that
determinations about the facts and circumstances within an
officer’s knowledge and about the conduct underlying an
alleged violation must be made by a finder of fact). For
example, it is disputed whether Sergeant Kim had reason to
believe that Officer Esparza had not visually confirmed the
plate, and how much force was actually used in effecting the
stop. These are both material facts that preclude a
determination as to qualified immunity at the summary
judgment stage.
Moreover, even if material facts did not preclude this
determination, Sergeant Kim would not be entitled to
qualified immunity based on the facts as currently alleged.
As we recently found in Johnson,
GREEN V. CITY & CNTY. OF SAN FRANCISCO 27
[i]t is possible that a jury will conclude, after
weighing all the facts, that the officers
committed no constitutional wrongs. But our
task at this stage in the litigation is not to
attempt to weigh the facts and resolve the
issues definitively in favor of one party or
another. It is instead to construe the facts in
the manner most favorable to the plaintiffs,
who have a right to their day in court, and
then ask if our solicitude of the judgment of
law enforcement in this case requires us to
shield the officers from further participation
in this lawsuit.
724 F.3d at 1180 (refusing to grant qualified immunity at
summary judgment where question of whether officer acted
reasonably could not be determined based on facts before
court, and finding that this question must be resolved by a
jury). When viewing the facts in the light most favorable to
Green, we cannot make a determination as a matter of law
that Sergeant Kim “could have reasonably believed at the
time that the force actually used was lawful under the
circumstances.” Torres, 648 F.3d at 1127. Instead, this
question must go before a jury.
IV. Municipal Liability
Green’s claims against the City and SFPD are premised
on Monell liability, which allows local governments to be
sued under § 1983 for constitutional deprivations effected
pursuant to a governmental custom. Monell, 436 U.S. at
690–91. Green thus seeks to hold the City accountable for
Sergeant Kim’s actions, arguing that he acted pursuant to
municipal policy. The district court granted summary
28 GREEN V. CITY & CNTY. OF SAN FRANCISCO
judgment to Defendants on Green’s Monell claim on the
ground that Green had failed to identify an underlying
constitutional violation. Because as we hold supra, a genuine
issue of fact remains as to the constitutional violations alleged
by Green, the order for summary judgment on the Monell
claim must be reversed. We therefore remand Green’s
Monell claim for further resolution consistent with this
decision.
V. State Law Claims
Green also brought state law claims under the Bane Act
(which provides a state law cause of action similar to § 1983)
and for IIED, assault, and negligence. The district court
granted Defendants’ motion for summary judgment on all of
Green’s state law claims. It dismissed the Bane Act claims
on the basis that it “requires a showing that Green’s detention
was unlawful, which she has not made.” Green, 2011 WL
4434801, at *6. As with the Monell claim, Green has raised
triable issues of fact concerning the lawfulness of her
detention; therefore, her Bane Act claims cannot be dismissed
on this basis. The district court also dismissed the remaining
state law claims on similar grounds: it found that IIED,
assault, and negligence could not be established because
Defendants’ conduct was “pursuant to a lawful investigatory
stop.” Id. at *7. As it remains a question whether the
conduct at issue was lawful, the district court’s grant of
summary judgment on the state law claims is reversed and
remanded.
CONCLUSION
On the record before us factual determinations remain that
must be left to a jury. We therefore reverse the district
GREEN V. CITY & CNTY. OF SAN FRANCISCO 29
court’s grant of summary judgment for Defendants, affirm the
district court’s denial of partial summary judgment to Green,
and remand to the district court for further proceedings. Each
party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED and REMANDED
in part.