Kirstin Johnson v. Kierstie Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIRSTIN JOHNSON; F.M.; M.D.M.; No. 21-16547

M.P.M.; V.M.; T.M.,

D.C. No. 3:20-

Plaintiffs-Appellants, cv-01569-SK

v.

OPINION

KIERSTIE BARR; SAMSON HUNG;

MARINA CHACON; FLINT PAUL;

CITY AND COUNTY OF SAN

FRANCISCO,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Sallie Kim, Magistrate Judge, Presiding

Argued and Submitted January 24, 2023

San Francisco, California

Filed July 6, 2023

Before: Ronald M. Gould, Johnnie B. Rawlinson, and

Daniel A. Bress, Circuit Judges.

2 JOHNSON V. BARR

Opinion by Judge Gould;

Partial Concurrence and Partial Dissent by

Judge Rawlinson

SUMMARY *

Civil Rights / Qualified Immunity

In an action brought by Kirstin Johnson and her five

minor children alleging federal and state law claims arising

out of Johnson’s arrest, the panel affirmed the district court’s

grant of summary judgment to the defendants—individual

police officers and the City and County of San Francisco—

on Johnson’s federal claims based on qualified immunity;

remanded to the district court Johnson’s state law claims for

false arrest and negligence; affirmed the district court’s grant

of summary judgment to the defendants on the remaining

state law claims; and affirmed the district court’s denial of

the motion to recuse.

The panel first considered whether there was probable

cause to arrest Johnson under the three statutes cited by

defendants. The panel held that there was a jury question

whether officers had probable cause to arrest Johnson. Some

of the bases on which the defendants attempt to claim

probable cause are not supported by the record. On the other

hand, there were other facts, even when viewed in the light

*

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

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

JOHNSON V. BARR 3

most favorable to Johnson, that suggest defendants may have

had probable cause to arrest Johnson.

However, Johnson’s federal claims are still subject to

qualified immunity. In applying the qualified immunity

analysis to claims of unlawful arrest, there is a two-step

inquiry: whether there was probable cause for the arrest, and

whether reasonable officers could disagree as to the legality

of the arrest. The panel held that although a reasonable jury

could find that defendants lacked probable cause to arrest

Johnson, the defendants were entitled to qualified immunity

because, even construing all facts in Johnson’s favor, the law

did not clearly establish that probable cause was

lacking. Johnson did not sufficiently show how her arrest

violated a clearly established right to be free from an

unlawful arrest when the undisputed evidence (under the

probable cause analysis) presented before the district court

does not show that every reasonable officer would be on

notice that the actions taken by the defendants were

unconstitutional. The facts supported the defendants’

assertion that no clearly established law prevented the

officers from believing Johnson was in violation of either

California Penal Code § 647(f), prohibiting public

intoxication, or California Penal Code § 273a, prohibiting

child endangerment. The panel held that qualified immunity

applied in the context of either of these statutes, and that

determination is sufficient to resolve Johnson’s 42 U.S.C. §

1983 claims.

However, because the panel concluded that there was a

jury question as to whether defendants had probable cause to

arrest Johnson, the panel vacated the district court’s grant of

summary judgment on Johnson’s state law false arrest and

negligence claims, which were premised on a finding that

probable cause existed as a matter of law. The panel

4 JOHNSON V. BARR

remanded the vacated state law claims to the district court

for further proceedings. On remand, because there is no

longer any federal claim in this case, the district court may

determine, under its discretion, whether to retain

supplemental jurisdiction over the remaining state law

claims or to remand the case to state court.

Finally, the panel considered the motion to disqualify or

recuse Magistrate Judge Kim. To prevail, the party filing the

motion must show extrajudicial bias or prejudice. In

granting a confidentiality designation for all parts of

bodycam footage showing Johnson’s children, Judge Kim

wrote that Johnson’s actions were “disturbing.” Johnson

filed a motion to recuse or disqualify Judge Kim, and Judge

Donato denied the motion. The panel affirmed the district

court and held that Judge Donato did not abuse his discretion

in denying the recusal motion.

Concurring in part and dissenting in part, Judge

Rawlinson concurred with the holding that the officers in

this case were entitled to qualified immunity on Johnson’s

federal claims. She dissented with the treatment of the state

law claims. Rather than vacating the district court’s grant of

summary judgment on some state law claims, she would

vacate the district court’s grant of summary judgment on the

state law claims in its entirety. She would then remand for

the district court to decide, in the first instance, whether to

continue to exercise supplemental jurisdiction over the state

law claims.

JOHNSON V. BARR 5

COUNSEL

Ben Rosenfeld (argued), Law Office of Dennis

Cunningham, San Francisco, California; Gerald B.

Singleton, Singleton Schreiber LLC, San Diego, California;

for Plaintiffs-Appellants.

Kaitlyn M. Murphy (argued), Renee E. Rosenblit, and

Rebecca Bers, Deputy City Attorney; Meredith B. Osborn,

Chief Trial Deputy; David Chiu, City Attorney; Office of the

San Francisco City Attorney; San Francisco, California; for

Defendants-Appellees.

OPINION

GOULD, Circuit Judge:

Plaintiff-Appellant Kirstin Johnson (“Johnson”), on

behalf of herself and her five minor children, appeals the

district court’s grant of summary judgment in favor of the

individual defendant police officers and the City and County

of San Francisco (“Defendants”). This case arises out of the

arrest of Johnson in San Francisco on January 31, 2019. The

district court granted summary judgment in favor of

Defendants on Johnson’s federal 42 U.S.C. § 1983 claims

and state law claims, concluding that officers had probable

cause to arrest Johnson. Alternatively, the district court held

that Defendants were entitled to qualified immunity on

Johnson’s § 1983 claims. We have jurisdiction under 28

U.S.C. § 1291 to review final decisions of the district court.

We review de novo the grant of summary judgment, Animal

Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987,

988 (9th Cir. 2016) (en banc), and review pursuant to

6 JOHNSON V. BARR

Federal Rule of Civil Procedure 56(c), under which the

contested evidence is viewed in the light most favorable to

the nonmoving party, in this case Johnson. As part of the

summary judgment review, we also review the district

court’s qualified immunity determination de novo. Hughes

v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022). We affirm

the district court’s grant of summary judgment to the

Defendants on Johnson’s federal claims based on qualified

immunity. Because we hold that the question of whether

police officers had probable cause is properly a question for

the jury, we remand to the district court Johnson’s state law

claims for false arrest and negligence. We affirm the district

court’s grant of summary judgment to the Defendants on the

remaining state law claims. We also affirm the district

court’s denial of the motion to recuse.

I. Background

Johnson was arrested on January 31, 2019, after an

encounter with several members of the San Francisco Police

Department, including the named individual defendants.

Johnson brought several federal claims under 42 U.S.C. §

1983 stemming from her alleged unlawful and unreasonable

arrest and subsequent separation from her children. Johnson

also brought state law claims based on her alleged unlawful

arrest.

In any case involving probable cause or the invocation

of qualified immunity as a defense, we must carefully

consider the facts that led to the action in question. In this

case, we draw not just on the factual allegations in the

amended complaint, but also the body camera footage

(“bodycam footage”) submitted by both parties to determine

if there is a “genuine dispute as to any material fact” as

required under Federal Rule of Civil Procedure 56. We have

JOHNSON V. BARR 7

carefully reviewed the bodycam footage submitted in the

excerpts of record. The summary below is not intended to

be a comprehensive retelling of every event that occurred,

but should assist a reader in evaluating the claims asserted

and their disposition.

A. Johnson’s Arrest

On January 31, 2019, at around 9:00 pm, Lieutenant

Marina Chacon and Officer Kierstie Barr approached

Johnson, her four children, and another woman as Johnson

and the other woman talked near Johnson’s van, parked on a

street adjoining Dolores Park in San Francisco, California.

Officer Barr initiated the conversation with Johnson by

introducing herself and stating that she was “just coming

over here to check on [Johnson and her kids].” Officer Barr

asked Johnson if she was doing alright, and Johnson smiled

and said “yes.” Officer Barr later asked to speak with

Johnson privately. Officer Barr then explained that someone

had called in because of a concern about Johnson’s partner,

and asked if Johnson knew where he was. Johnson stated

that “he went for a walk, I’m not sure.”

Officer Barr asked if Johnson had consumed any drugs

or alcohol, reassuring Johnson that she “was not in any

trouble, not in any trouble at all.” Johnson responded, “I’m

good.” Officer Barr explained that she was asking because

Officer Barr could “smell something,” presumably on

Johnson’s breath or body. At that point, an unidentified man

arrived to alert Officer Barr to an intoxicated man with a

child nearby. When one of the officers mentioned that

Johnson had previously said that her husband had gone for a

walk, Johnson added, “He went on a walk, but I didn’t know

where he was, though whenever you said that I saw him up

there playing basketball with our son.” During this time,

8 JOHNSON V. BARR

Johnson explained that they do not “live around here” and

that they live “up north.”

One of the officers then asked Johnson, “Do you have

any ID on you?” to which Johnson responded “absolutely”

and produced the document after a short search. Johnson

explained that they had come to San Francisco “on this

adventure, but then [her] husband started drinking.” Officer

Barr asked what else had happened and said that Johnson

“had been drinking clearly,” to which Johnson responded

“Yeah, I’ve been drinking a little bit.” Officer Barr asked

how much Johnson had been drinking, but Johnson did not

answer the question. Lieutenant Chacon then asked Johnson

where they were headed, and Johnson responded that they

“were going to get a hotel room.”

Johnson asked to speak with Officer Barr about “what

[Johnson] should do and what is going on.” Officer Barr

asked Johnson to wait, and eventually said to Lieutenant

Chacon that Johnson was “811,” which refers to an

intoxicated individual. When backup officers arrived,

Lieutenant Chacon left to brief the other officers, including

Sergeant Flint Paul, and told the other officers that the dad

is “811” and that the “mom is also 811.”

In response to more questions from Officer Barr,

Johnson stated that she had a “mixed drink earlier” but did

not elaborate. When Officer Barr asked Johnson when she

started drinking, Johnson replied, “It’s not that I don’t know,

but like, I really don’t feel that like—if I answer any of your

questions right now, I don’t feel like you have my heart at

interest, so I don’t really feel like as though I should answer

any of your questions, because I don’t feel like you are

looking at me with eyes of love. . . . I feel like [Lieutenant

Chacon] looks at me a little bit more like a mother, and so I

JOHNSON V. BARR 9

feel like it’s hard for me to answer your questions –” At that

point, Officer Barr got a request to assist in the arrest of

Johnson’s husband and left, at which point Johnson became

visibly animated at the fact that her husband was being

arrested.

Johnson stated to Lieutenant Chacon, who remained

with Johnson, “Listen, my husband is a doctor, he’s an

emergency room [trails off]. He doesn’t drink, we don’t do

this stuff ever.” Shortly thereafter, Johnson became

animated when she saw that someone she did not know was

holding her infant. Johnson exclaimed, while speaking with

Lieutenant Chacon, “Oh, oh, that’s my baby, that’s my baby.

Oh, please please please ask this man to give me my child,

please ask this man to give me my child . . . por favor.” At

the same time that Johnson was making these statements,

Officer Hung was speaking with another officer and an

apparent civilian about not being able to hold a baby

correctly. Officer Hung handed the baby to a civilian for

about a minute. Lieutenant Chacon told Johnson, “Your

husband was up there. [Johnson: “playing basketball”] He’s

intoxicated with your infant. [Johnson: “I know, I know,

I’ve been trying to control him, but I’m a person and I cannot

control another person. I have asked repeatedly that he listen

to me, he is not listening to me . . . throughout the night.”]”

Lieutenant Chacon repeatedly told Johnson that she needed

to calm down because her kids were watching.

During Johnson and Lieutenant Chacon’s conversation,

one of Johnson’s children came toward the pair crying,

leading Johnson to state to Lieutenant Chacon, “Please stop,

please do not let these people—you don’t understand how

much you will hurt my children, keep them away from my

kids please.” Lieutenant Chacon responded, “They’re not

taking your children.” Sergeant Paul came to consult with

10 JOHNSON V. BARR

Lieutenant Chacon, and Sergeant Paul stated, “obviously

they’re going to go to [Child Protective Services],” to which

Chacon agreed. They also agreed on the need to go to the

station.

Another officer now on the scene, Officer Roman, asked

for Johnson’s ID. Johnson responded that she gave the ID to

another officer, to which Officer Roman said, “That’s ok.”

Johnson continued to express concern for her infant who was

now being held by Officer Hung.

The officers at the scene began to arrange Johnson’s van

to transport the children to the police precinct. Lieutenant

Chacon asked Johnson if she had car seats in the van, to

which Johnson responded “yes,” explaining that she had

enough seats for the children. Johnson further explained that

most of the car seats were in the back of the van and that

“[they] move them around because it’s kind of like a

playhouse.” Johnson asked if she “could see the rest of the

kids.” Officer Roman said that her kids are fine and

mentioned that Officer Hung had her infant. Johnson

responded, “I know, I would like to see my baby” and got

visibly emotional.

Sergeant Paul told Johnson that they were all going back

to the station where it was safer and off the street, to which

Johnson replied at varying points, “Yes sir” and “I

understand.” Sergeant Paul asked for Johnson’s permission

to allow police officers to drive her children back to the

station in their van, to which Johnson responded “Okay.”

Sergeant Paul then mentioned that they would be separating

Johnson from her children and would have Johnson ride with

her husband in a police car. Johnson responded that she was

not sure if one of her children would be comfortable riding

back “without Mommy,” to which Sergeant Paul responded

JOHNSON V. BARR 11

that he required Johnson’s assistance in making things “go

as smooth as possible.” Johnson began to comfort her

children as requested by Sergeant Paul. Johnson then

warned the officers that her infant would not like being

placed in a car seat, to which Sergeant Paul responded,

“Well, most of us are parents, we have dealt with squirrely

kids before. Thank you very much.”

The officers began asking questions regarding the

arrangement of the car seats. During Johnson’s explanation,

Johnson’s children can be heard crying. Johnson asked to

nurse her child, a request denied by Officer Barr, who stated,

“You told me you were intoxicated . . . I’m not going to let

you be able to nurse your child.” Johnson responded, “First

off, I never said I was intoxicated. . . .”

Sergeant Paul and an animal care and control officer

spoke with Johnson as Sergeant Paul noted that Johnson had

“handed her dog off to a person walking down the street.”

Johnson began to explain that “was part of the reason we

came to San Francisco, we had . . .” but Sergeant Paul cut

Johnson off and asked if she would like to “surrender [her]

dog to Animal Care and Control.” Sergeant Paul left

Johnson to speak with the animal care and control officer.

Johnson approached the van again, as one of her children

appeared to be crying. Johnson again requested to nurse her

child, stating that “My infant is crying, he needs to nurse.”

After a request from Officer Ospital to step back, Johnson

stepped to the back of her van, followed by Officer Ospital.

Johnson said that she was “grabbing some coconut water.”

Officer Ospital replied, “OK, just do me a favor and get back

on the sidewalk though, OK? Your kids are going to be taken

care of.” Johnson asked how her children were being taken

care of “if you aren’t even letting me touch my child.”

12 JOHNSON V. BARR

At that point, the animal care and control officer asked if

Johnson had an ID and requested to see it. Johnson

responded by stating “I absolutely do” but then asked if it

was “necessary” to provide her ID. The animal control

officer responded by stating, “Yes, it is” and Johnson asked

Sergeant Paul if she “would go to jail if I don’t give it to this

gentleman?” Sergeant Paul responded, “You need to give it

to him,” and Johnson reiterated her question to Paul and

stated that she “would gladly give it to [Sergeant Paul].”

After further discussion, Sergeant Paul stated, “I would like

have your ID.” After Johnson continued to speak, Sergeant

Paul told Johnson, “Why don’t you go ahead and put the lid

back on there,” referring to her coconut water. In response,

Johnson took a swig of her coconut water. Sergeant Paul

reached for her coconut water, leading Johnson to jerk back.

Sergeant Paul said, “Ma’am, your kids are watching. . .

[unclear dialogue] All you have to do is calm down.”

Sergeant Paul then arrested Johnson, while Johnson

continued to protest loudly that she “was not doing anything

wrong.”

B. Subsequent Events

The police officers took Johnson and her children to the

local police station in separate vehicles, with the children in

Johnson’s van accompanied by at least one of the officers.

At the station, Johnson was booked on one misdemeanor

count of public intoxication in violation of California Penal

Code § 647(f) and five counts (for each of her children) of

felony child endangerment under California Penal Code §

273a(a). Also, in the police report, Johnson’s actions were

classified as resisting, delaying, or obstructing a peace

officer under California Penal Code § 148(a)(1), and

although Johnson was not booked under that charge, the

Defendants point to this statute as an alternative source of

JOHNSON V. BARR 13

probable cause. Meanwhile, Johnson’s children were placed

in the custody of Family and Children Services. As Johnson

was visiting San Francisco from Mendocino County, her

children were eventually placed in the custody of the

Mendocino County Family and Children Services and

transported to Ukiah, California, a town north of San

Francisco.

Johnson and her husband each paid $20,000 in non-

refundable bail bonds and were released the next day. The

two retrieved their van from South San Francisco, picked up

the husband’s parents in Santa Cruz as a condition of the

children’s release, and subsequently drove up to Ukiah to

retrieve their children, who were released into their custody

soon after. The District Attorney declined to prosecute

Johnson and her husband and dropped all charges.

C. Procedural History

Johnson and her husband initially filed suit in San

Francisco Superior Court on October 25, 2019. In their

complaint, Johnson and her husband brought the following

federal claims under 42 U.S.C. § 1983: unlawful and

unreasonable arrest under the Fourth Amendment,

interference with and retaliation against free exercise of

expression under the First Amendment, unlawful and

unreasonable search and seizure under the Fourth

Amendment, and deprivation of due process under the

Fourteenth Amendment. Johnson and her husband also

alleged state law claims of false arrest and imprisonment,

intentional and negligent infliction of emotional distress,

Bane Act violations, trespass to chattels, and negligence.

The case was removed to the Northern District of California

by the Defendants, and the parties stipulated to dismiss all

claims by Johnson’s husband and claims against some

14 JOHNSON V. BARR

Defendants. During discovery, Johnson filed a motion to

recuse or disqualify Magistrate Judge Kim based on

statements Judge Kim made during proceedings related to a

motion to keep the bodycam footage confidential. Judge

Donato, to whom the motion was referred, denied the

motion.

Defendants moved for summary judgment on May 28,

2021. After briefing and a hearing, Judge Kim granted

summary judgment on August 24, 2021 to Defendants on the

basis of a finding of probable cause, and alternatively, on the

basis of qualified immunity. This timely appeal followed.

II. Standards of Review

We review de novo the grant of summary judgment.

Animal Legal Def. Fund, 836 F.3d at 988. Pursuant to

Federal Rule of Civil Procedure 56(c), we “view the

evidence in the light most favorable to the nonmoving party,

determine whether there are any genuine issues of material

fact, and decide whether the district court correctly applied

the relevant substantive law.” Id. On summary judgment,

we also review the district court’s qualified immunity

determination de novo. Hughes, 31 F.4th at 1218. We can

also affirm on any ground supported by the record even if

not explicitly relied upon by the district court. CFPB v.

Gordon, 819 F.3d 1179, 1187 (9th Cir. 2016).

Under our precedent in Act Up!/Portland v. Bagley, the

threshold “determination of whether the facts alleged could

support a reasonable belief in the existence of probable cause

. . . is [] a question of law to be determined by the court.”

988 F.2d 868, 873 (9th Cir. 1993); see also Peng v. Mei Chin

Penghu, 335 F.3d 970, 979–80 (9th Cir. 2003). We look to

state law (in this case California state law) to determine

JOHNSON V. BARR 15

“[w]hether an officer is authorized to make an arrest.”

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).

The denial of a motion to disqualify the assigned judge

is reviewed for abuse of discretion. Thomassen v. United

States, 835 F.2d 727, 732 (9th Cir. 1987).

III. Discussion

Three main questions arise in this dispute: (1) whether

there was probable cause to arrest Johnson under either of

the three statutes cited by Defendants; (2) whether the

Defendants were entitled to qualified immunity as to the

federal claims; and (3) whether the district court erred in

denying Johnson’s motion to recuse or disqualify Judge

Kim. We affirm the district court’s grant of summary

judgment on the federal claims on the grounds of qualified

immunity, remand some of the state law claims, and affirm

the district court’s denial of the motion to recuse Judge Kim.

A. Probable Cause

In evaluating the record, we note that there is a

substantial question whether the facts, when evaluated in the

light most favorable to Johnson, would permit a grant of

summary judgment in favor of Defendants on the issue of

whether there was probable cause to arrest Johnson. We

have previously stated that we must “examine whether the

facts and circumstances within the officer’s knowledge are

sufficient to warrant a prudent person to believe a suspect

has committed, is committing, or is about to commit a

crime.” United States v. Willy, 40 F.4th 1074, 1080 (9th Cir.

2022) (quoting United States v. Valencia, 24 F.3d 1106,

1108 (9th Cir. 1994)).

Here, whether officers had probable cause to arrest

Johnson presents a jury question. On the one hand, there are

16 JOHNSON V. BARR

some facts that suggested the absence of probable cause,

because they supported “mere suspicion, common rumor, or

even strong reason to suspect,” but did not necessarily rise

to the legal standard for probable cause. Harper v. City of

Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008) (quoting

McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)).

Some of the bases on which the Defendants attempt to claim

probable cause are not supported by the record. For

example, although the Defendants contend that Johnson had

no plans for where to stay for the night, Johnson did express

that they were going to obtain a hotel room. Other

explanations, such as Johnson’s children being up late that

night (the incident occurred around 9:00 pm) and one of her

children wearing short sleeves on a night when the

temperature was in the 50s, are by themselves not sufficient

to meet the legal standard for probable cause for an arrest for

child endangerment or public intoxication. Additionally,

although Johnson was understandably upset at times while

interacting with the police officers, it is not apparent from

the videos, when viewing the evidence in the light most

favorable to Johnson as required under FRCP 56(c), that

Johnson is intoxicated, and she generally responded to the

officers’ requests in a coherent way.

On the other hand, there were other facts, even when

viewed in the light most favorable to Johnson, that suggest

Defendants may have had probable cause to arrest Johnson.

First, for example, at least one officer reported the smell of

alcohol on Johnson’s breath, as evidenced in both the

bodycam footage and the Defendants’ documentation after

the arrest. Second, as another example, Johnson herself

admitted to having a drink at some indeterminate time

earlier. Third, the family van used to transport Johnson’s

children was in disarray: there were unsealed bottles of

JOHNSON V. BARR 17

alcohol in the van, potentially within reach of the children,

and the car seats were not installed. Although Johnson is

correct that we view the facts in the light most favorable to

the nonmoving party, Johnson cannot dispute certain facts,

such as her prior admission to having a drink and the

presence of alcohol containers in the van.

We hold that on the record at summary judgment, “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

However, under the Supreme Court’s precedent,

Johnson’s federal claims are still subject to qualified

immunity.

B. Qualified Immunity

The two steps in the qualified immunity analysis are (1)

“whether the facts that a plaintiff has alleged . . . or shown .

. . make out a violation of a constitutional right” and (2)

“whether the right at issue was ‘clearly established’ at the

time of defendant’s alleged misconduct.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (internal citations

omitted). The rationale of the Pearson Court in changing the

rigid two-step procedure adopted in Saucier v. Katz, 533

U.S. 194 (2001), guides our analysis in this case: “[T]he

rigid Saucier procedure . . . sometimes results in a substantial

expenditure of scarce judicial resources on difficult

questions that have no effect on the outcome of the case.”

555 U.S. at 236-37. The Supreme Court has also made clear

that we must not “define clearly established law at a high

level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (quoting City & Cnty. of San Francisco, Calif. v.

Sheehan, 575 U.S. 600, 613 (2015)). We hold that

regardless of whether there was a violation of Johnson’s

18 JOHNSON V. BARR

constitutional rights, Johnson did not show that the right at

issue was clearly established at the time of the case.

We have recognized that “[i]n the context of a § 1983

action, a Fourth Amendment violation occurs when a person

is arrested ‘without probable cause or other justification.’”

Vanegas v. City of Pasadena, 46 F.4th 1159, 1164 (9th Cir.

2022) (quoting Lacey v. Maricopa Cnty., 693 F.3d 896, 918

(9th Cir. 2012) (en banc)). We also have stated that “[w]here

the officers’ entitlement to qualified immunity depends on

the resolution of disputed issues of fact in their favor, and

against the non-moving party, summary judgment is not

appropriate.” Wilkins v. City of Oakland, 350 F.3d 949, 956

(9th Cir. 2003). In applying the qualified immunity analysis

to claims of unlawful arrest, we have summarized the two-

step qualified immunity inquiry as “(1) whether there was

probable cause for the arrest; and (2) whether it is reasonably

arguable that there was probable cause for arrest—that is,

whether reasonable officers could disagree as to the legality

of the arrest such that the arresting officer is entitled to

qualified immunity.” Rosenbaum v. Washoe Cnty., 663 F.3d

1071, 1076 (9th Cir. 2011) (emphasis in original).

We hold here that although a reasonable jury could find

that Defendants lacked probable cause to arrest Johnson, the

Defendants are entitled to qualified immunity because, even

construing all facts in Johnson’s favor, the law did not

clearly establish that probable cause was lacking. This

reasonable officer standard for qualified immunity differs

from the prudent person standard guiding our probable cause

for arrest analysis. See Willy, 40 F.4th at 1080. Although

officers might seem to lack probable cause under the prudent

person standard, especially when we evaluate their actions

post hoc, a reasonable officer on the ground might perceive

the situation differently. An officer would not be on notice

JOHNSON V. BARR 19

that his or her action was unreasonable unless “all reasonable

officers would agree that there was no probable cause in this

instance.” Rosenbaum, 663 F.3d at 1078. In so holding, we

do not put aside our responsibility to determine unlawful and

unconstitutional behavior, but rather recognize the purposes

for which qualified immunity exists and Johnson’s failure to

meet the burden required to defeat qualified immunity under

Supreme Court and circuit precedent. See Pearson, 555 U.S.

at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640

n.2 (1987)) (citing the need to protect government officials

from the burdens associated with discovery and trial for

behavior that is not clearly unconstitutional).

Here, Johnson did not sufficiently show how her arrest

violated a clearly established right to be free from an

unlawful arrest when the undisputed evidence (under the

probable cause analysis) presented before the district court

does not show that every reasonable officer would be on

notice that these actions were unconstitutional.

The broader availability of bodycam footage allows for

prompt and accurate resolutions of motions for summary

judgment. Footage that has been properly introduced into

the record can eliminate ambiguities that might otherwise

have precluded a grant of summary judgment. In other

cases, the footage could show sufficient evidence of police

misconduct that could prevent a grant of summary judgment

in favor of the Defendants. In this case, the bodycam footage

verifies Johnson’s claim that she did not admit to being

drunk, but the bodycam footage also makes clear that

Johnson did tell a police officer that she had had a mixed

drink earlier in the day and that was reinforced by the

contemporaneous observation by a police officer that

Johnson smelled like alcohol. Additionally, the existence of

unsealed alcohol containers in the car, which Johnson

20 JOHNSON V. BARR

similarly does not dispute (focusing instead on the location

of the bottles), weighs heavily against Johnson. These facts,

in addition to the other facts indicated above in the previous

section on probable cause, support the Defendants’ assertion

that no clearly established law prevented the officers from

believing Johnson was in violation of either California Penal

Code § 647(f) prohibiting public intoxication or California

Penal Code § 273a prohibiting child endangerment.

Johnson did not adequately identify cases that indicated

that the Defendants’ actions in arresting Johnson were

clearly prohibited. As the Supreme Court has stressed, “An

officer ‘cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite

that any reasonable official in the defendant’s shoes would

have understood that he was violating it.’” Kisela, 138 S. Ct.

at 1153 (quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79

(2014)).

The cases that Johnson cites, namely Rosenbaum v.

Washoe County, 663 F.3d 1071 (9th Cir. 2011), are

inapposite and relying upon them would violate the Supreme

Court’s mandate that rights should not be defined at a high

level of generality. In Rosenbaum, we held that a reasonable

officer could not have found the plaintiff’s actions to be

outlawed under an unambiguous statute that did not

criminalize the acts in question, and therefore reliance on the

reasonable officer standard was inappropriate. 663 F.3d at

1078-79. However, the actions and other facts identified by

the Defendants in support of their probable cause analysis

arguably could support probable cause, and a plain reading

of the public intoxication and child endangerment statutes

does not demonstrate that a reasonable officer should have

known that Johnson’s actions were clearly not prohibited.

The other cases Johnson cites involve fact patterns related to

JOHNSON V. BARR 21

a child’s removal from a home, which is a situation not

present here. See, e.g., Rogers v. Cnty. of San Joaquin, 487

F.3d 1288, 1295 (9th Cir. 2007). We hold that in the absence

of any other cases that would place Defendants on notice that

their actions were unreasonable or other arguments such as

those advanced by the plaintiffs in Rosenbaum regarding the

inapplicability of statutes in question to Johnson’s specific

circumstance, qualified immunity must apply to the

Defendants for their federal claims.

Because we hold that qualified immunity applies in the

context of either the child endangerment or public

intoxication statutes, that determination is sufficient to

resolve Johnson’s § 1983 claims. It is not necessary to

analyze the resisting, delaying, or obstructing a peace officer

statute under California Penal Code § 148(a)(1).

However, because we conclude there is a jury question

as to whether Defendants had probable cause to arrest

Johnson, we vacate the district court’s grant of summary

judgment on Johnson’s state law false arrest and negligence

claims, which were premised on a finding that probable

cause existed as a matter of law. 1 See Johnson v. Bay Area

Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013)

1

We affirm the district court’s grant of summary judgment on Johnson’s

intentional infliction of emotional distress, Bane Act, and trespass to

chattels claims. Defendants argue those claims can be rejected on

alternative grounds unrelated to probable cause. We conclude those

alternative grounds are supported in the record. The trespass to chattels

claims fails because of Johnson’s failure to comply with the California

Government Claims Act, Cal. Gov’t Code §§ 900 et seq, or alternatively,

under the community caretaker doctrine. The Bane Act claim fails

because Johnson did not show that officers had the requisite specific

intent. The IIED claim fails because the officers’ conduct was not

extreme or outrageous.

22 JOHNSON V. BARR

(“[T]he doctrine of qualified immunity does not shield

defendants from state law claims.”). We remand the vacated

state law claims to the district court for proceedings

consistent with this ruling. 2

C. The Motion to Disqualify or Recuse Magistrate

Judge Kim

To prevail on a motion to disqualify a judge, the party

filing the motion must show extrajudicial bias or prejudice. 3

We review the district court’s decision for abuse of

discretion. Thomassen v. United States, 835 F.2d 727, 732

(9th Cir. 1987).

The Defendants, in the course of discovery, produced

videos of the incident and proposed to designate the videos

as confidential, while Johnson contended that the bodycam

footage should be freely available to the public. Judge Kim

granted a confidentiality designation for all parts of the

footage showing the children. Judge Kim acknowledged

that while she had not reviewed all bodycam footage, she

was open to potentially revising the confidentiality

designations in the future. Judge Kim wrote, “The minor

Plaintiffs may suffer embarrassment or harm if these images

are shown in the public, as images once made public cannot

2

Although the partial concurrence and partial dissent disagrees with our

treatment of the state law claims, we note that the district court had

already exercised its discretion to exercise supplemental jurisdiction

over the state law claims under 28 U.S.C. § 1367(c) (stating that the

“district courts may decline to exercise supplemental jurisdiction”)

(emphasis added). The state law claims are therefore properly before us,

and we can review the merits of these claims.

3

The language of one of the applicable statutes, 28 U.S.C. § 455(a),

covers both actual bias and the appearance of bias or prejudice. See

Liteky v. United States, 510 U.S. 540, 548 (1994).

JOHNSON V. BARR 23

be recalled, and the failure of the minor Plaintiffs’ parents to

protect them from this harm is disturbing.” Johnson

challenged the portrayal of her actions as “disturbing,” and

filed another motion to recuse or disqualify Judge Kim. That

latter motion was randomly reassigned to Judge Donato,

who denied the motion, viewing Judge Kim’s statement as

appropriate in context because of Judge Kim’s responsibility

to safeguard the well-being of minor children. See Robidoux

v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (detailing

the “special duty” of a district court “to safeguard the

interests of litigants who are minors”).

We affirm the district court and hold that Judge Donato

did not abuse his discretion in denying the recusal motion.

There is no proper basis to require recusal.

IV. Conclusion

We affirm the district court’s grant of summary

judgment to the Defendants on Johnson’s federal claims on

the basis of qualified immunity. We also affirm the district

court’s grant of summary judgment on some of Johnson’s

state law claims (the Bane Act, trespass to chattels, and

intentional infliction of emotional distress claims). Because

we hold that the question of whether the Defendants had

probable cause is properly one for a jury, we vacate the

district court’s grant of summary judgment on Johnson’s

state law claims of negligence and false arrest and

imprisonment. On remand, as there is no longer any federal

claim in this case, the district court may determine, using its

sound discretion, whether to retain supplemental jurisdiction

over the remaining state law claims or to remand this case to

state court. 28 U.S.C. § 1367(c); see Arroyo v. Rosas, 19

F.4th 1202, 1210 (9th Cir. 2021) (quoting the statute and

applying the abuse of discretion standard to evaluate the

24 JOHNSON V. BARR

district court’s decision to decline to exercise supplemental

jurisdiction). We also affirm the district court’s denial of the

recusal motion. Each party shall bear its own costs.

AFFIRMED in part, VACATED in part, and

REMANDED for proceedings consistent with this

opinion.

Rawlinson, Circuit Judge, concurring in part and dissenting

in part:

I join my esteemed colleagues in concluding that the

officers in this case were entitled to qualified immunity.

However, I disagree with my colleagues’ treatment of the

state law claims. Rather than vacating the district court’s

grant of summary judgment on some state law claims and

affirming the grant of summary judgment on other state law

claims, I would vacate the district court’s grant of summary

judgment on the state law claims in its entirety. I would then

remand for the district court to decide, in the first instance,

whether to continue to exercise supplemental jurisdiction

over the state law claims.

This approach has strong support in our precedent. In

Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1258

(9th Cir. 2016), the plaintiff alleged claims for wrongful

discharge under state law and “a variety of other state law

claims.” She also alleged “that her First Amendment rights

were infringed, [and] that she was retaliated against for

exercising such rights.” Id. The claims were initially filed

in Washington state court. See id. Following removal to

federal court and discovery, the federal district court granted

summary judgment in favor of the defendants on the state

JOHNSON V. BARR 25

law claims. See id. On appeal to this court, the plaintiff

“contend[ed] that the district court improperly granted

summary judgment on her claim under Washington law for

wrongful discharge against public policy.” Id. at 1265.

Because an intervening decision of the Washington Supreme

Court had overruled the decision upon which the federal

district court relied in granting summary judgment on the

wrongful discharge claim, we vacated that ruling. See id.

We remanded to the district court for consideration of the

wrongful discharge claim in light of the intervening decision

from the Washington Supreme Court. See id. However,

because “we affirm[ed] the district court’s grant of summary

judgment with respect to [the plaintiff’s] claim under federal

law,” we concluded that “the district court should first

consider whether to continue to exercise its supplemental

jurisdiction” over the state law claim. Id. (citation omitted)

(emphasis added); see also Acri v. Varian Assocs., Inc., 114

F.3d 999, 1001 (9th Cir. 1997) (en banc) (“[W]e emphasize

that actually exercising discretion and deciding whether to

decline, or to retain, supplemental jurisdiction over state law

claims . . . is a responsibility that district courts are duty-

bound to take seriously. . . .”) (citation omitted) (emphases

added).

The majority’s decision remands the state law claims to

the district court without “first” allowing the district court to

consider whether to continue to exercise its supplemental

jurisdiction over the state law claims. Coomes, 816 F.3d at

1265. Because the majority’s approach usurps the

discretionary authority of the district court to decide

“whether to continue to exercise its supplemental

26 JOHNSON V. BARR

jurisdiction,” id., I respectfully dissent from that portion of

the majority opinion. 1

1

The majority concludes that the state law claims are properly before us

because “the district court had already exercised its discretion to exercise

supplemental jurisdiction over the state law claims.” Majority Opinion,

p. 22 n.2. But the district court has not had the opportunity to exercise its

discretion to determine “whether . . . to retain supplemental jurisdiction

over state law claims” following remand. Acri, 114 F.3d at 1001

(citation and punctuation omitted) (emphasis added); see also Coomes,

816 F.3d at 1265 (“[T]he district court should first consider whether to

continue to exercise its supplemental jurisdiction” over the state law

claim.) (citation omitted) (emphasis added).