Denise Green v. City & County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENISE GREEN, No. 11-17892

Plaintiff-Appellant,

D.C. No.

v. 3:10-cv-02649-

RS

CITY AND COUNTY OF SAN

FRANCISCO; SAN FRANCISCO POLICE

DEPARTMENT; JA HAN KIM, OPINION

Sergeant; ESPARZA, Officer;

PEDERSEN, Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, District Judge, Presiding

Argued and Submitted

February 12, 2014—San Francisco, California

Filed May 12, 2014

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit

Judges, and William K. Sessions III, District Judge.*

Opinion by Judge Sessions

*

The Honorable William K. Sessions III, District Judge for the U.S.

District Court for the District of Vermont, sitting by designation.

2 GREEN V. CITY & CNTY. OF SAN FRANCISCO

SUMMARY**

Civil Rights

The panel reversed the district court’s order granting

summary judgment in favor of defendants, affirmed the

district court’s order denying partial summary for plaintiff,

and remanded in an action brought pursuant to 42 U.S.C.

§ 1983 alleging wrongful detention, false arrest and excessive

force.

Plaintiff’s lawsuit arose out of a vehicular stop by San

Francisco Police officers after the police department’s

Automatic License Plate Reader mistakenly identified

plaintiff’s Lexus as a stolen vehicle. Without visually

confirming the license plate, a police officer made a

“high-risk” stop during which plaintiff was held at gunpoint

by multiple officers, handcuffed, forced to her knees, and

detained for up to twenty minutes before the mistake was

discovered and she was released.

The panel held that there were triable questions as to

whether: (1) law enforcement had a reasonable suspicion to

justify plaintiff’s initial detention, (2) plaintiff’s detention

amounted to an arrest without probable cause, and (3) police

officers used excessive force in effecting the detention. The

panel further held that viewing the facts in plaintiff’s favor,

it could not make a determination as a matter of law that the

officer who made the initial stop was entitled to qualified

immunity. Because questions of fact remained regarding

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GREEN V. CITY & CNTY. OF SAN FRANCISCO 3

defendants’ conduct, the panel also reversed the district

court’s summary judgment as to the municipal liability and

state law claims and affirmed the district court’s denial of

partial summary judgment as to plaintiff.

COUNSEL

Michael Haddad (argued), Julia Sherwin, and Gina Altomare,

Haddad & Sherwin, Oakland, California, for Plaintiff-

Appellant.

Christine Van Aken (argued) and James F. Hannawalt,

Deputy City Attorneys, Office of the City Attorney, San

Francisco, California, for Defendants-Appellees.

OPINION

SESSIONS, District Judge:

Plaintiff-Appellant Denise Green appeals from the district

court’s judgment granting summary judgment to Defendants-

Appellees dismissing her § 1983 and state law claims for

wrongful detention, false arrest, and excessive force. Green’s

suit arose out of a vehicular stop performed by Sergeant Ja

Han Kim of the San Francisco Police Department (“SFPD”)

after the SFPD’s Automatic License Plate Reader (“ALPR”)

mistakenly identified Green’s Lexus as a stolen vehicle.

Without visually confirming the license plate, Sergeant Kim

made a “high-risk” stop during which Green was held at

gunpoint by multiple officers, handcuffed, forced to her

knees, and detained for up to twenty minutes. She was

released only after officers eventually ran her plate and

4 GREEN V. CITY & CNTY. OF SAN FRANCISCO

discovered the ALPR mistake and that her vehicle was not

stolen.

Green filed suit against the City and County of San

Francisco, SFPD, and Sergeant Kim alleging Fourth

Amendment violations for unreasonable search and seizure

and unreasonable use of force, violation of Cal. Civ. Code

§ 52.1, intentional infliction of emotional distress, assault,

and negligence. The Defendants moved for summary

judgment, arguing that Sergeant Kim merely subjected Green

to an investigatory detention and not an arrest, that he had

reasonable suspicion to stop Green’s vehicle, and that all

force used was reasonable in the context of a lawful

investigatory stop. Green also moved for partial summary

judgment on her Fourth Amendment and § 52.1 claims. The

District Court for the Northern District of California denied

Green’s motion and granted Defendants’ motion. Because a

rational jury could find that Defendants violated Green’s

Fourth Amendment rights and that Sergeant Kim is not

entitled to qualified immunity at this stage, we reverse the

district court’s grant of summary judgment.1

FACTS AND PROCEDURAL HISTORY

This case regards a vehicular stop made by the San

Francisco Police Department following an erroneous read by

its automated license plate reader technology. SFPD’s ALPR

uses mounted cameras on its police cruisers to capture the

license plate numbers of passing vehicles and match the

1

Green also appeals the district court’s denial of her motion to alter or

amend the judgment. As this panel hereby reverses the initial order, the

appeal of the order denying the motion to alter or amend the judgment is

rendered moot.

GREEN V. CITY & CNTY. OF SAN FRANCISCO 5

captured numbers against a database of wanted numbers. If

the ALPR identifies a potential match, it alerts the officer and

displays an image of the plate. It is undisputed that the ALPR

occasionally makes false “hits” by misreading license plate

numbers and mismatching passing license plate numbers with

those listed as wanted in the database. Because of the known

flaws in the system, SFPD officers are trained that an ALPR

hit does not automatically justify a vehicle stop, and SFPD

directs its officers to verify the validity of the identified hit

before executing a stop. Patrol officers are instructed to take

two steps to verify a hit before acting on an ALPR read. The

first step is to visually confirm the license plate (to ensure

that the vehicle actually bears the license plate number

identified by the camera); the second step is to confirm with

the system that the identified plate number has actually been

reported as stolen or wanted.2 Defendants’ expert on ALPR

technology confirmed in deposition that these two steps

should be performed and explained how officers in a “camera

car” (the cruiser operating the ALPR system) would do so,

but did not outright identify any official policy that the

responsibility lies solely with the camera car operator. In

fact, at the time of the events of this case, the SFPD did not

have a policy placing the responsibility of verifying the

ALPR hit with the camera car operator or with the officer

conducting the subsequent stop.

2

The August 2010 International Association of Chiefs of Police

National Law Enforcement Policy Center License Plate Readers Model

Policy similarly states that after an ALPR alert, “Prior to initiation of the

stop,” officers must “a. [v]isually verify that the vehicle plate number

matches the plate number run by the LPR system . . . [and] b. [v]erify the

current status of the plate through dispatch or MDT query when

circumstances allow.”

6 GREEN V. CITY & CNTY. OF SAN FRANCISCO

On the night of March 30, 2009, Appellant Denise Green,

a 47-year-old African-American woman with no criminal

record, was driving her vehicle, a 1992 burgundy Lexus ES

300 with license plate number 5SOW350, on Mission Street

in San Francisco. At approximately 11:15 PM, Green passed

a police cruiser equipped with an ALPR operated by SFPD

Officers Alberto Esparza and Robert Pedersen. When Green

drove past Esparza and Pedersen’s camera car, the ALPR

misread her license plate number3 and identified her plate as

belonging to a stolen vehicle. It was late and dark outside,

which rendered the ALPR photograph blurry and illegible.

As a result, Officer Esparza could not read the ALPR

photograph, nor could he get a direct visual of Green’s

license plate. Because Esparza and Pedersen had a suspect in

custody at the time of the ALPR read, they radioed the hit to

dispatch in case another officer in the vicinity would be able

to act upon the alert. On the radio, Officer Esparza described

the vehicle as a dark Lexus and read the entire plate number

identified by the ALPR (5SOW750, not the license plate

number on the Lexus). He also asked dispatch to confirm that

plate number 5SOW750 was wanted. At no point did Officer

Esparza state on the radio that he had or had not visually

confirmed the plate himself. Dispatch ran plate number

5SOW750 and notified Officer Esparza that it was in fact

wanted and that it belonged to a gray GMC truck.

Sergeant Kim, patrolling nearby, observed Green’s

vehicle pass him. Based on the radio traffic, Sergeant Kim

knew that there had been a hit on a license plate number

5SOW750, that the plate number had been matched to a gray

GMC truck, and that the vehicle the camera car officers had

3

Green’s license plate number is 5SOW350; the ALPR read it as

5SOW750.

GREEN V. CITY & CNTY. OF SAN FRANCISCO 7

seen was a dark Lexus. Sergeant Kim saw that the first three

numbers of Green’s license plate matched the plate read over

the radio, but he did not visually identify all seven numbers

on Green’s license plate. He also radioed Officer Esparza for

a description of the vehicle, and Officer Esparza confirmed

that the vehicle he saw was a dark burgundy Lexus. Sergeant

Kim then decided to make a “high-risk” or “felony” stop.

Officers perform “high-risk” stops when they perceive there

to be a danger to the police effecting the stop. Such stops

typically involve handcuffing the suspect at gunpoint and

require the participation of multiple officers. Because

Sergeant Kim believed that Green posed a risk, he waited for

backup before pulling her over. While he waited, he followed

her vehicle for a brief amount of time and, at one point, even

stopped behind her at a red light. At no point while he was

following or stopped behind Green’s vehicle did Sergeant

Kim visually confirm the entirety of Green’s license plate

number, even though nothing obscured his ability to do so.

Furthermore, Sergeant Kim did not confirm Green’s plate

number with dispatch, but he did hear Officer Esparza inquire

whether the vehicle with the plate number 5SOW750 was

stolen. Sergeant Kim admits that if he had read the full plate,

he would not have had the reasonable suspicion to effect the

stop.

After backup arrived, Sergeant Kim directed Green to pull

over, and she immediately complied. At this point, the

officers all drew their weapons and pointed them at Green.

The number of officers involved in the stop is disputed:

Green estimates as many as six but it is undisputed that there

were at least four. An unknown officer ordered Green to

raise her hands and exit the vehicle and Green complied. As

she exited the vehicle, Green observed a police officer

pointing a shotgun at her. The officers gave her conflicting

8 GREEN V. CITY & CNTY. OF SAN FRANCISCO

orders, and eventually Sergeant Kim took charge in issuing

commands. He holstered his gun while the remaining officers

kept their weapons trained on Green, and he directed her to

lower to her knees where he proceeded to handcuff her. At

the time of the incident, Green was 5’6” and 250 pounds and

experienced knee problems, so she faced some difficulty in

lowering to the ground and in standing back up. Sergeant

Kim had to help her back to her feet. Green says she saw

four officers training their weapons on her while she was

handcuffed; Sergeant Kim does not recall how many officers

were pointing their guns at Green.

Officers then searched Green’s vehicle and performed a

pat-down search of her person. After the searches uncovered

nothing, Sergeant Kim finally ran a check of Green’s entire

plate number. The license plate check confirmed that the

plate belonged to a burgundy Lexus registered to Green that

had never been reported as stolen. Green’s handcuffs were

promptly removed, but she was directed to remain until the

officers had completed paperwork documenting the stop. The

parties dispute the duration of the stop. Green states that she

was handcuffed for at least ten minutes and that the entire

stop lasted 18–20 minutes, while Defendants maintain that

the stop was much shorter. It is undisputed that Green was

wholly compliant and nonresistant for the entirety of the stop

and that there was no indication that she was armed.

Green brought § 1983 claims against the City and County

of San Francisco, SFPD, and Sergeant Kim alleging

violations of her Fourth Amendment rights on the grounds

that the incident constituted an unreasonable search and

seizure and a de facto arrest without probable cause and

involved an unreasonable use of force. Green’s claims

against the City and SFPD are premised on Monell liability,

GREEN V. CITY & CNTY. OF SAN FRANCISCO 9

which allows local governments to be sued under § 1983 for

constitutional deprivations effected pursuant to a

governmental custom. Monell v. Dep't of Soc. Servs. of City

of New York, 436 U.S. 658, 690–91 (1978). Green also

brought several claims under California state law. These

included claims under Cal. Civ. Code § 52.14 alleging a

constitutional violation and tort law claims of intentional

infliction of emotional distress, assault, and negligence.

Green moved for partial summary judgment on her Fourth

Amendment claim against Sergeant Kim and on her § 52.1

claim against all Defendants. Defendants moved for

summary judgment on all claims on the basis that Sergeant

Kim had reasonable suspicion to stop Green and that the force

used was reasonable in the context of a lawful investigatory

detention.

The district court granted summary judgment to

Defendants and denied Green’s motion for partial summary

judgment. Despite the lack of a SFPD policy placing the

responsibility of checking the ALPR read on the camera car

operator, the district court determined that it was reasonable

for Sergeant Kim to assume that Officer Esparza had visually

confirmed Green’s plate based on the fact that Officer

Esparza did not expressly state otherwise. The district court

concluded that Sergeant Kim’s belief that the plates had been

matched to the ALPR hit was a “good faith, reasonable

mistake” and that “no reasonable jury could find that Kim

4

California’s Bane Act provides a private right of action under state law

for damages and injunctive relief where a person “interferes by threats,

intimidation, or coercion, or attempts to interfere by threats, intimidation,

or coercion, with the exercise or enjoyment by any individual or

individuals of rights secured by the Constitution or laws of the United

States, or of the rights secured by the Constitution or laws of this state.”

Cal. Civ. Code § 52.1 (2005).

10 GREEN V. CITY & CNTY. OF SAN FRANCISCO

lacked reasonable suspicion to conduct an investigatory stop.”

Green v. City & County of San Francisco, No. C 10-02649

RS, 2011 WL 4434801, at *5 (N.D. Cal. Sept. 23, 2011). On

the remaining Fourth Amendment claims, the district court

decided that the tactics used by the officers were objectively

reasonable in the context of a lawful investigatory stop and

rejected Green’s unlawful arrest and excessive force claims.

The court also determined that Sergeant Kim was entitled to

qualified immunity based on its finding that Green had not

established a constitutional violation. It dismissed Green’s

Monell and § 52.1 claims on the same grounds: they both

require a showing of unlawful conduct and the district court

found that Green had not made such a showing. Finally, the

court dismissed Green’s state law tort claims based on its

finding that Defendants’ conduct was reasonable pursuant to

a lawful investigatory stop.

After the court’s initial judgment, Green filed a motion to

alter or amend the district court’s order, which the district

court denied. Green appeals both the initial order and the

denial of the motion to alter or amend.

DISCUSSION

I. Standard of Review

We review de novo the district court’s decision on cross

motions for summary judgment. Travelers Prop. Cas. Co. of

Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir.

2008). We apply the standards under Rule 56 to determine

whether there are any genuine issues of material fact and

whether the evidence, viewed in favor of the nonmoving

party, supported judgment as a matter of law. Olsen v. Idaho

State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

GREEN V. CITY & CNTY. OF SAN FRANCISCO 11

II. Fourth Amendment

On Green’s Fourth Amendment claims, the district court

granted summary judgment to Defendants on the grounds that

Green could not establish a constitutional violation as a

matter of law on her wrongful seizure, false arrest, or

excessive force claims. We reverse because, when viewing

the facts in the light most favorable to Green, it is clear that

a rational jury could find for Green on all three claims.

A. Unlawful Seizure

Green’s first Fourth Amendment claim is that Sergeant

Kim lacked reasonable suspicion to make the investigatory

stop, thereby making it an unlawful seizure in violation of the

Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653

(1979) (detention of automobile is seizure within meaning of

Fourth Amendment). It is well established by the record that

an unconfirmed hit on the ALPR does not, alone, form the

reasonable suspicion necessary to support an investigatory

detention, and Defendants do not contest this. Instead, the

common practice of the SFPD at the time of Green’s seizure

required verifying the information supplied by the system by

(1) visually confirming that the plate number matches that

read by the ALPR system and (2) confirming that the plate

number is actually wanted according to the database. In this

case, Officer Esparza performed the second step, but none of

the officers involved made a visual confirmation, which of

course was the error that kicked off this regrettable sequence

of events. The parties dispute whose responsibility it is to

perform these two steps: Defendants state that it is the

responsibility of the officer in the camera car, while Green

argues that it is reasonable to expect the officer actually

making the stop to perform these steps. The parties cite no

12 GREEN V. CITY & CNTY. OF SAN FRANCISCO

SFPD policy that expressly places the responsibility with

either officer. The question therefore becomes whether it was

reasonable as a matter of law for Sergeant Kim to effect the

stop without making an independent visual verification of the

license plate.

Sergeant Kim may rely on information supplied by

Officer Esparza in determining whether reasonable suspicion

exists. Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005)

(en banc), overruled on other grounds, United States v. King,

687 F.3d 1189 (9th Cir. 2012) (finding that “law enforcement

officers are generally entitled to rely on information obtained

from fellow law enforcement officers”). Such reliance is only

allowed when it is objectively reasonable. Id. at 1082. So,

for example, if Officer Esparza had visually confirmed the

plate erroneously, and Sergeant Kim had relied upon this

erroneous information, such reliance would certainly be

reasonable under Motley. However, this is not that case.

Here, Officer Esparza did not visually confirm the plate nor

did he state that he had. As Green states in her brief, “Kim

assumed reasonable suspicion based on information not

supplied by Esparza, without doing any investigation or

making any appropriate inquiries.” Defendants argue—and

the district court agreed—that Sergeant Kim’s reliance

remained reasonable in this context because “Esparza never

expressed any indication” that he had not made the visual

confirmation. Green, 2011 WL 4434801, at *5. The district

court thus concluded that Sergeant Kim’s belief that Officer

Esparza had confirmed the plate was a good faith, reasonable

mistake and that no rational jury could find that Sergeant Kim

lacked reasonable suspicion as a result.

While the district court’s conclusion is certainly a

plausible one, it does not support a grant of summary

GREEN V. CITY & CNTY. OF SAN FRANCISCO 13

judgment for Defendants because it is based on an inference

in their favor. Viewing the facts in the light most favorable

to Green, as we must, the absence of any express indication

from Officer Esparza that he had verified the plate necessarily

precludes summary judgment for Defendants. At the time of

this incident, there was no SFPD policy placing the ultimate

or sole responsibility of verifying the accuracy of the ALPR

reading on the camera car operator. Absent such a policy, it

is disputable whether an officer conducting a stop could

reasonably rely on a lack of qualifying information from the

camera car operator as a justification for making the stop

without making an independent verification. It thus remains

a triable issue whether it was reasonable for Sergeant Kim to

conclude that Officer Esparza had confirmed the plate in the

absence of any affirmative indication that he had done so.

Even if Sergeant Kim’s initial assumption was reasonable,

the fact that Officer Esparza never verbally expressed that the

plate had been visually confirmed also suggests that Sergeant

Kim should have made an independent confirmation as “[a]ll

officers . . . have an ongoing duty to make appropriate

inquiries regarding the facts . . . if insufficient details are

relayed.” Motley, 432 F.3d at 1081. This need for additional

investigation is further reinforced by the fact that the plate

read by the ALPR belonged to a car with a different make,

model, and color than Green’s and that Sergeant Kim knew

of this discrepancy. While Defendants place no weight on

this detail (inferring instead that it automatically indicates

additional wrongdoing—using stolen plates to avoid detection

for other crimes), the mismatch between the ALPR read and

Green’s vehicle arguably justifies further investigation,

particularly in the context of a system that frequently makes

such mistakes. In fact, Sergeant Kim himself acknowledged

in deposition that it is standard practice to double check an

14 GREEN V. CITY & CNTY. OF SAN FRANCISCO

ALPR hit where practicable. Evidence in the record suggests

that it would have been possible for Sergeant Kim to make

further inquiries: Sergeant Kim had several opportunities to

confirm the license plate number with dispatch and even

spent time stopped behind Green at a red light, and nothing

obscured Green’s license plate throughout the incident. A

rational jury could conclude that it was unreasonable for

Sergeant Kim to fail to double check the plate number in the

absence of express confirmation from Officer Esparza.

As a result, it cannot be established as a matter of law

whether or not reasonable suspicion existed to justify the

investigatory detention, and Defendants’ motion for summary

judgment on this ground was improperly granted. This

conclusion is further supported by our precedent that the

reasonableness of officer conduct should be decided by a jury

where the inquiry turns on disputed issues of material fact.

Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.

2011).

B. De facto arrest without probable cause

Even if reasonable suspicion was satisfied, the parties

additionally disagree on whether the stop amounted to a valid

investigatory detention under Terry v. Ohio, 392 U.S. 1

(1968), or rose to the level of an arrest, as Green contends.

There is no bright-line rule to establish whether an

investigatory stop has risen to the level of an arrest. Instead,

this difference is ascertained in light of the “‘totality of the

circumstances.’” Washington v. Lambert, 98 F.3d 1181, 1185

(9th Cir. 1996) (quoting United States v. Del Vizo, 918 F.2d

821, 824 (9th Cir. 1990)). This is a highly fact-specific

inquiry that considers the intrusiveness of the methods used

GREEN V. CITY & CNTY. OF SAN FRANCISCO 15

in light of whether these methods were “reasonable given the

specific circumstances.” Id.

In this case, the methods used were highly intrusive.

Green was held at multiple gunpoints, handcuffed, and

directed to her knees. In Washington, we considered tactics

that were markedly similar, and we found that “‘handcuffing

substantially aggravates the intrusiveness of an otherwise

routine investigatory detention and is not part of a typical

Terry stop.’” Id. at 1188 (quoting United States v. Bautista,

684 F.2d 1286, 1289 (9th Cir. 1982)). We also noted that

when police draw their guns, it “greatly increases the

seriousness of the stop,” and that physical restraints are an

important factor in measuring the degree of intrusion. Id.

We went on to conclude that “under ordinary circumstances,

when the police have only reasonable suspicion to make an

investigatory stop, drawing weapons and using handcuffs and

other restraints will violate the Fourth Amendment.” Id. at

1187; see also Del Vizo, 918 F.2d at 825.

The question of whether this incident amounted to an

unlawful arrest thus turns on whether it is sufficiently

distinguishable from the “ordinary circumstances” to justify

such tactics. In making such a determination, we have

examined the reasonableness of the conduct in light of certain

factors. Again, while there are no bright-line rules, “we have

only allowed the use of especially intrusive means of

effecting a stop in special circumstances, such as 1) where the

suspect is uncooperative or takes action at the scene that

raises a reasonable possibility of danger or flight; 2) where

the police have information that the suspect is currently

armed; 3) where the stop closely follows a violent crime; and

4) where the police have information that a crime that may

involve violence is about to occur.” Washington, 98 F.3d at

16 GREEN V. CITY & CNTY. OF SAN FRANCISCO

1189; see also Johnson v. Bay Area Rapid Transit Dist.,

724 F.3d 1159, 1176 (9th Cir. 2013) (quoting and applying

Washington factors). These factors should all be considered

in light of the specificity of the information law enforcement

has to suggest both that the individuals are the proper

suspects and that they are likely to resist arrest or police

interrogation. Washington, 98 F.3d at 1189–90. The number

of police officers present is also highly relevant. Id. at 1190.

While these considerations are not exhaustive, they all inform

the ultimate inquiry of whether the officers’ conduct was a

“reasonable response to legitimate safety concerns on the part

of the investigating officers.” Id. at 1186. As in the unlawful

seizure context, because this inquiry is fact specific, it is often

left to the determination of a jury.

When reviewing this case through the lens of Washington,

in the light most favorable to Green, a rational jury could find

that this incident exceeded the limits of an investigative

detention under Terry, and therefore judgment cannot be

granted to Defendants as a matter of law. The tactics used

were extremely intrusive, yet none of the Washington factors

justifying such tactics were present: (1) it is uncontested that

Green was compliant with law enforcement at all times;

(2) the police had no specific information that Green was

armed; (3) the stop did not closely follow a violent crime; and

(4) the police did not have information that a violent crime

was about to occur. All of these factors count against a

finding that the officers’ conduct was a reasonable response

to safety concerns. See Del Vizo, 918 F.2d at 825 (finding

arrest where police drew and pointed guns, handcuffed

suspect, and placed him in police car where defendant was

completely cooperative at the scene).

GREEN V. CITY & CNTY. OF SAN FRANCISCO 17

Furthermore, the officers lacked specific information that

Green was a proper suspect, and there was no indication that

Green posed a threat to the officers necessitating the tactics

employed. There were as many as six officers on the scene,

in comparison to Green, who was alone and visibly

unthreatening. During a portion of the time that the officers

pointed their weapons at her, Green was handcuffed and

secured; moreover, she weighed 250 pounds and was barely

able to rise from her knees without assistance. A jury could

certainly find that it was unreasonable for the officers to

believe that their safety was at risk to the extent that such

intrusive tactics were necessary. Compare United States v.

Thompson, 906 F.2d 1292, 1297 (9th Cir. 1990) (finding

presence of seven squad cars to be a factor in determining

that intrusive actions taken by police against two suspects in

car constituted an arrest); Washington, 98 F.3d at 1190

(finding arrest where two suspects outnumbered by four

officers and police dog because “ratio of officers to suspects”

weighs against reasonableness of intrusive action); with

United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir. 1983)

(finding it reasonable for single officer to order two suspects

out of car at gunpoint shortly after robbery); United States v.

Serna-Barreto, 842 F.2d 965, 968 (7th Cir. 1988) (finding

conduct “prudent” where single officer outnumbered by

suspects).

Defendants argue that the existence of a stolen vehicle, in

and of itself, is enough to satisfy the degree of force used;

however, this is a conclusion over which reasonable jurors

could disagree. In Washington, the unlawful arrest in

question was based on a description of suspects for nineteen

armed robberies. 98 F.3d at 1183. We found that the use of

force was not justified given the totality of the circumstances

in part because the suspects were cooperative and there was

18 GREEN V. CITY & CNTY. OF SAN FRANCISCO

no reason to believe they were dangerous, despite the fact that

the plaintiffs were suspected of a violent crime that involved

weapons. Id. at 1190. We reached a similar conclusion in

Del Vizo where we found that there was no indication that the

suspect was dangerous despite the fact that he was suspected

of drug dealing, another inherently dangerous crime, where

the suspect was compliant and cooperative at all times. See

918 F.2d at 825 (citing United States v. McConney, 728 F.2d

1195, 1206 (9th Cir.) (en banc), cert. denied 469 U.S. 824

(recognizing that the drug trade is often dangerous and

involves weapons)). The fact that Green was stopped on

suspicion of a stolen vehicle does not by itself demonstrate

that she presented a danger to the officers. Furthermore,

numerous factors—that law enforcement lacked any specific

information that she was armed, that Green was compliant

with instructions at all times, that there was no evidence of

recent violence, and that the police significantly outnumbered

Green so as to diminish the risk she posed—count against

such a finding. When viewing the facts in the light most

favorable to Green, a rational jury could find that the tactics

were not reasonable given the totality of the circumstances

and that Green was subject to an arrest.

If the stop amounted to an arrest, it would be unlawful

absent probable cause. At the district court level, Defendants

did not argue that there was probable cause to arrest Green

(and Sergeant Kim himself stated in deposition that he did not

believe there was probable cause); on appeal, Defendants

argue that probable cause can be established. As it remains

a triable question whether law enforcement even had

reasonable suspicion to justify the detention, the existence of

probable cause necessarily also remains a triable question.

Green’s unlawful arrest claim cannot be dismissed as a matter

of law and must be decided by a jury.

GREEN V. CITY & CNTY. OF SAN FRANCISCO 19

C. Excessive Force

Green’s final Fourth Amendment claim asserts that the

officers used excessive force in effecting the investigatory

stop. Under the Fourth Amendment, law enforcement may

use “objectively reasonable” force to carry out such seizures;

as in the unlawful arrest analysis, this objective

reasonableness is determined by an assessment of the totality

of the circumstances. Graham v. Connor, 490 U.S. 386, 397

(1989). Because this inquiry is inherently fact specific, the

“determination whether the force used to effect an arrest was

reasonable under the Fourth Amendment should only be

taken from the jury in rare cases.” Headwaters Forest Def.

v. County of Humboldt, 240 F.3d 1185, 1205–06 (9th Cir.

2000), cert. granted, judgment vacated on other grounds,

534 U.S. 801 (2001); see also Torres, 648 F.3d at 1125

(summary judgment “in excessive force cases should be

granted sparingly”); Liston v. County of Riverside, 120 F.3d

965, 976 n.10 (9th Cir. 1997) (finding that excessive force is

“ordinarily a question of fact for the jury”); Chew v. Gates,

27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a particular

use of force was reasonable is rarely determinable as a matter

of law.”).

In addressing a claim of excessive force, we balance the

“nature and quality of the intrusion” against the

“countervailing governmental interests at stake.” Graham,

490 U.S. at 396. There is no question that the degree of

intrusion here was severe. Green states that she was ordered

out of her vehicle by as many as six officers, many of whom

pointed handguns and a shotgun directly at her. She was

forced to her knees and handcuffed, which she had difficulty

doing due to her knee problems, and officers continued to

train weapons upon her while she was handcuffed on the

20 GREEN V. CITY & CNTY. OF SAN FRANCISCO

ground. She estimates that she was in handcuffs for as many

as ten minutes and states in deposition that the experience has

caused her lasting psychological impact.

The question therefore becomes whether this degree of

intrusion was justified by the governmental interests at stake.

To assess the gravity of the government interests, we have

typically considered “(1) the severity of the crime at issue,

(2) whether the suspect poses an immediate threat to the

safety of the officers or others, and (3) whether he is actively

resisting arrest or attempting to evade arrest by flight.”

Chew, 27 F.3d at 1440. Where these interests do not support

a need for force, “any force used is constitutionally

unreasonable.” Lolli v. County of Orange, 351 F.3d 410, 417

(9th Cir. 2003) (internal quotation marks omitted).

The district court stated without further inquiry that “[a]s

these tactics were employed in conducting a lawful

investigatory stop for suspicion of driving with stolen plates,

no reasonable jury could find that Green was subjected to

excessive force.” Green, 2011 WL 4434801, at *6. This

conclusion cannot support summary judgment for Defendants

here for several reasons. First, triable questions remain as to

whether the investigatory stop itself was lawful. Because it

remains a question whether the stop was even justified by

reasonable suspicion, the existence of a “lawful investigatory

stop” cannot support the district court’s finding that the force

was not excessive as a matter of law. Second, even if

reasonable suspicion was established, it alone is not enough

to justify such intrusive tactics. This court has “consistently

applied the principle that drawing weapons and using

handcuffs or other restraints is unreasonable in many

situations” involving investigatory or Terry stops. Robinson

v. Solano County, 278 F.3d 1007, 1015 (9th Cir. 2002); see

GREEN V. CITY & CNTY. OF SAN FRANCISCO 21

also Washington, 98 F.3d at 1187 (“Under ordinary

circumstances, when the police have only reasonable

suspicion to make an investigatory stop, drawing weapons

and using handcuffs and other restraints will violate the

Fourth Amendment.”). Instead, the reasonableness of the

force used must be considered in light of all circumstances.

When applying the factors laid out in Chew, the

reasonableness of the force here cannot be determined as a

matter of law. While the crime at issue (stolen vehicle or

plates) was arguably severe, there was no indication at the

scene that Green posed an immediate threat to the safety of

the officers or others. As in the unlawful arrest context,

Defendants seem to argue that the crime of vehicular theft is

enough in itself to support a finding that Green posed an

immediate threat; however, this is plainly an inference in

Defendants’ favor. Construing the facts in the light most

favorable to Green, a rational jury could find that the ALPR

hit, without more, does not support a finding that Green posed

a threat.

Furthermore, any inference of immediate threat was

diminished once Green was handcuffed and her car was

searched, therein eliminating the possibility of accomplices.

According to Green, several officers continued to point

weapons at her even after she was handcuffed and searched.

Green was also considerably outnumbered, which counts

against a finding that she posed a threat to the multiple

officers at the scene. Finally, neither party suggests that

Green ever actively resisted law enforcement; in fact, the

record makes clear that Green was compliant with the

directions of law enforcement at all times. We have found

excessive force under similar circumstances. See, e.g.,

Hopkins v. Bonvicino, 573 F.3d 752, 776 (9th Cir. 2009)

(finding excessive force where an officer pointed a weapon

22 GREEN V. CITY & CNTY. OF SAN FRANCISCO

at a cooperative, unarmed suspect and did not holster the

weapon until after the suspect was handcuffed, and where the

officers outnumbered the suspect); Robinson, 278 F.3d at

1014 (finding excessive force where misdemeanor suspect

was “apparently unarmed and approaching the officers in a

peaceful way[, t]here were no dangerous or exigent

circumstances apparent at the time of the detention, and the

officers outnumbered the plaintiff”).

Also relevant to the excessive force inquiry is “‘what

other tactics if any were available’ to effect the[] arrest.”

Headwaters Forest Def., 240 F.3d at 1204 (quoting Chew,

27 F.3d at 1443); Smith v. City of Hemet, 394 F.3d 689, 701

(9th Cir. 2005) (explaining that police must consider less

intrusive alternatives). Here, there is evidence on the record

suggesting that the officers had alternatives available; at the

very least, they could have held their weapons at a “low

ready” position rather than pointing them directly at Green.

As the SFPD’s “person most knowledgeable,” Sergeant

Michael Nevin, testified, SFPD officers are trained that

depending on the level of threat they are facing, they should

keep their weapons trained at the ground rather than at a

person because “the weapon should only cover what you’re

willing to destroy.”5 Thus, when all of these facts are

construed in Green’s favor, as must be done at the summary

judgment stage, a rational jury could find that the tactics

amounted to excessive force.

Sergeant Kim contends that he should not be liable for

excessive force here on the basis that officers are generally

5

This deposition was provided in support of Green’s motion to

reconsider and therefore was not before the district court when it

addressed the cross motions for summary judgment.

GREEN V. CITY & CNTY. OF SAN FRANCISCO 23

not liable under the Fourth Amendment for the conduct of

other officers, see Boyd v. Benton County, 374 F.3d 773, 780

(9th Cir. 2004), and are liable only where they are a “integral

participant” in the conduct that caused the constitutional

violation. Blankenhorn v. City of Orange, 485 F.3d 463, 481

n.12 (9th Cir. 2007). Sergeant Kim argues that he cannot be

held liable for excessive force because he was not one of the

officers who pointed his gun at Green while she was in

handcuffs. While an accurate statement of the law, Sergeant

Kim’s position misconstrues the circumstances underlying

Green’s excessive force claim. Green’s assertion of

excessive force is not premised solely on the pointed weapons

but also on the fact that she was held at gunpoint while she

was otherwise restrained. The only reason Sergeant Kim was

not pointing his weapon at Green while she was restrained is

that he was the one restraining her. Even if Sergeant Kim

was not one of the officers actually holding Green at gunpoint

once she was restrained, he was plainly an active participant

in this activity and a jury could find that he was an “integral

participant” under Blankenhorn.

In light of our precedent, it cannot be determined as a

matter of law that Green’s Fourth Amendment rights were not

violated here, and the district court’s grant of summary

judgment on all three grounds must be reversed. However,

while the district court erred in granting summary judgment

for Defendants, we nonetheless affirm the district court’s

denial of partial summary judgment as to Green. As detailed

above, triable issues remain on all of Green’s claims that

preclude judgment as a matter of law in favor of either party.

The district court’s denial of Green’s motion for partial

summary judgment is affirmed, and these claims are to be

determined by a jury.

24 GREEN V. CITY & CNTY. OF SAN FRANCISCO

III. Qualified Immunity

The district court also dismissed Green’s suit on the

grounds that Sergeant Kim was protected by qualified

immunity. “The doctrine of qualified immunity protects

government officials ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’” Stanton v. Sims, 571 U.S. __, 134 S. Ct. 3, 4–5

(2013) (per curiam) (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)). “Qualified immunity gives government

officials breathing room to make reasonable but mistaken

judgments,” and “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” Ashcroft v. al–Kidd,

563 U.S. __, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)). We have found that an

officer will be denied qualified immunity in a § 1983 action

“only if (1) the facts alleged, taken in the light most favorable

to the party asserting injury, show that the officer’s conduct

violated a constitutional right, and (2) the right at issue was

clearly established at the time of the incident such that a

reasonable officer would have understood her conduct to be

unlawful in that situation.” Torres, 648 F.3d at 1123. In this

case, the district court found that Sergeant Kim was protected

by qualified immunity based on the finding that Sergeant Kim

did not violate any constitutional right. However, as the

preceding analysis makes clear, this remains an open question

for the jury, and Sergeant Kim cannot be granted qualified

immunity at summary judgment on this basis.

Instead, we proceed to the second step of the qualified

immunity inquiry, that is, whether “the right at issue was

clearly established at the time of the incident such that a

reasonable officer would have understood her conduct to be

GREEN V. CITY & CNTY. OF SAN FRANCISCO 25

unlawful.” Id. This requires two separate determinations:

(1) whether the law governing the conduct at issue was

clearly established and (2) whether the facts as alleged could

support a reasonable belief that the conduct in question

conformed to the established law. Act Up!/Portland v.

Bagley, 988 F.2d 868, 873 (9th Cir. 1993). Both are

questions of law to be determined by the court in the absence

of genuine issues of material fact. Id.

Here, the first element is satisfied as a matter of law. It

was established at the time of the incident that individuals

may not be subjected to seizure or arrest without reasonable

suspicion or probable cause, especially when the stop

includes detention and interrogation at gunpoint, and that

highly intrusive measures may not be used absent

extraordinary circumstances. Washington, 98 F.3d at

1192–93. In Washington, we denied qualified immunity on

a similar set of facts, finding:

at the time of [the suspects’] detentions the

law was clearly established that, when making

a Terry stop, officers may not use highly

intrusive measures such as the ones used here,

unless the circumstances reasonably justify

such extraordinary procedures in order to

ensure the officers’ safety. The law was also

clearly established that if the Terry-stop

suspects are cooperative and the officers do

not have specific information that they are

armed or specific information linking them to

a recent or inchoate dangerous crime, the use

of such aggressive and highly intrusive tactics

is not warranted, at least when, as here, there

26 GREEN V. CITY & CNTY. OF SAN FRANCISCO

are no other extraordinary circumstances

involved.

Id. at 1192 (internal citation omitted). Thus, applying

Washington and construing the facts in the light most

favorable to Green, the right against such intrusive measures

was established at the time of Green’s detention.

We must then determine whether an officer, given the

specific facts at issue, “could have reasonably believed at the

time that the force actually used was lawful under the

circumstances.” Torres, 648 F.3d at 1127. This requires us

to look at what Sergeant Kim knew at the time and whether

it was sufficient to support a reasonable officer’s belief that

his actions were lawful. See Washington, 98 F.3d at 1193.

While also generally a question of law to be determined by

the court, there are disputed material facts here that prevent

us from making such a finding at this juncture.

ActUp!/Portland, 988 F.2d at 873 (explaining that

determinations about the facts and circumstances within an

officer’s knowledge and about the conduct underlying an

alleged violation must be made by a finder of fact). For

example, it is disputed whether Sergeant Kim had reason to

believe that Officer Esparza had not visually confirmed the

plate, and how much force was actually used in effecting the

stop. These are both material facts that preclude a

determination as to qualified immunity at the summary

judgment stage.

Moreover, even if material facts did not preclude this

determination, Sergeant Kim would not be entitled to

qualified immunity based on the facts as currently alleged.

As we recently found in Johnson,

GREEN V. CITY & CNTY. OF SAN FRANCISCO 27

[i]t is possible that a jury will conclude, after

weighing all the facts, that the officers

committed no constitutional wrongs. But our

task at this stage in the litigation is not to

attempt to weigh the facts and resolve the

issues definitively in favor of one party or

another. It is instead to construe the facts in

the manner most favorable to the plaintiffs,

who have a right to their day in court, and

then ask if our solicitude of the judgment of

law enforcement in this case requires us to

shield the officers from further participation

in this lawsuit.

724 F.3d at 1180 (refusing to grant qualified immunity at

summary judgment where question of whether officer acted

reasonably could not be determined based on facts before

court, and finding that this question must be resolved by a

jury). When viewing the facts in the light most favorable to

Green, we cannot make a determination as a matter of law

that Sergeant Kim “could have reasonably believed at the

time that the force actually used was lawful under the

circumstances.” Torres, 648 F.3d at 1127. Instead, this

question must go before a jury.

IV. Municipal Liability

Green’s claims against the City and SFPD are premised

on Monell liability, which allows local governments to be

sued under § 1983 for constitutional deprivations effected

pursuant to a governmental custom. Monell, 436 U.S. at

690–91. Green thus seeks to hold the City accountable for

Sergeant Kim’s actions, arguing that he acted pursuant to

municipal policy. The district court granted summary

28 GREEN V. CITY & CNTY. OF SAN FRANCISCO

judgment to Defendants on Green’s Monell claim on the

ground that Green had failed to identify an underlying

constitutional violation. Because as we hold supra, a genuine

issue of fact remains as to the constitutional violations alleged

by Green, the order for summary judgment on the Monell

claim must be reversed. We therefore remand Green’s

Monell claim for further resolution consistent with this

decision.

V. State Law Claims

Green also brought state law claims under the Bane Act

(which provides a state law cause of action similar to § 1983)

and for IIED, assault, and negligence. The district court

granted Defendants’ motion for summary judgment on all of

Green’s state law claims. It dismissed the Bane Act claims

on the basis that it “requires a showing that Green’s detention

was unlawful, which she has not made.” Green, 2011 WL

4434801, at *6. As with the Monell claim, Green has raised

triable issues of fact concerning the lawfulness of her

detention; therefore, her Bane Act claims cannot be dismissed

on this basis. The district court also dismissed the remaining

state law claims on similar grounds: it found that IIED,

assault, and negligence could not be established because

Defendants’ conduct was “pursuant to a lawful investigatory

stop.” Id. at *7. As it remains a question whether the

conduct at issue was lawful, the district court’s grant of

summary judgment on the state law claims is reversed and

remanded.

CONCLUSION

On the record before us factual determinations remain that

must be left to a jury. We therefore reverse the district

GREEN V. CITY & CNTY. OF SAN FRANCISCO 29

court’s grant of summary judgment for Defendants, affirm the

district court’s denial of partial summary judgment to Green,

and remand to the district court for further proceedings. Each

party shall bear its own costs on appeal.

AFFIRMED in part; REVERSED and REMANDED

in part.