David Demarest v. City of Vallejo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID P. DEMAREST, No. 20-15872

Plaintiff-Appellant,

D.C. No.

v. 2:16-cv-02271-

MCE-KJN

CITY OF VALLEJO, California, a

municipality and charter city; JODI

BROWN, Police Officer, as an OPINION

individual and in official capacity;

JEFF TAI, Police Officer, as an

individual and in official capacity;

HERMAN ROBINSON, Police Officer,

as an individual and in official

capacity,

Defendants-Appellees,

and

JOSEPH KREINS, Former Police

Chief, as an individual and in official

capacity; ANDREW BIDOU, Police

Chief, in official capacity,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

2 DEMAREST V. CITY OF VALLEJO

Argued and Submitted May 13, 2021

San Francisco, California

Filed August 16, 2022

Before: J. Clifford Wallace, Jacqueline Nguyen, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment for defendants in an action brought pursuant to

42 U.S.C. § 1983 alleging that plaintiff’s Fourth

Amendment rights were violated when he was arrested after

declining a police officer’s repeated demands to show his

driver’s license at a sobriety checkpoint and that the officer

used excessive force in effectuating the arrest.

Plaintiff alleged that the City of Vallejo violated the

Fourth Amendment by adding license checks to what was

concededly a sobriety checkpoint. Reviewing a line of

relevant Supreme Court decisions, the panel derived a “two-

step analysis” for assessing the validity of a checkpoint

under the Fourth Amendment. At the first step, a court must

determine, in accordance with City of Indianapolis v.

*

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

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

DEMAREST V. CITY OF VALLEJO 3

Edmond, 531 U.S. 32, 40 (2000), and Illinois v. Lidster,

540 U.S. 419 (2004), whether a checkpoint is “per se

invalid” because its “primary purpose” is “to advance the

general interest in crime control” with respect to the

occupants of the vehicles being stopped. If the answer to

that question is no, then the court must determine the

checkpoint’s reasonableness, hence, its constitutionality, on

the basis of the individual circumstances.

Applying that two-step analysis to this case, the panel

first held that because the City’s checkpoint did not have any

impermissible primary purpose of advancing the general

interest in crime control, it was not per se invalid. The panel

then applied the factors for assessing reasonableness set

forth in Lidster and concluded that the City’s systematic

addition of driver’s license checks to an otherwise valid

sobriety checkpoint was objectively reasonable under the

Fourth Amendment. Given that the Supreme Court has said

that removing unlicensed drivers from the road serves a

“vital interest” in “highway safety” that would itself justify

a traffic checkpoint, a request to produce licenses at an

otherwise valid sobriety checkpoint clearly served an

equally weighty interest. On this record, the license check

interfered only minimally with liberty of the sort the Fourth

Amendment seeks to protect and was justified by the

important interest in road safety. Therefore, the request that

plaintiff produce his license while he was briefly seized at

the checkpoint did not entail a Fourth Amendment violation.

The panel held that, once plaintiff refused to produce his

license for examination at the checkpoint, Officer Brown

had probable cause to believe that plaintiff was committing

an offense in violation of California Vehicle Code

§ 12951(b), and his continued detention and arrest were

therefore reasonable under the Fourth Amendment.

4 DEMAREST V. CITY OF VALLEJO

Moreover, Officer Brown’s action of physically removing

plaintiff from his car by grabbing his arm was objectively

reasonable as a matter of law given plaintiff’s lack of

cooperation with her commands up to that point and the

modest nature of the force used. Under the relevant

circumstances, Officer Brown’s use of force in effectuating

the arrest was not excessive. Because plaintiff failed to show

that he suffered any underlying constitutional violation, his

cause of action asserting municipal liability also necessarily

failed.

COUNSEL

David M. Helbraun (argued), Helbraun Law Firm, San

Francisco, California, for Plaintiff-Appellant.

Katelyn M. Knight (argued), Assistant City Attorney; Randy

J. Risner, Interim City Attorney; Office of the City Attorney,

Vallejo, California; for Defendants-Appellees.

Sean Riordan, American Civil Liberties Union Foundation

of Northern California, San Francisco, California, for

Amicus Curiae American Civil Liberties Union Foundation

of Northern California.

DEMAREST V. CITY OF VALLEJO 5

OPINION

COLLINS, Circuit Judge:

While visiting California from Vermont, David

Demarest was asked to produce his driver’s license when he

pulled up in his rental car to a sobriety checkpoint in the City

of Vallejo. Demarest believed that such a request violated

his Fourth Amendment rights, and on that express basis he

declined an officer’s repeated demands to show his license.

The officer proceeded to arrest Demarest, although all

resulting charges were later dismissed. Demarest then filed

this action under 42 U.S.C. § 1983, asserting (as relevant

here) that the City and the officer violated the Fourth

Amendment by adding license checks to what was

concededly a sobriety checkpoint; that Demarest’s arrest

was not supported by probable cause that he had committed

an offense; that the officer had used excessive force in

effectuating the arrest; and that the City was liable for these

violations of his constitutional rights. The district court

granted summary judgment to the City and the officer on all

of these claims. We affirm.

I

A

Because Demarest’s appeal challenges an order granting

summary judgment to the defendants, we must credit his

evidence as true and draw all reasonable inferences in his

favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986); see also Tolan v. Cotton, 572 U.S. 650, 651

(2014). Applying these standards, we take the following

facts as established for purposes of this appeal.

6 DEMAREST V. CITY OF VALLEJO

Demarest lived in Vermont and was visiting the west

coast in late summer 2014. During that visit, he purchased a

boat in Bellingham, Washington and from there he sailed to

the marina in Vallejo. Due to a staph infection he had

developed in his back, Demarest ended up spending a week

or two in the Vallejo area, while he visited a “laundry list of

healthcare practitioners.” On the evening of Friday,

September 26, Demarest, who was driving a rental car, set

out from the Vallejo marina with some boating equipment

that he planned to deliver to someone in the Oakland area.

As he was driving through Vallejo, Demarest could see some

slowing traffic up ahead, but he was initially unsure whether

it was construction or some sort of checkpoint. As he got

closer, he saw signs indicating that a “DUI” (i.e., “Driving

Under the Influence”) and “Driver’s License” checkpoint

was ahead, but by that point he did not think there was a legal

way that he could have turned to avoid it. Accordingly, he

proceeded into the checkpoint at about 7:15 PM.

This particular checkpoint, near the intersection of

Sonoma Boulevard and Solano Avenue in Vallejo, had been

established pursuant to an advance “DUI Checkpoint

Operation Plan.” The location was chosen due to the fact

that a significant percentage of “DUI collisions in 2010” had

occurred “on or near Sonoma Boulevard.” Under the pre-

arranged checkpoint plan, a “neutral formula” was used

under which “all vehicles will be stopped unless the backup

exceeds 5 minutes,” in which case “all vehicles will be

waived through until the backup is cleared.” At the

checkpoint, which was operated from approximately

6:00 PM until midnight, officers were to “screen drivers for

DUI, verify they have a license, and provide educational

material in the form of a handout.” To advise drivers of the

checkpoint, signs were posted stating, “DUI AND

DRIVERS LICENSE CHECKPOINT AHEAD” and

DEMAREST V. CITY OF VALLEJO 7

“HAVE YOUR DRIVERS LICENSE READY.” In

addition to these signs, “the area was coned off”; “traffic

[was] slowed and directed to a single lane”; “there was

portable lighting in the area”; and “police vehicles were at

the checkpoint with [their] emergency lights on.” A press

release announcing the checkpoint was issued two days in

advance and was reported on the website of a local

newspaper. Although driver’s licenses were to be checked,

it is undisputed that (1) the checkpoint’s “purpose . . . was to

remove intoxicated drivers from the road and to deter

intoxicated driving” and (2) “[r]emoving unlicensed drivers

from the road and deterring unlicensed driving was not a

purpose of the [c]heckpoint” (emphasis added).

As Demarest approached the first officer at the

checkpoint, that officer signaled to him to proceed forward

to the next officer, Jodi Brown. When Demarest reached

Officer Brown, he stopped his car, and she asked to see his

driver’s license. Instead of giving Officer Brown his license,

Demarest asked if he could continue on his way. She

responded by asking for his driver’s license again. He then

asked “something to the effect of” whether she had any cause

or reasonable suspicion to stop him. Officer Brown ignored

the question and told Demarest that, if he did not produce his

license, he would be arrested. Demarest did not produce his

license. Officer Brown opened the door of his car, grabbed

Demarest’s left wrist, removed him from the vehicle, and

placed a handcuff on his left wrist. While she was doing so,

she informed Demarest that he was under arrest, and she

admonished him to “stop resisting.” The entire process of

pulling him out of the car took only about one or two

seconds. At his subsequent deposition, Demarest testified

that the “whole arrest process” exacerbated his pre-existing

back pain by 10 to 25 percent. He did not experience

8 DEMAREST V. CITY OF VALLEJO

significant pain in any other part of his body as a result of

being pulled out of the car and handcuffed.

After being handcuffed and patted down by Officer

Brown, Demarest offered to take a breathalyzer test, but a

different officer told him, “[t]hat’s not what this is about.”

Officer Brown turned Demarest over to another officer, Jeff

Tai, who then placed him in the back of a police car. After

Demarest’s Vermont driver’s license was located, Officer

Tai ran a check on the license and learned that it was valid

and that there were no warrants for Demarest’s arrest.

Demarest asked to speak to a supervisor, and Officer

Herman Robinson came to speak with him. Demarest

complained to him that he had done nothing wrong and had

only exercised his rights under the Fourth Amendment, and

Officer Robinson responded with words to the effect of

“You win more bees with honey than vinegar.”

Demarest was transported to the Vallejo Police

Department and booked into jail. During the booking

process, Officer Brown noticed a thin rope around

Demarest’s neck, and she asked what it was. Demarest

explained that the rope held a utility knife. The knife was

about three inches in length and was encased in a sheath.

Demarest explained at his deposition that he kept the knife

around his neck so that it would be readily available during

sailing. Officer Brown took custody of the knife, and

Demarest was then placed in a cell. 1

Demarest was subsequently charged with two

misdemeanors: resisting arrest in violation of California

Penal Code § 148(a) and possessing a concealed “dirk or

1

Officer Brown had patted down Demarest his initial arrest at the

checkpoint, but she failed to detect the knife at that time.

DEMAREST V. CITY OF VALLEJO 9

dagger” in violation of California Penal Code § 21310.

Demarest agreed to participate in a diversion program, and

upon his successful completion of that program, the charges

were dismissed.

B

Demarest filed this civil action in September 2016. The

operative complaint contained ten causes of action and

named as Defendants Officers Brown, Tai, and Robinson, in

their individual and official capacities, along with the City

of Vallejo. However, in rulings that Demarest does not

challenge on appeal, the district court dismissed all but the

complaint’s first cause of action against Officer Brown and

its ninth cause of action against the City. 2 Both claims are

asserted under 42 U.S.C. § 1983.

The first cause of action asserts that Officer Brown

violated Demarest’s Fourth Amendment right to be free from

unreasonable searches and seizures in three respects. First,

it alleges that, by demanding to see Demarest’s license at the

sobriety checkpoint and refusing Demarest’s request to be

allowed to proceed, Officer Brown unlawfully detained

Demarest without reasonable suspicion or probable cause.

Second, it alleges that Officer Brown arrested Demarest

without probable cause. Third, it alleges that Officer Brown

used excessive force when removing Demarest from his

vehicle.

The ninth cause of action alleges that the City is liable

for Officer Brown’s asserted Fourth Amendment violations

under Monell v. Department of Social Services, 436 U.S. 658

2

Accordingly, we grant the unopposed motion to dismiss Officers

Tai and Robinson as parties to this appeal.

10 DEMAREST V. CITY OF VALLEJO

(1978). As to Officer Brown’s initial detention of Demarest,

the complaint alleges that she acted unlawfully pursuant to

the City’s alleged official policy of conducting driver’s

license checks at “DUI checkpoints,” even though such

checks have “absolutely nothing to do with preventing the

dangers” of drunk driving. As for the alleged wrongful

arrest and excessive force in effectuating that arrest, the

complaint asserts that the City was liable due to its alleged

failure “to adequately train, supervise and discipline”

officers, including Officer Brown, which Demarest argued

had led to a “pattern of officers violating citizens[’] civil

rights with impunity.”

After the parties filed cross-motions for summary

judgment, the district court granted summary judgment to

Officer Brown and the City in February 2020. The district

court rejected Demarest’s argument that Officer Brown’s

demand to see his license rendered his detention at the

checkpoint unlawful. The court held that, “although the

checkpoint’s primary purpose [was] to check for driver

sobriety,” the officers could properly “require drivers to

present a driver’s license during the stop because such a

requirement does not measurably or unreasonably extend the

seizure.” Because the seizure and license check were lawful,

the district court concluded that Officer Brown had probable

cause to arrest Demarest for refusing to produce his license

in violation of California Vehicle Code § 12951(b). As to

Demarest’s claim that Officer Brown used excessive force

in making the arrest, the court held that, construing the facts

in the light most favorable to Demarest, the force used was

reasonable. Because the court thus concluded that Officer

Brown had not committed the alleged constitutional

violations, it did not address the issue of qualified immunity

or the additional issues concerning the City’s potential

liability under Monell.

DEMAREST V. CITY OF VALLEJO 11

Demarest timely appealed, and we have jurisdiction

pursuant to 28 U.S.C. § 1291. We review the district court’s

summary judgment de novo. See Sandoval v. County of

Sonoma, 912 F.3d 509, 515 (9th Cir. 2018).

II

The Fourth Amendment, which is applicable to the

States through the Fourteenth Amendment, protects the

“right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures.” U.S. CONST. amend. IV. An automobile that has

been stopped by government officials at a checkpoint has

been seized for Fourth Amendment purposes, and any such

seizure therefore must comport with that amendment’s

requirements. See City of Indianapolis v. Edmond, 531 U.S.

32, 40 (2000). As a general matter, “searches and seizures

conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment—subject only to a few

specifically established and well delineated exceptions.”

Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (citations

and internal quotation marks omitted). In a series of

decisions, the Supreme Court has recognized one such

limited exception for certain carefully circumscribed vehicle

checkpoints. See Edmond, 531 U.S. at 47 (reaffirming past

decisions recognizing the constitutionality of limited

“sobriety and border checkpoints” and suggesting that

certain “traffic checkpoint[s]” to check licenses and

registration would likewise be constitutional). The central

question in this appeal is whether the City’s checkpoint falls

within the exception recognized in those decisions. We

conclude that it does.

12 DEMAREST V. CITY OF VALLEJO

A

In addressing whether the City’s vehicle checkpoint fits

within that exception, we begin by carefully reviewing the

reasoning and holdings of the Supreme Court’s relevant

decisions.

In the seminal case of United States v. Martinez-Fuerte,

428 U.S. 543 (1976), the Court upheld the constitutionality

of vehicle stops made without warrants or reasonable

suspicion at “permanent immigration checkpoint[s]” on

major highways heading away from the border. 428 U.S.

at 545. Although “some quantum of individualized

suspicion is usually a prerequisite to a constitutional search

or seizure,” id. at 560, the Court held that a “balancing [of]

the interests at stake” confirmed that it was reasonable, and

consistent with the Fourth Amendment, to make the limited

“stops and questioning at issue . . . at reasonably located

checkpoints,” notwithstanding “the absence of any

individualized suspicion” or a warrant. Id. at 556, 562; see

also id. at 562 n.15. Noting that “one’s expectation of

privacy in an automobile and of freedom in its operation are

significantly different from the traditional expectation of

privacy and freedom in one’s residence,” id. at 561, the

Court held that immigration-enforcement interests served by

the “routine checkpoint stops” were “great” and outweighed

the “quite limited” intrusion on “motorists’ right[s],” id.

at 557. The Court emphasized that “the reasonableness of

the procedures followed in making these checkpoint stops”

made “the resulting intrusion on the interests of motorists

minimal.” Id. at 562.

Thereafter, in Delaware v. Prouse, 440 U.S. 648 (1979),

the Court distinguished Martinez-Fuerte in holding that a

roving patrol—in which an officer, without any reasonable

suspicion, pulled over a particular vehicle in order to check

DEMAREST V. CITY OF VALLEJO 13

the driver’s license and the vehicle’s registration—violated

the Fourth Amendment. 440 U.S. at 663. As the Court

explained, there was a “crucial distinction” between the sort

of “roving-patrol stop” or “spot check[]” at issue in Prouse

and the fixed checkpoint in Martinez-Fuerte. Id. at 656–57.

Although the level of “objective intrusion—the stop itself,

the questioning, and the visual inspection”—might be

comparable in the two situations, the level of “subjective

intrusion —the generating of concern or even fright on the

part of lawful travelers—is appreciably less in the case of a

checkpoint stop.” Id. at 656 (quoting Martinez-Fuerte,

428 U.S. at 558) (emphasis added); see also id. at 657 (“At

traffic checkpoints the motorist can see that other vehicles

are being stopped, he can see visible signs of the officers’

authority, and he is much less likely to be frightened or

annoyed by the intrusion.” (quoting United States v. Ortiz,

422 U.S. 891, 894–95 (1975))). Moreover, unlike the

checkpoint in Martinez-Fuerte, the sort of roving-patrol stop

in Prouse involved an exercise of “standardless and

unconstrained discretion.” Id. at 661. In light of these

substantially greater intrusions on Fourth Amendment

interests, the arbitrary stopping of specific vehicles could not

be justified by whatever “marginal contribution to roadway

safety” such stops might entail. Id.

The Prouse Court cautioned, however, that its “holding

does not preclude the State of Delaware or other States from

developing methods for spot checks that involve less

intrusion or that do not involve the unconstrained exercise of

discretion.” Id. at 663. In particular, the Court underscored

that “[q]uestioning of all oncoming traffic at roadblock-type

stops is one possible alternative.” Id. Indeed, the Court has

subsequently characterized its decision in Prouse as having

“approved vehicle checkpoints set up for the purpose of

14 DEMAREST V. CITY OF VALLEJO

keeping off the road unlicensed drivers.” Ashcroft v. al-

Kidd, 563 U.S. 731, 737 (2011).

The Court in Michigan Department of State Police v.

Sitz, 496 U.S. 444 (1990), subsequently addressed the

constitutionality of a sobriety checkpoint, which the Court

held was more like the immigration checkpoints in Martinez-

Fuerte than the roving license-check in Prouse. See Sitz,

496 U.S. at 454–55. Just as with the immigration

checkpoints in Martinez-Fuerte, the “intrusion on motorists

stopped briefly at sobriety checkpoints . . . is slight.” Id.

at 451. Indeed, the Court saw “virtually no difference

between the levels of intrusion on law-abiding motorists

from the brief stops necessary to the effectuation of these

two types of checkpoints, which to the average motorist

would seem identical save for the nature of the questions the

checkpoint officers might ask.” Id. at 451–52. Because the

“preliminary questioning and observation” at the checkpoint

was brief and limited, the extent of the intrusion was

“minimal” and was outweighed by the “magnitude of the

drunken driving problem [and] the States’ interest in

eradicating it.” Id. at 450–52. Moreover, the checkpoint’s

operation was governed by guidelines, issued by a state

advisory committee, that “minimize[d] the discretion of the

officers on the scene” and eliminated the “kind of

standardless and unconstrained discretion” that had troubled

the Court in Prouse. Id. at 452, 454 (citation omitted).

In Edmond, the Court distinguished its earlier cases and

held that the Fourth Amendment prohibited an Indianapolis

“highway checkpoint program whose primary purpose [was]

the discovery and interdiction of illegal narcotics.” 531 U.S.

at 34. As Edmond noted, the prior checkpoint programs the

Court had approved were “designed primarily to serve

purposes closely related to the problems of policing the

DEMAREST V. CITY OF VALLEJO 15

border or the necessity of ensuring roadway safety.” Id.

at 41 (emphasis added). The Court had never approved a

checkpoint outside those limited contexts and it “decline[d]

to suspend the usual requirement of individualized

suspicion” where—as in the Indianapolis checkpoint

program in Edmond—“the police seek to employ a

checkpoint primarily for the ordinary enterprise of

investigating crimes.” Id. at 44. The Court recognized that

the border and roadway-safety contexts could also be said,

like the Indianapolis checkpoint, to involve “law

enforcement activities.” Id. at 42. But the Court concluded

that, if its prior cases were read at such a “high level of

generality” as authorizing checkpoints for any law

enforcement purpose, then “there would be little check on

the ability of the authorities to construct roadblocks,” which

would then “becom[e] a routine part of American life.” Id.

“Because the primary purpose of the Indianapolis

checkpoint program [was] ultimately indistinguishable from

the general interest in crime control, the checkpoints

violate[d] the Fourth Amendment.” Id. at 48 (emphasis

added); see also id. at 47 (stating that, under the Court’s

subjective test, “a program driven by an impermissible

purpose may be proscribed while a program impelled by licit

purposes is permitted, even though the challenged conduct

may be outwardly similar”).

The Edmond Court acknowledged that Fourth

Amendment standards are usually objective and do not

consider the subjective motivations of the governmental

actors. See id. at 45; see also Nieves v. Bartlett, 139 S. Ct.

1715, 1724 (2019) (stating that, “[i]n the Fourth Amendment

context,” the Court has “‘almost uniformly rejected

invitations to probe subjective intent’” (citation omitted)).

But the Court distinguished between the typical Fourth

Amendment context, which involves individualized

16 DEMAREST V. CITY OF VALLEJO

determinations of suspicion, and the checkpoint situation,

which does not. “[P]rogrammatic purposes,” the Court

stated, “may be relevant to the validity of Fourth

Amendment intrusions undertaken pursuant to a general

scheme without individualized suspicion.” Edmond,

531 U.S. at 45–46 (emphasis added).

In a subsequent case, however, the Supreme Court

confirmed that, outside certain limited contexts, such as the

sort of “warrantless, ‘suspicionless intrusions pursuant to a

general scheme’” at issue in Edmond, the Court continues to

employ a standard of “objective reasonableness,” rather than

to undertake “subjective inquiries.” al-Kidd, 563 U.S.

at 738–39 (emphasis added) (citation omitted). In support of

this proposition, the Court cited Bond v. United States,

529 U.S. 334 (2000), which applied an objective standard in

judging the Fourth Amendment reasonableness of a border

patrol agent’s conduct in squeezing, “in an exploratory

manner,” the defendant’s soft-sided luggage, which was

located in the overhead storage space of a bus that had been

stopped at an immigration checkpoint. 529 U.S. at 335, 339.

As the Bond Court explained, the officer’s “subjective

intent” was “irrelevant”; what mattered, under the Fourth

Amendment, was “not his state of mind, but the objective

effect of his actions.” Id. at 338 n.2. Applying that objective

standard, the Court held that the suspicionless tactile

examination of the luggage infringed the defendant’s

reasonable expectation of privacy and was therefore

unreasonable under the Fourth Amendment. Id. at 338–39

& n.2.

Lastly, in Illinois v. Lidster, 540 U.S. 419 (2004), the

Court further clarified and limited the reach of Edmond. In

Lidster, approximately one week after a late-night hit-and-

run accident in which a bicyclist had been killed, the police

DEMAREST V. CITY OF VALLEJO 17

set up a checkpoint “at about the same time of night and at

about the same place.” Id. at 422. The expectation was “that

motorists routinely leaving work after night shifts at nearby

industrial complexes might have seen something relevant,”

and so the police “stopped all vehicles systematically,”

handed drivers a flyer about the accident, and asked them if

they had any information about it. Id. at 427–28. The

Illinois Supreme Court held that, because the checkpoint’s

primary purpose was law enforcement, it was

unconstitutional under Edmond, but the U.S. Supreme Court

disagreed. Id. at 423. Edmond involved a stop in which the

“primary law enforcement purpose” was “to determine

whether a vehicle’s occupants were committing a crime,”

whereas the primary purpose of the checkpoint in Lidster

was “to ask vehicle occupants, as members of the public, for

their help in providing information about a crime in all

likelihood committed by others.” Id. (emphasis added). An

“Edmond-type rule of automatic unconstitutionality” does

not apply to such “brief, information-seeking highway

stops.” Id. at 424. As the Court explained, Edmond’s rule

rests on the concern about using checkpoints for the primary

purpose of generalized law enforcement against motorists as

to whom there is no individualized suspicion, but that

rationale did not apply to the information-seeking

checkpoint in Lidster, where, “by definition, the concept of

individualized suspicion has little role to play.” Id.

Because Edmond’s automatic rule did not apply, Lidster

assessed the reasonableness of the checkpoint “on the basis

of the individual circumstances.” Id. at 426. Among the

factors to be considered “in judging reasonableness,” the

Court stated, are “the gravity of the public concerns served

by the seizure, the degree to which the seizure advances the

public interest, and the severity of the interference with

individual liberty.” Id. at 427 (citation omitted). After

18 DEMAREST V. CITY OF VALLEJO

considering these factors, the Court held that “the checkpoint

stop was constitutional.” Id. at 428.

B

In reviewing this line of Supreme Court cases, we have

derived from them a “two-step analysis” for assessing the

validity of a checkpoint under the Fourth Amendment.

United States v. Fraire, 575 F.3d 929, 932 (9th Cir. 2009).

At the first step, a court must determine, in accordance with

Edmond and Lidster, whether a checkpoint is “per se

invalid” because its “primary purpose” is “to advance the

general interest in crime control” with respect to the

occupants of the vehicles being stopped. Id. (citation and

internal quotation marks omitted). If the answer to that

question is no, then the court must “determine its

‘reasonableness, hence, its constitutionality, on the basis of

the individual circumstances.’” Id. at 933 (quoting Lidster,

540 U.S. at 426). We turn, then, to applying that two-step

analysis to this case.

1

The undisputed facts confirm that the City’s checkpoint

did not involve an impermissible primary programmatic

purpose of “uncover[ing] evidence of ordinary criminal

wrongdoing.” See Edmond, 531 U.S. at 41–42. In

connection with their summary judgment motions, the

parties expressly agreed that “[t]he purpose of the

[c]heckpoint was to remove intoxicated drivers from the

road and to deter intoxicated driving.” Under Edmond and

Sitz, this primary purpose of “ensuring roadway safety” by

“reducing the immediate hazard posed by the presence of

drunk drivers on the highways” is a permissible basis for

conducting a checkpoint and is materially distinguishable

from the impermissible primary purpose of “serv[ing] the

DEMAREST V. CITY OF VALLEJO 19

general interest in crime control.” Edmond, 531 U.S. at 39,

41–42; see also Sitz, 496 U.S. at 451. Demarest does not

contend otherwise in this court.

The parties also stipulated below that “[r]emoving

unlicensed drivers from the road and deterring unlicensed

driving was not a purpose of the [c]heckpoint” (emphasis

added). This stipulation, which addresses only what was not

a purpose of the checkpoint, does not in any way detract

from the parties’ agreement that the checkpoint had a

permissible primary purpose. Moreover, even if removing

unlicensed drivers from the road had been a primary purpose

of the checkpoint, that would not have rendered it “per se

invalid” under Edmond. See Fraire, 575 F.3d at 932. As

Edmond makes clear, a “roadblock with the [primary]

purpose of verifying drivers’ licenses and vehicle

registrations would be permissible” because it rests on a

purpose of ensuring “highway safety” rather than general

crime control. 531 U.S. at 38–39; see also al-Kidd, 563 U.S.

at 737; Prouse, 440 U.S. at 663.

Because the City’s checkpoint did not have any

impermissible primary purpose of advancing the general

interest in crime control, we conclude that it was not “per se

invalid” under the first step of our analysis. Fraire, 575 F.3d

at 932.

2

Having determined that the City’s checkpoint was not

one established primarily for general crime control, we

proceed to the second step of the analysis, at which we must

assess the reasonableness of the checkpoint “on the basis of

the individual circumstances.” Lidster, 540 U.S. at 426. In

addressing the checkpoint seizure at issue here, we

differentiate between two aspects of that seizure—namely,

20 DEMAREST V. CITY OF VALLEJO

the initial checkpoint stop itself, and the prolongation of that

seizure caused by the demand to see each motorist’s driver’s

license.

On appeal, Demarest does not dispute that the initial stop

of his vehicle was properly made pursuant to a DUI

checkpoint that was constitutionally permissible under Sitz.

Nor could he. Sitz held that state and local governments have

a strong interest in removing drunk drivers from the road;

that properly limited checkpoints “can reasonably be said to

advance that interest”; and that the “measure of the intrusion

on motorists stopped briefly” at prominently marked

checkpoints “is slight.” 496 U.S. at 451, 455. At least with

respect to the initial stopping of vehicles at the City’s

checkpoint, each of these holdings is likewise applicable

here. 3 Moreover, as in Sitz, the City’s checkpoint was

planned and conducted pursuant to objective guidelines that

“minimize[d] the discretion of the officers on the scene” and

eliminated the “kind of standardless and unconstrained

discretion” that might give rise to constitutional concerns.

Id. at 452, 454 (citation omitted). We therefore agree that

the initial stop of Demarest’s vehicle at the DUI checkpoint

was consistent with the Fourth Amendment.

The next question is whether that initially valid seizure

was rendered unreasonable because the City systematically

added a license check to a DUI checkpoint. Demarest argues

that this addition improperly prolonged the seizure and

thereby rendered it unreasonable. Specifically, Demarest

3

As stated earlier, the City selected the location for the stop because

it had been associated in the past with a significant number of “DUI

collisions,” and at least two signs alerted drivers to the nature of the

upcoming checkpoint, which was clearly marked off with cones and

lights. See supra at 6–7.

DEMAREST V. CITY OF VALLEJO 21

contends that, in evaluating two of the factors that Lidster

instructs us to consider in assessing the reasonableness of a

checkpoint seizure—namely, the importance of the “public

concerns served” by the checkpoint and the extent to which

the checkpoint “advances the public interest”—we are

limited to considering only the public interest in removing

drunk drivers from the road and not the interest in

intercepting unlicensed drivers. 540 U.S. at 426–27

(citations omitted). According to Demarest, because the

parties stipulated that intercepting unlicensed drivers was

not one of the subjective purposes of this particular

checkpoint, that public interest may not be considered in

assessing the checkpoint’s reasonableness. Instead,

Demarest argues, our analysis must be limited to assessing

whether the severity of the intrusions on his liberty at the

checkpoint—including the demand to see driver’s

licenses—is justified by the extent to which those intrusions

advance important interests in preventing drunk driving.

And because demanding to see the license of the obviously

sober Demarest did not further that interest, he argues, the

nature and extent of his seizure at the checkpoint was

unreasonable. We reject this argument, which rests on a

misunderstanding of the relevant Fourth Amendment

principles.

In construing the Fourth Amendment’s prohibition

against “unreasonable” searches and seizures, see U.S.

CONST. amend IV, the Supreme Court has “almost uniformly

rejected invitations to probe subjective intent” and has

instead held that “[l]egal tests based on reasonableness are

generally objective.” Nieves, 139 S. Ct. at 1724–25

(emphasis added) (citations omitted). As explained earlier,

Edmond recognized a limited departure from this insistence

on objective standards of reasonableness when it held that a

“general scheme” of “suspicionless intrusions” that is

22 DEMAREST V. CITY OF VALLEJO

“driven by an impermissible [subjective] purpose” is per se

unreasonable. 531 U.S. at 47 (emphasis added); see supra

at 14–16. In a footnote, the Court left open the question of

whether a checkpoint with a “secondary purpose” of general

crime control would likewise be invalid. Id. at 47 n.2

(emphasis added). But the Edmond Court did not otherwise

retreat from the general proposition that “reasonableness

under the Fourth Amendment is predominantly an objective

inquiry.” Id. at 47; see also al-Kidd, 563 U.S. at 736–37

(stating that, outside the context of Edmond and a few other

“limited exceptions,” the Court has “almost uniformly

rejected invitations to probe subjective intent” (simplified)).

This case involves a checkpoint that, as we have

explained, manifestly does not involve an impermissible

primary (or even secondary) subjective purpose. See supra

at 18–19. Indeed, even if the checkpoint here had been

subjectively motivated in part by a desire to remove

unlicensed drivers from the road, that subjective purpose

would not be an invalid one under Edmond. As a result,

Edmond’s limited exception to the normal rule against

consideration of subjective purpose has fulfilled its task of

screening out impermissible subjective purposes—here,

there are none. Because the Edmond exception does not

apply, the remaining inquiry into the reasonableness of the

checkpoint’s intrusion is an objective one. Consequently,

that reasonableness analysis may take account of any interest

that Edmond classifies as a proper basis for conducting a

checkpoint in the first place. In other words, because the

interests in detecting drunk drivers and unlicensed drivers

are both permissible primary purposes for conducting a

checkpoint, there is no logical reason why either of these

legitimate interests should be set aside in assessing the

objective reasonableness of what, under Edmond, is

DEMAREST V. CITY OF VALLEJO 23

unquestionably a properly motivated checkpoint program. 4

Accordingly, even though detecting unlicensed drivers was

not the subjective purpose of this particular checkpoint, the

public interest in such detection may nonetheless be

considered in assessing the checkpoint’s objective

reasonableness.

Turning to the factors for assessing reasonableness set

forth in Lidster, we conclude that the City’s systematic

addition of driver’s license checks to an otherwise valid DUI

checkpoint was objectively reasonable under the Fourth

Amendment. As noted earlier, Lidster tells us to consider

“[1] the gravity of the public concerns served by the seizure,

[2] the degree to which the seizure advances the public

interest, and [3] the severity of the interference with

individual liberty.” 540 U.S. at 427 (citation omitted). The

first two factors weigh in favor of the objective

reasonableness of the City’s license checks at its DUI

checkpoint. Given that the Court has said that removing

unlicensed drivers from the road serves a “vital interest” in

“highway safety” that would itself justify a traffic

checkpoint, see Edmond, 531 U.S. at 39 (citations omitted),

a request to produce licenses at an otherwise valid DUI

checkpoint clearly serves an equally weighty interest.

Moreover, it is obvious that such license checks are

“appropriately tailored,” Lidster, 540 U.S. at 427, to

advancing this “interest in ensuring that only those qualified

to do so are permitted to operate motor vehicles,” Prouse,

440 U.S. at 658; see also Edmond, 531 U.S. at 41 (stating

4

We would be presented with a very different case if the City had

sought to defend the reasonableness of the checkpoint based on an

interest that—unlike the interception of unlicensed drivers—could not

serve as a permissible primary programmatic purpose of a checkpoint.

24 DEMAREST V. CITY OF VALLEJO

that license checks “serve purposes closely related to . . . the

necessity of ensuring roadway safety”).

The remaining Lidster factor requires us to consider the

severity of the marginal intrusion on liberty associated with

the City’s addition of a driver’s license check to this DUI

checkpoint. We conclude that, on this record, the license

check “interfered only minimally with liberty of the sort the

Fourth Amendment seeks to protect.” Lidster, 540 U.S.

at 427. In reaching this conclusion, we emphasize three

considerations.

First, as Edmond makes clear, a license check, by itself,

does not entail “the ordinary enterprise of investigating

crimes.” 531 U.S. at 44. Without more, license checks are

not the sort of inquiry that, when undertaken at a checkpoint,

might be thought to require some measure of individual

suspicion. Cf. Sitz, 496 U.S. at 451 (noting that “[d]etention

of particular motorists for more extensive field sobriety

testing may require satisfaction of an individualized

suspicion standard” (citing Martinez-Fuerte, 428 U.S.

at 567)). The non-law-enforcement nature of the license

checks in this case is especially clear, because the City

concededly did not use the license checks to conduct on-the-

spot warrant checks. Cf. United States v. Bernacet, 724 F.3d

269, 271, 273–74 (2d Cir. 2013) (addressing a license

checkpoint in which officers ran licenses through multiple

databases, including a “criminal history database”). The

mere request to produce a facially valid license is a relatively

modest additional intrusion on the liberty of a motorist who

has already been properly stopped at a checkpoint.

Second, the license checks’ contribution to the length of

the checkpoint stops is marginal, if not de minimis. It was

undisputed below that, unless a motorist was referred for

further screening, the City’s “Operation Plan” for

DEMAREST V. CITY OF VALLEJO 25

conducting the checkpoint contemplated that the entire

duration of each seizure, including the license check, would

be only 15 seconds. That is well within the range of very

brief detentions that the Supreme Court has upheld as

reasonable at vehicle checkpoints. See Lidster, 540 U.S.

at 427 (holding that information-seeking checkpoint stops

lasting “a very few minutes at most” were reasonable); Sitz,

496 U.S. at 448 (holding that DUI checkpoint stops were

reasonable where the “average delay for each vehicle was

approximately 25 seconds”). To be sure, the duration of

Demarest’s seizure was much longer, but that is attributable

to his refusal to produce his driver’s license, which (as we

explain below) was a violation of California law that then

independently justified a further detention. See infra at 26–

28. As the Supreme Court stated in Sitz, the reasonableness

of the intrusion on liberty at a checkpoint is assessed by

considering the “levels of intrusion on law-abiding

motorists.” 496 U.S. at 451–52 (emphasis added).

Third, the City’s checkpoint contained sufficient

programmatic guidelines to “minimize the discretion of the

officers on the scene.” Id. at 452. It was undisputed below

that, under the City’s Operation Plan, every motorist at the

checkpoint would be asked to produce a driver’s license.5

The across-the-board nature of that inquiry eliminates any

possible “abuse of discretion” in selectively making such

requests only to some drivers. Prouse, 440 U.S. at 662.

On balance, any marginal intrusion on liberty associated

with adding license checks to the City’s DUI checkpoint is

minimal and is justified by the important interest in road

5

Every driver was stopped “unless the backup exceed[ed]

5 minutes.” In the event of such a backup, “all vehicles [would] be

waived through until the backup [was] cleared.”

26 DEMAREST V. CITY OF VALLEJO

safety served by such inquiries. We therefore conclude that

the request that Demarest produce his license while he was

briefly seized at the checkpoint did not entail a Fourth

Amendment violation. 6 The district court properly granted

summary judgment against Demarest on this score.

III

Demarest also contends that, even if the inclusion of a

license check did not render the City’s DUI checkpoint

unreasonable under the Fourth Amendment, Officer Brown

nonetheless violated the Fourth Amendment by detaining

him further, and ultimately arresting him, when he refused

to produce his driver’s license. A warrantless arrest is

reasonable under the Fourth Amendment “if the officer has

probable cause to believe that the suspect committed a crime

in the officer’s presence.” District of Columbia v. Wesby,

138 S. Ct. 577, 586 (2018). “Because the probable cause

standard is objective, probable 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.” Edgerly v. City & Cnty. of San

Francisco, 599 F.3d 946, 954 (9th Cir. 2010) (citation

omitted). We conclude that, once Demarest refused to

produce his license for examination at the checkpoint,

Officer Brown had probable cause to believe that Demarest

was committing an offense in violation of California Vehicle

6

We therefore do not address or rely upon the City’s alternative

argument that an officer at a suspicionless checkpoint should be

permitted to make the same “ordinary inquiries” that are “incident” to a

traffic stop justified by individualized suspicion. Rodriguez v. United

States, 575 U.S. 348, 354–55 (2015) (quoting Illinois v. Caballes,

543 U.S. 405, 408 (2005)).

DEMAREST V. CITY OF VALLEJO 27

Code § 12951(b), and his continued detention and arrest

were therefore reasonable under the Fourth Amendment.

Section 12951(b) states that “[t]he driver of a motor

vehicle shall present his or her license for examination upon

demand of a peace officer enforcing the provisions of this

code.” The California Vehicle Code further provides that,

“[e]xcept as otherwise provided in this article, it is unlawful

and constitutes an infraction for any person to violate, or fail

to comply with any provision of this code, or any local

ordinance adopted pursuant to this code.” CAL. VEH. CODE

§ 40000.1. Another provision of the same article as

§ 40000.1 states that a “violation” of “Section 12951,

subdivision (b), relating to refusal to display license” “is a

misdemeanor, and not an infraction.” Id. § 40000.11(i).

Accordingly, it is a misdemeanor under California law to

refuse to produce one’s driver’s license for examination

“upon demand of a peace officer enforcing the provisions of

this code.” Id. § 12951(b).

Here, of course, it is undisputed that Demarest refused to

produce his license in response to Officer Brown’s demands

to see it. Demarest nonetheless argues that Officer Brown

lacked probable cause to suspect that he was violating

§ 12951(b) because, at the time when she demanded to see

Demarest’s license, she had no basis to believe that she was

“enforcing the provisions” of the Vehicle Code. According

to Demarest, for Officer Brown to have been “enforcing the

provisions” of the Vehicle Code when she demanded to see

his license, she must have been enforcing some other

provision of the Code that justified the stop leading to the

license demand. In Demarest’s view that means she must

have made a “valid stop based upon reasonable suspicion”

of some other Vehicle Code violation. This argument fails.

At the time that Officer Brown demanded to see Demarest’s

28 DEMAREST V. CITY OF VALLEJO

license, she was enforcing the provision of the Vehicle Code

that specifically authorizes the conduct of a “sobriety

checkpoint inspection.” CAL. VEH. CODE § 2814.2(a).

Under that provision, a “driver of a motor vehicle shall stop

and submit to a sobriety checkpoint inspection conducted by

a law enforcement agency when signs and displays are

posted requiring that stop.” Id. An officer who stops a

motorist at a lawful sobriety checkpoint is thus enforcing the

provisions of the Vehicle Code every bit as much as an

officer who stops a motorist based on individualized

reasonable suspicion of a Code violation, and § 12951(b)

applies equally in both situations. 7

Because Officer Brown had probable cause to conclude

that Demarest’s refusal to produce his driver’s license

violated § 12951(b), her detention and arrest of him did not

violate the Fourth Amendment. 8 Summary judgment was

properly granted against Demarest as to this claim as well.

IV

Lastly, Demarest asserts that he presented sufficient

evidence to establish that Officer Brown violated the Fourth

7

On its face, the text of § 2814.2 also contemplates that the “sobriety

checkpoint inspection[s]” that it authorizes will include license checks,

because it contains detailed provisions relating to the impoundment of

vehicles when the checkpoint reveals that the driver lacks a valid license.

See CAL. VEH. CODE § 2814.2(b), (c).

8

For purposes of Demarest’s § 1983 claims, it is irrelevant whether

California law authorized an arrest for a violation of § 12951(b). See

Virginia v. Moore, 553 U.S. 164, 176 (2008) (holding that “warrantless

arrests for crimes committed in the presence of an arresting officer are

reasonable under the Constitution, and that while States are free to

regulate such arrests however they desire, state restrictions do not alter

the Fourth Amendment’s protections”).

DEMAREST V. CITY OF VALLEJO 29

Amendment by using excessive force in effectuating his

arrest. We reject this contention.

Any claim that an officer used excessive force “in the

course of an arrest, investigatory stop, or other ‘seizure’ of a

free citizen” is governed by the Fourth Amendment’s

standard of objective reasonableness. See Graham v.

Connor, 490 U.S. 386, 395–97 (1989). In judging the

reasonableness of the force used, the trier of fact should

consider all relevant circumstances, such as the following

illustrative but non-exhaustive factors: “the relationship

between the need for the use of force and the amount of force

used; the extent of the plaintiff’s injury; any effort made by

the officer to temper or to limit the amount of force; the

severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff

was actively resisting.” Kingsley v. Hendrickson, 576 U.S.

389, 397 (2015). Summary judgment is appropriate “if the

. . . court concludes, after resolving all factual disputes in

favor of the plaintiff, that the officer’s use of force was

objectively reasonable under the circumstances.” See Scott

v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Applying these

standards, we conclude that the force that Officer Brown

used was objectively reasonable as a matter of law.

The Supreme Court has “long recognized that the right

to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or

threat thereof to effect it.” Graham, 490 U.S. at 396.

Accordingly, even assuming that Demarest did not actively

resist and did not present an immediate security threat to

Officer Brown, she nonetheless could properly use a

reasonable degree of force to take him into custody.

Although Demarest argues that Officer Brown should have

instructed him to step out of the car rather than physically

30 DEMAREST V. CITY OF VALLEJO

remove him from the car by grabbing his arm, her actions

were reasonable given Demarest’s lack of cooperation with

her commands up to that point and the modest nature of the

force used. See Lowry v. City of San Diego, 858 F.3d 1248,

1259 (9th Cir. 2017) (explaining that “officers are not

required to use the least intrusive degree of force possible”

(citations and internal quotation marks omitted)); see also

Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (“It [i]s

not unreasonable for [an] officer[] to believe that a suspect

who had already disobeyed one direct order would balk at

being arrested.”).

Demarest nonetheless claims that the force was

unreasonable because it aggravated his existing back injury,

but he presented no evidence to support a reasonable

inference that Officer Brown should have been aware that he

had such an injury. On the contrary, Demarest stated at his

deposition that, during his arrest, he “was afraid to mention

anything about my back.” Because an “officer’s use of force

cannot be deemed excessive based on facts that he [or she]

reasonably would not have known or anticipated,” Lowry,

858 F.3d at 1256, any such aggravation of Demarest’s back

condition does not render Officer Brown’s force excessive.

Demarest also asserts that the handcuffs could have been

applied “with a lot less force on my wrists,” but he did not

present any evidence suggesting that the handcuffs were

excessively tight or that they caused any injury. Indeed,

Demarest stated at his deposition that, although he had

abrasions on his hands, they were from his earlier boat work

and not from the handcuffing. Demarest failed to present

any evidence to suggest that the handcuffing was carried out

in a constitutionally unreasonable manner. See Brown,

278 F.3d at 369 (“[A] standard procedure such as

handcuffing would rarely constitute excessive force where

DEMAREST V. CITY OF VALLEJO 31

the officers were justified . . . in effecting the underlying

arrest.”).

Construing the facts in the light most favorable to

Demarest, we conclude that, under the relevant

circumstances, Officer Brown’s use of force in effectuating

the arrest was not excessive.

V

Because Demarest has failed to show that he suffered

any underlying constitutional violation, Demarest’s ninth

cause of action, asserting municipal liability for such

violations, necessarily fails. See Monell, 436 U.S. at 691;

see also Dougherty v. City of Covina, 654 F.3d 892, 900 (9th

Cir. 2011).

* * *

For the foregoing reasons, we affirm the district court’s

grant of summary judgment dismissing Demarest’s claims.

AFFIRMED.