Gary Blankenhorn v. City of Orange Andy Romero Dung Nguyen Garrett Ross Tamara South Gray, Sergeant Montano, Officer Kayano, Officer Roman, Officer

BERZON, Circuit Judge,

concurring in part and dissenting in part:

I am fully in accord with the majority opinion and join it, except in one respect: I disagree with the majority’s holding that there was probable cause to arrest Blank-enhorn. I concur rather than dissent on the false arrest issue, however, because I believe that the arresting officers are qual-ifiedly immune from liability for arresting Blankenhorn pursuant to California Penal Code § 602(j). My remarks are styled a dissent only because my conclusion with respect to probable cause requires me to conclude that, on the subsequent question of Blankenhorn’s state law claim for false arrest, the arresting officers were not acting within the scope of their authority under California law and thus do not enjoy statutory immunity for their actions.

A. Probable Cause to Arrest

I cannot agree with the majority’s conclusion that the officers had probable cause to arrest Blankenhorn for trespassing under both section 602(n) and section 602(j) of the California Penal Code. In my view, there was probable cause under neither section.

First, the parties agree that there was no request to leave sufficient to trigger section 602(n). They do not suggest that the “Notice Forbidding Trespass” could serve as such a request. And the parties are quite right: The language of the statute explicitly requires a contemporaneous request for the individual to leave and, when necessary, for the assistance of a peace officer, not a notice issued weeks earlier. And, as the record is clear that on the night of his arrest Blankenhorn was never asked to leave the premises prior to his arrest nor did The Block ever ask the officers to remove him, our probable cause analysis should end there.

Instead, the majority asserts that the request to leave required by section 602(n) need not be contemporaneous with the arrest because the “on each occasion” language in the statute only applies to the property owner’s request to the peace officer. 1 The statute, however, plainly indicates otherwise: Section 602(n) prohibits an individual from “[rjefusing or failing to leave land ... upon being requested to leave.” Cal. Penal Code § 602 (n) (emphasis added). In this context, “upon” denotes a temporal relationship between the refusal and the request much more immediate than the five months that passed between the “Notice Forbidding Trespass” *490 and the night in question. See WebsteR’s New International DictionaRY of the English Language 2518 (3d ed., 1976) (defining “upon” as “immediately following on: very soon thereafter”); The Compact Oxford English Dictionary 2199 (2d ed., 1989) (defining “upon” as “[o]n the occasion of’ and “[i]mmediately after, following on”). Because Blankenhorn was never asked to leave that evening, the officers lacked probable cause to believe that section 602(n) had been violated. 2

Moreover, the majority improperly considers satisfied the statutory requirement that the property owner make a “separate request to the peace officer on each occasion when the peace officer’s assistance in dealing with a trespass is requested.” Cal. Penal Code § 602 (n) (emphasis added). Although the majority notes that “[djefendants gave The Block a chance to fulfill this requirement and that it was fulfilled,” this recitation of the facts is misleading. In fact, The Block’s security communicated the desire that the police assist in removing Blankenhorn from the mall only after he was arrested. But the statute plainly contemplates a request to the police officer before, not after, an individual is requested to leave and then arrested for failing to do so. Moreover, “[wjhether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arrest officer at the time of arrest,” Devenpeck v. Alford, 543 U.S. 146, 152 , 125 S.Ct. 588 , 160 L.Ed.2d 537 (2004) (emphasis added), so the post-arrest request cannot support a finding of probable cause.

Additionally, a portion of section 602(n) not quoted by the majority demonstrates why the “Notice Forbidding Trespass” could not serve as the requisite request to the police officer. After the language quoted in footnote 8, the statute continues:

However, a single request for a peace officer’s assistance may be made to cover a limited period of time not to exceed SO days and identified by specific dates, during which there is a fire hazard or the owner, owner’s agent or person in lawful possession is absent from the premises or property. In addition, a single request for a peace officer’s assistance may be made for a period not to exceed six months when the premises or property is closed to the public and posted as being closed.

Cal. Penal Code § 602 (n) (emphasis added). Here, of course, the “Notice Forbidding Trespass” was issued more than 30 days earlier, there was no fire hazard or absent owner, and the property, The Block mall, was open to the public, although not to Blankenhorn.

The majority recognizes that “actually convicting [Blankenhorn] under section 602(n) might have been difficult,” but asserts that a reasonable officer could nonetheless have had probable cause to think that Blankenhorn violated the statute. Probable cause, however, cannot be established by misreading a statute. See United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir.2000) (“[I]n this circuit, a belief based on a misunderstanding of the law cannot constitute the reasonable suspicion *491 required for a constitutional traffic stop.”); see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005) (“[FJailure to understand the law by the very person charged with enforcing it is not objectively reasonable.”); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.2003) (holding that a mistake of law cannot provide the “objectively reasonable grounds for reasonable suspicion or probable cause”).

In sum, in the absence of a contemporaneous request to Blankenhorn to leave The Block and the absence of a valid request for police assistance, there is no factual basis for finding probable cause.

Second, with respect to section 602(j), I cannot go along with the majority’s conclusion that it was reasonable for the officers to conclude that Blankenhorn intended to interfere with, obstruct, or injure the lawful business of The Block. The majority relies on a single fact to support such a finding: that Blankenhorn had been banned from The Block a few months earlier. The inference that one who enters on commercial property where one is unwanted necessarily intends to interfere with the business conducted there is too tenuous to support probable cause.

Indeed, California case law has read section 602(j) to require much more tangible indices of intent on the part of the alleged trespasser. In In re Ball, 23 Cal.App.3d 380 , 100 Cal.Rptr. 189, 193 (1972), the defendant knew, because he had been told so, that the activity he wanted to engage in would interfere with Disneyland’s business. Moreover, he came on the property to engage in the interfering activity, specifically to set up a solicitation table in the path of a passenger tram. Id. at 192. And interfere it did; the regular route of the passenger trams had to be diverted. See id. (noting that “[a]s a result of petitioner’s activities, ... [the] supervisor of Disneyland security, ‘had to initiate action for the Tram to avoid the area by diverting the Tram offloading to another area’ ”). In re Ball inferred intent from all these circumstances — “deliberately entering the [Disneyland] parking lot and engaging in the conduct disclosed after having requested and been denied permission to do so and from his refusal to leave when asked to do so.” Id. at 193 (emphasis added).

Applying In re Ball here, it is relevant to his intent that Blankenhorn was told not to return to The Block and did so anyhow. But his being so told cannot be dispositive of the question whether there is probable cause to believe that he entered The Block with “the intention of interfering with, obstructing, or injuring any lawful business” of The Block. See Cal. Penal Code § 602 (j). Unlike in In re Ball, where the defendant came on to the property intending to set up a table in the middle of the parking lot, the arresting officers had no reason whatever to believe that Blanken-horn came onto the mall property intending that any interference with the mail’s business take place. If anything, the only reasonable inference we can draw — because no facts to the contrary have been presented- — is that Blankenhorn came to The Block intending that he not act in a manner that would draw attention; presumably he did not want to be found out and ousted or arrested.

As a result, I would hold that a prudent officer could not have concluded that there was probable cause to arrest Blankenhorn for violation of section 602(j), when all that was known at the time of arrest was (1) he had been told he was not to return to The Block; and (2) he did so anyway.

B. Qualified Immunity

As discussed above, the parties agree that section 602(n) did not apply, and I find that section’s language unambiguous *492 on both the need for a contemporaneous request to leave and the need for a pre-arrest, contemporaneous request for police assistance. Consequently, I would hold that qualified immunity fails as to section 602(n). 3

I do agree with the majority, however, that qualified immunity precludes liability with respect to arrest pursuant to section 602(j). That statute lacks the specificity of section 602(n). As the majority notes, there is little pertinent California case law construing section 602(j), and none that makes clear that returning to property after having been permanently banned from it could not constitute an intent to interfere with business.

Further, as the majority explains, there is at least one theory on which an officer could reasonably believe that such a return demonstrates the requisite intent — that the security officers at The Block would likely have spent time interacting with Blankenhorn to get him to leave. Although I do not believe that the likelihood that a security officer would have to do what he is hired to do can support probable cause of an intent to interfere with The Block’s business, there is no California case law to the contrary. See Peng v. Mei Chin Penghu, 335 F.3d 970, 980 (9th Cir.2003) (“Even absent probable cause, qualified immunity is available if a reasonable police officer could have believed that his or her conduct was lawful, in light of the clearly established law....”). I therefore concur in the conclusion that there was qualified immunity with regard to whether there was probable cause to arrest Blank-enhorn pursuant to section 602(j).

C. State Law False Arrest Claim

Finally, because I part ways with the majority with respect to probable cause for arrest, it follows that I must dissent from its conclusion that Blankenhorn’s state law claim for false arrest is precluded by statutory immunity. In California, an officer cannot be held civilly liable in these circumstances if he or she, “acting within the scope of his or her authority,” made a “lawful” arrest, or “had reasonable cause to believe the arrest was lawful.” Cal. Penal Code § 847 (b). Because I would hold that the arrest was unlawful and, thus, not within the scope of the officers’ authority, I also would find that the officers could not claim immunity under section 847(b). Because I agree with the majority that no provisions provide immunity on the other state law claims, all of Blankenhorn’s state law claims should be allowed to go forward.

. At the time of Blankenhorn's arrest, section 602(n) read in relevant part:

Refusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession, and upon being informed by the peace officer that he or she is acting at the request of the owner, the owner’s agent, or the person in lawful possession, or (2) the owner, the owner’s agent, or the person in lawful possession. The owner, the owner’s agent, or the person in lawful possession shall make a separate request to the peace officer on each occasion when the peace officer’s assistance in dealing with a trespass is requested. However, a single request for a peace officer's assistance may be made to cover a limited period of time not to exceed 30 days and identified by specific dates, during which there is a fire hazard or the owner, owner’s agent or person in lawful possession is absent from the premises or property. In addition, a single request for a peace officer’s assistance may be made for a period not to exceed six months when the premises or property is closed to the public and posted as being closed.

Cal. Penal Code § 602 (n) (West 2001).

. Even if the timing were different, the "Notice Forbidding Trespass” hardly constituted a "request” to leave. Rather, it was essentially the equivalent of a "No Trespassing” sign tailored specifically to Blankenhorn, serving to take him out of the "public” to whom the property normally was open. The "request” requirement in section 602(n) indicates that such a posting is not enough — there also must be a contemporaneous request to leave the property before trespassing has occurred. Cf. Cal. Penal Code §§ 602 (i), (k) (barring only certain actions, but not simple entry without a request to leave, "where signs forbidding trespass are displayed”).

. The fact that the defendants concede the probable cause issue as to section 602(n) further suggests that the question is not a close one.