Amina Bennett-Martin v. Jose Placencia ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 3 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMINA TRINITY BENNETT-MARTIN, No. 19-55109
Plaintiff-Appellant, D.C. No.
5:16-cv-01165-MWF-KS
v.
JOSE PLASENCIA, Officer, an individual MEMORANDUM*
and official capacity,
Defendant-Appellee,
and
SAN BERNARDINO VALLEY
COMMUNITY COLLEGE; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted February 4, 2020**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: IKUTA and CHRISTEN, Circuit Judges, and MARBLEY,*** District
Judge.
Amina Trinity Bennett-Martin appeals the district court’s entry of judgment
in favor of Officer Jose Plasencia in her action for compensatory and punitive
damages. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err in concluding that Officer Plasencia was
entitled to qualified immunity on the false-arrest claim because, at the time of the
incident, it was not clearly established that an officer in Officer Plasencia’s
situation lacked probable cause to arrest a suspect for violating section 148(a)(1) of
the California Penal Code.1 See D.C. v. Wesby, 138 S. Ct. 577, 590 (2018).
Taking the facts in the light most favorable to Bennett-Martin, Officer Plasencia
had reasonable suspicion that Bennett-Martin was defacing a fence with graffiti
and asked Bennett-Martin for her identification in connection with his
investigation of the offense. When Officer Plasencia began to conduct a records
check, Bennett-Martin used a cell phone to make a call, during which she
identified her location. Officer Plasencia directed Bennett-Martin to hang up the
***
The Honorable Algenon L. Marbley, United States Chief District
Judge for the Southern District of Ohio, sitting by designation.
1
Section 148(a)(1) provides that any “person who willfully resists, delays,
or obstructs any public officer, peace officer, or an emergency medical technician
. . . in the discharge or attempt to discharge any duty of his or her office or
employment” is guilty of a misdemeanor. Cal. Penal Code § 148(a)(1).
2
phone, but she refused and put the phone on speaker. After a crowd began
gathering at the bus stop, Officer Plasencia arrested Bennett-Martin for violating
section 148(a)(1).2 A reasonable officer in Officer Plasencia’s situation could
conclude that Bennett-Martin’s refusal to comply with the command to end her
phone call while an investigation was underway, and her disclosure of her location
to a third party (raising security concerns), delayed or obstructed his lawful
discharge of his duties, in violation of section 148(a)(1). Bennett-Martin has
identified no case “where an officer acting under similar circumstances . . . was
held to have violated the Fourth Amendment.” Wesby, 138 S. Ct. at 590 (citation
omitted).
Bennett-Martin relies on People v. Quiroga, which held that a defendant had
not violated section 148(a)(1) where an officer ordered the defendant to “put his
hands on his lap” and the defendant “was ‘very uncooperative’ but ‘finally’ obeyed
2
Bennett-Martin was subsequently prosecuted for violating this section, but
the charges were dropped after trial.
3
the order.” 16 Cal. App. 4th 961, 964 (1993).3 Bennett-Martin argues that
Quiroga clearly established that Officer Plasencia could not arrest her for violating
section 148(a)(1). We disagree. As a general rule, “opinions by . . . an
intermediate state court are insufficient to create a clearly established right.” See
Marsh v. Cty. of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012). But even if
Quiroga could give rise to clearly established law in some situations, the decision
does not involve circumstances like the ones in this case. Rather, a reasonable
officer in Officer Plasencia’s situation could have believed that the situation he
encountered was less like the situation in Quiroga and more like the situations
officers encountered in Young v. County of Los Angeles, 655 F.3d 1156, 1169–70
(9th Cir. 2011), and In re Muhammed C., 95 Cal. App. 4th 1325, 1330 (2002),
where the arrestees did not comply with officers’ commands and the courts held
that there was probable cause to arrest based on section 148(a)(1). Indeed,
3
Quiroga also held that the defendant’s refusal to give his name to the
officer did not violate section 148(a)(1) because “it did not delay or obstruct a
peace officer in the discharge of any duty within the meaning of the statute.” 16
Cal App. 4th at 966. The court reasoned that the defendant had already been
arrested, and so his refusal could not “delay or thwart his lawful detention”; and
the defendant’s refusal to give his name did not thwart the officer’s discharge of
his duty because it was “premature to ask the questions needed for booking [the
defendant] in jail.” Id. The dissent argues that we “conveniently ignor[e]” this
situation in our analysis, Dissent at 2, but it is not relevant to our inquiry because
Officer Plasencia contends that Bennett-Martin’s pre-arrest conduct delayed or
obstructed the discharge of his duties.
4
“[c]learly established means that, at the time of the officer’s conduct, the law was
sufficiently clear that every reasonable official would understand that what he is
doing is unlawful.” Wesby, 138 S. Ct. at 589 (cleaned up). Because existing
precedent does not place it “beyond debate,” id., that Officer Plasencia violated
Bennett-Martin’s constitutional rights, he is entitled to qualified immunity.4
The dissent argues that we construe the doctrine of qualified immunity too
broadly and that Quiroga’s rule that “a violation of section 148(a)(1) requires more
than mere noncooperation with an officer’s orders,” Dissent at 3, gave Officer
Plasencia “fair warning” that violating Bennett-Martin’s constitutional rights,
Dissent at 1. We disagree. The Supreme Court “has repeatedly told courts—and
the Ninth Circuit in particular—not to define clearly established law at a high level
of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (cleaned up). And
in the warrantless-arrest context, the Supreme Court has “stressed the need to
‘identify a case where an officer acting under similar circumstances . . . was held to
have violated the Fourth Amendment.’” Wesby, 138 S. Ct. at 590 (citation
omitted). Accordingly, we decline to contravene the Supreme Court’s repeated
4
The dissent “emphasize[s]” that Officer Plasencia arrested Bennett-Martin
for violating section 148(a)(1) after he completed his investigation of the suspected
vandalism. Dissent at 5. This fact has no bearing on our qualified immunity
analysis, however.
5
warnings by “narrow[ing]” the doctrine of qualified immunity. Dissent at 1. Nor
does our disposition “send a signal to officers” that they can arrest “young people”
who provide their location to a parent. Dissent at 5. Rather, we merely hold that
Bennett-Martin cannot recover compensatory and punitive damages from Officer
Plasencia, because he could have reasonably believed there was probable cause to
arrest Bennett-Martin for not complying with his orders during an investigation.
We need not (and do not) decide whether Officer Plasencia lacked probable cause
to arrest Bennett-Martin. See, e.g., Pearson v. Callahan, 555 U.S. 223, 236
(2009).5
AFFIRMED.
5
For the first time on appeal, Bennett-Martin argues that the order to cease
talking on her phone was unlawful because section 148(g) provides that “[t]he fact
that a person takes a photograph or makes an audio or video recording of a public
officer or peace officer, while the officer is in a public place . . . does not
constitute, in and of itself, a violation of” section 148(a). But this argument is
waived because it was not raised to the district court, so we decline to consider it.
See, e.g., In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989).
6
FILED
Bennett-Martin v. Plasencia, No. 19-55109
MAR 3 2020
CHRISTEN, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree that Officer Plasencia is entitled to qualified immunity because an
officer in his position could have reasonably concluded that there was probable
cause to arrest Bennett-Martin for violating § 148(a)(1). As the dissent correctly
observes, we do not need a case with identical facts to put an officer on notice that
certain conduct violates established law. See Hope v. Pelzer, 536 U.S. 730, 741
(2002). But here, the controlling case law differentiates between responding to an
officer’s orders “with alacrity” and failing to comply with those orders altogether.1
My view of the record is that Bennett-Martin’s response fell somewhere in
between those two descriptions. Officer Plasencia may have been wrong to
conclude there was probable cause to arrest Bennett-Martin for violating
§ 148(a)(1), but I am not persuaded that his conclusion was unreasonable.
1
Compare Young v. Cty. of L.A., 655 F.3d 1156, 1170 (9th Cir. 2011)
(affirming probable cause to arrest for violation of § 148 because plaintiff failed
“to obey a police officer’s lawful instructions” entirely), with People v. Quiroga,
20 Cal. Rptr. 2d 446, 448 (Ct. App. 1993) (finding insufficient evidence to support
a § 148 violation because defendant “complied slowly” with an officer’s pre-arrest
orders, reasoning “it surely cannot be supposed that Penal Code section 148
criminalizes a person’s failure to respond with alacrity”). See also In re
Muhammed C., 116 Cal. Rptr. 2d 21 (Ct. App. 2002) (concluding a § 148 violation
was supported because “there [was] no mere failure to respond here[;] Appellant
affirmatively responded to the police orders with defiance”).
1
I write separately to address an issue the court does not reach. Bennett-
Martin argues on appeal that Officer Plasencia’s order to end her telephone call
was unlawful. Specifically, she argues that his direction violated her First
Amendment right to record public police activity. We have repeatedly held that
the First Amendment protects an individual’s right to photograph and record
matters of public interest, see Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d
1035, 1044 (9th Cir. 2018), including activities of police officers, Fordyce v. City
of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Bennett-Martin did not record Officer
Plasencia’s conduct, but she did place a call to her mother and at some point she
put the call on speaker phone, to document her encounter with the police and to
ensure that a family member knew what was happening. Bennett-Martin contends
she was on the telephone for five minutes, and concedes that at least some of that
time she was actively talking with her mother. It is easy to understand that an
active conversation would interfere with an officer’s investigation, but to the extent
Bennett-Martin did not speak to her mother and only allowed her to listen, I
question whether there is a meaningful distinction between that action and
recording matters of public interest.
Had Bennett-Martin raised this issue in the district court, we may have had
2
occasion to decide whether Officer Plasencia’s order to hang up was lawful.2 As it
is, the argument cannot be considered in response to Officer Plasencia’s claim of
qualified immunity because it was raised for the first time on appeal.
2
Although we need not reach the issue, I also agree with the dissent that the
facts here do not indicate that Bennett-Martin’s call to her mother presented a
legitimate officer safety concern.
3
FILED
Bennett-Martin v. Plasencia, No. 19-55109
MAR 3 2020
A. MARBLEY, Chief District Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent from my colleagues on the issue of qualified
immunity. I believe they construe the doctrine too narrowly and overlook an
important collateral consequence of their decision. Therefore, I would reverse
the district court’s order granting summary judgment to Officer Jose Plasencia.
As a threshold matter, the Supreme Court has recognized that “officials
can still be on notice that their conduct violates established law even in novel
factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). In fact, the
Court has “expressly rejected a requirement that previous cases be
fundamentally similar.” Id. (internal quotations omitted); see United States v.
Lanier, 520 U.S. 259, 271 (1997) (“[G]eneral statements of the law are not
inherently incapable of giving fair and clear warning, and . . . a general
constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though the very action
in question has [not] previously been held unlawful.”) (internal quotations and
citation omitted). For this reason, the salient question for us is whether the state
of the law on June 3, 2014 gave Officer Plasencia fair warning that his arrest of
Ms. Amina Bennett-Martin for violating California Penal Code section
148(a)(1) was unconstitutional. See Hope, 536 U.S. at 741. I believe section
148(a)(1) itself, and the law surrounding that statue, were sufficiently clear to
place Officer Plasencia on notice. See Cal. Pen. Code § 148(a)(1) (“Every
person who willfully resists, delays, or obstructs any public officer . . . in the
discharge or attempt to discharge any duty of his or her office or employment,”
is guilty of violating the statute.) (emphasis added).
People v. Quiroga, 16 Cal. App. 4th 961 (1993), is the seminal case in
the state of California with respect to violations of California Penal Code
section 148(a)(1). There, the California Court of Appeals analyzed three
separate events to determine whether officers had probable cause to arrest the
appellant for violating section 148(a)(1). Quiroga, 16 Cal. App. 4th at 966 (“In
analyzing the charge of resisting a peace officer, we see distinct constitutional
and statutory issues with respect to (1) appellant’s conduct in the apartment
before his arrest, (2) his refusal to tell his name in the police car and police
station while en route to jail, and (3) his refusal to disclose his identity in the
booking interview at jail.”). My colleagues focus on the first of these three
events while conveniently ignoring the second:
After his arrest, appellant refused to give his name although he was asked
repeatedly for personal identification in the car, and then several times
between there and the police department and at the police department.
[Officer] Stefani testified, “He refused to tell me his name. As I recall,
several times I would ask him his name, and he would say Puddin’ Tane,
ask me again I’ll tell you the same.”
2
Id. at 965. In finding that the officers lacked probable cause to arrest appellant
for refusing to identify himself en route to the police station, the court stressed
that appellant’s conduct “did not delay or obstruct a peace officer in the
discharge of any duty within the meaning of the statute.” Id. at 966. This was
because the arrest had already been effected; hence, “appellant’s
noncooperation did not serve to delay or thwart his lawful detention.” Id.
Furthermore, the court noted that the officers had no compelling reason to need
this information until appellant arrived at the jail and was booked. Id. at 966-
67. The majority takes the position that this analysis in Quiroga is irrelevant
because Officer Plasencia contends Ms. Bennett-Martin’s pre-arrest conduct
delayed or obstructed the discharge of his duties. But as will be discussed
below, Officer Plasencia’s cursory assertion lacks evidentiary support.
Quiroga clearly establishes a rule of law that a violation of section
148(a)(1) requires more than mere noncooperation with an officer’s orders. See
id. That noncooperation must serve to “delay” or “obstruct” an officer in the
lawful discharge of her duties. See Cal. Penal Code § 148(a)(1). The facts in
Quiroga as compared to this case -- a refusal to identify oneself versus a refusal
to hang up a call -- do not make this rule any less applicable or the notice to
officers any less palpable. The important question is whether a reasonable
3
officer in Officer Plasencia’s position would have believed that Ms. Bennett-
Martin’s refusal immediately to hang up her phone call “delayed” or
“obstructed” his “vandalism investigation by several minutes.” The facts in this
case do not support that conclusion.
First, the district court, without thoughtful analysis, concluded that Ms.
Bennett-Martin’s refusal immediately to hang up her phone delayed Officer
Plasencia’s vandalism investigation by several minutes. It is unclear, however,
what type of investigating, if any, Officer Plasencia was conducting at the time
he instructed Ms. Bennett-Martin not to talk on her phone. The only evidence
in the record suggests that he was running a records check. There has been no
discussion regarding what a records check entails, but considering Officer
Plasencia had all the information he needed from Ms. Bennett-Martin to run her
records, it is unclear why he needed her to hang up her phone call, or how
refusing immediately to do so delayed his vandalism investigation by several
minutes.
Second, I am troubled by the notion that Ms. Bennett-Martin’s conduct
created serious safety concerns for Officer Plasencia. Officer Plasencia’s
encounter with Ms. Bennett-Martin took place in broad daylight and at a busy,
public intersection. Further, the record reflects that the person on the phone
4
with Ms. Bennett-Martin during this encounter was her mother. The mere fact
that she provided her mother with her location in response to feeling like she
was being harassed is of no moment. By holding otherwise, my colleagues now
send a signal to officers that they can arrest a young person, merely out of
caution, for providing a parent or guardian with their location during a police
encounter. Moreover, this was not a scenario where Ms. Bennett-Martin, or her
mother, threatened to harm Officer Plasencia. Had that been the case, concerns
about Officer Plasencia’s safety would have been warranted.
Finally, I must emphasize that it was not until after Officer Plasencia’s
vandalism investigation proved fruitless that Ms. Bennett-Martin was
determined to have violated California Penal Code section 148(a)(1). Indeed, at
one point after Ms. Bennett-Martin complied with the orders to hang up her
phone call, the district court found that Officer Plasencia informed her she was
not under arrest, but instead only detained. In my view, this further undercuts
any belief that a reasonable officer in Officer Plasencia’s position would have
thought they had probable cause to arrest Ms. Bennett-Martin for violating
section 148(a)(1).
Accordingly, I respectfully dissent from the majority’s decision.
5