Rodis v. City and County Sf

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,

Defendant-Appellant, No. 05-15522

LIDDICOET, San Francisco Police

Officer; BARRY, San Francisco  D.C. No.

CV-04-00314-MMC

Police Sergeant; 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

On Remand From The United States Supreme Court*

Filed March 9, 2009

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

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

*This case is hereby resubmitted.

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

the Central District of California, sitting by designation.

2955

2956 RODIS v. SAN FRANCISCO

Opinion by Judge D.W. Nelson

2958 RODIS v. SAN FRANCISCO

COUNSEL

Scott D. Wiener, San Francisco, California, for the

defendants-appellants.

Lawrence W. Fasano, Jr., San Francisco, California, for the

plaintiff-appellee.

OPINION

D.W. NELSON, Senior Circuit Judge:

Rodel E. Rodis brought suit under 42 U.S.C. § 1983

against, inter alia, two San Francisco police officers, alleging

RODIS v. SAN FRANCISCO 2959

a violation of his Fourth Amendment rights during a February

2003 arrest. The district court rejected the assertion of quali-

fied immunity by the police officers. Defendants filed an

interlocutory appeal, and, in 2007, we affirmed. The Supreme

Court granted Defendants’ petition for a writ of certiorari,

vacated our decision, and remanded for further consideration,

in light of Pearson v. Callahan, 555 U.S. ___, No. 07-751,

slip op. 1 (Jan 21, 2009). We now reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On February 17, 2003, Rodel E. Rodis, an attorney and a

locally elected public official, entered a drugstore near his

office to purchase a few items. He tendered a 1985 series

$100 bill, which lacked the security thread, watermarks,

microprinting, and other anti-counterfeiting features of cur-

rent $100 bills.

The cashier examined the bill for authenticity, and asked

the store manager, Dennis Snopikov, for assistance. Because

he suspected that the bill was counterfeit, Snopikov took it to

the store office to compare it to other $100 bills in the store’s

safe. While Snopikov was in the office, Rodis pulled another

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

ing that the second bill was authentic, the cashier gave Rodis

his change, his receipt, and the purchased items. Snopikov

returned to the front of the store, and tested the bill with a

counterfeit detector pen, which indicated that it was authentic.

He remained suspicious, however, because of the bill’s

appearance and texture, and told Rodis that he was going to

call the police so that they could settle the issue. Rodis was

frustrated with the delay, but remained in the store willingly

until the officers arrived.

Sergeant Jeff Barry, Officer Michelle Liddicoet, and two

other police officers arrived on the scene. Snopikov conveyed

his suspicions, and some of the officers examined the bill

themselves. The officers tried the counterfeit detector pen on

2960 RODIS v. SAN FRANCISCO

a folder — the marking, however, indicated that the folder

was also genuine United States currency. The officers con-

cluded that the bill was probably counterfeit, but, because

they were uncertain, decided it would be necessary to call the

United States Secret Service to get an expert opinion. Because

they believed it would be easiest to continue the investigation

from the police station, they arrested Rodis on suspicion of

violation 18 U.S.C. § 472, which criminalizes the possession

and use of counterfeit currency. No effort was made to inves-

tigate Rodis’s state of mind.

Liddicoet and another officer handcuffed Rodis and trans-

ported him to the police station. Rodis was restrained while

the officers called the Secret Service hotline and left a mes-

sage. After approximately thirty minutes, a Secret Service

agent returned the call. The police 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, removed his hand-

cuffs, and drove him back to the drugstore. The entire incident

lasted about one hour.

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

County of San Francisco, the San Francisco Police Depart-

ment, the police chief, and Sergeant Barry and Officer Liddi-

coet. The complaint alleged false arrest and use of excessive

force in violation of Rodis’s Fourth Amendment rights, con-

spiracy to violate Rodis’s rights, as well as 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. The District Court granted the motion as to Rodis’s

conspiracy, municipal liability, and injunctive relief claims,

and denied the motion in all other respects. The court held

that because Barry and Liddicoet (“Defendants”) lacked evi-

dence of Rodis’s intent to defraud, there was no probable

RODIS v. SAN FRANCISCO 2961

cause and the arrest was unlawful. It also found that the ille-

gality of the arrest was clearly established at the time.

Defendants filed an interlocutory appeal to this court, and

we affirmed the District Court’s order. Defendants subse-

quently petitioned for a writ of certiorari. The Supreme Court

granted the petition, vacated our decision, and remanded for

further consideration in light of Pearson v. Callahan, 555

U.S. ___, No. 07-751, slip op. 1 (Jan. 21, 2009).

JURISDICTION

“As a general rule, interlocutory appeals from determina-

tions of qualified immunity are permissible.” Kennedy v. City

of Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006). “[T]he

denial of a defendant’s motion for summary judgment is

immediately appealable where the defendant is a public offi-

cial asserting the defense of qualified immunity, and the issue

appealed concerns whether the facts demonstrated a violation

of clearly established law.” Id. (citing Mitchell v. Forsyth, 472

U.S. 511, 530 (1985)). We therefore have jurisdiction over

this case.

STANDARD OF REVIEW

“We review de novo a district court’s decision denying

summary judgment on the ground of qualified immunity.”

Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th

Cir. 2003). “On appeal, the court of appeals . . . must resolve

any factual disputes in favor of the plaintiff and decide the

legal question as to whether the official’s alleged conduct vio-

lated clearly established law.” Cunningham v. City of Wenat-

chee, 345 F.3d 802, 807 (9th Cir. 2003).

DISCUSSION

A.

[1] “The doctrine of qualified immunity protects govern-

ment officials ‘from liability for civil damages insofar as their

2962 RODIS v. SAN FRANCISCO

conduct does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have

known.’ ” Pearson v. Callahan, 555 U.S. ___, No. 07-751,

slip op. 1, 5-6 (Jan. 21, 2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). “Qualified immunity balances two

important interests - the need to hold public officials account-

able when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability

when they perform their duties reasonably.” Id. at 6. “The

entitlement is an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effec-

tively lost if a case is erroneously permitted to go to trial.”

Mitchell, 472 U.S. at 526.

[2] In Saucier v. Katz, 533 U.S. 194, 200 (2001), the

Supreme Court mandated a two step sequence for resolving

qualified immunity claims. First, a court must decide whether

the alleged facts make out a violation of a constitutional right.

Id. at 201. If the plaintiff satisfies the first step, the court must

then decide whether the right at issue was “clearly estab-

lished” at the time of the alleged misconduct. Id. More

recently, however, the Supreme Court revisited Saucier and

concluded that “while the sequence set forth there is often

appropriate, it should no longer be regarded as mandatory.”

Pearson, slip op. at 10. “The judges of . . . the courts of

appeals should be permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances

in the particular case at hand.” Id. Accordingly, we first turn

to the question of whether the right asserted in this case was

“clearly established.”

B.

Whether an official protected by qualified immunity may

be held personally liable for an allegedly unlawful official

action generally turns on the “objective legal reasonableness”

of the action. Harlow, 457 U.S. at 819. The constitutional vio-

RODIS v. SAN FRANCISCO 2963

lation must be “clearly established” at the time of the alleged

misconduct. CarePartners, LLC v. Lashway, 545 F.3d 867,

882 (9th Cir. 2008).

“The operation of this standard, however, depends substan-

tially upon the level of generality at which the relevant ‘legal

rule’ is to be identified.” Anderson v. Creighton, 483 U.S.

635, 639 (1987). “[T]he right the official is alleged to have

violated must have been ‘clearly established’ in a more partic-

ularized, and hence more relevant, sense: The contours of the

right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Id.

at 640. “[T]he injured party need not establish that the Defen-

dants behavior had been previously declared unconstitution-

al.” CarePartners, 545 F.3d at 882 (internal quotation marks

omitted). “The dispositive inquiry is ‘whether it would be

clear to a reasonable [official] that his conduct was unlawful

in the situation he confronted.’ ” Id. at 883 (quoting Saucier,

533 U.S. at 202).

[3] The Defendants concluded that they had probable cause

to arrest Rodis on suspicion of possession and/or use of coun-

terfeit currency. “To support a conviction for possession of

counterfeit currency with intent to defraud under 18 U.S.C.

§ 472, the government must prove three elements: (1) posses-

sion of counterfeit money; (2) knowledge, at the time of pos-

session, that the money is counterfeit; and (3) possession with

intent to defraud.” United States v. Rodriguez, 761 F.2d 1339,

1340 (9th Cir. 1985); see also Albillo-Figueroa v. INS, 221

F.3d 1070, 1073 (9th Cir. 2000) (reciting the same elements);

United States v. McCall, 592 F.2d 1066, 1068 (9th Cir. 1979)

(per curiam) (same).

[4] “Probable cause to arrest exists when officers have

knowledge or reasonably trustworthy information sufficient to

lead a person of reasonable caution to believe that an offense

has been or is being committed by the person being arrested.”

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)

2964 RODIS v. SAN FRANCISCO

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “The probable-

cause standard is incapable of precise definition or quantifica-

tion into percentages 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).

[5] Although “[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), we have held that “when specific

intent is a required element of the offense, the arresting offi-

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

sonably believe that a crime has occurred,” Gasho v. United

States, 39 F.3d 1420, 1428 (9th Cir. 1994); see also Easy-

riders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1499

(9th Cir. 1996) (holding that officers must have probable

cause of a motorcyclist’s actual knowledge that a certified

helmet does not comply with helmet safety laws before ticket-

ing).

[6] Possession of counterfeit currency is a specific intent

crime. United States v. Dearing, 504 F.3d 897, 902 (9th Cir.

2007) (upholding a jury instruction defining “intent to

defraud” as “the specific intent to deceive or cheat”); United

States v. Cloud, 872 F.2d 846, 852 n.6 (9th Cir. 1989) (defin-

ing “intent to defraud” as “to act wilfully, and with the spe-

cific 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. DeFilippis,

637 F.2d 1370, 1373 (9th Cir. 1981) (“The key element of

section 472 is its mens rea, the specific intent to defraud.”).

Thus, it was clearly established that the Defendants were

required to have probable cause of Rodis’s specific intent to

defraud the store for a lawful arrest.

RODIS v. SAN FRANCISCO 2965

In evaluating the totality of the circumstances in this case,

however, we embark on unchartered waters. Defendants

assert that they had probable cause as to Rodis’s intent based

solely on the evidence suggesting that the bill might have

been fake. Rodis contends that without specific evidence of

his intent to defraud, above and beyond the tender of a poten-

tially counterfeit bill, the arrest was unlawful.

[7] This circuit has never addressed this issue.1 All of the

other circuits to have answered this question, however, have

found that “[t]he passing 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.” United States v. Everett, 719 F.2d 1119, 1120 (11th

Cir. 1983) (per curiam) (collecting cases); see, e.g., United

States v. Armstrong, 16 F.3d 289, 294 (8th Cir. 1994); United

States v. Hernandez, 825 F.2d 846, 849 (5th Cir. 1987);

United States v. Allison, 616 F.2d 779, 782 (5th Cir. 1980);

United States v. Trotter, 433 F.2d 113, 115 (7th Cir. 1970);

United States v. Smith, 357 F.2d 318, 320 (6th Cir. 1966) (per

curiam); cf. United States v. Ayers, 426 F.2d 524, 529 (2d Cir.

1970). In Pearson, the Supreme Court noted that “where the

divergence of views on . . . [the constitutionality of the

alleged misconduct] [i]s created by the decision of the Court

of Appeals in th[e] case, it is improper to subject petitioners

1

Defendants point to 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), in which we upheld the probable cause determinations

for arrests on suspicion of possession of counterfeit currency. The factual

descriptions in both opinions, however, are meager, and it is impossible

to determine what facts were deemed sufficient for probable cause. See

Ford, 461 F.2d at 534; Bates, 352 F.2d at 400 (describing “the tow truck

operator . . . who filled in chinks of circumstance to give probable

cause.”); see also United States v. Blum, 432 F.2d 250, 252 (9th Cir. 1970)

(upholding probable cause but not describing the circumstances surround-

ing the passing of the counterfeit bills). Most importantly, all three of

these cases predate Gasho, 39 F.3d at 1428, which was the first case to

address the interplay between specific intent and probable cause.

2966 RODIS v. SAN FRANCISCO

to money damages for their conduct.” Slip op. at 20. Thus,

regardless of whether we determine that evidence beyond the

tender of a counterfeit bill was required, Defendants are enti-

tled to qualified immunity. Were we to decide that there was

a violation, we would create a circuit split and Defendants

would not have been on notice that their conduct was unlaw-

ful. Were we to decide that this evidence was not required,

Rodis’s claim would fail in the first instance. Because it is

unnecessary to disposition of this case, we decline to decide

this question.

[8] Assuming that tender of a counterfeit bill was enough

to establish probable cause, we must decide whether the offi-

cers’ belief that the bill was fake was reasonable. The

Supreme Court has “recognized that it is inevitable that law

enforcement officials will in some cases reasonably but mis-

takenly conclude that probable cause is present.” Anderson,

483 U.S. at 641; see also Hunter v. Bryant, 502 U.S. 224, 228

(1991). “[I]n such cases those officials . . . should not be held

personally liable.” Anderson, 483 U.S. at 641. “The qualified

immunity standard gives ample room for mistaken judgments

by protecting all but the plainly incompetent or those who

knowingly violate the law.” Hunter, 502 U.S. at 229 (internal

quotation marks omitted). It is undisputed that Rodis’s $100

bill looked odd, and that it lacked many modern security fea-

tures. Although the arrest was unfortunate, we cannot say that

the officers belief that it was fake was plainly incompetent.

The arrest, therefore, was not clearly established as unlawful.

CONCLUSION

For the foregoing reasons, we conclude that Defendants

were entitled to qualified immunity. We reverse the District

Court’s order, and remand for entry of judgment.

REVERSED.