Bingham v. City of Manhattan Beach

REINHARDT, Circuit Judge,

concurring in part and dissenting in part:

I join Part I of the majority opinion, although I offer some additional comments as to Part I.B. As to Part II, I agree with the majority that for purposes of this appeal, we must assume that Officer Schreiber arrested Howard Bingham for driving with an expired license and not in order to verify the outstanding warrant; in such case, the arrest violated clearly established California law. After making those determinations, however, the majority errs by applying the “closely related offense” doctrine to offenses that are wholly unrelated and, by so doing, reaches the erroneous conclusion that the arrest was justified. I, therefore, respectfully dissent as to Part II. I would allow Bingham to proceed to trial on his unreasonable arrest claim as well as on his claim that he was the victim of an unlawful stop.

Equal Protection

I join Part I.B reluctantly. Bingham, a well known and highly respected photographer, asserts that he was stopped because he is African American. He believes that he was stopped solely on account of his race, because in his view “the record provides no other rational reason” for the stop. While Schreiber claims to have stopped Bingham for driving erratically, Bingham asserts that there was nothing irregular about his driving and that he obeyed all traffic laws. He further notes that Schreiber never issued a citation related to the alleged erratic driving. Because we are reviewing a grant of summary judgment, and because Bingham is the nonmoving party, we must view the evidence and draw all reasonable inferences in the light most favorable to him. *737 We must, therefore, accept as true Bing-ham’s assertion that he was not driving erratically, as well as his inference that erratic driving was not the reason for the stop. I do not take the majority to disagree with this analysis.

Although we must assume that erratic driving was not the reason for the stop, Bingham does not provide any evidence to show that the real reason was his race. He does not, for example, provide statistics or other evidence to show that the Manhattan Beach Police Department, or Schreiber in particular, had a practice of stopping African Americans; he does not contend that Schreiber made any race-related comment when making the stop; and he does not assert that similarly situated white drivers were not stopped. I am aware that evidence is often difficult or even impossible to produce in racial profiling cases, and its absence here does not prove that Bingham is wrong as to the reason he was stopped. As we have noted, “[i]t is clear ... that African-Americans are stopped by the police in disproportionate numbers.” Washington v. Lambert, 98 F.3d 1181 , 1182 n. 1 (9th Cir.1996). “Driving while black” did not become a commonplace phrase in our society without good reason. The conclusion Bingham draws is, therefore, understandable. Nevertheless, in the absence of some tangible evidence in the record that tends to support his conclusion, we are compelled by precedent to grant summary judgment to the defendants. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).

The Closely Related Offense Doctrine

The majority justifies Bingham’s arrest on the basis of the closely related offense doctrine, a doctrine that has nothing to do with the case before us (except to the extent that it precludes my colleagues from adopting the type of new rule that would be required to support their paradoxical ruling.) In the present case, the majority applies the closely related offense doctrine to an event that is not even remotely related to the event for which Bing-ham was arrested. Candidly, I must state that until the district court decided that an act of driving with an expired license in 1999 is “closely related” to an act of grand theft committed in 1977,- no rational person would have thought that the two occurrences could be held closely related. In fact, the only thing the two acts have in common is that they were committed by people with the last name of Bingham.

In the only prior reported case in which we addressed the closely related offense doctrine, we held that “[p]robable cause may still exist for a closely related offense, even if that offense was not invoked by the arresting officer, as long as it involves the same conduct for which the suspect was arrested.” Gasho v. United States, 39 F.3d 1420 , 1428 n. 6 (9th Cir.1994) (emphasis added). That is the identical requirement that other courts that have adopted the rule have announced. See Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir.2002) (“[T]he officers must show that the charge can reasonably be based on the same set of facts that give rise to the arrest ....”) (emphasis added); Sheehy v. Town of Plymouth, 191 F.3d 15, 19-20 (1st Cir.1999) (“[T]he crime with which the arrest ee is charged and the crime offered to the court as a justification for the arrest must relate to the same conduct.”) (emphasis added); Trejo v. Perez, 693 F.2d 482, 486 (5th Cir.1982) (asking “whether the conduct that served as the basis for the charge for which there was no probable cause could, in the eyes of a similarly situated reasonable officer, also have served as the basis for a charge for which there was probable cause”). The majority quotes the Gasho language set forth above *738 and yet holds that under the closely related doctrine an illegal arrest for driving with an expired license may be justified on the basis of a theft committed more than twenty years earlier — that is, on the basis of conduct that is wholly separate in time and wholly different in nature from the conduct for which the arrest was actually made.

No case cited by the majority, or any other case of which I am aware, suggests that the closely related offense doctrine can be applied to offenses that are not closely related — and are, indeed, totally unrelated. Williams v. Jaglowski, Richardson v. Bonds, Barna v. City of Perth Amboy, and Hunter v. Bryant, which the majority cites, all involved arrests for offenses arising out of the same conduct as that subsequently used to justify the arrest. See Hunter v. Bryant, 502 U.S. 224, 226-27 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991); Williams v. Jaglowski, 269 F.3d 778, 783-84 (7th Cir.2001); Barna v. City of Perth Amboy, 42 F.3d 809, 819-20 (3d Cir.1994); Richardson v. Bonds, 860 F.2d 1427, 1431 (7th Cir.1988).

In addition to contradicting Gasho and the whole line of cases applying the closely related offense doctrine, the holding of the majority is at odds with both the function and purpose of the closely related offense doctrine. The closely related offense doctrine exists in order to avoid requiring law enforcement officers “to be legal scholars.” Williams, 269 F.3d at 783 . To justify an arrest, an officer must be aware of a particular set of facts that supports probable cause, but need not understand the precise legal significance of those facts. Richardson, 860 F.2d at 1431 . Thus, in Gasho , where the defendant was arrested for “unlawful removal” of property in the custody of the United States Customs Service, under 18 U.S.C. § 549 , the arrest could alternatively have been justified under 18 U.S.C. § 2233 , prohibiting forcible rescue of seized property, or under 18 U.S.C. § 2232 , prohibiting removal of property to prevent seizure, because the latter offenses are closely related to “unlawful removal” of Customs property and concern “the same conduct by the arrestee.” Gasho, 39 F.3d at 1428 & n. 6. The closely related offense doctrine permits a law enforcement officer to make an arrest for specific conduct that he has probable cause to believe is criminal, even if he is mistaken as to which statutory provision makes such conduct criminal.

Allowing an officer to justify an arrest on the basis of conduct other than that for which the defendant was arrested does not in any respect serve this function. In such a case, the officer does not misunderstand the legal significance of the conduct that he correctly recognizes to be unlawful; rather, he arrests the defendant for conduct that does not give rise to probable cause for an arrest. The majority’s decision allows officers to make unlawful arrests and then later justify their action by “indulging] in ex post facto extrapolations,” Richardson, 860 F.2d at 1431 (internal quotation marks omitted), that is, on the basis of unrelated conduct of which the arresting officer happens to be aware.

The majority authorizes precisely such an act of ex post facto justification, despite its assertion that “[tjhis concern is not implicated in the present case.” Maj. op. at 735. My colleagues maintain that Schreiber’s awareness of the outstanding warrant prior to the arrest demonstrates that the ex post facto reliance on the 20-year-old crime is not mere pretext. This is plainly not correct. Awareness of the warrant would, in any circumstance, be a necessary element of probable cause for an arrest on the 1977 theft. That is, the awareness is simply what makes the proffered excuse plausible. It can hardly show *739 that the warrant, or more accurately, the twenty-year-old theft, was the true basis for the arrest — as, indeed, the majority found it was not — and if the earlier conduct was not the basis for the arrest, then it can be nothing other than an excuse or a ex post facto rationalization.

In any event, it is simply impossible to fit the facts of this case into the closely related offense doctrine. The offenses in question, and the conduct they arise from, are not close, and they are not related. If the majority wishes to overlook Schreiber’s unconstitutional conduct because he was aware of the existence of the warrant at the time of the arrest, it will have to create a new doctrine — the “officer’s awareness” doctrine, perhaps — because its opinion, if it is allowed to stand, eliminates the words “closely related” from the closely related offense doctrine, and strips the doctrine of all substance.

According to the majority, “[a]s usually applied, the doctrine requires that the crime charged must involve the same conduct as the crime offered as the justification for the arrest.” Maj. op. at 734 (emphasis added). In fact, the doctrine, as applied, always requires that the conduct be the same. Implying otherwise, the majority cites two cases, United States v. Bookhardt, 277 F.3d 558, 564 (D.C.Cir. 2002) and Barna , neither of which supports the notion that there is any exception to the same-conduct requirement, because neither case applies or purports to apply the closely related offense doctrine.

The majority’s reliance on Bookhardt is simply in conflict with Ninth Circuit law. The D.C. Circuit, unlike our court, has never adopted the closely related offense doctrine and did not purport to apply it in Bookhardt . Indeed, the rule the D.C. Circuit follows is plainly inconsistent with the closely related offense doctrine. Book-hardt holds that an arrest on an invalid ground is “nonetheless lawful if the same officer had probable cause to arrest the defendant for a different offense” — that is, for any different offense. Id. at 560 . The rule of Bookhardt is, in other words, in direct and indisputable conflict with the Ninth Circuit requirement that the offense be closely related. Indeed, the D.C. Circuit’s rule permits ex post facto justifications of the sort that, as the majority here recognizes, the closely related offense doctrine prohibits. 1 Thus, the majority in effect overrules the closely related offense doctrine and substitutes the contrary D.C. Circuit rule — the any offense (related or unrelated) doctrine. That it is not free to do given our circuit precedent.

The Third Circuit, which decided Bama, has, like the D.C. Circuit, never recognized the closely related offense doctrine. Moreover, Bama does not support the majority’s position for the further reason that the officer in that case did not seek to justify an arrest on the basis of conduct other than that for which the arrest was made. See Bama at 819-20. The Bama court, in other words, neither states that it is applying the closely related offense doctrine nor reaches a result that is contrary to the proper — or, as my colleagues put it, “usual” — application of the doctrine.

Because I would hold that under the closely related offense doctrine, knowledge of a long-past crime cannot serve as a *740 justification, ex post facto or otherwise, for an arrest for a wholly unrelated current offense, I need not address whether Schreiber could reasonably have arrested Bingham on the theft warrant. I note, however, that I have my doubts on that issue as well.

. Bookhardt is based on a misapplication of Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), which held that an arrest for an offense for which an arresting officer did have probable cause does not violate the Fourth Amendment merely because the officer had ulterior motives in making the arrest. See id. at 808, 813 , 116 S.Ct. 1769 . That ruling has no bearing on cases in which an arrest is made for conduct that does not provide probable cause for an arrest.