Liberal v. Estrada

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KESNER JUNIOR LIBERAL, 

Plaintiff-Appellee,

v.

EDUARDO R. ESTRADA, individually

and in his capacity as a Menlo

Park police officer; JEFF KEEGAN,

individually and in his capacity as

a Menlo Park police officer;

RICHARD WHEATON, individually

and in his capacity as a Menlo

Park police officer; JAIMEE TASSIO, No. 08-17360

individually and in his official

capacity as a Menlo Park police  D.C. No.

CV 07-0024 SBA

officer; RONALD PRICKETT,

individually and in his capacity as OPINION

a Menlo Park police officer; JAIME

ROMERO, individually and in his

capacity as a Menlo Park police

officer; BARBARA AYRES,

individually and in her capacity as

a Menlo Park police officer,

Defendants-Appellants,

and

CITY OF MENLO PARK,

Defendant.



Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

December 10, 2009—San Francisco, California

923

924 LIBERAL v. ESTRADA

Filed January 19, 2011

Before: A. Wallace Tashima, Susan P. Graber, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Tashima

928 LIBERAL v. ESTRADA

COUNSEL

John L. Flegel, Jorgenson, Siegel, McClure & Flegel, LLP,

Menlo Park, California, for the defendants-appellants.

Anthony Boskovich, Law Offices of Anthony Boskovich, San

Jose, California, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

Plaintiff Kesner Liberal sued the City of Menlo Park

(“City”) and seven of its police officers, individually and in

their official capacities, under 42 U.S.C. § 1983, for violations

of his civil rights arising from a traffic stop and subsequent

events. He also brought several claims under California law

LIBERAL v. ESTRADA 929

against the City and its officers. Defendants filed a motion for

summary judgment, asserting federal qualified immunity and

state statutory immunity. The district court denied several

officers’ claims of qualified immunity on Plaintiff’s § 1983

claims. With regard to the state-law claims, the district court

denied the City and several officers state statutory immunity.

The individual officer-defendants filed this interlocutory

appeal. We dismiss in part, affirm in part, and remand.

FACTUAL BACKGROUND

A. The Initial Traffic Stop

On an October night in 2005, at about 1:40 a.m., Plaintiff,

an African-American male, was acting as the designated

driver for two friends after a night out. His passengers were

Keith Hamilton, who also is African-American, and Tony

Martinez, who is Mexican-American. Plaintiff testified that

his front driver- and passenger-side windows were not tinted

and that they were rolled down and therefore not visible.1 His

rear driver- and passenger-side windows and rear windshield

had a reflective tint. Traffic was light, and Plaintiff was obey-

ing all traffic laws as he traveled north at approximately 30

miles per hour on El Camino Real, an arterial road in Menlo

Park, California.

Officer Estrada was on duty in his patrol car. He was

stopped at a red light in the southbound left-turn lane of El

1

Officer Estrada maintains that Plaintiff’s front driver-side window was

rolled up and illegally tinted. Therefore, he contends, he had probable

cause to stop Plaintiff’s car. Officer Estrada further maintains that,

because the windows were tinted, he could not determine the races of the

car’s occupants before pulling it over. For purposes of qualified immunity

and summary judgment determinations, however, we view all facts in the

light most favorable to Plaintiff, as the nonmoving party. See Saucier v.

Katz, 533 U.S. 194, 201 (2001), overruled in other part by Pearson v. Cal-

lahan, 555 U.S. 223 (2009); Olsen v. Idaho State Bd. of Med., 363 F.3d

916, 922 (9th Cir. 2004). We recount the facts accordingly.

930 LIBERAL v. ESTRADA

Camino Real. Plaintiff testified that Officer Estrada could see

into Plaintiff’s car through the rolled-down front window

because, as Plaintiff passed the police car, the officer “follow-

[ed] [him] with his eyes.”

As Plaintiff continued north, Officer Estrada turned on the

lights of his patrol car, but not its siren, and made a U-turn

through the red light to follow Plaintiff. Not knowing whether

the officer was attempting to pull over his car, but suspecting

that he might be, Plaintiff made a right turn at the next light

while the officer was approximately 300 feet behind him.

Then, almost immediately, Plaintiff made a left turn into an

unlit parking lot behind a walk-up burger stand. He parked

near a dumpster and turned off his headlights. Officer Estrada

followed Plaintiff’s car into the parking lot at high speed. The

officer parked behind Plaintiff and shined his spotlight at the

car.

Officer Estrada testified that he was “agitated,” “a little

pumped up,” and “a little scared” as he approached Plaintiff’s

car with his hand on his gun. He ordered Plaintiff and his pas-

sengers to put their hands up and out of the windows of the

car. They complied. Officer Estrada then requested Plaintiff’s

driver’s license and registration, which Plaintiff provided.

Plaintiff asked why he had been pulled over. In response,

Officer Estrada accused Plaintiff of trying to flee, which

Plaintiff denied.

The police dispatch logs show that Officer Estrada reported

making this traffic stop at 1:43 a.m. Within one minute of that

time, he asked for a DMV check on Plaintiff’s license plate,

called in Plaintiff’s driver’s license and date of birth, reported

that three subjects were trying to flee, and requested backup,

which was dispatched immediately. Officer Keegan, the first

backup officer to arrive on the scene, was there by 1:44:47

a.m. Officer Keegan testified that Plaintiff was “verbally con-

frontational,” making statements such as, “You stopped me

for no reason.” Over the next several minutes, Officers Ayres,

LIBERAL v. ESTRADA 931

Romero, Tassio, and Wheaton, and Sergeant Prickett—

essentially the entire Menlo Park Police watch—arrived on

the scene.

B. Plaintiff and Martinez Are Handcuffed

Throughout the stop, Tony Martinez had been sitting in the

right rear passenger seat, talking on his cell phone. After run-

ning Plaintiff’s information, Officer Estrada approached the

rear passenger window and began yelling at Martinez to get

off the phone.

At that point, Officer Estrada, Officer Keegan, or both,

ordered Plaintiff to get out of his car. There is some uncer-

tainty as to which officer handcuffed Plaintiff or whether one

assisted the other. As Plaintiff began to step out of the car, an

officer grabbed him by the wrist, pulled him out of the car,

spun him around, and pushed him against the rear door of the

car. Plaintiff was shoved against the door with enough force

to rock the car, but the impact did not “knock [his] breath

away.” He was then handcuffed and led to sit on the front

bumper of Officer Keegan’s police car. Officer Estrada asked

Martinez to get out of the car, handcuffed Martinez, and sat

him on the trunk of Plaintiff’s car.

C. The Tape Recording

Officer Estrada continued to yell at Martinez and Plaintiff,

demanding to know why they had tried to flee. At that point,

Plaintiff made comments to the effect that the traffic stop con-

stituted harassment because of his race, that Martinez did not

have to answer Officer Estrada’s questions, and that Plaintiff

was going to contact his lawyer. Officer Keegan then pulled

out an audio recorder, showed it to Plaintiff, and began

recording.

The audio recording reveals that Officer Keegan partially

Mirandized Plaintiff, telling him that “everything you say can

932 LIBERAL v. ESTRADA

and will be used against you in a court of law.” Plaintiff

believed at that time that he was under arrest. Officer Estrada,

not knowing that the conversation was being recorded,

returned to speak to Plaintiff:

[Officer Estrada]: Here’s the deal, ok? This is the

way I do business, ok. If you would have pulled over

and not tried to ditch me [inaudible], ok, then you

and I would have been having a more decent conver-

sation, ok. But you tried to ditch me, I get behind

you, and then you start shooting off your mouth to

me, and then your friends are joining along. I got to

make a decision here.

[Plaintiff]: Um.

[Officer Estrada]: Let me finish.

[Plaintiff]: Yeah, I, that’s why I [inaudible] I thought

you was done sir.

[Officer Estrada]: Don’t interrupt. I need to make, I

need to make a decision here. I’m going to decide

whether I’m going to let three little punks walk all

over me, and the reason I call you punks is you’re

acting that way. I[‘m] gonna have to decide whether

I’m going to let three little punks walk all over me

or whether or not to sit on you real fast and let you

know that I’m the one in charge here, not you, ok.

You understand me? Now, let me explain something

else to you too. You may be able to get away with

smarting off to some of the younger cops, you’re not

going to do that with me and I’ll explain to you why,

ok. Because, since I had no desire to become ser-

geant, I really don’t give a rat’s ass who I piss off.

I don’t care about complaints.

[Plaintiff]: I know you don’t care I can see that.

LIBERAL v. ESTRADA 933

[Officer Estrada]: Ok, so, so, so, it’s a lot of things

in that Penal Code that I could arrest you right now

for if I wanted to, so if I was you, I would just keep

your mouth shut, don’t try to, don’t try to get smart

with me, and we might have a better evening, you

understand me? Do you understand me?

The audio recording captured Officer Estrada repeatedly

accusing Plaintiff of trying to “ditch” him and of lying about

it. Plaintiff denied the officer’s accusations and claimed that

he had made the right turn off El Camino Real, before he real-

ized that Officer Estrada was trying to pull him over, because

that was the way to his friend’s house.

The tape also captures Officer Estrada uncuffing Plaintiff

after requiring Plaintiff to answer verbatim that he would “re-

main a gentleman.” Plaintiff estimates that he was handcuffed

for approximately 25 to 30 minutes during the 45-minute stop.

At one point, Sergeant Prickett told Plaintiff that he was

“just being damn right ignorant” by pulling over into a dark-

ened alley. Sergeant Prickett continued, “I mean stop, stop on

the road because if this officer is not sure what’s going on and

you do something stupid once he comes up on you, it’s very

easy to get shot, you know, his safety is in jeopardy. Really,

especially, you know, doing the whole routine back here.”

D. The Search of Plaintiff’s Car

Plaintiff saw up to six officers searching the area around his

car, including the nearby dumpster. He concluded that they

were looking for drugs. After uncuffing Plaintiff, Officer

Estrada grabbed Plaintiff by the arm, led him to his car, and

asked him whether he owned the car and whether the officers

could search it. Plaintiff answered “yes” to both questions.

Plaintiff was then put, uncuffed, into the back seat of an offi-

cer’s patrol car while his car was searched.

934 LIBERAL v. ESTRADA

Officer Estrada and other officers searched Plaintiff’s car

thoroughly, “turn[ing] everything upside down.” The search

uncovered only a lawfully possessed, unloaded pellet hand-

gun. The discovery of the pellet gun appears to have resulted

in having the second passenger, Hamilton, handcuffed for

about five minutes.

E. The Sobriety Tests and Line-Up

Throughout the stop, Officers Keegan and Estrada ques-

tioned Plaintiff about how much alcohol he had consumed

that night. He answered that he “had probably two beers.”

Officer Estrada administered two nystagmus tests to Plaintiff

and determined that he was not intoxicated.

Plaintiff testified that, at the end of the stop, he and his pas-

sengers were lined up in front of about four officers. Plaintiff

recalls Officer Estrada saying to him, “I wish you were drunk

so I [had] a reason to take you in.” According to Plaintiff,

Officer Estrada then told Martinez, “You know I can get you

for drunk in public.” Martinez protested, saying, “How? You

pulled me out of the back of the car.”

Finally, Officer Estrada advised them that, had they made

a wrong move, he would have “busted a cap” in them right

between the eyes, and that he and his partner liked to go to

“night target practice.” After that, Plaintiff and his passengers

were allowed to leave. Plaintiff was never told why Officer

Estrada initially pulled him over, and no one was cited for any

violation.

PROCEDURAL BACKGROUND

Plaintiff brought the present action, alleging claims under

both federal and state law arising from the foregoing events.

Defendants moved for summary judgment on the ground that

they had immunity from suit on all claims. The district court

granted their motion in part and denied it in part. The individ-

LIBERAL v. ESTRADA 935

ual officers appeal the district court’s order to the extent that

any officer was denied summary judgment on any claim.2

Plaintiff does not appeal.3 The City does not appeal.4

A. Partial Denial of Summary Judgment for Federal Claims

The district court denied Officer Estrada qualified immu-

nity for the traffic stop because, construing the facts in Plain-

tiff’s favor, there was neither probable cause for the stop nor

reasonable suspicion of illegal activity. The officer’s determi-

nation that Plaintiff’s windows were rolled up and tinted did

not qualify as a “reasonable mistake,” considering Plaintiff’s

testimony that the windows were rolled down and therefore

2

In their opening brief, the individual officer-defendants presented no

argument on their own behalf concerning the claims for intentional inflic-

tion of emotional distress, negligence, and negligent infliction of emo-

tional distress. Accordingly, those issues are waived, see Eberle v. City of

Anaheim, 901 F.2d 814, 818 (9th Cir. 1990), and we do not consider them.

Only the issue of state statutory immunity with regard to the false impris-

onment claim remains.

3

The district court granted summary judgment to all individual defen-

dants except Officer Estrada with regard to the traffic stop, and to all indi-

vidual defendants except Officers Estrada and Keegan for handcuffing

Plaintiff. The court also granted summary judgment to Officers Keegan,

Romero, and Ayres for the search of Plaintiff’s car. It further granted sum-

mary judgment to all individual defendants with regard to Plaintiff’s

claims for race discrimination under the Equal Protection Clause of the

Fourteenth Amendment and for excessive force under the Fifth Amend-

ment’s Due Process Clause. Moreover, the court granted summary judg-

ment to the City on Plaintiff’s § 1983 claims under Monell v. Department

of Social Services, 436 U.S. 658 (1978). Those rulings are not before us.

4

The City argued before the district court that it was entitled to immu-

nity to the same extent that its individual officers were immune. In sup-

port, the City pointed to California Government Code section 815.2(b),

which provides: “Except as otherwise provided by statute, a public entity

is not liable for an injury resulting from an act or omission of an employee

of the public entity where the employee is immune from liability.” Accept-

ing the City’s argument, the district court granted summary judgment to

the City to the same extent that it granted the individual officers’ motions

for summary judgment.

936 LIBERAL v. ESTRADA

not visible. The district court further denied qualified immu-

nity to Officers Estrada and Keegan with regard to Plaintiff’s

claims that they used excessive force by handcuffing him in

the absence of any information leading them to believe that he

was potentially dangerous.

As to Plaintiff’s claim that his detention was an unconstitu-

tionally long seizure, the district court denied qualified immu-

nity to all individual defendants. The court explained that it

could not find as a matter of law that the individual defen-

dants, as required by United States v. Sharpe, 470 U.S. 675,

686 (1985), “diligently pursued a means of investigation that

was likely to confirm or dispel their suspicions quickly, dur-

ing which time it was necessary to detain the defendant.”

The district court then denied qualified immunity to various

officers on Plaintiff’s claims arising from the search of his

car. Construing the facts in the light most favorable to Plain-

tiff, the district court concluded that the search of Plaintiff’s

car violated clearly established Fourth Amendment law

because Plaintiff’s consent to the search was not voluntary

and because the traffic stop occurred without probable cause.

Officers Estrada and Wheaton testified that they searched the

car. After being asked whether Defendants Estrada, Tassio, or

Prickett also searched the car, Officer Wheaton responded, “I

think at one point everybody had their hands in something.”

The district court therefore ruled that there was a triable issue

of fact as to whether Defendants Estrada, Wheaton, Tassio,

and Prickett violated Plaintiff’s Fourth Amendment rights in

searching his car. The court granted summary judgment to the

other individual officers who were not implicated in the

search.

The officer-defendants now appeal the denial of summary

judgment, on qualified immunity grounds, as to all federal

claims.

LIBERAL v. ESTRADA 937

B. Partial Denial of Summary Judgment for State-Law

Claims

Plaintiff also brought state-law claims against all individual

officers and the City for false imprisonment, assault, battery,

intentional infliction of emotional distress, negligence, negli-

gent infliction of emotional distress, and a violation of Cali-

fornia Civil Code section 52.1, which provides a private cause

of action for interference with the exercise or enjoyment of

one’s state or federal civil rights.5 The officers contended that

they were immune from those state-law claims because they

have discretionary immunity under California Government

Code section 820.2, which states: “Except as otherwise pro-

5

California Civil Code section 52.1 provides, in relevant part:

(a) If a person or persons, whether or not acting under color of

law, 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, 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.

An action brought by the Attorney General, any district attorney,

or any city attorney may also seek a civil penalty of twenty-five

thousand dollars ($25,000). If this civil penalty is requested, it

shall be assessed individually against each person who is deter-

mined to have violated this section and the penalty shall be

awarded to each individual whose rights under this section are

determined to have been violated.

(b) Any individual whose exercise or enjoyment of rights

secured by the Constitution or laws of the United States, or of

rights secured by the Constitution or laws of this state, has been

interfered with, or attempted to be interfered with, as described

in subdivision (a), may institute and prosecute in his or her own

name and on his or her own behalf a civil action for damages,

including, but not limited to, damages under Section 52, injunc-

tive relief, and other appropriate equitable relief to protect the

peaceable exercise or enjoyment of the right or rights secured.

938 LIBERAL v. ESTRADA

vided by statute, a public employee is not liable for an injury

resulting from his act or omission where the act or omission

was the result of the exercise of the discretion vested in him,

whether or not such discretion be abused.”6

Despite Defendants’ assertion of immunity, the district

court partially denied summary judgment to various officers

on Plaintiff’s state-law claims. With respect to the traffic stop

itself, the district court denied summary judgment to Officer

Estrada on Plaintiff’s claims of false imprisonment, negli-

gence, negligent and intentional infliction of emotional dis-

tress, and a violation of section 52.1. The court also denied

summary judgment to Defendants Estrada, Wheaton, Tassio,

and Prickett on Plaintiff’s claims of negligence, negligent and

intentional infliction of emotional distress, and a violation of

section 52.1, predicated on the search of Plaintiff’s car. The

court denied summary judgment to all individual officers on

Plaintiff’s claims of false imprisonment, negligence, negligent

infliction of emotional distress, and a violation of section

52.1, based on the length of the detention. Finally, the court

denied summary judgment to Officers Estrada and Keegan on

all of Plaintiff’s state-law claims premised on the use of force.

6

The officers also asserted “due care” immunity under California Gov-

ernment Code section 820.4, immunity for peace officers making an arrest

based on probable cause under California Penal Code sections 847(b) and

836.5, lawful privilege to detain under Asgari v. City of Los Angeles, 937

P.2d 273, 281 (Cal. 1997) (clarifying that, in order to establish the tort of

false imprisonment under California law, a confinement must be without

lawful privilege), and privilege to use force under California Penal Code

section 835a. The district court rejected the officers’ assertion of those

immunities with respect to various claims. On appeal, the officers argued

for the first time in their reply brief that the district court erred in denying

the individual officers immunity under California Penal Code sections

836.5 and 847 and California Government Code section 820.4. Because

those issues were not raised in the officers’ opening brief, they have been

waived. See Eberle, 901 F.2d at 818. The officers at no time challenged

the district court’s partial denial of summary judgment on the basis of law-

ful privilege to detain under Asgari, or privilege to use force under Penal

Code section 835a. Therefore, we decline to address those issues.

LIBERAL v. ESTRADA 939

The district court granted summary judgment in favor of all

other individual defendants on all other state-law claims.

In this appeal, the officer-defendants contend that Officers

Estrada and Keegan are entitled to summary judgment as a

matter of law on Plaintiff’s assault and battery claims,

because Plaintiff has not demonstrated that the officers used

unreasonable force or that such force caused him injury, dam-

ages, loss, or harm. The officers further argue that all individ-

ual defendants are entitled to statutory immunity from the

false imprisonment claim under California Government Code

section 820.2.7 Finally, the officers assert that, if the individ-

ual defendants are entitled to qualified immunity under

§ 1983, then they bear no liability under California Civil Code

section 52.1, because liability under the two statutes is coex-

tensive.

STANDARD OF REVIEW

We review de novo the district court’s denial of summary

judgment on the ground of qualified immunity. Act

Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

We must affirm a denial of summary judgment when, viewing

the evidence in the light most favorable to the nonmoving

party, there remain genuine issues of material fact or when the

uncontroverted facts establish that the moving party is not

entitled to prevail as a matter of law. Olsen v. Idaho State Bd.

of Med., 363 F.3d 916, 922 (9th Cir. 2004). “The determina-

tion of immunity is a question of law, which we review de

novo.” Id.

7

The officers also assert immunity for the City under California Govern-

ment Code section 815 with respect to Plaintiff’s claims of negligence,

negligent infliction of emotional distress, and intentional infliction of emo-

tional distress. We do not reach that argument because only the individual

defendants have appealed; they cannot claim an immunity that protects

only the City.

940 LIBERAL v. ESTRADA

JURISDICTION8

[1] A court of appeals has jurisdiction over appeals from

“final” orders. 28 U.S.C. § 1291. But as the Supreme Court

explained in Mohawk Industries, Inc. v. Carpenter, 130 S. Ct.

599, 605 (2009):

This Court . . . has long given § 1291 a practical

rather than a technical construction. . . . [T]he statute

encompasses not only judgments that terminate an

action, but also a small class of collateral rulings

that, although they do not end the litigation, are

appropriately deemed “final.”

(Internal quotation marks and citation omitted.) “Ordinarily a

denial of a motion for summary judgment is not a final order

and thus [is] not appealable.” Abend v. MCA, Inc., 863 F.2d

1465, 1482 n.20 (9th Cir. 1988). In Mitchell v. Forsyth, 472

U.S. 511, 530 (1985), however, the Supreme Court held that

“a district court’s denial of a claim of qualified immunity, to

the extent that it turns on an issue of law, is an appealable

‘final decision’ within the meaning of . . . § 1291 notwith-

standing the absence of a final judgment.” In so holding, the

Court reasoned that, because qualified immunity “is an immu-

nity from suit rather than a mere defense to liability[,] . . . it

is effectively lost if a case is erroneously permitted to go to

trial.” Id. at 526. Thus, whether a denial of an immunity is

immediately appealable turns on whether the immunity at

issue is an immunity from suit or only a defense to liability.

[2] We clearly have jurisdiction to review the district

court’s order denying the officers qualified immunity with

respect to Plaintiff’s federal claims. Mitchell held that such

jurisdiction lies under § 1291. Id. at 530.

8

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331,

1343(a)(3), and 1367(a).

LIBERAL v. ESTRADA 941

[3] We cannot, however, exercise jurisdiction over the

appeal from the denial of summary judgment to Officers

Estrada and Keegan on Plaintiff’s state-law claims for assault

and battery. Essentially, the officers disagree with the district

court’s interpretation of the facts. Because the officers appeal

from an ordinary denial of summary judgment on those

claims, as opposed to a denial of immunity, that section of the

order is not an appealable final judgment under § 1291. We

therefore dismiss the officers’ appeal with respect to the

assault and battery claims.

[4] We turn, then, to the officers’ appeal from the district

court’s denial of immunity under California Government

Code section 820.2 with respect to Plaintiff’s false imprison-

ment claim. We agree with our sister circuits that the avail-

ability of an appeal depends on whether, under state law, the

immunity functions as an immunity from suit or only as a

defense to liability. See Chesher v. Neyer, 477 F.3d 784, 793

(6th Cir. 2007) (“An order denying statutory immunity is

immediately appealable only if the state law provides immu-

nity from suit, as opposed to immunity simply from liabili-

ty.”); Aspen Orthopaedics & Sports Med., LLC v. Aspen

Valley Hosp. Dist., 353 F.3d 832, 837-38 (10th Cir. 2003)

(same); Gray-Hopkins v. Prince George’s County, 309 F.3d

224, 231-32 (4th Cir. 2002) (same); Sheth v. Webster, 145

F.3d 1231, 1236-38 (11th Cir. 1998) (per curiam) (same);

Walton v. City of Southfield, 995 F.2d 1331, 1343 (6th Cir.

1993) (same), superseded by statute as stated in Livermore ex

rel. Rohm v. Lubelan, 476 F.3d at 397, 407-08 (6th Cir.

2007); Griesel v. Hamlin, 963 F.2d 338, 339-41 (11th Cir.

1992) (per curiam) (same); Napolitano v. Flynn, 949 F.2d

617, 621 (2d Cir. 1991) (same); Brown v. Grabowski, 922

F.2d 1097, 1106-09 (3d Cir. 1990) (same); Sorey v. Kellett,

849 F.2d 960, 962-63 (5th Cir. 1988) (same); Marrical v.

Detroit News, Inc., 805 F.2d 169, 172-74 (6th Cir. 1986) (per

curiam) (same).

[5] The reasoning of our sister circuits on this point is

straightforward. Under Erie Railroad Co. v. Tompkins, 304

942 LIBERAL v. ESTRADA

U.S. 64 (1938), federal procedure governs the appealability of

an order. Marrical, 805 F.2d at 172; accord Budinich v. Bec-

ton Dickinson & Co., 486 U.S. 196, 198-99 (1988). A denial

of summary judgment is immediately appealable when the

immunity is an immunity from suit, but not when it is a mere

defense to liability. Mitchell, 472 U.S. at 526. Accordingly, a

denial is immediately appealable when “the state has extended

an underlying substantive right to the defendant official to be

free from the burdens of litigation.” Marrical, 805 F.2d at

172.

[6] Applying that standard, we hold that the district court’s

denial of immunity under California Government Code sec-

tion 820.2 is a final appealable decision within the meaning

of § 1291. Although the question is not free from doubt, we

conclude that, under California law, section 820.2 confers

immunity from suit.

First, California case law suggests that section 820.2 pro-

vides immunity from suit, rather than mere immunity from

liability. For example, the California Supreme Court has

stated that the California Tort Claims Act (“Act”), which is

codified in part at California Government Code section 820.2,

“generally affords a public employee personal immunity from

suit.” Caldwell v. Montoya, 897 P.2d 1320, 1322 (Cal. 1995)

(emphasis added). The court also observed that “the . . . Act

expressly allows public employees to engage in certain acts

and omissions free of suit.” Id. at 1331 (emphasis added).9

9

Additionally, the California Supreme Court wrote:

We do not mean to suggest that a high official’s public expla-

nation of the reasons for his basic policy decision should be

immune from suit if his comments are themselves actionable

unless privileged. We merely express concern that public com-

mentary might be discouraged by allowing suits in which such

commentary would provide evidence of the allegedly impermissi-

ble motives behind the basic policy decision.

Caldwell, 897 P.2d at 1327 n.4 (emphases added) (citations and original

emphases omitted).

LIBERAL v. ESTRADA 943

In another case, the California Supreme Court noted that,

if the defendants’ “contention [of immunity under section

820.2] were sound, the individual defendants would be

immune from suit.” Ramos v. County of Madera, 484 P.2d 93,

98 (Cal. 1971) (emphasis added). That court also has

explained that section 820.2 protects officials’ decisions

“which are sufficiently sensitive to justify a blanket rule that

courts will not entertain a tort action alleging that careless

conduct contributed to the governmental decision.” Johnson

v. State, 447 P.2d 352, 360-61 (Cal. 1968) (emphasis added).

Taken at face value, the California Supreme Court’s state-

ments suggest that the statutory immunity is an immunity

from suit.

Second, although California’s procedural rules concerning

appealable orders do not allow interlocutory appeals from

denials of immunity, Cal. Civ. Proc. Code § 904.1(a), Califor-

nia’s strict statutory classification of appealable orders has

been relaxed by “the great expansion of the concept of excess

of jurisdiction, allowing the prompt prevention of some

unwarranted orders by writ of prohibition” and “[b]y permit-

ting review of nonappealable orders by writ of mandamus.”10

9 B.E. Witkin, California Procedure, Appeal § 88 (5th ed.

2008). California courts sometimes have used these extraordi-

nary writs to review otherwise nonappealable orders involv-

ing immunity claims under the Act. See, e.g., Jacqueline T. v.

Alameda Cnty. Child Protective Servs., 66 Cal. Rptr. 3d 157,

162-63 (Ct. App. 2007) (discussing the reviewing court’s pre-

vious grant of a writ of mandate reversing the trial court’s

denial of defendants’ statutory immunity claims at the sum-

mary judgment stage).

Third, the policy underlying the Act suggests that section

820.2 confers immunity from suit. In Caldwell, 897 P.2d at

10

California’s procedural treatment of interlocutory orders involving

section 820.2 is instructive as to the nature and scope of the immunity

under state law, even though federal procedure governs here.

944 LIBERAL v. ESTRADA

1327, and in Johnson, 447 P.2d at 360-61, the California

Supreme Court cautioned that allowing suits against public

employees might interfere with governmental decision-

making. Moreover, in Barner v. Leeds, 13 P.3d 704, 709 (Cal.

2000), the court wrote:

Immunity is reserved for those basic policy decisions

which have been expressly committed to coordinate

branches of government, and as to which judicial

interference would thus be unseemly. Such areas of

quasi-legislative policy-making are sufficiently sen-

sitive to call for judicial abstention from interference

that might even in the first instance affect the coordi-

nate body’s decision-making process.

(Internal quotation marks, citations, and alterations omitted.)

The court thus articulated one of the “general costs of subject-

ing officials to the risks of trial—. . . inhibition of discretion-

ary action.” Mitchell, 472 U.S. at 526 (internal quotation

marks omitted).

[7] Those considerations lead us to conclude that we have

appellate jurisdiction to review the district court’s denial of

statutory immunity under California Government Code sec-

tion 820.2, because this section functions as an immunity

from suit. But the question under California Civil Code sec-

tion 52.1 is different. The officers’ only argument with

respect to section 52.1 pertains to the extent of their liability

—that is, whether it is coextensive with federal liability. This

section does not create an entitlement to immunity from suit.

Therefore, the district court’s rulings under section 52.1 are

not presently appealable.

In summary, we have jurisdiction to review the denial of

summary judgment, on grounds of qualified immunity, with

respect to Plaintiff’s federal claims. We also have jurisdiction

to review the denial of summary judgment, on the ground of

discretionary immunity under section 820.2, with respect to

LIBERAL v. ESTRADA 945

Plaintiff’s state-law claim of false imprisonment. We turn

now to a consideration of those issues on the merits.

DISCUSSION

A. The Traffic Stop

We affirm the district court’s denial of summary judgment

on the ground of qualified immunity to Officer Estrada for the

initial traffic stop. Qualified immunity shields government

officers from the burdens of litigation “as long as their actions

could reasonably have been thought consistent with the rights

they are alleged to have violated.” Anderson v. Creighton, 483

U.S. 635, 638 (1987). An officer is entitled to qualified immu-

nity if, “[t]aken in the light most favorable to the party assert-

ing the injury, . . . the facts alleged [do not] show the officer’s

conduct violated a constitutional right” or if the right violated

was not clearly established at the time of the violation. Sau-

cier, 533 U.S. at 201. We may “exercise [our] sound discre-

tion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the cir-

cumstances in the particular case at hand.” Pearson, 129 S.

Ct. at 818.

[8] Viewing the facts in the light most favorable to Plain-

tiff, Officer Estrada violated Plaintiff’s clearly established

constitutional right to be free from unreasonable seizures by

initiating a traffic stop without having a reasonable suspicion

that Plaintiff was engaged in illegal activity. We must assume

that Plaintiff’s front windows were rolled down, and therefore

not visible to Officer Estrada at the time he initiated the traffic

stop. In those circumstances, Officer Estrada’s determination

that Plaintiff’s windows were both rolled up and visibly tinted

resulted from a mistake of fact. This mistake of fact, accord-

ing to Officer Estrada, led him to conclude that the condition

of Plaintiff’s car violated California Vehicle Code sections

26708 and 26708.5(a).11 Officer Estrada therefore decided that

he had reasonable suspicion to initiate a traffic stop.

11

California Vehicle Code section 26708 provided, at the time of the

traffic stop, in relevant part:

946 LIBERAL v. ESTRADA

“It has been settled law since the 1970’s that in order for

a police officer to initiate an investigatory stop of a motorist,

there must at least exist reasonable suspicion that the motorist

is engaging in illegal activity.” Bingham v. City of Manhattan

Beach, 341 F.3d 939, 948 (9th Cir. 2003), abrogated on other

grounds by Virginia v. Moore, 553 U.S. 164 (2008), as recog-

nized in Edgerly v. City of San Francisco, 599 F.3d 946, 956

n.14 (9th Cir. 2010). In order to form a reasonable suspicion,

an officer must have “specific, articulable facts which,

together with objective and reasonable inferences, form the

basis for suspecting that the particular person detained is

engaged in criminal activity.” United States v. Lopez-Soto,

205 F.3d 1101, 1105 (9th Cir. 2000) (internal quotation marks

omitted).

Even if an officer makes a mistake of fact, that mistake

“will not render a stop illegal, if the objective facts known to

(a)(1) A person shall not drive any motor vehicle with any

object or material placed, displayed, installed, affixed, or applied

upon the windshield or side or rear windows.

....

(b) This section does not apply to any of the following:

....

(4) Side windows that are to the rear of the driver.

....

(8) The rear window or windows, if the motor vehicle is

equipped with outside mirrors on both the left- and right-hand

sides of the vehicle that are so located as to reflect to the driver

a view of the highway through each mirror for a distance of at

least 200 feet to the rear of the vehicle.

California Vehicle Code section 26708.5(a) provides:

No person shall place, install, affix, or apply any transparent

material upon the windshield, or side or rear windows, of any

motor vehicle if the material alters the color or reduces the light

transmittance of the windshield or side or rear windows, except

as provided in subdivision (b), (c), or (d) of Section 26708.

LIBERAL v. ESTRADA 947

the officer gave rise to a reasonable suspicion that criminal

activity was afoot.” United States v. Mariscal, 285 F.3d 1127,

1131 (9th Cir. 2002). As the Supreme Court has recognized:

[I]t is inevitable that law enforcement officials will

in some cases reasonably but mistakenly conclude

that probable cause is present. In such cases those

officials should not be held personally liable. The

qualified immunity standard gives ample room for

mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.

Rodis v. City of San Francisco, 558 F.3d 964, 970-71 (9th Cir.

2009) (internal quotation marks, citations, and alterations

omitted), cert. denied, 130 S. Ct. 1050 (2010). “Nevertheless,

an officer’s belief in a mistaken fact must be held reasonably

and in good faith.” United States v. Miguel, 368 F.3d 1150,

1154 (9th Cir. 2004) (internal quotation marks omitted); see

United States v. Dorais, 241 F.3d 1124, 1130-31 (9th Cir.

2001) (holding that it was a reasonable mistake of fact for an

officer to pull over a rental car for being stolen when the

rental car company had reported it stolen, even though it was

still actually a few hours short of being 48 hours overdue and

therefore was not yet considered stolen under state law).

[9] Because we hold that Officer Estrada’s mistake of fact

was not reasonable, he is not entitled to qualified immunity.

Officer Estrada asks us to conclude that it is a reasonable mis-

take to believe that windows that are rolled down and that

cannot be viewed at all are in fact rolled up and tinted. This

we cannot do. The qualified immunity standard is not so def-

erential to officers that it will allow a “chimera created by [an

officer’s] imaginings [to] be used against the driver.” Maris-

cal, 285 F.3d at 1130; see Bingham, 341 F.3d at 946-48

(denying summary judgment on the basis of qualified immu-

nity where the plaintiff testified that he had broken no traffic

laws, but officer testified that he had seen the plaintiff drive

across lane lines). Construing the facts in the light most favor-

948 LIBERAL v. ESTRADA

able to Plaintiff, we must assume that Officer Estrada could

not have seen Plaintiff’s front car windows at all and that,

indeed, the two made eye contact through the open windows.

That being so, it would not be reasonable for Officer Estrada

to believe that he had seen illegally tinted front windows.

[10] The officer-defendants also argue that Officer Estrada

had reasonable suspicion to stop and detain Plaintiff because

the officer reasonably believed that Plaintiff was trying to

avoid him by making several turns and then parking next to

a dumpster in a darkened alley. In some circumstances, a sus-

pect’s unprovoked, headlong flight can support an officer’s

reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124

(2000). But avoidance of the police, standing alone, does not

give rise to a particularized, reasonable suspicion that a per-

son is committing a crime. Id. “[W]hen an officer, without

reasonable suspicion or probable cause, approaches an indi-

vidual, the individual has a right to ignore the police and go

about his business.” Id. at 125 (citing Florida v. Royer, 460

U.S. 491, 498 (1983)). As discussed above, Officer Estrada

did not have reasonable suspicion to initiate the stop: Plaintiff

had violated no traffic laws, and he did not engage in head-

long flight upon seeing Officer Estrada. Thus, even if Officer

Estrada reasonably suspected that Plaintiff was avoiding him,

such noncooperation, without more, does not support a suspi-

cion that Plaintiff was engaged in criminal activity. We there-

fore affirm the district court’s denial of qualified immunity to

Officer Estrada for the initial traffic stop.

B. Excessive Force Claims

We affirm the district court’s denial of summary judgment

on the ground of qualified immunity to Officers Estrada and

Keegan for claims of excessive force. We agree with the dis-

trict court’s observation that “some of the evidence supports

defendants’ contention that they had legitimate safety and

security concerns, [but] the facts construed in [Plaintiff’s]

favor[ ] fail to show any basis for the initial stop, the hand-

LIBERAL v. ESTRADA 949

cuffing, or Officer Estrada’s remarks directed to [Plaintiff].”

The district court correctly noted that “there is no mistake of

law which immunizes an officer for applying force to a sus-

pect for ‘smarting off,’ nor to one detained without probable

cause or reasonable suspicion.”

[11] In the germinal case of Terry v. Ohio, the Supreme

Court held that “an investigatory stop (temporary detention)

and frisk (patdown for weapons) may be conducted without

violating the Fourth Amendment’s ban on unreasonable

searches and seizures” when two requirements are met. Ari-

zona v. Johnson, 129 S. Ct. 781, 784 (2009) (discussing Terry

v. Ohio, 392 U.S. 1 (1968)). “First, the investigatory stop

must be lawful. . . . Second, to proceed from a stop to a frisk,

the police officer must reasonably suspect that the person

stopped is armed and dangerous.” Id.

The first Terry condition was not met in this case; the traf-

fic stop was unlawful because it did not rest on a reasonable

suspicion that a violation of law had occurred. Therefore, it

would not have been reasonable for Officers Estrada or Kee-

gan to stop and frisk Plaintiff, let alone use physical force to

extract him from his car, shove him against its door, and

handcuff him for about half an hour.

The officers argue that the use of force was justified

because Plaintiff turned a corner and then pulled over into a

darkened alley near a dumpster. This maneuver led the offi-

cers to “believe[ ] that the Plaintiff had attempted to purposely

evade Officer Estrada in an effort to cover up criminal activity

and dispose of contraband.” But Plaintiff’s avoidance of the

police did not convert the initial stop into a legal seizure, nor

did it render the level of force, used later, reasonable as a mat-

ter of law.

To determine whether the force used was objectively rea-

sonable under the Fourth Amendment, we must “balanc[e] the

‘nature and quality of the intrusion’ on a person’s liberty with

950 LIBERAL v. ESTRADA

the ‘countervailing governmental interests at stake.’ ” Smith v.

City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc)

(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

Thus, “[w]e first assess the quantum of force used to

arrest [the plaintiff]” and then “measure the govern-

mental interests at stake by evaluating a range of fac-

tors.” Factors we consider in assessing the

government interests at stake include “[1] the sever-

ity of the crime at issue, [2] whether the suspect

poses an immediate threat to the safety of the offi-

cers or others, and [3] whether he is actively resist-

ing arrest or attempting to evade arrest by flight.”

Courts may also consider “the availability of alterna-

tive methods of capturing or subduing a suspect.”

Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir.

2007) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1279-80

(9th Cir. 2001); Graham, 490 U.S. at 396; Smith, 394 F.3d at

701)).

[12] In this case, the use of force against Plaintiff occurred

after he had complied with Officer Estrada’s requests for his

driver’s license and registration. A check on his driver’s

license and license plate numbers revealed nothing untoward.

Plaintiff did not pose an immediate threat to anyone’s safety

and was complying with the officer’s request to step out of his

car. Although Officer Estrada may have thought that Plain-

tiff’s choice of location in which to pull over was evasive, he

was not “actively” attempting to evade arrest by flight. There

was no evidence to suggest that Plaintiff was either armed or

dangerous. Construing the facts in favor of Plaintiff, the use

of force was not reasonable and violated clearly established

constitutional law. Therefore, Officers Estrada and Keegan

are not entitled to qualified immunity.

C. The Duration of the Detention

[13] We affirm the district court’s denial of summary judg-

ment to all individual defendants on the ground of qualified

LIBERAL v. ESTRADA 951

immunity for the length of Plaintiff’s detention. At the time

of his detention, the law was clearly established that a pro-

longed seizure without a valid investigatory purpose was

unreasonable in violation of the Fourth Amendment. See

Royer, 460 U.S. at 500 (“[A]n investigative detention must be

temporary and last no longer than is necessary to effectuate

the purpose of the stop.”). Although the Supreme Court has

recognized that some investigatory stops made under Terry

may be reasonable even if they are longer than the “momen-

tary one[ ]” involved in that case, “the brevity of the invasion

of the individual’s Fourth Amendment interests is an impor-

tant factor in determining whether the seizure is so minimally

intrusive as to be justifiable on reasonable suspicion.” United

States v. Place, 462 U.S. 696, 709 (1983).

[14] We have held that “[t]he critical inquiry is whether

the officers ‘diligently pursued a means of investigation that

was likely to confirm or dispel their suspicions quickly, dur-

ing which time it was necessary to detain the defendant.’ ”

United States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir.

1996) (quoting Sharpe, 470 U.S. at 686). In this case, Plaintiff

testified that he was detained for 45 minutes, during which he

was in handcuffs for 25 to 30 minutes.12

The officers argue that there is no bright-line constitutional

rule that investigatory stops of a certain duration are automati-

cally unreasonable. They point out that, in Torres-Sanchez, 83

F.3d at 1128-29, we held a detention of 20 minutes to be rea-

sonable under the circumstances presented in that case. The

officers therefore contend that they are entitled to qualified

immunity because, at the time Plaintiff was detained, the law

was unclear as to how much longer than 20 minutes a suspect

could be detained before the detention became unconstitution-

ally unreasonable.

12

Although the officers assert that the detention lasted only 28 minutes,

we again must construe the facts in the light most favorable to Plaintiff.

952 LIBERAL v. ESTRADA

The officers misconstrue our holding in Torres-Sanchez.

We did not hold in that case that all detentions of 20 minutes

are per se reasonable. Taken to its logical end, the officers’

argument would have us hold that, because the Supreme

Court has declined to set a bright-line maximum time limit for

investigatory stops, Sharpe, 470 U.S. at 685-86, qualified

immunity must be granted for all claims of excessively

lengthy detention following an investigatory stop. Just

because the required analysis in this case involves a fact-

intensive determination of reasonableness, rather than appli-

cation of a bright-line rule, does not mean that there are no

situations in which clearly established constitutional viola-

tions can occur.

The legal test for deciding whether the length of a detention

was unreasonable in violation of the Fourth Amendment was

clearly established at the time that the officers detained Plain-

tiff, and we apply it here. In evaluating the reasonableness of

the length of Plaintiff’s detention, we “take care to consider

whether the police [we]re acting in a swiftly developing situa-

tion” and emphasize that we “should not indulge in unrealistic

second-guessing” of the officers’ actions. Id. at 686. We also

consider whether “a suspect’s actions contribute to the added

delay about which he complains.” Id. at 688. Finally, we

determine whether “[i]n attempting to confirm or dispel his

suspicions of illegal activity, [the officer] used . . . threats of

force, unnecessary delays, exaggerated displays of authority

or other coercive tactics.” Torres-Sanchez, 83 F.3d at 1129.

In this case, Officer Estrada had checked Plaintiff’s license

with dispatch 36 seconds after the stop. The officers argue,

however, that they had reasonable suspicion to detain Plaintiff

for a longer duration than would have been justified by a

minor traffic stop for tinted windows alone. They contend

that, “once Plaintiff failed to pull over on El Camino Real, but

took evasive action to avoid Officer Estrada and parked in [a]

darkened parking area adjacent to a darkened all[e]y, what

started out as a minor traffic stop turned into something far

LIBERAL v. ESTRADA 953

different.” The officers contend that the prolonged detention

was caused by Plaintiff’s evasive action because it led them

to believe that Plaintiff was disposing of drugs in a nearby

dumpster and caused them to conduct a search in which they

otherwise would not have engaged.

Plaintiff’s behavior—pulling over into a darkened parking

lot behind a building and turning off his car’s lights—

certainly played a part in prolonging his detention. But even

taking into account the inevitable investigatory delay caused

by that behavior, the length of Plaintiff’s detention was still

unreasonable. Within five minutes of the traffic stop, a total

of at least six additional officers had arrived at the scene to

help search the area. Officers had removed Plaintiff and his

passenger Martinez from the car, handcuffed them, and deter-

mined that they were not carrying any weapons. Most impor-

tantly, the partial audio recording of the stop reveals that

Officer Estrada and his colleagues were not diligently pursu-

ing a means of investigation that was likely to confirm or dis-

pel their suspicions quickly. The recording establishes that the

officers were not interrogating Plaintiff about his suspected

possession or disposal of drugs. During the 15 minutes of the

recording, they did not ask him about drugs even once. Nor

did they inquire about the allegedly tinted windows that

served as the pretext for the stop.

[15] Plaintiff contends that he was detained not as part of

an investigative stop, but for an “attitude adjustment.” The

facts, seen in the light most favorable to him, support that

conclusion. The prolonged detention was not for a valid

investigatory purpose. The officers were not waiting for

backup. They were not waiting for investigatory checks to be

run or asking Plaintiff questions that would confirm or dispel

their suspicions quickly (or at all). The officers knew every-

thing that they needed to know within five to ten minutes of

the stop’s initiation. Construing the facts in the light most

favorable to Plaintiff, the delay occurred because, as Officer

Estrada stated, he did not want to “let three little punks walk

954 LIBERAL v. ESTRADA

all over [him].” Officer Estrada told Plaintiff that he wanted

to “let [Plaintiff] know that I’m the one in charge here, not

you.” Prolonging a detention merely to engage in an “exag-

gerated display[ ] of authority” is unreasonable and unconsti-

tutional. Torres-Sanchez, 83 F.3d at 1129.

Reaching this conclusion does not require us to engage in

“unrealistic second-guessing” of the officers at the scene.

Sharpe, 470 U.S. at 686. Officer Estrada himself evidenced an

understanding that his behavior was unreasonable, when he

said, “I don’t care about complaints.”

[16] We therefore hold that an objectively reasonable offi-

cer responding to the scene of Plaintiff’s detention would

have known that its duration of 45 minutes without probable

cause, during which the officers were not diligently pursuing

their investigation was an unlawful detention of unreasonable

duration in violation of clearly established Fourth Amend-

ment law. We therefore affirm the district court’s denial of

summary judgment on the ground of qualified immunity with

respect to Plaintiff’s length-of-detention claims against all of

the individual officers who responded to the scene.

D. The Search of the Car

We affirm the district court’s denial of summary judgment

on the ground of qualified immunity to the officers who par-

ticipated in the search of Plaintiff’s car. Construing the facts

in the light most favorable to Plaintiff, his consent to the

search was not voluntary and the search of his car was there-

fore unconstitutional. Plaintiff’s Fourth Amendment right to

be free of warrantless searches executed pursuant to nonvol-

untary consent was clearly established at the time of the traf-

fic stop. No reasonable officer would have believed the search

to be lawful under that established law.

[17] In the foundational case of Schneckloth v. Busta-

monte, 412 U.S. 218, 228 (1973), the Supreme Court held:

LIBERAL v. ESTRADA 955

[T]he Fourth . . . Amendment[ ] require[s] that a

consent not be coerced, by explicit or implicit

means, by implied threat or covert force. For, no

matter how subtly the coercion was applied, the

resulting “consent” would be no more than a pretext

for the unjustified police intrusion against which the

Fourth Amendment is directed.

The factors to be considered in determining whether consent

to a search was voluntary were also clearly established at the

time of the traffic stop. Those factors include: “(1) whether

defendant was in custody; (2) whether the arresting officers

had their guns drawn; (3) whether Miranda warnings were

given; (4) whether the defendant was notified that she had a

right not to consent; and (5) whether the defendant had been

told a search warrant could be obtained.” United States v.

Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 2004) (internal

quotation marks omitted). “No one factor is determinative in

the equation . . . but ‘many of this court’s decisions upholding

consent as voluntary are supported by at least several of the

factors.’ ” Id. (quoting United States v. Chan-Jimenez, 125

F.3d 1324, 1327 n.3 (9th Cir. 1997)). Because each factual

situation surrounding consent to a search is unique, we may

also take into account any other factors that we deem relevant.

See, e.g., id. (weighing a threat from police to take away

defendant’s children in determining whether her consent to

search was coerced or voluntary).

The district court found that three of the five established

factors weighed in favor of a finding that Plaintiff’s consent

to the search of his car was not voluntary. First, Plaintiff was

in custody; second, only an incomplete Miranda warning was

given; and third, Plaintiff was not notified that he could refuse

the search. The court found that the other two factors weighed

in favor of a voluntariness finding because the officers did not

have their guns drawn and Plaintiff was not advised that a

search warrant could be obtained.

956 LIBERAL v. ESTRADA

Examining the totality of the circumstances surrounding

Plaintiff’s consent, the district court further held that a “rea-

sonable jury could find that [Plaintiff] did not voluntarily con-

sent to a search of his vehicle” because there were seven

police officers present, it was approximately 2 a.m., and the

“officers had control of [Plaintiff’s] vehicle.” Having identi-

fied and applied the five factors used to determine voluntari-

ness, the district court concluded that the alleged facts

established that the officers violated Plaintiff’s clearly estab-

lished Fourth Amendment right against unreasonable

searches. Construing the facts in Plaintiff’s favor, the court

further held that “ ‘it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confront-

ed.’ ” (Quoting Saucier, 533 U.S. at 202.)

The officers analogize this case to Torres-Sanchez, 83 F.3d

at 1129-30, in which we held that consent given to a police

search of the defendant’s car during a traffic stop was volun-

tary. This case, however, is distinguishable. In Torres-

Sanchez, the suspect was asked three times to confirm his

consent to search the car that he was driving. See id. at 1126.

Moreover, he was not subjected to any “threats of force,

unnecessary delays, exaggerated displays of authority or other

coercive tactics” by the sole officer who pulled him over. Id.

at 1129.

This case is more like Chan-Jimenez, 125 F.3d at 1326, in

which we held that the motorist had been seized because the

police officer had retained possession of his driver’s license

and vehicle’s registration. Like Plaintiff, the motorist in

Chan-Jimenez was not handcuffed at the moment that he gave

his oral consent. See id. at 1325. Looking at the totality of the

circumstances, however, we held that the officer had “mani-

fested an intent to restrain [the plaintiff’s] freedom.” Id. at

1326. We further held that the officer’s action of putting his

hand on his gun, without drawing it, “let [the plaintiff] know

that there could be adverse consequences for any failure to

submit to authority. A reasonable person in [the plaintiff’s]

LIBERAL v. ESTRADA 957

position would not have felt free to leave or to ignore the offi-

cer’s presence and go about his business.” Id. Those factors

led us to hold that Chan-Jimenez had been seized at the time

that he gave his consent. Id. at 1327. His seizure, together

“with the fact that the incident took place on a desert high-

way, with nobody else in sight,” led us to conclude that the

officer’s request “would have been viewed by a reasonable

person essentially as a command to allow a search” of his

vehicle. Id.

[18] In this case, the officers’ handcuffing Plaintiff “mani-

fested an intent to restrain [his] freedom.” Id. at 1326. Officer

Estrada also led Plaintiff by the arm to his car before request-

ing his consent, thereby conveying his continued physical

authority. Having already been handcuffed and verbally

berated by Officer Estrada, Plaintiff “kn[e]w that there could

be adverse consequences for any failure to submit to author-

ity. A reasonable person in [Plaintiff’s] position would not

have felt free to leave or to ignore the officer’s presence and

go about his business.” Id. Therefore, we conclude that Plain-

tiff was seized at the time that he gave his consent.

Furthermore, it was late at night, Plaintiff still had not been

told why he was pulled over, and he was surrounded by seven

police officers, some of whom were actively searching the

area around his vehicle. Those facts make it clear that Officer

Estrada’s request that Plaintiff identify the vehicle and that he

provide consent to the search “would have been viewed by a

reasonable person essentially as a command to allow a

search.” Id. at 1327. Our conclusion is bolstered by the fact

that the officers maintained physical control of Plaintiff for a

significant period of time after he gave consent. After obtain-

ing consent, Officer Estrada immediately walked Plaintiff by

the arm back to his patrol car, and another officer placed

Plaintiff in its backseat.

The officers’ argument that they could legally conduct a

protective nonconsensual search of Plaintiff’s car also fails. In

958 LIBERAL v. ESTRADA

Michigan v. Long, 463 U.S. 1032, 1049 (1983), the Supreme

Court held that

the search of the passenger compartment of an auto-

mobile, limited to those areas in which a weapon

may be placed or hidden, is permissible if the police

officer possesses a reasonable belief based on “spe-

cific and articulable facts which, taken together with

the rational inferences from those facts, reasonably

warrant” the officer in believing that the suspect is

dangerous and the suspect may gain immediate con-

trol of weapons.

(quoting Terry, 392 U.S. at 21).13 In that case, the suspect was

intoxicated, had been driving dangerously, and there was a

large knife in plain view inside his car, which the suspect was

about to reenter. Id. at 1050. The present case is not analogous

because there existed no specific and articulable facts that

would reasonably warrant a belief that Plaintiff was danger-

ous or that he might gain immediate control of a weapon.

[19] For those reasons, we hold that Plaintiff’s consent to

the search of his car was not voluntary. Accordingly, the

search was unconstitutional under law that was clearly estab-

lished at the time. We therefore affirm the district court’s

denial of summary judgment to Defendants Estrada, Wheaton,

Tassio, and Prickett on the ground of qualified immunity for

the search of Plaintiff’s car, because there is evidence in the

13

We note, for good measure, that the Supreme Court’s recent decisions

in Arizona v. Johnson, 129 S. Ct. 781 (2009), and Arizona v. Gant, 129

S. Ct. 1710(2009), do not affect the analysis in this case. Johnson

addressed an issue not presented by this case, that is, whether an officer’s

authority to conduct a pat down ends after the officer inquires into matters

unrelated to the justification for the initial traffic stop. 129 S. Ct. at 788.

Gant dealt with a search incident to arrest conducted after the suspect had

been handcuffed and locked in the back of a patrol car. 129 S. Ct. at 1714.

Here, Defendants do not argue the search-incident-to-arrest exception to

the Fourth Amendment’s prohibition against warrantless searches.

LIBERAL v. ESTRADA 959

record to permit a finding that each of those officers was

involved in the unconstitutional search.

E. False Imprisonment and Discretionary Immunity

As to Plaintiff’s false imprisonment claim, the officers

argue that they are entitled to discretionary immunity under

California Government Code section 820.2, which states:

Except as otherwise provided by statute, a public

employee is not liable for an injury resulting from

his act or omission where the act or omission was the

result of the exercise of the discretion vested in him,

whether or not such discretion be abused.

The officers contend that the decision to stop and detain

Plaintiff was within their discretion. We disagree and affirm

the district court’s denial of summary judgment on Plaintiff’s

false imprisonment claim.

[20] As a matter of law, section 820.2 immunity does not

apply to an officer’s decision to detain or arrest a suspect. Gil-

lan v. City of San Marino, 55 Cal. Rptr. 3d 158, 174 (Ct. App.

2007). “A ‘workable definition’ of immune discretionary acts

draws the line between ‘planning’ and ‘operational’ functions

of government.” Caldwell, 897 P.2d at 1325-26 (quoting

Johnson, 447 P.2d at 360.) “Immunity is reserved for those

‘basic policy decisions [which have] . . . been [expressly]

committed to coordinate branches of government,’ and as to

which judicial interference would thus be ‘unseemly.’ ” Gil-

lan, 55 Cal. Rptr. 3d at 174 (alterations in original) (quoting

Johnson, 447 P.2d at 360). A police officer’s decision to

detain or arrest a suspect is “not a basic policy decision, but

only an operational decision by the police purporting to apply

the law.” Id. Thus, the immunity provided by California Gov-

ernment Code § 820.2 does not apply to claims of false

imprisonment or false arrest predicated on an officer’s detain-

ing a suspect without reasonable suspicion or probable cause.

960 LIBERAL v. ESTRADA

See Gillan, 55 Cal. Rptr. 3d at 174 (holding that police offi-

cers were not immune to suit under section 820.2 for a false

arrest claim). We therefore affirm the district court’s denial of

summary judgment on the officers’ claims of discretionary

immunity with regard to Plaintiff’s false imprisonment claim.

CONCLUSION

We affirm the district court’s order denying the officers’

motion for summary judgment on the ground of qualified

immunity with respect to Plaintiff’s § 1983 claims. We also

affirm the district court’s order denying the officers’ motion

for summary judgment on the ground of discretionary immu-

nity under California Government Code section 820.2 with

respect to Plaintiff’s false imprisonment claims. The remain-

ing portions of the officers’ appeal are dismissed. The case is

remanded to the district court for further proceedings.

AFFIRMED in part, DISMISSED in part, and

REMANDED. Costs on appeal awarded to Plaintiff-

Appellee.

TASHIMA, Circuit Judge, concurring in part and dissenting

in part:

I concur in all of Judge Graber’s well-written opinion for

the majority, except its holding “that the district court’s denial

of immunity under California Government Code section 820.2

is a final appealable decision within the meaning of [28

U.S.C.] § 1291,” Maj. Op. at 942, from which I dissent. And,

although I do not disagree with the majority’s reasoning, id.

at 957-58, I would not reach the merits of Defendants’ appeal

from the district court’s denial of their motion for summary

judgment on Plaintiff’s state-law false imprisonment claim

because we lack jurisdiction over that portion of this interloc-

utory appeal. Because, in my view, the district court’s denial

LIBERAL v. ESTRADA 961

of state law immunity to the officer defendants is not a final,

appealable order within the meaning of 28 U.S.C. § 1291, I

would dismiss the appeal of all state law issues for lack of

appellate jurisdiction. I therefore respectfully dissent from the

majority’s assumption of jurisdiction over Defendants’ appeal

on the false imprisonment claim.

I

I agree with the majority that the denial of “immunity”

under state law is not appealable under § 1291 if the immu-

nity at issue is a defense to liability, but is appealable if it is

an immunity from suit. Maj. Op. at 940-42. Here, there is no

persuasive indication that Cal. Gov’t Code § 820.2 provides

anything other than a defense to liability. Interlocutory review

of the district court’s determination of the state-law immunity

issue on summary judgment is therefore unavailable.

A

Adopted in 1963 in response to the California Supreme

Court’s ruling that the general rule of governmental immunity

from tort liability was “mistaken and unjust,” the California

Tort Claims Act (“CTCA”) waived the state’s sovereign

immunity and also eliminated common law liability of public

entities. Muskopf v. Corning Hosp. Dist., 359 P.2d 457, 458

(Cal. 1961) (striking down the general rule of state sovereign

immunity); California Supreme Court in 1968-1969: Govern-

mental Immunity, 58 CAL. L. REV. 303, 305 (1970) (describing

the history of the enactment of the CTCA); see generally 5

B.E. Witkin, SUMMARY OF CAL. LAW, Torts § 222 (10th ed.

2005). Specifically, the CTCA

establishes the basic rules that public entities are

immune from liability except as provided by statute

(§ 815, subd. (a)), that public employees are liable

for their torts except as otherwise provided by statute

(§ 820, subd. (a)), that public entities are vicariously

962 LIBERAL v. ESTRADA

liable for the torts of their employees (§ 815.2, subd.

(a)), and that public entities are immune where their

employees are immune, except as otherwise pro-

vided by statute (§ 815.2, subd. (b)).

Caldwell v. Montoya, 897 P.2d 1320, 1325 (Cal. 1995).

The Act’s legislative history directly supports the conclu-

sion that § 820.2 is a defense to liability, not an immunity

from suit. See Van Arsdale v. Hollinger, 437 P.2d 508, 511

(Cal. 1968) (stating that the contemporaneous comments of

the Law Review Commission and Legislative Committee are

entitled to “substantial weight” in construing the Act). The

Act codified certain immunities from tort liability, including

the immunity for discretionary acts under § 820.2. In codify-

ing that provision, the Legislature made clear that it was not

creating new law but simply maintaining an existing immu-

nity from tort liability for discretionary acts. Id. Legislative

Comm. Comment (“This section restates the pre-existing Cal-

ifornia law. The discretionary immunity rule is restated here

in statutory form to ensure that unless otherwise provided by

statute, public employees will continue to remain immune

from liability for their discretionary acts within the scope of

their employment.” (citations omitted) (emphasis added)).

The main case cited in the Legislative Committee Comment

is Lipman v. Brisbane Elementary Sch. Dist., 359 P.2d 465

(Cal. 1961). In Lipman, the California Supreme Court reiter-

ated the “established” rule “that government officials are not

personally liable for their discretionary acts within the scope

of their authority even though it is alleged that their conduct

was malicious.” Id. at 467 (citations omitted). The statute, and

the cases whose rule it restates, speak about immunity from

personal liability, not immunity from suit. It does so in the

context of the overarching rule that “the rule of governmental

immunity may no longer be invoked to shield a public body

from liability for the torts of its agents.” Id. (citing Muskopf).

In view of this statutory history, it is clear that the Legislature

LIBERAL v. ESTRADA 963

intended a limited immunity from, or defense to, liability, not

a sweeping immunity from suit.

Notably, the state law discretionary acts immunity is virtu-

ally identical to that which the federal government enjoys

under the Federal Tort Claims Act. Compare Cal. Gov’t Code

§ 820.2 (“Except as otherwise provided by statute, a public

employee is not liable for an injury resulting from his act or

omission where the act or omission was the result of the exer-

cise of the discretion vested in him, whether or not such dis-

cretion be abused.”) with 28 U.S.C. § 2680(a) (excepting the

federal government from liability for “Any claim based upon

an act or omission of an employee of the Government . . .

based upon the exercise or performance or the failure to exer-

cise or perform a discretionary function or duty on the part of

a federal agency or an employee of the Government, whether

or not the discretion involved be abused.”). We have held that

federal sovereign immunity has such broad exceptions carved

out of it, that it indicates a legislative intent to surrender the

government’s sovereign right not to be a litigant and “serves

merely to channel litigation into the appropriate avenue for

redress.” Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir.

1995) (holding that the denial of federal sovereign immunity

is not a final order reviewable under § 1291). In Alaska, we

concluded “that, despite the label ‘immunity,’ federal sover-

eign immunity is not best characterized as a ‘right not to stand

trial altogether.’. . . [F]ederal sovereign immunity [i]s more

accurately considered a right to prevail at trial, i.e., a defense

to payment of damages.” Id. at 1355 (discussing Digital

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994);

and Pullman Constr. Indus. v. United States, 23 F.3d 1166,

1169 (7th Cir. 1994)).

The CTCA similarly evinces the California Legislature’s

intent to channel government liability into a statutory scheme,

rather than embrace blanket sovereign immunity from suit.

Cal. Gov’t Code § 815, Legislative Comm. Comments (“there

are many sections providing for the liability of governmental

964 LIBERAL v. ESTRADA

entities under specified conditions . . . . But there is no liabil-

ity in the absence of a statute declaring such liability.”); John-

son v. State, 447 P.2d 352, 363 (Cal. 1968) (“The 1963 Tort

Claims Act did not alter the basic teaching [that] when there

is negligence the rule is liability, immunity is the exception.”)

As with federal sovereign immunity, implementing the state’s

restriction of liability to acts performed outside of a public

employee’s discretion under § 820.2 “is an ordinary task of

statutory interpretation, for which interlocutory appeals are no

more necessary (or appropriate) than they are in the bulk of

. . . litigation.” Alaska, 64 F.3d at 1356.

Further, in contrast to federal qualified immunity, if the

issue of state law immunity is resolved at trial, the immunity

is not “effectively lost.” Mitchell v. Forsyth, 472 U.S. 511,

526 (1985); see Alaska, 64 F.3d at 1357 (“Immediate appeals

are permitted because if officials were unable to obtain

prompt review of denials of qualified immunity, the substance

of the immunity would be lost. That concern is not the foun-

dation of federal sovereign immunity.”). The right bestowed

upon defendants by § 820.2 is a right to be free of liability,

not litigation, and so “may be vindicated effectively after

trial,” such that denial at the summary judgment stage does

not mean it has been “irretrievably lost in the absence of an

immediate appeal.” Alaska, 64 F.3d at 1355; Richardson-

Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985). Because

discretionary acts immunity under § 820.2 functions as “a

defense from liability rather than a right to be free from trial,

the benefits of immunity are not lost if review is postponed.”

Alaska, 64 F.3d at 1356; cf. Ogborn v. City of Lancaster, 124

Cal. Rptr. 2d 238, 246 (Ct. App. 2002) (holding that “[t]he

doctrine of qualified [ ] immunity is a federal doctrine that

does not extend to state tort claims against governmental

employees” under Cal. Civ. Code § 52.1).

The California Legislature’s intent that § 820.2 function

only as a defense to liability and not an immunity from suit

is further evidenced by the fact that it did not provide for

LIBERAL v. ESTRADA 965

immediate interlocutory appellate review of denials of discre-

tionary acts immunity at the demurrer or summary judgment

stages. In other situations, where the Legislature has provided

immunity from suit, it has authorized interlocutory appeals

from denials of dispositive motions to strike. Under Califor-

nia’s Strategic Lawsuits Against Public Participation, Cal.

Civ. Proc. Code § 425.16 (the “anti-SLAPP statute”), “[a]n

order granting or denying a special motion to strike shall be

appealable under Section 904.1.” Cal. Civ. Proc. Code

§ 425.16(j).1 For this reason, we have acknowledged that

“California law recognizes the protection of the anti-SLAPP

statute as a substantive immunity from suit . . . .” Batzel v.

Smith, 333 F.3d 1018, 1025 (9th Cir. 2003).2 Unlike the anti-

SLAPP statute, the CTCA does not authorize interlocutory

appeals from denials of general demurrers or summary judg-

ment motions based on discretionary acts immunity under

§ 820.2.3 This is compelling evidence that the California Leg-

islature in enacting § 820.2 did not seek to provide public

employees with immunity from suit.4 Englert, 551 F.3d at

1106.

1

Cal. Civ. Proc. Code § 904.1(13) provides that an appeal may be taken

from “an order granting or denying a special motion to strike under Sec-

tion 425.16.”

2

In contrast, in Englert v. MacDonell, 551 F.3d 1099, 1105-07 (9th Cir.

2009), we distinguished the Oregon anti-SLAPP statute from the Califor-

nia anti-SLAPP statute on the basis that Oregon did not provide for inter-

locutory appeal of anti-SLAPP orders. “The failure of the Oregon

Legislature to provide for an appeal from the denial of a special motion

to strike provides compelling evidence that, unlike their California coun-

terparts, Oregon lawmakers did not want ‘to protect speakers from the trial

itself’ . . . .” Id. at 1106 (emphasis added) (quoting Batzel, 333 F.3d at

1025).

3

And, unlike the U.S. Supreme Court in Mitchell, 472 U.S. at 525-27,

concerning orders denying qualified immunity, the California Supreme

Court has not equated interlocutory orders denying discretionary acts

immunity under § 820.2 with appealable, final judgments.

4

The majority argues that the occasional review of statutory immunity

claims by way of mandamus somehow alleviates the California Legisla-

ture’s failure to make such orders appealable. Maj. Op. at 943. But such

discretionary review by extraordinary writ in no way indicates a legislative

intent that the “immunity” provided by § 820.2 be an immunity from suit.

966 LIBERAL v. ESTRADA

B

The majority’s reliance on stray, isolated usages of the

phrase “immunity from suit” in a few California cases is

unconvincing. Maj. Op. at 942-43. If, as the majority sug-

gests, these turns of phrase are “taken at face value,” it must

be acknowledged that their use supports either conclusion —

that § 820.2 provides immunity from suit or that it provides

only a defense to liability. The California Supreme Court’s

decision in Caldwell, for example, uses “immunity from suit”

and “immunity from liability” in virtually interchangeable

fashion. E.g., 897 P.2d at 1324-25 (discussing whether “gov-

ernmental entities are generally immune from suit” and then

noting that the CTCA “establishes the basic rule that public

entities are immune from liability except as provided by stat-

ute”) (emphasis added, original emphasis omitted). Whether

the court meant “immunity from suit” or “defense to liability”

is, at best, unclear. The majority’s reliance on Ramos is

equally unconvincing. Maj. Op. at 943 (citing Ramos v.

County of Madera, 484 P.2d 93, 98 (Cal. 1971)). The Ramos

court’s language does nothing more than acknowledge the tru-

ism that if a court concludes that § 820.2 discretionary act

immunity applies at the demurrer stage, the public employee

defendant is effectively shielded from the suit. Ramos, 484

P.2d at 98 (“Defendants urge that their demurrer to the dam-

age actions should be sustained . . . If such a contention were

sound, the individual defendants would be immune from

suit.”). For the same reasons, the single use of the phrase “en-

tertain a suit” in Johnson is equally paltry evidence of legisla-

tive intent to grant broad immunity from suit rather than a

limited defense to liability. See, infra, Part I.C.

The fact that the issue of discretionary acts immunity under

§ 820.2 may sometimes be resolved before trial (as in Ramos)

does not — contrary to the majority’s apparent view — alter

the analysis. The Supreme Court has “repeatedly stressed

that” the collateral order doctrine is a “ ‘narrow’ exception

[which] should stay that way and never be allowed to swallow

LIBERAL v. ESTRADA 967

the general rule.” Digital Equip., 511 U.S. at 868 (quoting

Richardson-Merrell, 472 U.S. at 430).

[V]irtually every right that could be enforced appro-

priately by pretrial dismissal might loosely be

described as conferring a ‘right not to stand trial.’

Allowing immediate appeals to vindicate every such

right would move § 1291 aside for claims that the

district court lacks personal jurisdiction, that the stat-

ute of limitations has run, that the movant has been

denied his Sixth Amendment right to a speedy trial,

that an action is barred on claim preclusion princi-

ples, that no material fact is in dispute and the mov-

ing party is entitled to judgment as a matter of law,

or merely that the complaint fails to state a claim.

Such motions can be made in virtually every case.

Id. at 873. “But if immediate appellate review were available

every such time, Congress’s final decision rule would end up

a puny one.” Id. at 872. Because discretionary acts immunity

under § 820.2 may effectively be granted after trial, an inter-

locutory order denying it is not final. See Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949) (noting that

§ 1291 does not “permit appeals, even from fully consum-

mated decisions, where they are but steps towards final judg-

ment in which they will merge”).

C

The majority’s argument that “the policy underlying the

Act suggests that section 820.2 confers immunity from suit,”

is equally unpersuasive. Maj. Op. at 943. Notwithstanding

that inhibition of discretionary action may be a potential con-

sequence of subjecting public employees to lawsuits, the Cali-

fornia Supreme Court has declared that “fears that personal

exposure to damage suits and judgments would deter the vig-

orous performance of public responsibilities are no longer a

policy basis for immunity.” Caldwell, 897 P.2d at 1325 (dis-

968 LIBERAL v. ESTRADA

cussing Johnson). This is so because the CTCA contains pro-

visions that directly minimize the burden and deterrent effect

of litigation. “To the extent that the ardor of public employees

might be affected by the threat of personal liability, these

fears will be allayed by the indemnification provisions” of the

CTCA rather than through an expansive reading of § 820.2.

Johnson, 447 P.2d at 359 (analyzing Cal. Gov’t Code §§ 825,

825.4). As the Johnson court explained:

Historically, the justification for attaching immunity

to “discretionary” actions of public officials was to

protect such employees from the spectre of extensive

personal tort liability. Judge Learned Hand advanced

the classic articulation of this policy: . . . “[I]f it were

possible in practice to confine such complaints to the

guilty, it would be monstrous to deny recovery. The

justification for doing so is that it is impossible to

know whether the claim is well founded until the

case has been tried, and that to submit all officials,

the innocent as well as the guilty, to the burden of a

trial and to the inevitable danger of its outcome,

would dampen the ardor of all but the most resolute,

or the most irresponsible, in the unflinching dis-

charge of their duties.”

447 P.2d at 358 (quoting Gregoire v. Biddle, 177 F.2d 579,

581 (2d Cir. 1949)); see also Caldwell, 897 P.2d at 1324

(explaining that [t]he historical basis of the [discretionary acts

immunity] rule was that fear of civil lawsuits might deter offi-

cials from the zealous and unflinching discharge or their pub-

lic duties”). Rejecting this policy concern as a basis for an

expansive grant of immunity under § 820.2, the Johnson court

concluded that “California’s statutory provisions for indemni-

fication of public officials largely remove the dangers that

troubled Judge Hand.” Johnson, 447 P.2d at 358. Therefore,

because the CTCA protects public employees from “any

requirement that he assume the financial and mental burden

of defending his official conduct in a personal suit filed

LIBERAL v. ESTRADA 969

against him” and “faces only a slim danger of ultimate per-

sonal liability,” the majority’s conclusion that § 820.2 must be

read broadly as a blanket immunity from suit to satisfy this

policy concern, as the California Supreme Court has recog-

nized, is unsupportable. Johnson, 447 P.2d at 359.

For all of these reasons, the district court’s denial of sum-

mary judgment on state statutory immunity grounds does not

qualify as a final decision under the collateral order doctrine.

Therefore, I conclude that we lack appellate jurisdiction under

§ 1291, as construed in Mitchell, to consider the state-law

issues Defendants raise on appeal.

II

I would further conclude that we lack pendent appellate

jurisdiction over these issues because they are not “inextrica-

bly intertwined” with the federal qualified immunity decision.

“Pendent appellate jurisdiction refers to the exercise of juris-

diction over issues that ordinarily may not be reviewed on

interlocutory appeal, but may be reviewed on interlocutory

appeal if raised in conjunction with other issues properly

before the court.” Cunningham v. Gates, 229 F.3d 1271, 1284

(9th Cir. 2000) (“We have consistently interpreted ‘inextrica-

bly intertwined’ very narrowly.”).

Two issues are not “inextricably intertwined” if we

must apply different legal standards to each issue.

Rather, the legal theories on which the issues

advance must either (a) be so intertwined that we

must decide the pendent issue in order to review the

claims properly raised on interlocutory appeal, or (b)

resolution of the issue properly raised on interlocu-

tory appeal necessarily resolves the pendent issue.

Id. (internal citations omitted).

The state-law issues raised by Defendants are not inextrica-

bly intertwined with the federal qualified immunity determi-

970 LIBERAL v. ESTRADA

nation. The legal standard for qualified immunity is entirely

different from the legal standards governing state torts, and

each is based on a different body of law. We can resolve the

qualified immunity question without reaching these state law

issues. Whether or not the officers are entitled to qualified

immunity will not necessarily resolve the issues of whether

the officers are liable for assault or battery, entitled to discre-

tionary acts immunity under § 820.2, or may be held liable

under Cal. Civ. Code § 52.1. Because the state law issues may

be determined independently from the qualified immunity

decision, these issues are not “inextricably intertwined” and

we may not exercise pendant appellate jurisdiction over them.

III

I would venture to state that plaintiffs’ counsel in virtually

every § 1983 action throughout the Circuit will find it prudent

to plead supplemental state law claims. The majority’s novel

ruling that pretrial rulings in those supplemental claims are

subject to interlocutory appeals to the same extent as pretrial

denials of qualified immunity on federal claims can only

result in the needless proliferation of interlocutory appeals,

the resolution of which, in many cases, will not be as sraight-

forward as in this case.

For the reasons stated herein, I respectfully dissent from the

majority’s assumption of appellate jurisdiction over Defen-

dants’ interlocutory appeal on Plaintiff’s false imprisonment

claim.