determining that, in evaluating a custodial arrest for a traffic offense, including an unlicensed driver violation, “federal courts must determine the reasonableness of the arrest in reference to state law governing the arrest” (internal quotation marks and citation omitted)
How later courts described this case
- determining that, in evaluating a custodial arrest for a traffic offense, including an unlicensed driver violation, “federal courts must determine the reasonableness of the arrest in reference to state law governing the arrest” (internal quotation marks and citation omitted)
- holding that it was not objectively unreasonable for officers to arrest and detain plaintiff where the suspect’s description in a validly executed warrant closely matched plaintiffs physical description
- noting that to avoid summary judgment on an equal protection claim, a plaintiff must “produce evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that [the] decision . . . was racially motivated” (alterations in original) (quotation marks omitted)
- disagreeing with the proposition “that because [plaintiff] is African-American, the officer is white, and they disagree about the reasonableness of the traffic stop, these circumstances are sufficient to raise an inference of racial discrimination”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Edgerly v. City and County of San Francisco, 599 F.3d 946 (2010)
341 F.3d 939, 952 (9th Cir. 2003), overruled on other grounds by Edgerly v. City & Cnty. 23 of San Francisco, 599 F.3d 946
Abrogated on other grounds by Virginia v. Moore, 553 U.S. 164 (2008)
341 F.3d 939, 948 (9th Cir. 25 2003), abrogated on other grounds by Virginia v. Moore, 553 U.S. 164
The opinion
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 permitting Schreiber to justify the arrest ex post facto on the basis of conduct wholly unrelated to the conduct for which he actually made the arrest. 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 fight most favorable to him. 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 *954 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. 2605 , 91 L.Ed.2d 202 (1986).
The Closely Related Offense Doctrine
In its original opinion, now withdrawn, the majority held that, although Schreiber was not permitted to arrest Bingham for the crime for which Schreiber actually made the arrest — driving with an expired license — the arrest was nonetheless justified because the closely related offense doctrine permitted him to rely ex post facto on the existence of probable cause to arrest Bingham for an act of grand theft allegedly committed in 1977. 329 F.3d 723 , 733 (9th Cir.2003). I dissented from that portion of the opinion, because under the rule of law that applies in our court, as well as in other courts that follow the closely related offense doctrine, an arrest may be justified on the basis of an offense other than the offense for which the arrest was made only where the two offenses arise from the same conduct. Id. at 737-40; see Gasho v. United States, 39 F.3d 1420 , 1428 n. 6 (9th Cir.1994); Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir.2002); Sheehy v. Town of Plymouth, 191 F.3d 15, 19-20 (1st Cir.1999); Trejo v. Perez, 693 F.2d 482, 486 (5th Cir.1982). We recently reaffirmed this rule in Alford v. Haner, 333 F.3d 972 (9th Cir.2003), holding that an arrest is not valid where “there was not probable cause for the particular crime cited” merely because “there was probable cause to arrest a person for some criminal offense”; rather, we reiterated, the arrest may be justified only on the basis of “ ‘a closely related offense [that] involves the same conduct for which the suspect was arrested.’ ” Id. at 976 . (quoting Gasho, 39 F.3d at 1428 n. 6).
Now, in its amended opinion, the majority concedes that it was in error and that the closely related offense doctrine does not allow an officer to justify an arrest on the basis of conduct other than that for which he actually made the arrest. Unfortunately, however, my colleagues do not accept the necessary consequence of their concession — that, under the rule of law that applies in this circuit, Bingham’s arrest cannot be justified on the basis of the alleged 1977 theft. This result is unavoidable under the closely related offense doctrine: the essential rule established by that doctrine is that, in cases in which the offense for which the arrest is actually made and the offense on the basis of which the arrest is subsequently justified are not closely related, the officer may not arrest the individual for the latter offense. The cases leave no doubt that such is the rule. In Alford , for example, the officer stopped the defendant in his car and then arrested him for making a tape recording of the stop. 333 F.3d at 974-75 . After learning that making the recording was not illegal, *955 the officer sought to justify the arrest instead on his belief at the time of the stop that the defendant was obstructing justice and impersonating a police officer. Id. at 976 . We rejected these justifications, because they were based on offenses unrelated to the tape recording and “probable cause to arrest for other unrelated offenses, if present, does not cure the lack of probable cause.” Id. at 976-97 (citing Gasho, 39 F.3d at 1428 n. 6).
The majority apparently believes it can avoid Alford , the circumstances of which are — for purposes of the closely related offense doctrine — not materially different from those of the present case; remarkably, it seeks to accomplish this feat by simply stating that it is not applying the closely related offense doctrine. There is, admittedly, a superficial appearance of logic to the majority’s sleight of hand: the offenses are not closely related, so the closely related offense doctrine does not apply. What the majority does not mention, however, is that, as Alford and Gasho make clear, the closely related offense doctrine means not only that an arrest may be justified where the offenses are closely related but that an arrest may not be justified when the offenses are not so related. Where the offenses are not closely related, we apply the rule that is generally applicable — the rule that the arresting officer must have probable cause with regard to the offense for which he made the arrest. Rather than face this obvious consequence of its abandonment of its initial attempt to justify a legally unjustifiable arrest, the majority now makes an inexplicable effort to distinguish Alford on the perverse ground that in Alford all the conduct in question — the tape recording as well as the alleged impersonation and obstruction — took place during the same traffic stop, whereas the conduct on the basis of which Schreiber ultimately sought to justify Bingham’s arrest occurred many years before the conduct for which Schreiber actually arrested him. What significance the majority discerns in this distinction is not revealed in its opinion. The legal significance is obvious, however, and it is precisely the opposite of that suggested by the majority. Because the alleged illegalities in Alford arose out of the same incident, while Bingham’s alleged wrongful acts occurred twenty years apart, the alternative justification for Bingham’s arrest fails, a fortiori, under Alford .
In Alford we held that even though more than one offense occurred during the same encounter with the police the offenses were in fact unrelated and, accordingly, probable cause for an arrest on one could not be used to justify the arrest on another. Perhaps the majority’s new rule is that, while an officer may not rely on unrelated offenses that are close in time, they may rely on unrelated offenses that occur decades apart. I simply do not comprehend the logic of this argument. It is directly contrary to the rule that, in order for an alternate justification for the arrest to be upheld, it must be closely related— the more closely related the offenses, the more likely the arrest to be lawful. The new rule the majority adopts — the distantly unrelated offense doctrine — appears to be that the less related the offenses, the more likely the alternate justification for the arrest to be upheld. The effect of such a rule is unmistakable. It serves to overrule the closely related offense doctrine and to undermine the function and purpose it serves.
My colleagues assert that their decision is based on the “rationale” of the closely related offense doctrine. However, in addition to contradicting Alford, Gasho, and the whole line of cases applying that doctrine, the holding of the majority is at odds with both its function and purpose. The closely related offense doctrine exists in order to avoid requiring law enforce *956 ment officers “to be legal scholars.” Williams v. Jaglowski, 269 F.3d 778, 783 (7th Cir.2001). 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 v. Bonds, 860 F.2d 1427, 1431 (7th Cir.1988). Thus, in Gasho , for example, 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 the arrest. The majority’s decision allows officers to make unlawful arrests and then later justify their action by “indulg[ing] 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 is aware, but which does not cause him to make an arrest.
The majority authorizes precisely such an act of ex post facto justification, despite its assertion that this concern is “not implicated in the present case.” 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 alleged 1977 theft. That is, the awareness is simply what makes the proffered excuse plausible. It can hardly show 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 true basis for the arrest, then it can be nothing other than an excuse or an ex post facto rationalization for an unlawful arrest. I might note that in Alford the arresting officer was also aware, at the time of the arrest, of the unrelated conduct on the basis of which he later sought to justify the arrest. Alford, 333 F.3d at 974-75 . We held the arrest invalid, nevertheless.
Finally, I must add that the only case that the majority cites that truly supports its reasoning is United States v. Bookhardt, 277 F.3d 558, 564 (D.C.Cir.2002), a case which is simply in conflict with Ninth Circuit law. The D.C. Circuit, unlike our court, and unlike the other circuits that have considered the issue, see supra at 954, has never adopted the closely related offense doctrine and did not apply it, or even mention it, in Bookhardt . Indeed, the rule the D.C. Circuit follows is plainly inconsistent with the closely related offense doctrine. Bookhardt 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 (emphasis added). The *957 rule of Bookhardt is, in other words, in direct and indisputable conflict with the Ninth Circuit requirement that the offense be closely related and arise out of the same conduct. It in no way supports the majority’s assertion that the rationale for the closely related offense doctrine supports a finding of probable cause in the present case. Indeed, the D.C. Circuit’s rule permits ex post facto justifications of the sort that, as the majority recognizes, the closely related offense doctrine prohibits. 1 Thus, the majority sub silentio 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. 2
Because I conclude that under the closely related offense doctrine, knowledge of a long-past crime cannot serve as a justification, ex post facto or otherwise, for an arrest actually made for an unrelated current offense, I do not address whether Schreiber could reasonably have arrested Bingham on the outdated theft warrant, had the arrest been made on the basis of that warrant or the underlying theft. However, I note 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.
. The majority also relies erroneously on Barna v. City of Perth Amboy, 42 F.3d 809, 819-20 (3d Cir.1994). 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 application of the doctrine.