Edgerly v. City and County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERRIS EDGERLY, 

Plaintiff-Appellant,

v. No. 05-15080

CITY AND COUNTY OF SAN  D.C. No.

FRANCISCO; DAVID GOFF; JOHN CV-03-02169-WHA

CONEFREY; FREDERICK SCHIFF,

Defendants-Appellees.



ERRIS EDGERLY, 

Plaintiff-Appellant,

No. 05-15382

v.

CITY AND COUNTY OF SAN  D.C. No.

CV-03-02169-WHA

FRANCISCO; DAVID GOFF; JOHN

OPINION

CONEFREY; FREDERICK SCHIFF,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

William H. Alsup, District Judge, Presiding

Argued and Submitted November 13, 2006

Opinion Filed July 17, 2007

Opinion and Submission Vacated May 22, 2008

Resubmitted March 12, 2010

San Francisco, California

Filed March 19, 2010

Before: William C. Canby, Jr., John T. Noonan, and

Richard A. Paez, Circuit Judges.

4451

4452 EDGERLY v. SAN FRANCISCO

Opinion by Judge Paez

EDGERLY v. SAN FRANCISCO 4457

COUNSEL

Gregory M. Haynes, San Francisco, California, for plaintiff-

appellant Erris Edgerly.

Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial

Attorney, Sean F. Connolly, Deputy City Attorney, San Fran-

cisco City Attorney’s Office, San Francisco, California, for

defendants-appellees City and County of San Francisco, John

Conefrey, and David Goff.

Jeremy Sugerman, Daniel J. O’Rielly, Gordon-Creed, Kelley,

Holl & Sugerman, LLP, San Francisco, California, for

defendant-appellee Frederick Schiff.

OPINION

PAEZ, Circuit Judge:

San Francisco Police Department Officers David Goff and

John Conefrey (“Officers”) arrested Erris Edgerly for tres-

passing within the gated area of the Martin Luther

King/Marcus Garvey Housing Cooperative (“Cooperative”).

The Officers transported Edgerly to the local police station,

where they searched him for contraband. The search did not

reveal any contraband and Sergeant Frederick Schiff, the

police supervisor on duty at the time, authorized the Officers

to issue Edgerly a citation for trespass and release him.

Edgerly was not prosecuted for trespass or any other offense.

Edgerly then filed this 42 U.S.C. § 1983 action against the

Officers, Schiff, and the City and County of San Francisco

(“City”), alleging that the Officers unlawfully arrested and

searched him in violation of the Fourth Amendment, and that

Schiff and the City were liable for the Officers’ unconstitu-

tional actions. He also asserted various state tort claims

against the Officers, Schiff, and the City.

4458 EDGERLY v. SAN FRANCISCO

In ruling on the parties’ motions for summary judgment,1

the district court dismissed Edgerly’s § 1983 claims against

the City and all claims against Schiff, but found that there

were genuine issues of material fact with regard to Edgerly’s

constitutional and state law claims against the Officers and

state law claims against the City, and therefore allowed those

claims to proceed to trial.

Following the presentation of all evidence, the district court

granted the defendants’ motion for judgment as a matter of

law under Federal Rule of Civil Procedure 50(a) and dis-

missed Edgerly’s remaining claims. The court also awarded

attorneys’ fees to Schiff under 42 U.S.C. § 1988 and imposed

sanctions against Edgerly and his attorney, Gregory Haynes,

under Federal Rule of Civil Procedure 11(b). We have juris-

diction pursuant to 28 U.S.C. § 1291. We reverse in part,

affirm in part, and remand for further proceedings.

On Edgerly’s § 1983 arrest claim, we hold that the Officers

had probable cause to arrest Edgerly for trespass in violation

of California Penal Code section 602.8. Accordingly, we

affirm the district court’s grant of summary judgment to the

City, and of judgment as a matter of law to the Officers, on

the Fourth Amendment arrest claim. However, because a cus-

todial arrest was not authorized under state law, we reverse

the district court’s grant of judgment as a matter of law to the

Officers and the City on Edgerly’s state law false arrest claim,

and remand for further proceedings.

On Edgerly’s search claims, we hold that, viewing the evi-

dence in the light most favorable to Edgerly, a reasonable jury

could find that the Officers subjected him to an unreasonable

search in violation of the Fourth Amendment and California

1

The Officers and the City filed joint motions for summary judgment

and, later at trial, for judgment as a matter of law. Schiff filed separate

motions. Edgerly filed a motion for partial summary judgment and

requested partial judgment as a matter of law on his arrest claims.

EDGERLY v. SAN FRANCISCO 4459

Penal Code section 4030(f). We also hold that the Officers are

not entitled to qualified immunity for the search as alleged.

Consequently, we reverse and remand for further proceedings

on Edgerly’s § 1983 unlawful search claim against the Offi-

cers and state law search claims against the Officers and the

City. We affirm the grant of summary judgment to the City

on Edgerly’s related Monell2 search claim, however, because

Edgerly has not provided sufficient evidence that the Officers

were acting pursuant to a City policy of conducting strip

searches without reasonable suspicion.

Finally, as to Edgerly’s other claims, we reverse the Rule

50(a) ruling dismissing his additional state law claims against

the Officers and the City. We affirm, however, (1) the grant

of summary judgment to Schiff, (2) the award of attorneys’

fees to Schiff under 42 U.S.C. § 1988, and (3) the imposition

of sanctions against Edgerly and his counsel.

I. Background

In reviewing the district court’s summary judgment ruling,

we consider only the evidence submitted in connection with

the parties’ motions, which consisted primarily of their pre-

trial depositions. Conversely, in reviewing the district court’s

Rule 50(a) ruling, we consider only the evidence presented at

trial. However, other than one discrepancy in Edgerly’s testi-

mony that is not relevant to our disposition,3 there were no

significant differences between the parties’ depositions and

trial testimony. Therefore, we do not expressly distinguish

between the two in our description of the facts.

The material evidence regarding Edgerly’s arrest is not in

2

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

3

At his deposition, Edgerly testified that he told the Officers before the

arrest that he was at the Cooperative “waiting for a resident.” At trial,

however, he did not testify that he told the Officers why he was at the

Cooperative.

4460 EDGERLY v. SAN FRANCISCO

dispute. On August 29, 2000, while on daytime patrol, Offi-

cers Goff and Conefrey drove by the Cooperative and

observed Edgerly standing inside the fence that surrounds the

property, next to a playground area. “No trespassing” signs

were posted at the Cooperative’s gated entrances. The Offi-

cers continued on their patrol and returned about five minutes

later to find Edgerly standing at the same location. According

to the Officers, they knew that Edgerly did not live at the

Cooperative and that he had previously been arrested for a

drug offense at a nearby street corner.4

The Officers stopped their car, approached Edgerly, and

asked him “what he was doing.” According to the Officers,

Edgerly responded that he was “just chilling,” which meant

“just hanging out for no reason.”5 Having “determin[ed] that

he had no specific reason to be [at the Cooperative],” the Offi-

cers arrested Edgerly for trespassing in violation of California

Penal Code section 602(l). The Officers testified that Edgerly

was trespassing because he was loitering on the property and

the Cooperative’s management had requested that officers

enforce the “no trespassing” signs.

After the arrest, the Officers conducted a pat-down search

of Edgerly and transported him to the Park Police Station,

4

The Officers also testified that the Cooperative was in a high-crime

area known for drug dealing and that Edgerly was an “associate” of neigh-

borhood gang members. Edgerly testified that he lived one block away

from the Cooperative and regularly visited his friends who lived there. He

also testified that he rang the doorbell to a friend’s home shortly before

his arrest and that he was waiting for her to return home when he was

arrested.

5

Edgerly’s trial testimony was slightly different. He testified that the

Officers asked him whether he lived at the Cooperative and that he said

“no.” We agree with the district court that this minor difference is not rele-

vant to the probable cause analysis. Crediting either version of events,

Edgerly did not provide the Officers with a specific explanation for his

presence, but neither did he refuse to offer an explanation or suggest that

he was on the premises for an unlawful purpose.

EDGERLY v. SAN FRANCISCO 4461

where they performed an additional search. There is conflict-

ing evidence regarding the station search. Edgerly testified

that Officer Goff asked him to remove his shoes and socks,

pull his pants down to his ankles, and bend over and cough.

He also testified that Goff looked inside his boxer shorts

before telling him that he could get dressed. The Officers,

however, testified that Goff conducted only a routine clothing

search. In any event, the search did not reveal any contraband.

Sergeant Schiff was the supervisor on duty at the police sta-

tion at the time, but he was not aware of the arrest or search

until after they were completed, at which time he authorized

the Officers to cite and release Edgerly. Edgerly was never

prosecuted for any offense.

Edgerly filed an action against the Officers, Schiff, and the

City in the Superior Court of California, seeking damages

under § 1983 for violations of his Fourth Amendment rights.

Edgerly also alleged state law claims for negligence, negli-

gent and intentional infliction of emotional distress, false

arrest, and unlawful search. The City properly removed the

case to federal court. After the parties completed discovery,

the district court granted summary judgment to the City on

Edgerly’s § 1983 Monell claims and to Schiff on all claims

against him. The court found, however, that there were genu-

ine issues of material fact with regard to Edgerly’s § 1983 and

state law claims against the Officers and state law claims

against the City, and therefore denied summary judgment on

those claims.

At trial, at the close of all the evidence, the district court

granted the Officers and City’s motion for judgment as a mat-

ter of law “for the reasons stated on the record and memoran-

dum submitted by [the Officers and City].”6 The court ruled

6

Although Edgerly did not file a separate Rule 50(a) motion, he

requested that the court rule as a matter of law that the Officers lacked

probable cause to arrest him, in his “Response to Defendants’ Request for

Curative Instructions and Plaintiff’s Request for order of No probable

cause for 602(L) trespass arrest.”

4462 EDGERLY v. SAN FRANCISCO

that, as a matter of law, the Officers had probable cause to

arrest Edgerly, if not under section 602(l), then under another

state trespassing or loitering statute. As the court explained at

the Rule 50 hearing:

On this record and these circumstances no jury could

find otherwise than these officers had probable cause

to believe a crime of some sort had been committed.

That’s true even if it wasn’t 602(l). It didn’t have to

be 602(l). In addition, I want to say that counsel

should have brought to my attention California Penal

Code 602.8. . . . But I want to say that I’m not limit-

ing my analysis to 602.8. I am adopting each and

every other provision that the City Attorney’s Office

has suggested . . . .7

The court also held that the Officers’ search of Edgerly at

the police station was not a strip search and was reasonable

under the Fourth Amendment. In the alternative, the court

held that, under federal and state law, the Officers were enti-

tled to immunity from all of Edgerly’s claims.

After entry of judgment, the district court granted Schiff’s

motion for attorneys’ fees, because Edgerly failed to dismiss

Schiff after discovery revealed that the claims against him

lacked merit. The court also granted Schiff’s motion for sanc-

tions against Edgerly and his attorney, finding that they filed

two frivolous motions for reconsideration of the court’s sum-

mary judgment ruling.

7

As we discuss below, the Officers and the City suggested that probable

cause also existed to arrest Edgerly under California Penal Code sections

602.5 and 647(h).

EDGERLY v. SAN FRANCISCO 4463

II. Discussion

A. Officers Goff and Conefrey

We review de novo the district court’s order granting the

Officers’ and the City’s motion for judgment as a matter of

law under Rule 50(a). See Santos v. Gates, 287 F.3d 846, 851

(9th Cir. 2002). “Judgment as a matter of law is appropriate

when the evidence presented at trial permits only one reason-

able conclusion.” Id.

1. Section 1983 Unlawful Arrest Claim

[1] Edgerly argues that the Officers arrested him without

probable cause, in violation of the Fourth Amendment. To

determine whether the Officers had probable cause at the time

of the arrest, we consider “whether at that moment the facts

and circumstances within [the Officers’] knowledge . . . were

sufficient to warrant a prudent man in believing that the peti-

tioner had committed or was committing an offense.” Beck v.

Ohio, 379 U.S. 89, 91 (1964). Although conclusive evidence

of guilt is not necessary to establish probable cause, “mere

suspicion, common rumor, or even strong reason to suspect

are not enough.” United States v. Lopez, 482 F.3d 1067, 1072

(9th Cir. 2007) (internal quotation marks, citation, and alter-

ation omitted). Generally, officers need not have probable

cause for every element of the offense, but they must have

probable cause for specific intent when it is a required ele-

ment. Id. at 1072-73.

[2] Because the probable cause standard is objective, prob-

able cause supports an arrest so long as the arresting officers

had probable cause to arrest the suspect for any criminal

offense, regardless of their stated reason for the arrest. Deven-

peck v. Alford, 543 U.S. 146, 153-55 (2004). Probable cause,

however, must still exist under some specific criminal statute.

See id. at 155-56; see also Alford v. Haner, 446 F.3d 935, 937

(9th Cir. 2006). It is therefore not enough that probable cause

4464 EDGERLY v. SAN FRANCISCO

existed to arrest Edgerly for some metaphysical criminal

offense; the Officers must ultimately point to a particular stat-

utory offense.

Although the Officers lacked probable cause to arrest

Edgerly for violating California Penal Code section 602(l)—

now section 602(m)8—the statute under which they cited him,

we ultimately conclude that probable cause existed to arrest

Edgerly under another trespass provision, California Penal

Code section 602.8(a). We therefore affirm the district court’s

grant of judgment as a matter of law to the Officers on Edger-

ly’s § 1983 unlawful arrest claim.

[3] The Officers cited Edgerly for violating California

Penal Code section 602(l), now section 602(m). Under this

section, a person commits a trespass if he or she “willfully . . .

[e]nter[s] and occup[ies] real property or structures of any

kind without the consent of the owner.” Long before Edger-

ly’s arrest, however, the California Supreme Court had clearly

held that section 602(l) “requires occupation of the property,

a ‘nontransient, continuous type of possession.’ ” In re Cata-

lano, 623 P.2d 228, 234 n.8 (Cal. 1981) (quoting People v.

Wilkinson, 56 Cal. Rptr. 261, 264 (Cal. App. Dep’t Super. Ct.

1967)). As Wilkinson explained, section 602(l) requires the

specific “inten[t] to remain permanently, or until ousted.” 56

Cal. Rptr. at 262; see also Cal. Jury Instr., Crim., No. 16.340

(6th ed. 1996) (requiring, for a conviction under section

602(l), proof that the defendant “entered and occupied the

property with the specific intent to dispossess those lawfully

entitled to possession”).

[4] Here, the Officers knew only that Edgerly was not a

resident of the Cooperative and that he had been on the prop-

8

In 2003, the California legislature amended Penal Code section 602,

resulting in a renumbering of subdivision 602(l) to subdivision 602(m).

2003 Cal. Legis. Serv. ch. 805 (S.B. No. 993) (West). There were no sub-

stantive changes to this provision.

EDGERLY v. SAN FRANCISCO 4465

erty for a matter of minutes. On the basis of these facts, a rea-

sonable officer would not have believed that Edgerly had

violated or was about to violate section 602(l).

Nor did probable cause exist to arrest Edgerly for several

of the other criminal offenses suggested by the Officers and

City to the district court. Loitering, under California Penal

Code section 647(h), also has a specific intent requirement,

for which the Officers had no probable cause.9 Specifically,

that section requires that the alleged loiterer “delay or linger”

on the property “for the purpose of committing a crime as

opportunity may be discovered.”10 Id.; see also In re Joshua

M., 110 Cal. Rptr. 2d 662, 664-65 (Cal. Ct. App. 2001) (not-

ing that the California courts first added this “specific intent

element” to the state’s loitering statute, and that “[t]he Legis-

lature included this intent element when it redrafted [the loi-

tering statute] as present section 647, subdivision (h)”). And

trespass under the 2000 version of California Penal Code sec-

tion 602.5 in effect at the time of Edgerly’s arrest, which pro-

hibited “enter[ing] or remain[ing] in any noncommercial

dwelling house, apartment, or other such place,”11 applied by

its terms only to “structures of the most private character, i.e.,

places of habitation.” In re D.C.L., 147 Cal. Rptr. 54, 55 (Cal.

9

California Penal Code section 647(h) provides, in full: “[Everyone

who] loiters, prowls, or wanders upon the private property of another, at

any time, without visible or lawful business with the owner or occupant

[is guilty of disorderly conduct, a misdemeanor]. As used in this subdivi-

sion, ‘loiter’ means to delay or linger without a lawful purpose for being

on the property and for the purpose of committing a crime as opportunity

may be discovered.”

10

Although we recognize that the probable cause and qualified immu-

nity standards are objective, see Lopez, 482 F.3d at 1072, we note that the

Officers and City do not argue, and the Officers did not testify, that the

Officers had probable cause to believe that Edgerly was on the Coopera-

tive property for the purpose of committing a crime.

11

Effective January 1, 2001, California amended section 602.5 to

replace “other such place” with “other residential place.” 2000 Cal. Legis.

Serv. ch. 563 (S.B. No. 1486) (West).

4466 EDGERLY v. SAN FRANCISCO

Ct. App. 1978) (holding that unauthorized entry of a shed

adjacent to a house does not violate the section).12 A reason-

able officer would not have believed that Edgerly, who was

standing in the Cooperative’s playground area, had entered or

was about to enter a dwelling unit in the Cooperative in viola-

tion of section 602.5.

[5] Probable cause did, however, exist to believe that

Edgerly was acting in violation of California Penal Code sec-

tion 602.8(a). Section 602.8(a) prohibits unauthorized entry of

“lands under cultivation or enclosed by fence . . . [or] unculti-

vated or unenclosed lands where signs forbidding trespass are

displayed at intervals not less than three to a mile.”13 Because

12

As In re D.C.L. also noted, to construe the section otherwise “would

be inconsistent with the legislative intent expressed in [section 602(l)], in

that a penalty could be imposed for an unauthorized entry of any noncom-

mercial structure even though no substantial occupation occurred.” Id.

(footnote omitted).

13

The reference to “lands under cultivation,” may suggest that the stat-

ute was intended to apply only to agricultural or rural land. See Quarter-

man v. Kefauver, 64 Cal. Rptr. 2d 741, 745-46 (Cal. Ct. App. 1997) (citing

to section 602.8(a), among other statutes, in noting that “when the Legisla-

ture refers to land as . . . under cultivation . . . the ordinary import of the

description usually is to agricultural land . . . , or at least rural land as

opposed to urban backyards”). By its plain terms, however, section

602.8(a) applies not only to “lands under cultivation,” but also to “lands

where signs forbidding trespass are displayed” at requisite intervals. More-

over, in addressing whether owners of apartment complexes, condomin-

ium projects, and mobile home parks may bar personal distribution of

political campaign materials on their property, the California Attorney

General specifically noted section 602.8 as authority for excluding politi-

cal candidates from such property. See 81 Ops. Cal. Atty. Gen. 71. This

suggests, at least in the Attorney General’s view, that the statute is appli-

cable to non-rural land. Finally, the only two state cases we have found

applying section 602.8(a) did so in non-rural contexts, though both are

unpublished and nonprecedential. See People v. McGill, No. A095525,

2002 WL 1978970, *2 (Cal. Ct. App. Aug. 28, 2002) (holding that a

detention for trespass into a fenced-in dumpster area behind a market was

lawful because the detaining officer had probable cause to believe that a

trespass occurred in violation of section 602.8(a)); Haroonian v. Upton,

EDGERLY v. SAN FRANCISCO 4467

the Cooperative where the Officers encountered Edgerly was

fenced in and had “No trespassing” signs posted at its

entrances, the officers had probable cause to believe that

Edgerly was in violation of section 602.8(a).

[6] We recognize that under state law, an arrest for viola-

tion of section 602.8 was nonetheless unauthorized. A first

offense under section 602.8(a) is punishable only as an infrac-

tion and, under California law, “[i]n all cases . . . in which a

person is arrested for an infraction, a peace officer shall only

require the arrestee to present . . . satisfactory [proof of iden-

tity] and to sign a written promise to appear.” Cal. Penal Code

§ 853.5(a). “Only if the arrestee refuses to sign a written

promise, has no satisfactory identification, or refuses to pro-

vide a thumbprint or fingerprint may the arrestee be taken into

custody.” Id. Here, because the Officers did not testify that

Edgerly did any of these three things, or that they had reason

to believe that he previously violated section 602.8(a), custo-

dial arrest was improper under state law even though probable

cause existed to believe that Edgerly was violating the law.

However, “state restrictions [on arrest] do not alter the Fourth

Amendment’s protections,” and under federal law, “warrant-

less arrests for crimes committed in the presence of an arrest-

ing officer are reasonable under the Constitution.”14 Virginia

No. B150987, 2002 WL 1155585, *7-8 (Cal. Ct. App. May 31, 2002)

(reversing the grant of summary judgment on a trespass claim for consid-

eration of whether defendant process server may have had privilege to

enter plaintiff’s suburban home under 602.8(c)(3)). Although we are not

bound by either the unpublished state cases or the Attorney General’s

opinion, we find them persuasive, and we decline to read a narrowing

interpretation into the state statute when the state has not only not done so,

but has affirmatively applied the statute to non-rural lands.

14

In our previous opinion, we held that Edgerly’s arrest was unconstitu-

tional and that the Officers were not entitled to qualified immunity in light

of the state law restriction on arrests for first-time offenses of this kind.

See Edgerly v. City and County of San Francisco, 495 F.3d 645, 653-55

(9th Cir. 2007), rehearing granted, opinion withdrawn by 527 F.3d 841

4468 EDGERLY v. SAN FRANCISCO

v. Moore, 128 S. Ct. 1598, 1607 (2008) (holding that police

officers did not violate the Fourth Amendment by arresting a

motorist whom they had probable cause to believe had vio-

lated a state driving law even though under Virginia law the

officers should have issued a summons for the misdemeanor

rather than made an arrest). We therefore hold that Edgerly’s

arrest was constitutional, even though it was impermissible

under state law, and affirm the district court’s grant of judg-

ment as a matter of law to the Officers on Edgerly’s § 1983

Fourth Amendment arrest claim.

2. Section 1983 Unlawful Search Claim

Edgerly also challenges the search that the Officers con-

ducted following his arrest as more invasive than was reason-

able under the circumstances. We conclude that the district

court erroneously entered judgment as a matter of law for the

Officers on Edgerly’s § 1983 unlawful search claim. Viewing

the evidence at trial in the light most favorable to Edgerly, a

reasonable jury could find that the Officers’ search of Edgerly

(9th Cir. 2008). In so holding, we relied on Ninth Circuit law holding that

“federal courts must determine the reasonableness of the arrest in refer-

ence to state law governing the arrest” and that state law restrictions on

arrest for minor crimes were thus applicable to Fourth Amendment analy-

ses. Id. at 655 (citing Bingham v. City of Manhattan Beach, 341 F.3d 939,

950 (9th Cir. 2003)); see also Reed v. Hoy, 909 F.2d 324, 330 n.5 (9th Cir.

1989) (indicating that state law is also relevant in analyzing the reason-

ableness of a search under the Fourth Amendment). We withdrew our

opinion after the Supreme Court decided Virginia v. Moore, in which it

held that such state arrest restrictions are irrelevant to our Fourth Amend-

ment inquiry. 128 S. Ct. at 1607. We are now bound by Moore, and to the

extent that Bingham and Reed are inconsistent with Moore, they are effec-

tively overruled. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)

(en banc) (holding that “where the reasoning or theory of our prior circuit

authority is clearly irreconcilable with the reasoning or theory of interven-

ing higher authority, a three-judge panel should consider itself bound by

the later and controlling authority, and should reject the prior circuit opin-

ion as having been effectively overruled”).

EDGERLY v. SAN FRANCISCO 4469

at the police station was unreasonable, in violation of the

Fourth Amendment. Also, because no reasonable officer

could have believed, in light of clearly established law, that

the search as described by Edgerly was constitutional, the

Officers are not entitled to qualified immunity for the search.

Because the evidence from trial permits more than one rea-

sonable conclusion as to the constitutionality of the search, we

remand for further proceedings.

a. Reasonableness of the Search

[7] To determine whether a search is reasonable under the

Fourth Amendment, we balance “the need for the particular

search against the invasion of personal rights that the search

entails.”15 Way v. County of Ventura, 445 F.3d 1157, 1160

(9th Cir. 2006) (quoting Bell v. Wolfish, 441 U.S. 520, 559

(1979)). Applying this balancing test, we first held in Giles v.

Ackerman that “arrestees charged with minor offenses may be

subjected to a strip search only if jail officials possess a rea-

sonable suspicion that the individual arrestee is carrying or

concealing contraband.” Giles v. Ackerman, 746 F.2d 614,

617 (9th Cir. 1984), overruled by Bull v. City and County of

San Francisco, No. 05-17080, slip op. 2238, 2268 (9th Cir.

Feb. 9, 2010) (en banc). We have repeatedly applied this rule

in cases following Giles. E.g., Act Up!/Portland v. Bagley,

988 F.2d 868, 871-72 (9th Cir. 1993); Fuller v. M.G. Jewelry,

950 F.2d 1437, 1446 (9th Cir. 1991). We recently carved out

an exception to this rule in Bull v. City and County of San

Francisco, in which we overruled Giles and held that such an

arrestee could be strip searched without individualized suspi-

cion if the arrestee would be introduced into the general jail

population. Bull, slip op. at 2268. In those circumstances, the

institutional need to prevent arrestees from bringing contra-

band into the jail justified the “the invasion of personal rights

15

As with arrests, state law restrictions on searches do not change

Fourth Amendment protections. See Moore, 128 S. Ct. at 1607 (“[S]tate

restrictions do not alter the Fourth Amendment’s protections.”).

4470 EDGERLY v. SAN FRANCISCO

that the search entails.” Bull, slip op. at 2259 (citing Bell, 441

U.S. at 559). Bull, however, left undisturbed our line of prece-

dent requiring reasonable suspicion to strip search arrestees

charged with minor offenses who are not classified for hous-

ing in the general jail population. Bull, slip op. at 2268-69.

This precedent controls here because Edgerly was never

placed in the general jail population, but was merely cited and

released at the station. We therefore first consider Edgerly’s

contention that he was strip searched; if he was, we must then

consider whether the Officers had a reasonable suspicion that

he was carrying or concealing contraband.

[8] In Giles, we held that visually inspecting an arrestee’s

naked body, even without a “visual examination of body cavi-

ties,” constitutes a strip search.16 Giles, 746 F.2d at 615, 616.

16

The Supreme Court also recently held that a search very similar to the

search that Edgerly alleges was conducted on him constitutes a strip

search. In Safford Unified School District No. 1 v. Redding, 129 S. Ct.

2633, 2641 (2009), school officials had directed a student to strip down

to her underwear and then to “pull out” her bra and the elastic band on her

underpants. The Supreme Court noted that it would be “fair” to call this

a “strip search.” Id. Notably, the Supreme Court expressly declined to

ascribe any significance to whether the officials “s[aw] anything,” explain-

ing that it “would not define strip search and its Fourth Amendment conse-

quences in a way that would guarantee litigation about who was looking

and how much was seen.” Id. Rather, the Court held that “pulling her

underwear away from her body in the presence of the two officials who

were able to see her necessarily exposed her breasts and pelvic area to

some degree.” Id. This exposure amounted to a “degree of intrusion” that,

in that context, required greater justification than a search of outer clothing

and belongings. Id. at 2642.

Similarly, we have held in the border search context that requiring an

arrestee to expose only his or her undergarments “tend[s] toward [a] strip

search in that if conducted in public it can be said to result in embarrass-

ment to one of reasonable sensibilities.” United States v. Palmer, 575 F.2d

721, 723 (9th Cir. 1978). We further held that, although it is “hardly feasi-

ble to enunciate a clear and simple standard for each possible degree of

intrusiveness,” such a search requires “suspicion . . . founded on facts spe-

cifically relating to the person to be searched, and [that] the search [be]

no more intrusive than necessary to obtain the truth respecting the suspi-

cious circumstances.” Id.

EDGERLY v. SAN FRANCISCO 4471

Although Bull overruled Giles’s holding that officials need

individualized suspicion to strip search minor-offense

arrestees who would be placed in the general jail population,

it did not disturb its conclusion that a mere visual inspection

of an arrestee’s naked body constitutes a strip search. See

Bull, slip op. at 2262-68. Viewing the evidence in the light

most favorable to Edgerly, a reasonable jury could find that

the Officers strip searched him. According to Edgerly’s trial

testimony, Officer Goff required him to arrange his clothing

so as to permit a visual inspection of his undergarments, by

asking him to pull his pants down to his ankles. Edgerly testi-

fied that Goff then placed his finger within Edgerly’s boxers

and “kind of just looked around.” This would permit a reason-

able inference that Goff visually inspected Edgerly’s buttocks

or genitalia, which would amount to a strip search under

Giles, 746 F.2d at 616, 618. Therefore, if the jury credits

Edgerly’s testimony, it could reasonably conclude that the

Officers’ search was a strip search that required reasonable

suspicion that Edgerly was concealing contraband.

The Officers, however, did not testify that they had reason-

able suspicion for the search. Rather, they testified that they

arrested Edgerly only for trespass, a minor offense not involv-

ing contraband, weapons, or violence. Also, Officer Cone-

ferey testified that Edgerly was not required to lower his pants

at the police station because there was no reason to believe

that he was concealing a weapon or contraband.

[9] Accordingly, a dispute of fact exists, and a reasonable

jury could find that the Officers strip searched Edgerly, and

did so without the requisite reasonable suspicion, in violation

of Edgerly’s Fourth Amendment rights.

b. Qualified Immunity for the Search

[10] Even assuming the Officers’ conduct violated Edger-

ly’s constitutional rights, the grant of judgment as a matter of

law would be appropriate if the Officers are entitled to quali-

4472 EDGERLY v. SAN FRANCISCO

fied immunity for the strip search Edgerly alleges they per-

formed. We therefore must consider whether the law was

“clearly established” such that “it would be clear to a reason-

able officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001); see

also Way, 445 F.3d at 1159.

[11] We conclude that the Officers are not entitled to qual-

ified immunity for their alleged strip search of Edgerly by

visually inspecting his genitalia or buttocks. As we explained

above, without reasonable individualized suspicion, a strip

search like that alleged here is unconstitutional. See Fuller,

950 F.2d at 1446. The law on this point was clearly estab-

lished at the time of this search: we have previously held that

it was clearly established in 1989 “that it is unlawful to strip

search an arrestee brought to a jail facility on charges of com-

mitting a minor offense, unless the officer directing the search

possesses ‘a reasonable suspicion that the individual arrestee

is carrying or concealing contraband.’ ” Act Up!/Portland,

988 F.2d at 871-72 (quoting Giles, 746 F.2d at 617) (footnote

omitted).17 In light of this clearly established law, no reason-

able officer could have believed that the police station search,

as described by Edgerly at trial, was lawful. See Way, 445

F.3d at 1159; see also Saucier, 533 U.S. at 202. We therefore

reverse the grant of judgment as a matter of law, and remand

Edgerly’s § 1983 unlawful search claim for further proceed-

ings.

3. State Law Claims

a. False Arrest Claim

[12] In addition to his federal unlawful arrest claim,

17

Because Bull did not disturb our cases requiring individualized suspi-

cion for strip searches of arrestees not classified for housing in the general

jail population, Bull’s overruling of Giles in no way affects our conclusion

that the law was clearly established here. Bull, slip op. at 2268-69.

EDGERLY v. SAN FRANCISCO 4473

Edgerly maintains a state law false arrest claim. For the rea-

sons explained above, the only offense that the Officers had

probable cause to believe Edgerly was committing when they

encountered him was trespass, in violation of California Penal

Code section 602.8. While the existence of probable cause

renders the arrest reasonable under the Fourth Amendment,

and thus constitutional, more is needed to authorize Edgerly’s

custodial arrest under state law. Cf. People v. McKay, 41 P.3d

59, 71 (Cal. 2002) (holding that state arrest procedures do not

limit the constitutionality of arrests under the Fourth Amend-

ment, but emphasizing that that holding “in no way counte-

nance[s] violations of state arrest procedure,” as “[v]iolation

of those rights exposes the peace officers and their depart-

ments to civil actions seeking injunctive or other relief”). As

noted above, a first offense under section 602.8(a) is punish-

able only as an infraction and, under California law, “[i]n all

cases . . . in which a person is arrested for an infraction,” cus-

todial arrest is authorized “[o]nly if the arrestee refuses to sign

a written promise [to appear], has no satisfactory identifica-

tion, or refuses to provide a thumbprint or fingerprint.” Cal.

Penal Code § 853.5(a).

[13] Here, because the Officers did not testify that Edgerly

met any of these three requirements, or that they had reason

to believe that he previously violated section 602.8(a), the

custodial arrest was not authorized by state law. Further,

because this limitation on arrests for mere infractions was

clearly established by statutory law, the officers did not have

“reasonable cause to believe the arrest was lawful” under state

law, and they are not entitled to immunity from civil liability.

See Cal. Penal Code § 847(b)(1) (providing that officers are

entitled to immunity from false arrest claims if “the arrest was

lawful” or the officers had “reasonable cause to believe the

arrest was lawful”); see also O’Toole v. Superior Court, 44

Cal. Rptr. 3d 531, 548-49 (Cal. Ct. App. 2006) (noting that

police officers are not granted governmental immunity for

false arrest or false imprisonment under California law, but

that California Penal Code section 847 protects them from

4474 EDGERLY v. SAN FRANCISCO

civil liability under certain circumstances). We therefore

reverse and remand for further proceedings on this state law

claim.

b. Unlawful Search Claim

[14] Although the legal basis for Edgerly’s state law

unlawful search claim is not entirely clear from his complaint

or the district court’s orders, it appears to be California Penal

Code section 4030(p), which provides a private right of action

for persons unlawfully strip searched in violation of the sec-

tion. Section 4030(f) states that “[n]o person arrested and held

in custody on a misdemeanor or infraction offense, except

those involving weapons, controlled substances or violence

. . . shall be subjected to a strip search . . . unless a peace offi-

cer has determined there is reasonable suspicion based on spe-

cific and articulable facts to believe such person is concealing

a weapon or contraband, and a strip search will result in the

discovery of the weapon or contraband.” It further requires

“prior written authorization of the supervising officer on

duty” before such a strip search may occur. Id. The term

“strip search” is defined in section 4030(c) as “a search which

requires a person to remove or arrange some or all of his or

her clothing so as to permit a visual inspection of the under-

clothing, breasts, buttocks, or genitalia of such person.”

[15] Viewing the evidence in the light most favorable to

Edgerly, a reasonable jury could find that the Officers strip

searched him in violation of section 4030(f). We therefore

reverse and remand for the district court to clarify the legal

basis of this claim and to proceed accordingly.

c. Negligence, Negligent and Intentional Infliction of

Emotional Distress

[16] Edgerly’s claims for negligence and negligent and

intentional infliction of emotional distress, however, raise

substantial legal and factual questions beyond the lawfulness

EDGERLY v. SAN FRANCISCO 4475

of Edgerly’s arrest and search, such as whether Edgerly suf-

fered severe emotional distress and what duties the Officers

owed to Edgerly. Because the district court mistakenly con-

cluded that Edgerly’s arrest and search were lawful, it did not

reach these questions. We therefore remand these claims so

that the district court can address the necessary questions in

the first instance.

B. The City

1. Section 1983 Monell Claims

We review de novo the district court’s order granting sum-

mary judgment to the City for Edgerly’s § 1983 claims

against it. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th

Cir. 2006). Viewing the facts in the light most favorable to the

nonmoving party, “we must determine whether there are any

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law.” Id. We con-

clude that the district court properly granted summary judg-

ment to the City on both of Edgerly’s § 1983 Monell claims.

[17] Local government entities “can be sued directly under

§ 1983 . . . where . . . the action that is alleged to be unconsti-

tutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by

that [entity’s] officers.” Monell, 436 U.S. at 690. However,

liability attaches only where the entity’s policies evince a “de-

liberate indifference” to the constitutional right and are the

“moving force behind the constitutional violation.” Levine v.

City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (internal

quotation marks and citation omitted).

[18] Because we conclude that the Officers did not inflict

a constitutional injury on Edgerly by arresting him, Edgerly

cannot maintain a § 1983 claim against the City on the basis

of his arrest, regardless of whether the City had a policy of

making arrests under section 602(l) where probable cause was

4476 EDGERLY v. SAN FRANCISCO

lacking. We therefore affirm the grant of summary judgment

to the City on Edgerly’s § 1983 Monell claim for unlawful

arrest.

[19] We also affirm the grant of summary judgment on

Edgerly’s Monell claim premised on the Officers’ allegedly

unconstitutional search. Some evidence in the record does

support Edgerly’s contention that the Officers were not

trained to request authorization from a supervisor before

requiring an arrestee to reveal his underclothing, including

Schiff’s deposition testimony that he followed “department

policy” in requiring officers to request authorization only for

full body cavity searches. This alleged insufficiency in train-

ing, however, relates only to a possible state law violation

under California Penal Code section 4030, which requires

prior supervisor authorization for searches in which an

arrestee is required to “remove or arrange some or all of his

or her clothing so as to permit a visual inspection of the

underclothing.” Cal. Penal Code § 4030(c), (f). No such

supervisor authorization is required by the Fourth Amend-

ment, and thus this alleged failure to train is not the moving

force behind a constitutional violation, as required for Monell

liability. Because Edgerly has not presented evidence of a

City policy of conducting strip searches, as defined by Fourth

Amendment standards, without reasonable suspicion, judg-

ment was properly granted to the City.

2. State Law Claims

[20] We conclude, however, that the district court erred by

granting judgment as a matter of law for the City on Edgerly’s

state law tort claims. First, Edgerly is correct that the City is

vicariously liable for the Officers’ actions under California

law, which “has rejected the Monell rule and imposes liability

on [cities] under the doctrine of respondeat superior for acts

of [city] employees.” See Robinson v. Solano County, 278

F.3d 1007, 1016 (9th Cir. 2002) (en banc) (citing Cal. Gov’t

Code § 815.2). The City is therefore liable to the same extent

EDGERLY v. SAN FRANCISCO 4477

as the Officers for Edgerly’s state law claims against them,

and Edgerly may recover from the City any damages awarded

on remand. See id.

[21] Second, Edgerly’s claim that the City is directly liable

for his injuries because it negligently trained and supervised

the Officers raises legal and factual questions that the district

court has not yet addressed, such as whether the City owed

Edgerly a relevant duty of care. We therefore remand this

claim for the district court to address the necessary questions

in the first instance.

C. Sergeant Schiff

We affirm the district court’s grant of summary judgment

to Sergeant Schiff as to all claims against him.

We have found supervisorial liability under § 1983 where

the supervisor “was personally involved in the constitutional

deprivation or a sufficient causal connection exists between

the supervisor’s unlawful conduct and the constitutional vio-

lation.” Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir.

2003) (quoting Jackson v. City of Bremerton, 268 F.3d 646,

653 (9th Cir. 2001)). Thus, supervisors “can be held liable

for: 1) their own culpable action or inaction in the training,

supervision, or control of subordinates; 2) their acquiescence

in the constitutional deprivation of which a complaint is

made; or 3) for conduct that showed a reckless or callous

indifference to the rights of others.” Cunningham v. Gates,

229 F.3d 1271, 1292 (9th Cir. 2000).

[22] Taking the facts in the light most favorable to

Edgerly, Sergeant Schiff was a police supervisor who was

responsible for the day-to-day operations at the station when

he was on duty, and who provided only informal training to

officers—as Schiff testified at his deposition, when officers

asked him questions, he would try to answer them. These

facts do not establish supervisorial liability for Schiff. No rea-

4478 EDGERLY v. SAN FRANCISCO

sonable trier of fact could find that Schiff had any personal

involvement in the incident because he was not aware of the

arrest or search until after they were completed, when he

authorized the Officers to cite and release Edgerly. Nor could

a reasonable trier of fact find that a sufficient causal connec-

tion existed between Schiff and the Officers’ potentially

unconstitutional search of Edgerly. Schiff was not responsible

for station policy; he was required to enforce the rules and

regulations set forth by his supervising captain and other

higher-ranking officers. Cf. Redman v. County of San Diego,

942 F.2d 1435, 1446-48 (9th Cir. 1991) (en banc) (holding,

where petitioner alleged that he was sexually assaulted in

prison due to a deficient inmate assignment policy, that a rea-

sonable jury could find supervisorial liability based on evi-

dence that the defendant sheriff was responsible for the

“ultimate direction of operations at the [prison]”). Nor do the

facts suggest that Schiff provided any training to Officers

Goff or Conefrey in particular, or that he was responsible for

providing formal training to any officers. See Canell v. Light-

ner, 143 F.3d 1210, 1213 (9th Cir. 1998) (holding that, to

establish supervisorial liability for failure to train, a plaintiff

must show that the failure “amounted to deliberate indiffer-

ence”).

[23] Accordingly, the district court properly dismissed

Edgerly’s § 1983 claims against Schiff. For similar reasons,

the court properly dismissed Edgerly’s state law claims

against Schiff. Each of these state law claims required proof

of causation and, as discussed, the facts do not establish a suf-

ficient causal connection between Schiff and the Officers’

actions. We therefore affirm the district court’s grant of sum-

mary judgment to Schiff.

D. Attorneys’ Fees

We review an award of attorneys’ fees pursuant to 42

U.S.C. § 1988 for abuse of discretion. LSO, Ltd. v. Stroh, 205

F.3d 1146, 1160 (9th Cir. 2000). A district court may award

EDGERLY v. SAN FRANCISCO 4479

attorneys’ fees to a prevailing defendant “only where the

action brought is found to be unreasonable, frivolous, merit-

less or vexatious.”18 Patton v. County of Kings, 857 F.2d

1379, 1381 (9th Cir. 1988) (quoting Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 421 (1978)).

Prior to Schiff’s deposition on May 4, 2004, his attorney

sent three letters to Edgerly’s attorney requesting that he dis-

miss Schiff because the Officers’ depositions established that

Schiff was not liable for the arrest or search. Edgerly’s attor-

ney declined to do so. After the district court ordered sum-

mary judgment on October 14, 2004, Schiff’s attorney filed a

motion for attorneys’ fees pursuant to 42 U.S.C. § 1988.

The district court granted Schiff’s motion in part, awarding

him reasonable attorneys’ fees starting from May 11, 2004,

when the parties completed discovery. The court found that it

was reasonable for Edgerly not to dismiss Schiff before com-

pleting discovery, since it was possible that Schiff’s deposi-

tion would reveal that he had a more significant role in

training or supervising the Officers than the Officers’ deposi-

tions had disclosed. The court found, however, that it was

unreasonable for Edgerly not to dismiss Schiff after his depo-

sition confirmed that there was no basis for supervisorial lia-

bility.

[24] We conclude that the district court did not abuse its

discretion in awarding reasonable post-discovery attorneys’

fees to Schiff.19

18

Edgerly does not challenge the amount of the fee award.

19

Edgerly also argues that the district court abused its discretion because

it decided the motion for attorneys’ fees without allowing oral argument.

Local Rule 7-1(b) for the Northern District of California, however, pro-

vides that a district court may decide motions without oral argument, and

Edgerly does not explain why oral argument was necessary for the court

to rule properly on Schiff’s motion.

4480 EDGERLY v. SAN FRANCISCO

E. Sanctions

We also review a district court’s imposition of sanctions for

abuse of discretion. Patelco Credit Union v. Sahni, 262 F.3d

897, 912-13 (9th Cir. 2001). “A district court abuses its dis-

cretion in imposing sanctions when it bases its decision on an

erroneous view of the law or on a clearly erroneous assess-

ment of the evidence.” Id. at 913. A motion for reconsidera-

tion is sanctionable if it is frivolous, but not if it raises new

issues. See Conn v. Borjorquez, 967 F.2d 1418, 1421 (9th Cir.

1992).

Here, the district court awarded sanctions against Edgerly

and his attorney, Gregory Haynes, under Federal Rule of Civil

Procedure 11(b) on the basis of its finding that they filed two

frivolous motions for reconsideration.20 Thus, the court

awarded sanctions in the amount of attorneys’ fees that Schiff

incurred in responding to the motions.

[25] We conclude that the district court did not abuse its

discretion in imposing these sanctions. The court did not com-

mit any legal error and its finding that Edgerly and Haynes’

two motions for reconsideration did not raise any new issues

was not clearly erroneous.21

III. Conclusion

[26] In sum, we conclude that the Officers did not violate

Edgerly’s Fourth Amendment rights by arresting him because

probable cause existed to believe that he was present within

the Cooperative in violation of California Penal Code section

20

The district court also found in the alternative that the award of sanc-

tions was justified under 28 U.S.C. § 1987. Because we affirm the award

of sanctions under Federal Rule of Civil Procedure 11(b), we do not

address this alternate basis for the sanctions.

21

For the reasons discussed supra in note 18, the district court did not

abuse its discretion in granting the motion without allowing oral argument.

EDGERLY v. SAN FRANCISCO 4481

602.8. We therefore affirm the district court’s entry of judg-

ment as a matter of law for the Officers on Edgerly’s § 1983

unlawful arrest claim. For the same reason, we affirm the

grant of summary judgment to the City on the § 1983 Monell

arrest claim. However, because a custodial arrest was not

authorized under state law, we reverse the district court’s

grant of judgment as a matter of law to the Officers and the

City on Edgerly’s state law false arrest claim, and remand for

further proceedings.

We further hold that, viewing the evidence in the light most

favorable to Edgerly, a reasonable jury could find that the

Officers unlawfully strip searched him in violation of the

Fourth Amendment and California Penal Code section

4030(f), and that the Officers are not entitled to qualified

immunity for the search. We therefore reverse and remand for

further proceedings with respect to Edgerly’s § 1983 unlawful

search claim against the Officers and state law unlawful

search claims against the Officers and the City. We affirm the

grant of summary judgment to the City on Edgerly’s related

Monell claim, however, because Edgerly has not provided

sufficient evidence that the Officers were acting pursuant to

a City policy of conducting strip searches without reasonable

suspicion.

We reverse and remand for the district court to address in

the first instance Edgerly’s claims of state law negligence,

negligent infliction of emotional distress, and intentional

infliction of emotional distress against the Officers and the

City, and his negligent training and supervision claim against

the City.

Finally, we affirm the district court’s grant of summary

judgment and award of attorneys’ fees to Schiff and the impo-

sition of sanctions against Edgerly and his attorney, Gregory

Haynes.

4482 EDGERLY v. SAN FRANCISCO

AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings consistent with this

opinion.

In Appeal No. 05-15382, the parties shall bear their own

costs of appeal.

In Appeal No. 05-15080, the Appellees shall recover their

costs of appeal.