Rodis v. City and County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODEL E. RODIS, 

Plaintiff-Appellee,

v.

CITY AND COUNTY OF SAN

FRANCISCO, a municipality;

LIDDICOET, Officer, San Francisco No. 05-15522

Police Officer; BARRY, Sergeant,

San Francisco Police Sergeant;  D.C. No.

CV-04-00314-MMC

ALEX FAGAN, San Francisco Police

Chief, OPINION

Defendants-Appellants,

and

SAN FRANCISCO POLICE

DEPARTMENT,

Defendant.



Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted

April 20, 2007—San Francisco, California

Filed August 28, 2007

Before: Dorothy W. Nelson and Consuelo M. Callahan,

Circuit Judges, and Cormac J. Carney,* District Judge.

*The Honorable Cormac J. Carney, United States District Judge for the

Central District of California, sitting by designation.

10669

10670 RODIS v. CITY AND COUNTY OF S.F.

Opinion by Judge D.W. Nelson;

Dissent by Judge Callahan

10672 RODIS v. CITY AND COUNTY OF S.F.

COUNSEL

Scott D. Wiener of San Francisco, California, briefed and

argued for the defendants-appellants.

Lawrence W. Fasano, Jr. of San Francisco, California, briefed

and argued for the plaintiff-appellee.

OPINION

D.W. NELSON, Circuit Judge:

Rodel E. Rodis brought suit against the City and County of

San Francisco, the San Francisco Police Department, the

police chief, and two police officers under 42 U.S.C. § 1983

alleging a violation of his Fourth Amendment rights during a

February 17, 2003 arrest. The district court dismissed the suit

against the City and the police chief, but it rejected an asser-

tion of qualified immunity by two of the officers

(“Defendants”). Defendants brought an interlocutory appeal,

RODIS v. CITY AND COUNTY OF S.F. 10673

and we affirm, finding the Defendants not entitled to qualified

immunity.

I. FACTUAL & PROCEDURAL BACKGROUND

Rodis is an attorney and an elected public official who sits

on the Community College Board of the San Francisco City

College. On February 17, 2003, Rodis entered a drugstore

near his office to purchase a few items. He tendered to the

cashier a $100 bill, and she examined it for authenticity.

Because it was an old bill (a 1985 series), and because it

appeared to have a texture different than bills with which the

cashier was familiar, she asked the store manager for assis-

tance. The manager came to the counter and examined the

bill. Suspecting that it might be counterfeit, the manager took

the bill to an office in the back of the store to compare it to

other $100 bills from the store’s safe.

While the manager was examining the bill, Rodis pulled

another $100 bill from his wallet and paid the cashier. After

determining that the second bill was authentic, the cashier

gave Rodis his change, receipt, and items. Rodis then waited

for the manager to return with his bill. After comparing

Rodis’s bill with similar bills, the manager returned to the

front of the store and tested the bill with a counterfeit detector

pen, which indicated it was authentic. Nevertheless, the man-

ager remained suspicious because of the bill’s appearance and

texture. The manager told Rodis he thought the bill might be

fake and he was going to call the police so that they could set-

tle the issue. Rodis was frustrated with the delay but remained

in the store willingly until the officers arrived.

Sergeant Jeff Barry and officer Barbara Dullea arrived first

on the scene. Officers Michelle Liddicoet and James Nguyen

arrived soon thereafter. The drugstore’s employees conveyed

to the officers their suspicions regarding the bill. The manager

told Nguyen he had compared the bill to another and was

uncertain about the bill’s authenticity. The officers also exam-

10674 RODIS v. CITY AND COUNTY OF S.F.

ined the bill themselves. They concluded it was probably

counterfeit, but because they were not certain, the officers

decided it would be necessary to call the United States Secret

Service to get an expert opinion. Before doing so, however,

they arrested Rodis for violating 18 U.S.C. § 472,1 which

criminalizes the possession and/or use of counterfeit currency,

because the officers believed it would be easiest to continue

the investigation from the police station. Notably, no effort

was made to investigate whether Rodis intended to use an

ersatz bill or whether he believed the bill to be counterfeit.

Furthermore, the officers never asked to see the other $100

bill Rodis had used to complete the purchase, nor did they ask

to see the bills the manager stated he had compared with the

bill in question.

Liddicoet and Nguyen handcuffed and transported Rodis in

the back of a squad car to the police station. Once they

arrived, the officers restrained Rodis in a holding area while

Nguyen called the Secret Service. Unable to speak with an

agent right away, Nguyen left a message requesting assis-

tance, and after twenty to thirty minutes, a Secret Service

agent returned the call. Nguyen and the agent discussed the

details of the bill in question for five to ten minutes, during

which the agent confirmed that the bill was in fact genuine.

The officers released Rodis from custody, and Nguyen drove

him back to the drugstore.

On October 1, 2003, Rodis filed suit against the City and

County of San Francisco, then Chief of Police Alex Fagan,

1

Section 472 states:

Whoever, with intent to defraud, passes, utters, publishes, or

sells, or attempts to pass, utter, publish, or sell, or with like intent

brings into the United States or keeps in possession or conceals

any falsely made, forged, counterfeited, or altered obligation or

other security of the United States, shall be fined under this title

or imprisoned not more than 20 years, or both.

18 U.S.C. § 472.

RODIS v. CITY AND COUNTY OF S.F. 10675

Sergeant Barry, and Officer Liddicoet. The complaint alleged

false arrest and excessive force in violation of Rodis’s Fourth

Amendment rights, conspiracy to violate Rodis’s rights,

injunctive relief, and several state law claims, including false

arrest and intentional and negligent infliction of emotional

distress.

On February 11, 2005, the defendants moved for summary

judgment, and on March 22, 2005, the district court granted

the motion as to Rodis’s conspiracy, municipal liability, and

injunctive relief claims. The district court denied the motion

in all other respects, holding that because the officers lacked

evidence regarding Rodis’s intent to defraud, probable cause

was lacking and the arrest was unlawful. The court also found

Barry and Liddicoet not entitled to qualified immunity

because the illegality of the arrest was clearly established at

the time.

II. DISCUSSION

A. Jurisdiction & Standard of Review

Normally, a district court’s interlocutory order denying a

motion for summary judgment is not immediately appealable.

Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th Cir. 2006).

There is an exception, however, when a defendant’s motion

for summary judgment on the basis of qualified immunity is

denied. Gausvik v. Perez, 345 F.3d 813, 816 (9th Cir. 2003);

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Under this

exception, we have jurisdiction pursuant to 28 U.S.C. § 1291,

Behrens v. Pelletier, 516 U.S. 299, 301 (1996), and we review

the qualified immunity determination de novo. Osolinski v.

Kane, 92 F.3d 934, 936 (9th Cir. 1996).

B. Defendants are Not Entitled to Qualified Immunity

Qualified immunity serves as a defense to § 1983 claims

against government officers “insofar as their conduct does not

10676 RODIS v. CITY AND COUNTY OF S.F.

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To

determine whether qualified immunity applies, we engage in

a two-part inquiry:

[W]e first must ask whether a constitutional right

would have been violated on the facts alleged. If no

constitutional right would have been violated were

the allegations established, there is no necessity for

further inquiries concerning qualified immunity. If a

constitutional violation is established, we consider

whether that right was clearly established such that

it would be clear to a reasonable officer that his con-

duct was unlawful in the situation he confronted.

This inquiry is wholly objective . . . .

Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir. 2006) (inter-

nal citations and quotation marks omitted); see also Saucier

v. Katz, 533 U.S. 194, 202 (2001).

Defendants argue they are entitled to qualified immunity

because (1) they did not violate Rodis’s constitutional rights,

and (2) even if they did not have probable cause to arrest him,

at the time of the arrest the law was not clearly established

such that a reasonable officer should have known the arrest

violated the Fourth Amendment. However, arresting Rodis

without any evidence he intended to use the bill to defraud the

store or that he knew (or believed) the bill was fake was a vio-

lation of his Fourth Amendment rights. Further, it was clearly

established at the time of the arrest that Defendants’ conduct

was unlawful. Thus, both arguments Defendants put forth are

without merit.

1. Defendants did not have probable cause to arrest

Rodis.

[1] Defendants concede they arrested Rodis without evi-

dence he used the bill with the intention to defraud or that he

RODIS v. CITY AND COUNTY OF S.F. 10677

believed the bill to be fake. They also concede the arrest

required probable cause as it was more than merely an investi-

gatory stop. To be entitled to qualified immunity, therefore,

Defendants must show probable cause existed absent any evi-

dence of Rodis’s intent or knowledge. This they cannot do.

Defendants’ argument can be summarized in the following

manner. First, they cite our decision in United States v.

Thornton, 710 F.2d 513, 515 (9th Cir. 1983), for the premise

that probable cause does not require specific evidence of

every element of an offense. Second, they posit that only

where “specific intent” is an element of the offense, is evi-

dence of intent required for probable cause, citing our holding

in Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486

(9th Cir. 1996). Third, Defendants contend that 18 U.S.C.

§ 472 is not a specific intent crime, and, therefore, evidence

regarding Rodis’s intent or knowledge was not required to

establish probable cause.

By focusing on the distinction between specific and general

intent, Defendants lose sight of the principal inquiry: whether

they had probable cause to effectuate an arrest. Probable

cause cannot be determined by applying “precise defini-

tion[s]” or rigid classifications of conduct, as Defendants sug-

gest, “because it deals with probabilities and depends on the

totality of the circumstances.” Maryland v. Pringle, 540 U.S.

366, 371 (2003). Indeed, “probable cause is a fluid concept—

turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set

of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983).

Thus, the specific circumstances surrounding the arrest are an

indispensable part of the analysis: “[W]e examine the events

leading up to the arrest, and then decide ‘whether these histor-

ical facts, viewed from the standpoint of an objectively rea-

sonable police officer, amount to’ probable cause.” Pringle,

540 U.S. at 371 (quoting Ornelas v. United States, 517 U.S.

690, 696 (1996)).

10678 RODIS v. CITY AND COUNTY OF S.F.

[2] A review of the record reveals that the circumstances

surrounding Rodis’s arrest fell far short of creating a “fair

probability” he had committed any crime, much less the crime

in question. See United States v. Rodriquez, 464 F.3d 1072,

1078 (9th Cir. 2006) (“Probable cause exists when there is a

fair probability or substantial chance of criminal activity.”).

Rodis was arrested on suspicion of violating 18 U.S.C. § 472.

It was clear well before Rodis’s arrest that “[t]o support a

conviction for possession of counterfeit currency with intent

to defraud under . . . § 472, the government must prove three

elements: (1) possession of counterfeit money; (2) knowledge,

at the time of possession, that the money is counterfeit; and

(3) possession with intent to defraud.” United States v. Rodri-

guez, 761 F.2d 1339, 1340 (9th Cir. 1985); see also Albillo-

Figueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir. 2000) (recit-

ing same three required elements); United States v. McCall,

592 F.2d 1066, 1068 (9th Cir. 1979) (per curiam) (same).

Therefore, to violate § 472, the defendant must not only pos-

sess or pass counterfeit money, but he must know the money

is counterfeit and he must intend to use the money to defraud

another.

Notwithstanding the statute’s three requirements, Defen-

dants assert they had probable cause to arrest Rodis based

solely on evidence suggesting the bill might have been fake.

Specifically, they point to the manager’s suspicion that the

bill was counterfeit, the fact Rodis used the bill to pay for

small items, and the officers’ own “diligent” and “indepen-

dent” examination of the bill. Although it is not clear whether

this evidence was enough to create the fair probability the bill

was fake, even if we assume it was,2 this evidence speaks to

2

Our dissenting colleague argues that probable cause existed because

“officers are allowed to make reasonable mistakes” and the officers here

made a mistake in assuming the bill was counterfeit. Dissent at 10686. Of

course, this is irrelevant, for even if the bill was fake, at least some evi-

dence of Rodis’s alleged intent to defraud would have been required to

establish probable cause.

RODIS v. CITY AND COUNTY OF S.F. 10679

only one of the three elements of the offense; indeed, these

facts have no bearing on the crime’s two mens rea compo-

nents (i.e., knowledge and intent to defraud), which are indis-

pensable in the probable cause calculus. See Gasho, 39 F.3d

1420, 1429 (9th Cir. 1994) (opining, in the context of a proba-

ble cause inquiry, “[i]t is fundamental that a person is not

criminally responsible unless criminal intent accompanies the

wrongful act”); Morissette v. United States, 342 U.S. 246, 251

(1952) (noting that a crime is the “concurrence of an evil-

meaning mind with an evil-doing hand”).

[3] Defendants are correct that not every element required

for a conviction is necessarily required to establish probable

cause. See Thornton, 710 F.2d at 515. However, this rule must

be applied with an eye to the core probable cause require-

ment; namely, that “under the totality of the circumstances, a

prudent person would have concluded that there was a fair

probability that the suspect had committed a crime.” Hart v.

Parks, 450 F.3d 1059, 1066-67 (9th Cir. 2006).3 The record

shows, and Defendants concede, they had no evidence what-

soever demonstrating that Rodis intended to use the bill to

defraud the store, nor was there any reason to believe Rodis

believed the bill was fake. Of course, the dearth of evidence

regarding the mens rea elements is not surprising given that

(1) the officers did not even attempt to investigate Rodis’s

state of mind before arresting him, and (2) the bill was in fact

genuine.

[4] What is more, several facts known to the officers at the

time of the arrest significantly decreased the probability that

Rodis violated § 472. Viz., Rodis had other $100 bills in his

3

The dissent protests our citation to legal authority identifying what is

required for a conviction under § 472 in determining what is required to

establish probable cause. Dissent at 10687-88. But surely, identifying the

elements of a crime, and evaluating which, if any, are present in a given

situation are necessary to determine whether there is a “fair probability”

that the crime has been committed.

10680 RODIS v. CITY AND COUNTY OF S.F.

possession that were genuine, one of which he used to com-

plete the transaction; the counterfeit detector pen indicated the

bill was genuine; and the officers knew Rodis was both a San

Francisco attorney and a locally-elected public official with

strong ties to the community in which the store was located.

Specifically, Barry had known Rodis for several years. He

knew Rodis was a member of the Community College Board,

and he had interacted with Rodis personally, encountering

him at activities associated with the elementary school that

both Barry’s and Rodis’s children attended. Also, Rodis

informed Liddicoet prior to his arrest that he was a public fig-

ure, and that he lived and worked within two blocks of the

store. Liddicoet told him she knew who he was and that he

“should be ashamed” of himself.

[5] Thus, the officers’ knowledge regarding Rodis’s iden-

tity and background discounted any probability that Rodis

might have intentionally passed a fake bill. Defendants argue

that this information is irrelevant because police officers do

not provide favored treatment based on a person’s identity.

Rodis was not entitled to special treatment, however, nor did

he request it. Instead, Rodis’s strong ties to the local commu-

nity should have been incorporated into the probable cause

determination because all the facts known to the officers were

relevant. See United States v. Lopez, 482 F.3d 1067, 1072 (9th

Cir. 2007) (reiterating that probable cause requires analysis of

“the totality of the circumstances”).

[6] In any event, even without knowledge of Rodis’s iden-

tity and local ties, based on the totality of the other relevant

facts, no reasonable or prudent officer could have concluded

that Rodis intentionally and knowingly used a counterfeit bill,

especially when “[t]he key element of section 472 is its mens

rea, the specific intent to defraud.” United States v. DeFilip-

pis, 637 F.2d 1370, 1373 (9th Cir. 1981). Without at least

some evidence regarding the knowledge or intent elements of

the crime, probable cause is necessarily lacking. To hold oth-

erwise would render any individual vulnerable to arrest who

RODIS v. CITY AND COUNTY OF S.F. 10681

unknowingly, through the normal stream of commerce, comes

to possess or use a counterfeit bill, even if other circum-

stances suggest that a crime has not been committed. This is

not and cannot be the law. See United States v. Lorenzo, 570

F.2d 294, 299 (9th Cir. 1978) (“The mere passing of a coun-

terfeit bill is not a criminal offense . . . .”).4

4

Defendants’ reliance on Easyriders is also misplaced. In that case, we

opined, “when specific intent is a required element of the offense, the

arresting officer must have probable cause for that element in order to rea-

sonably believe that a crime has occurred.” 92 F.3d at 1499 (quoting

Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)). Erroneously,

Defendants cite Easyriders for the proposition that only where an offense

is a specific intent crime is evidence of intent required to establish proba-

ble cause. Thus, Defendants blatantly misconstrue our holding by confus-

ing a sufficient condition (i.e., if the underlying offense is a specific intent

crime, evidence of intent must be present prior to an arrest) with a neces-

sary one (i.e., if evidence of intent is required prior to an arrest, the under-

lying offense must be a specific intent crime). Furthermore, Defendants’

interpretation runs contrary to the fact-specific nature of a probable cause

inquiry. Probable cause does not always require a showing of every ele-

ment of the crime because it “is a fluid concept—turning on the assess-

ment of probabilities in particular factual contexts . . . .” Illinois v. Gates,

462 U.S. 213, 238 (1983). Consequently, it is patently unreasonable to say

that evidence of a defendant’s intent or knowledge is never required to

establish probable cause for a general intent crime, as Defendants would

have us hold.

In any event, Defendants are also incorrect that passing counterfeit cur-

rency is a general intent crime. Generally, “[t]o act with the ‘intent to

defraud’ means to act willfully, and with the specific intent to deceive or

cheat for the purpose of either causing some financial loss to another, or

bringing about some financial gain to oneself.” United States v. Cloud,

872 F.2d 846, 852 n.6 (9th Cir. 1989) (emphasis added). Section 472

expressly requires an “intent to defraud.” 18 U.S.C. § 472. Thus, under

Easyriders, proof of Rodis’s specific intent to deceive or cheat was

required to arrest him. See also DeFilippis, 637 F.2d at 1373 (stating that

§ 472 requires the specific intent to defraud).

10682 RODIS v. CITY AND COUNTY OF S.F.

2. At the time of Rodis’s arrest, it was clearly

established that evidence of intent was required to

establish probable cause.

Defendants contend that, even if they did not have probable

cause to arrest Rodis for the offense, the law was not clearly

established at the time such that a reasonable officer would

have known the arrest was unlawful. They are incorrect.

[7] Requiring the law to be clearly established “is not to say

that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful, but it is to say that in light of pre-existing law the

July 5, 2007 unlawfulness must be apparent.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987) (citation omitted)

(emphasis added). This means that the right may be clearly

established even when “[t]he reasoning, though not the hold-

ing” of a prior court of appeals decision puts the officer on

notice. Hope v. Pelzer, 536 U.S. 730, 743 (2002). Thus, “offi-

cials can still be on notice that their conduct violates estab-

lished law even in novel factual circumstances” and the facts

need not be “materially similar” to the plaintiff’s situation. Id.

at 741. If the law were otherwise, “officers would escape

responsibility for the most egregious forms of conduct simply

because there was no case on all fours prohibiting that partic-

ular manifestation of unconstitutional conduct.” Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001).

[8] As heretofore explained, it was well established at the

time of Rodis’s arrest that “probable cause is a fluid concept

—turning on the assessment of probabilities in particular fac-

tual contexts—not readily, or even usefully, reduced to a neat

set of legal rules.” Gates, 462 U.S. at 232. Based on the total-

ity of the circumstances, no prudent officer reasonably could

have concluded there was a fair probability that Rodis vio-

lated § 472 or any other offense. “Mere suspicion, common

rumor, or even strong reason to suspect are not enough” to

establish probable cause, Easyriders, 92 F.3d at 1498, and the

RODIS v. CITY AND COUNTY OF S.F. 10683

evidence in this case fell short of creating even a strong rea-

son to suspect. Therefore, the officers were on notice that

something more was required.

The only Ninth Circuit authority to which Defendants’

point for support is United States v. Bates, 352 F.2d 399 (9th

Cir. 1965) (per curiam), and United States v. Ford, 461 F.2d

534 (9th Cir. 1972) (per curiam).5 These cases do not stand

for the proposition Defendants claim—that probable cause to

arrest for a violation of § 472 can exist with nothing more

than a reason to believe the bill might be fake. In fact, the

opinion in Ford, which consists of only two paragraphs, is so

lacking in factual background, that what the panel deemed

sufficient for probable cause is unknown. The opinion in

Bates also fails to provide a factual context sufficient to give

the decision meaning. The opinion acknowledges that a third

party, a tow truck operator at the scene of the arrest, “filled

in chinks of circumstances to give probable cause,” and that

“the circumstances pointing to Bates as a participant in coun-

terfeit transactions . . . certainly pointed an accusing finger at

him—enough for probable cause.” 352 F.2d at 400. However,

there is no explanation of what any of those circumstances

were.

5

Our dissenting colleague cites three out-of-circuit cases and United

States v. Blum, 432 F.2d 250 (9th Cir. 1970), contending that evidence of

intent is unnecessary to establish probable cause. Dissent at 10688-89. Her

contention, however, lacks merit. First, the out-of-circuit cases, even if

applicable to the circumstances in this case, are not binding on this panel.

Second, Blum is easily distinguishable, in that numerous facts—such as

the suspect fleeing the scene and the fact the suspect lived outside the state

—could have been enough to create a “fair probability” he passed counter-

feit bills. In any event, Blum is an old case, and since it was decided

(nearly forty years ago), we have made clear that (1) “[t]he key element

of section 472 is . . . the specific intent to defraud,” DeFilippis, 637 F.2d

at 1373, and (2) “when specific intent is a required element of the offense,

the arresting officer must have probable cause for that element in order to

reasonably believe that a crime has occurred.” Easyriders, 92 F.3d at

1499.

10684 RODIS v. CITY AND COUNTY OF S.F.

Thus, in both Ford and Bates we are left to our own

devices to determine what the relevant facts could have been

in establishing probable cause. Consequently, neither case

supports a finding of probable cause in the instant case.

III. CONCLUSION

[9] Probable cause requires “information sufficient to war-

rant a prudent person in believing that the accused had com-

mitted or was committing an offense.” Allen v. City of

Portland, 73 F.3d 232, 237 (9th Cir. 1996). Given all of the

circumstances surrounding Rodis’s arrest, no prudent person

could have concluded reasonably that there was a fair proba-

bility Rodis had committed a crime. Consequently, Defen-

dants are not entitled to qualified immunity.

AFFIRMED.

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent.

What happened to Mr. Rodis was unfortunate, and certainly

could have been handled in a different manner. Arresting him

due to a failure to recognize an older series 100 dollar bill,

however, was not an intentional violation of Mr. Rodis’s con-

stitutional rights, nor was the law that probable cause for

arresting someone on suspicion of violating 18 U.S.C. § 472

requires proof of the suspect’s subjective intent clearly estab-

lished. Therefore, the officers are entitled to qualified immu-

nity. In fact, prior case law established that in order to have

probable cause to arrest someone for a suspected violation of

18 U.S.C. § 472, an officer simply had to have evidence that

1) someone attempted to pass a false note, and 2) the identity

of the person suspected of passing the note. See United States

RODIS v. CITY AND COUNTY OF S.F. 10685

v. Everett, 719 F.2d 1119, 1120 (11th Cir. 1983) (collecting

cases).

I. The officers did not violate Mr. Rodis’s constitutional

rights.

Our analysis should begin with the basic principles of qual-

ified immunity. “Qualified immunity is ‘an entitlement not to

stand trial or face the other burdens of litigation.” Saucier v.

Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell, 472 U.S.

511, 526 (1985)). “The privilege is ‘an immunity from suit

rather than a mere defense to liability; and like an absolute

immunity, it is effectively lost if a case is erroneously permit-

ted to go to trial.’ ” Id. at 200-01 (quoting Mitchell v. Forsyth,

472 U.S. at 526). “[I]t is fundamental that in a defense of

qualified immunity in order to have the public official

relieved from time-consuming pre-trial procedures and trial

itself, it is important to resolve this issue at an early stage of

the litigation.” Cunningham v. City of Wenatchee, 345 F.3d

802, 808 (9th Cir. 2003).

“A court required to rule upon the qualified immunity issue

must consider, then, this threshold question: Taken in the light

most favorable to the party asserting the injury, do the facts

show the officer’s conduct violated a constitutional right?”

Saucier, 533 U.S. at 201. The reason for this initial inquiry is

to state principles that “will become the basis for holding that

a right is clearly established” to advance the interpretation of

the law. Id. “If no constitutional right would have been vio-

lated were the allegations established, there is no necessity for

further inquiries concerning qualified immunity.”1 Id.

1

The majority’s opinion appears to begin its analysis by deciding that

the right to avoid arrest if there is no evidence of specific intent is clearly

established without first finding a constitutional violation. (Maj. Op. at

10678.) The Supreme Court specifically rejected this approach in Saucier

v. Katz, 533 U.S. at 200.

10686 RODIS v. CITY AND COUNTY OF S.F.

A. Officers are allowed to make reasonable mistakes of

fact without violating constitutional rights.

Mr. Rodis contends that the officers violated his Fourth

Amendment rights by arresting him without probable cause to

believe that he possessed the intent to defraud, one of the ele-

ments of a violation of 18 U.S.C. § 472. “Officers can have

reasonable, but mistaken, beliefs as to the facts establishing

the existence of probable cause or exigent circumstances, for

example, and in those situations courts will not hold that they

have violated the Constitution.” Saucier, 533 U.S. at 205.

“Section 1983 imposes liability for violations of rights pro-

tected by the Constitution, not for violations of duties of care

arising out of tort law.” Baker v. McCollan, 443 U.S. 137, 146

(1979).

In this case, the officers made a simple mistake — they

mistook a genuine 1985 series 100 dollar bill for a fake

because the clerk who received the bill from Mr. Rodis, the

manager who examined the bill, and the officers who

responded to the scene had never seen a pre-1991 100 dollar

bill before.2 The bill Mr. Rodis presented lacked the security

thread, watermarks, microprinting, and other anti-

counterfeiting features of current 100 dollar bills.3 The fact

that there is another branch of government, the Department of

the Treasury, that has agents specifically trained and tasked

with detecting counterfeit bills shows that the average street-

level officer is not held to have infallible counterfeit detection

skills. The fact that a clerk, and the manager both continued

to think that the bill was counterfeit indicates that the officers’

2

The district court noted that Officer Liddicoet testified that the bill

looked real to her. However, a review of the record shows that Liddicoet

testified that the bill did not look real.

3

The Treasury introduced security thread and microprinting in $50 and

$100 bills in 1990 to deter counterfeiting. See Federal Reserve Bank of

San Francisco, http://www.frbsf.org/federalreserve/money/funfacts.html

(last accessed August 9, 2007). The Treasury also redesigned and added

new security features to the $100 bill in 1996. Id.

RODIS v. CITY AND COUNTY OF S.F. 10687

mistake was objectively reasonable. That we have a different

view of the evidence should not change our analysis. See

Hunter v. Bryant, 502 U.S. 224, 226-27 (1991) (reversing the

Ninth Circuit’s refusal to grant qualified immunity because

officials are entitled to an accommodation for reasonable error

as a matter of law). Although qualified immunity does not

protect “the plainly incompetent,” in this case the failure of

the officers to recognize an outdated bill lacking modern

security features was not plainly incompetent, but rather an

unfortunate mistake that any reasonable officer could have

made. Malley v. Briggs, 475 U.S. 335, 341 (1986).

B. The majority improperly uses the standards for

conviction in creating a new standard for probable

cause to arrest under 18 U.S.C. § 472.

Assuming the mistake of fact does not completely dispose

of Mr. Rodis’s claim, the majority opinion improperly

imposes the government’s burden of proof at trial on the prob-

able cause inquiry. “Probable cause must be evaluated from

the viewpoint of prudent and cautious police officers on the

scene at the time of arrest.” Long v. United States, 422 F.2d

1024, 1026 (9th Cir. 1970). “The issue is whether police offi-

cers, acting together, in particular circumstances, all condi-

tioned by their observations and information and guided by

their total police experience, reasonably could have believed

that a crime had been committed by the person to be arrest-

ed.” Id. Our court has acknowledged time and time again that

“[p]robable cause exists when there is a fair probability or

substantial chance of criminal activity.” United States v.

Rodriquez, 464 F.3d 1072, 1078 (9th Cir. 2006) (quoting

United States v. Soriano, 361 F.3d 494, 505 (9th Cir. 2004).

The Supreme Court has long held that “[p]robable cause does

not require the same type of specific evidence of each element

of the offense as would be needed to support a conviction.”

Adams v. Williams, 407 U.S. 143, 149 (1972); see also Dra-

per v. United States, 358 U.S. 307, 311-12 (1959).

10688 RODIS v. CITY AND COUNTY OF S.F.

Yet the majority does precisely that by stating that “[i]t was

clear well before Rodis’s arrest that ‘[t]o support a conviction

for possession of counterfeit currency with intent to defraud

under . . . § 472, the government must prove three elements:

(1) possession of counterfeit money; (2) knowledge, at the

time of possession, that the money is counterfeit; and (3) pos-

session with intent to defraud.’ ” (emphasis added) (Maj. Op.

at 10678) (quoting United States v. Rodriquez, 761 F.2d 1339,

1340 (9th Cir. 1985)). The majority cites over and over cases

concerning what must be proven at trial to sustain a convic-

tion under 18 U.S.C. § 472, not cases specifically stating what

is required for probable cause to believe that a person has

attempted to pass a counterfeit note with intent to defraud.

(Maj. Op. at 10678, 10679-80.) The government’s burden at

trial is not the same as the standard for probable cause. Con-

flating the two and imposing a new requirement that officers

must have conclusive evidence of specific intent in order to

have probable cause to arrest violates the basic principles of

qualified immunity in arrest cases.

C. Under existing law, the officers had probable cause to

arrest Mr. Rodis on suspicion that he violated 18

U.S.C. § 472; therefore they did not violate his

constitutional rights.

So what was the proper inquiry for analyzing whether the

officers had probable cause to arrest Mr. Rodis? In Everett,

719 F.2d at 1120, the Eleventh Circuit held that, “[t]he pass-

ing of a counterfeit note coupled with an identification of the

person who passed the note furnishes probable cause to arrest

the individual identified as passing the note.” “Generally,

probable cause to arrest for the offense of passing a counter-

feit note is established by circumstances showing the passing

of a counterfeit note coupled with an identification of the indi-

vidual who passed the note.” United States v. Hernandez, 825

F.2d 846, 849 (5th Cir. 1987). In United States v. Blum, 432

F.2d 250, 251-53 (9th Cir. 1970), we upheld a finding of

probable cause based on a merchant’s report that he received

RODIS v. CITY AND COUNTY OF S.F. 10689

bills he believed were counterfeit, and the officer’s examina-

tion of the bills. The arrest in that case was based solely on

the report of the service station owner, his description of the

suspect and the suspect’s car, and the officer’s examination of

the bill and determination that it was a counterfeit bill. Id. at

251-52. A bulletin was broadcast on the radio, and an officer

arrested the defendant without a warrant a short time later. Id.

at 252. After discussing the probable cause standard at length,

this court affirmed the denial of a motion to suppress, stating

“we conclude that on the basis of the facts and circumstances

known to the police officers involved, or as to which they had

reasonably trustworthy information, that probable cause

existed for Blum’s arrest.” Id. at 253.

Nothing in our case law undermines the premise of Blum,

or the Fifth and Eleventh Circuit’s determination that proba-

ble cause that a person violated 18 U.S.C. § 472 is satisfied

upon the attempted passing of an apparently counterfeit note

and the identification of the person who tried to pass the note.

See also United States v. Allison, 616 F.2d 779, 782 (5th Cir.

1980) (concluding that officer’s lack of firsthand knowledge

concerning defendant’s intent to defraud does not eliminate

probable cause created by reliable information that possessor

attempted to pass bill as genuine); United States v. McCoy,

517 F.2d 41, 43 n.1 (7th Cir. 1975) (“[T]he record clearly

shows that the arresting officer had knowledge of facts —

namely, that McCoy had attempted to acquire merchandise in

exchange for a counterfeit bill — which established probable

cause to believe that appellant had violated § 943.38 of the

Wisconsin Criminal Code (Forgery).”). Because “[i]ntent and

knowledge may be inferred from [a suspect’s] overall

actions,” the officers had probable cause to arrest him, and did

not have to have probable cause of Mr. Rodis’s specific intent

to defraud. United States v. Lorenzo, 570 F.2d 294, 299 (9th

Cir. 1978). An attempt to pass a counterfeit bill, even if the

bill is recognized and rejected, is sufficient to sustain the

intent element for the purposes of a conviction. See id. at 295-

96, 299 (noting waitress rejected counterfeit bill, but sustain-

10690 RODIS v. CITY AND COUNTY OF S.F.

ing conviction); see also United States v. McCall, 592 F.2d

1066, 1068 (9th Cir. 1979) (affirming conviction where the

defendant told inconsistent stories about the source of the

counterfeit bills, even though the manager detected the coun-

terfeit bill and called police immediately). Even the case cited

by the majority, United States v. DeFilippis, 637 F.2d 1370,

1373 (9th Cir. 1981), declined to impose any additional ele-

ments, or to raise the burden of proof to sustain a conviction

under 18 U.S.C. § 472. Based on well-established principles

concerning probable cause, and case law specifically holding

that officers have probable cause to arrest someone on suspi-

cion of having violated 18 U.S.C. § 472 if there is evidence

of the passing of an allegedly counterfeit note and the identifi-

cation of a suspect, I would conclude that the officers did not

violate Mr. Rodis’s constitutional right to be free from arrest

absent probable cause.

Applying the majority’s newly announced standard will

also result in absurd results. If a suspect simply says that he

does not know if the bill is real or fake, or if he carries around

a real bill and offers to substitute it for the counterfeit one,

officers may not arrest him to investigate the probable unlaw-

ful conduct. In the case of a clever criminal who is skilled at

lying, officers would be powerless to arrest the suspect even

when he attempts to pass a clearly counterfeit bill, if the sus-

pect verbally disavows knowledge or intent and pays with a

legitimate bill. A criminal could test the counterfeit detection

skills of clerks, bartenders, and other consumers at will with-

out fear of arrest.

Imposing a requirement that asks officers to read criminals’

minds to discern their subjective knowledge and intent is not

practical or grounded in reality. Intent to defraud is often

established through evidence concerning knowledge such as

additional counterfeit bills, reproduction equipment, plates,

ledgers, and other evidence that officers would no longer be

able to gather incident to arrest or through a search warrant.

For example, if the bill in this case happened to be counter-

RODIS v. CITY AND COUNTY OF S.F. 10691

feit, further investigation would have established that Mr.

Rodis genuinely lacked the specific intent to defraud, making

him a victim of counterfeiting. Detectives, or more likely

Secret Service agents, would then investigate to determine the

origin of the bill, and hopefully arrest the counterfeiters.

In this particular case, however, the officers made the rea-

sonable mistake of failing to recognize a genuine pre-1991

100 dollar bill. The majority uses this mistake to impose a

new, higher standard for probable cause based on the ele-

ments necessary to sustain a conviction, instead of concentrat-

ing on whether it is more probable than not that a crime

occurred under these circumstances. (Maj. Op. at 10678,

10679-80.) I would follow our prior decision in Blum, as well

as the rulings in other circuits establishing the standard for

probable cause for violations of 18 U.S.C. § 472 and conclude

that the officers did not violate Mr. Rodis’s Fourth Amend-

ment rights because they had sufficient probable cause for the

arrest.

D. There is no constitutional requirement that an officer

fully investigate a suspect’s defenses, including his

lack of the required mental state, before arrest.

As an additional justification for concluding that the offi-

cers did not have probable cause, the majority faults the offi-

cers’ investigation under the circumstances, arguing that

certain facts reduced the probability that Rodis had the spe-

cific intent necessary to secure a conviction. (Maj. Op. at

10679-80.) This argument concerning inadequate investiga-

tion of the intent element is foreclosed by Baker v. McCollan,

where the Supreme Court granted qualified immunity after the

arrest and detention of a suspect in a case involving mistaken

identity. “[I]nnocence of the charge . . . is largely irrelevant

to [a] claim of deprivation of liberty without due process of

law.” Baker, 443 U.S. at 145. “The Constitution does not

guarantee that only the guilty will be arrested.” Id. An arrest-

ing officer is not “required by the Constitution to investigate

10692 RODIS v. CITY AND COUNTY OF S.F.

independently every claim of innocence, whether the claim is

based on mistaken identity or a defense such as lack of requi-

site intent.” (emphasis added) Id. at 145-46. “Nor is the offi-

cial charged . . . to perform an error-free investigation of such

a claim.” Id. at 146. “The ultimate determination of such

claims of innocence is placed in the hands of the judge and

jury.” Id.

Consistent with Baker, the officers were allowed to arrest

Mr. Rodis because they had objective evidence that Mr. Rodis

attempted to pass the note, and Mr. Rodis did not contest the

clerk and the manager’s statements that he attempted to pay

for goods with the suspicious note even though the clerk, the

manager, and the officers were mistaken and the note turned

out to be genuine. After further investigation, the officers dis-

covered their mistake and released Mr. Rodis. The officers

were not constitutionally required to conduct an exhaustive

investigation into Mr. Rodis’s state of mind before making an

arrest. See id. at 145-46; see also Marks v. Carmody, 234 F.3d

1006, 1009-10 (7th Cir. 2000) (concluding officers acted rea-

sonably in arresting even though suspect presented evidence

tending to show that he lacked the intent to defraud); United

States v. Bertram, 719 F.2d 735, 737-38 (5th Cir. 1983)

(rejecting defendant’s argument that officers lacked probable

cause to arrest because the counterfeit Krugerrands had the

word “copy” on them, making it impossible for him to

defraud anyone). Nor was the officers’ mistake of fact a viola-

tion of Mr. Rodis’s constitutional rights. Therefore, I would

hold that the officers were entitled to qualified immunity

because they did not violate Mr. Rodis’s Fourth Amendment

rights.

RODIS v. CITY AND COUNTY OF S.F. 10693

II. The majority’s opinion announces a new principle

that officers must have specific evidence of intent to

defraud in order to have probable cause to arrest;

therefore, the law was not clearly established and the

officers were entitled to qualified immunity.

This is precisely a case where “an official could not reason-

ably be expected to anticipate subsequent legal develop-

ments.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As

noted above, the case law in this and other circuits, prior to

today’s holding, uniformly stated that the standard for proba-

ble cause to arrest on suspicion of violating 18 U.S.C. § 472

required only 1) an attempt to pass an allegedly counterfeit

note, and 2) an identification of the person who attempted to

pass the note. See Blum, 432 F.2d at 251-53; Everett, 719 F.2d

at 1120; United States v. Shepard, 455 F.2d 1081, 1083 (10th

Cir. 1972); see also United States v. Ford, 461 F.2d 534 (9th

Cir. 1972) (per curiam) (noting attempt to pass counterfeit

money, a description of the suspect by a storekeeper, and the

key exhibit falling out of the suspect’s pocket as supporting

probable cause); Bates v. United States, 352 F.2d 399, 399-

400 (9th Cir. 1965) (per curiam) (discussing identification of

suspect). Our own cases involving other statutes that require

intent to defraud do not require officers to accept a suspect’s

version of events or to determine whether he actually had that

intent. See United States v. Mayo, 394 F.3d 1271, 1276 (9th

Cir. 2005) (affirming a finding of probable cause to arrest for

“placing a stolen registration sticker on a license plate, with

intent to defraud” where there was “no dispute that Mayo

admitted that he was driving the car that day, was in the pro-

cess of buying it, and had been in possession of it for the last

month”); United States v. Thomas, 835 F.2d 219, 222 (9th

Cir. 1987) (discussing act and identity).4 The Eleventh Circuit

recently reiterated in a § 1983 false arrest case that “even for

4

The majority cites two cases, Easyriders Freedom F.I.G.H.T. v. Hanni-

gan, 92 F.3d 1486, 1499 (9th Cir. 1996) and Gasho v. United States, 39

F.3d 1420, 1429 (9th Cir. 1994) where the specific intent required was a

form of specialized knowledge. For intent to defraud cases, the specific

intent is usually inferred from the act itself.

10694 RODIS v. CITY AND COUNTY OF S.F.

a criminal statute that requires proof of an intent to defraud

for a conviction, an arresting officer does not need evidence

of the intent for probable cause to arrest to exist.” Jordan v.

Mosley, 487 F.3d 1350, 1356 (11th Cir. 2007).

In essence, the specific intent to defraud is inferred from

the attempted passing of the bill. It is the rare case that a per-

son intending to defraud will admit it. The case law discussed

above concerning the lack of a duty to investigate a suspect’s

proffered defense of a lack of intent exists precisely because

almost every suspect — innocent or not, will profess a lack

of intent. The majority’s additional requirement that the offi-

cer have some conclusive level of evidence of intent to

defraud is inconsistent with these precedents.

The majority cites to no case specifically requiring that

officers have explicit evidence of a suspect’s subjective intent

to defraud before they have probable cause to arrest on suspi-

cion of violating 18 U.S.C. § 472. This lack of precedent to

support the majority’s approach is telling, and I cannot find

that an officer must have conclusive evidence of intent to

defraud before arresting a suspect was clearly established. In

my view, the case law allowing officers to infer the intent to

defraud from the attempted passing of the counterfeit note is

sufficient to establish probable cause was the clearly estab-

lished law prior to this decision. We cannot expect the offi-

cers to anticipate the majority’s ruling that they should have

had explicit and conclusive evidence of the suspect’s subjec-

tive intent to defraud prior to arrest, because it is found

nowhere else in any federal court’s jurisprudence concerning

probable cause to arrest under 18 U.S.C. § 472. Therefore, I

cannot join in the majority’s conclusion that such a require-

ment was clearly established prior to today, and I would grant

the officers qualified immunity.

What happened to Mr. Rodis was an unfortunate mistake.

We cannot allow bad facts to make bad law. Simple and rea-

sonable mistakes of fact are not constitutional violations,

RODIS v. CITY AND COUNTY OF S.F. 10695

however, nor should a mistake subject the officers to a lawsuit

under 42 U.S.C. § 1983. The case law simply does not sup-

port the majority’s view that probable cause to arrest under 18

U.S.C. § 472 requires specific and conclusive evidence of a

suspect’s subjective intent to defraud. The majority’s error is

compounded by the fact that it fails to recognize that it is

adding a wholly new requirement to the probable cause

inquiry that has no support anywhere in federal statutory or

case law, and therefore cannot be clearly established. I would

vacate the district court’s order and remand with instructions

to grant the officers qualified immunity from suit and grant

their motion for summary judgment.