Petition for Writ of Certiorari — City and County of San Francisco v. Rodis (No. 07-1376)

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Supreme Court, U.S.

FIL

071376 MAY 1- 2008

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

CITY AND COUNTY OF SAN FRANCISCO,

SERGEANT JEFF BARRY,

OFFICER MICHELLE LIDDICOET, and ALEX FAGAN,

Petitioners,

Vv.

RODEL RODIS,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DENNIS J. HERRERA

City Attorney

JOANNE HOEPER

Chief Trial Deputy

SCOTT D. WIENER,

Counsel of Record

VINCE CHHABRIA

Deputy City Attorneys

1390 Market Street, 7th Floor

San Francisco, California 94102-5408

Telephone: (415) 554-4283

Facsimile: (415) 554-3837

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL. COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. 18 U.S.C. section 472 makes it illegal to pass

a counterfeit bill “with intent to defraud.” Is probable

cause to arrest an individual for a suspected violation

of this statute established once the individual at-

tempts to pass a counterfeit bill, as the Eleventh and

Fifth Circuits have concluded, or must the arresting

officer develop additional, independent evidence of

“Intent to defraud,” above and beyond the intent

inferred from the passing of the counterfeit bill,

before arresting the suspect, as the Ninth Circuit

held in the case below?

2. Did the Ninth Circuit err in denying quali-

fied immunity to officers who arrested a suspect for

violation of 18 U.S.C. section 472, based on their

reasonable belief that he had attempted to pass a

counterfeit bill, where the only cases on point at the

time of the arrest had concluded that an attempt to

pass a counterfeit bill — even without additional

evidence of intent — was sufficient to establish prob-

able cause and where no court had ever held that

additional evidence of intent was required? (A similar

question relating to qualified immunity is pending

before the Court in Pearson v. Callahan, No. 07-751.)

3. Should Saucier v. Katz, 533 U.S. 194 (2001),

be overruled? (This question is pending before the

Court in Pearson v. Callahan, No. 07-751.)

PARTIES TO THE PROCEEDING

Petitioners are two individual law enforcement

officers (Sergeant Jeff Barry and Officer Michelle

Liddicoet), the City and County of San Francisco (a

California municipal corporation), and former Chief

of Police Alex Fagan, sued in his official capacity only.

Respondent is Rodel Rodis, an individual.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .........

PARTIES TO THE PROCEEDING .......................

TABLE GF AUTHORITIES ...........0.00:c:ccscccssssssscses

RELEVANT CONSTITUTIONAL AND STATU-

RT TIN ois scsevncnsereceninvarsennacscsdenseess

I. THe COURT SHOULD GRANT CERTI-

ORARI TO RESOLVE THE SPLIT AMONG

THE CIRCUITS OVER WHETHER INDE-

PENDENT EVIDENCE OF INTENT TO

DEFRAUD, BEYOND THE ATTEMPT TO

PASS THE COUNTERFEIT BILL ITSELF,

IS REQUIRED TO SUPPORT PROBABLE

CAUSE TO ARREST AN INDIVIDUAL

FOR SUSPECTED VIOLATION OF 18

SF Ps, Te IEE ED ai ccssnsiconss cove svcntectiesee'ss

Il. THE COURT SHOULD GRANT CERTI-

ORARI TO CORRECT THE NINTH

CIRCUITS ERRONEOUS DENIAL OF

QUALIFIED IMMUNITY .................... 0:00

TABLE OF CONTENTS — Continued

Page

lll. THE COURT SHOULD GRANT CERTI-

ORARI TO RECEIVE THE CITY’S INPUT

ON WHETHER, AND THE EXTENT TO

WHICH, SAUCIER V. KATZ SHOULD BE

EI a oh od ch svcuinadehus phaseddsensacuskogans 22

IN i.a 63. gnnnc Shcccossaseanidcsnvileceidenivbicnicaees 27

APPENDICES

1) Ninth Circuit Opinion dated August 28,

I ikicnabeseviaheaahnctcnricbutl orients maaan ave eens App. 1

2) District Court Order re Summary Judgment

CORO PONCE Be, HO cis vic indeed sccesedesscncecesses App. 33

3) Ninth Circuit Order dated September 10,

2007, Extending Deadline to File Petition

TU MN iii nnd slananncopcuieiebanaiednasensiante App. 50

4) Ninth Circuit Order dated February 6,

2008, Denying Rehearing and Rehearing En

I os ie sicicsts Caricirei stirs tiiaincececealbaieeneasnmabiawaadeat App. 51

TABLE OF AUTHORITIES

FEDERAL CASES

Baker v. McCollan, 443 U.S. 137 (1979)

Bates v. United States, 352 F.2d 399 (9th Cir.

Behrens v. Pelletier, 516 U.S. 299 (1996)

Brosseau v. Haugen, 543 U.S. 194 (2004)

City of Los Angeles v. Heller, 475 U.S. 796

ilk ic apesiuissbins seareendaenvenncuoegececnines eee 24

George v. City of Long Beach, 973 F.2d 706 (9th

Cir. 1992)

Illinois v. Gates, 462 U.S. 213 (1983)

Marks v. Carmody, 234 F.3d 1006 (7th Cir.

Mitchell v. Forsyth, 472 U.S. 511 (1985)

Monell v. Department of Social Servs., 436 U.S.

658 (1978) 23, 24, 25, 26, 27

Owen v. City of Independence, Mo., 445 U.S.

622 (1980)

Pearson v. Callahan, No. 07-751 5, 33. Ze, Be

Salazar v. Burresch, 47 F. Supp. 2d 1105 (C.D.

Cal. 1999)

Saucier v. Katz, 533 U.S. 194 (2001) passim

United States v. Allison, 616 F.2d 779 (5th Cir.

TABLE OF AUTHORITIES — Continued

Page

United States v. Blum, 4382 F.2d 250 (9th Cir.

EOIN EMSS aR TW EC 13, 18

United States v. Everett, 719 F.2d 1119 (11th

Teen ee. ses waennn’ 4,13, 18

United States v. Ford, 461 F.2d 534 (9th Cir.

EIS ON A EEE PAO a he 13, 18

United States v. Hernandez, 825 F.2d 846 (5th

ENTERS TE EEN RO ea CO Op rae 4,13,18

United States v. Mayo, 394 F.3d 1271 (9th Cir.

SE SESE SERS SOs SS a eer 15

FEDERAL STATUTES & CONSTITUTIONAL PROVISIONS

iets cin cchsanyscustadivereavenveiarsvesesies passim

i a udaniiawsevonsnstoveineneees 14

aac cadeanwauavdenundstewebudsivvensneumenns 2

sii swhdahpsteseaduvsevannavsecesecwaaaiesce 2

as cs. sedinnvgeendenevayvosvuvsusecessesbereseasé 2

Sa 2. 8, 23, 34, 27

ES 5 re 2, 8, 9, 19, 21

STATE CASES

Asgari v. City of Los Angeles, 937 P.2d 273 (Cal.

aah desc cela daicncauitian ekcceeud ines ssehdvdovoscnsnseese 26

Edson v. City of Anaheim, 74 Cal. Rptr. 2d 614

crak iaicsnsaneigsti dcmiscankens kivacaseedsenis 25

Vii

TABLE OF AUTHORITIES — Continued

Page

Tom v. Voida, 654 N.E.2d 776 (Ind. App. 1995)......... 26

VanVorous v. Burmeister, 687 N.W.2d 132 (Mich.

RMON HP EE Deneay BS UD rete Ira Oey RT nt Oa ean 26

Venegas v. County of Los Angeles, 63 Cal. Rptr.

Ns PE ii dasiirhsoviccsecicpusvectinnrsteieixnancs 26

White v. Martin, 30 Cal. Rptr. 367 (Cal. App.

ih Seabees it nc Sichunsa sia ancemssslciidiap use noses oouserkiniinrs 25

Williams v. City of Jacksonville, 599 S.E.2d 422

rs BE hice ch cane chee cansnvied chiveneiiiesdneieeccsosves 26

STATE STATUTES & CODES

Califormia Penal Code § 84'7............ccccccccsscesssecssevsocess 26

OPINIONS/ORDERS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit, dated August 28, 2007, is

published at 499 F.3d 1094 and is reprinted in the

Appendix at Pet. App. 1.

The order of the United States District Court for

the Northern District of California, dated March 22,

2005, can be found at 2004 WL 3246273 (N.D. Cal.),

and is reprinted in the Appendix at Pet. App. 33.

The order of the court of appeals, dated Septem-

ber 10, 2007, extending the deadline to petition for

rehearing and rehearing en banc is reprinted in the

Appendix at Pet. App. 50.

The order of the court of appeals, dated February

6, 2008, denying petitioners’ request for rehearing

and rehearing en banc is reprinted in the Appendix at

Pet. App. 51.

JURISDICTIONAL STATEMENT

Petitioners seek review of the August 28, 2007,

opinion of the court of appeals affirming the district

court’s denial of qualified immunity to petitioners

Sergeant Jeff Barry and Officer Michelle Liddicoet.

After obtaining an extension of the deadline to peti-

tion for rehearing and rehearing en banc, petitioners

filed the petition on October 12, 2007. The court of

appeals denied the petition on February 6, 2008.

The statutory basis for this Court’s jurisdiction is

28 U.S.C. section 1254. The court of appeals derived

jurisdiction from 28 U.S.C. section 1291, because an

order denying qualified immunity is an appealable

collateral order. See Behrens v. Pelletier, 516 U.S. 299

(1996); Mitchell v. Forsyth, 472 U.S. 511 (1985). The

district court derived jurisdiction from 28 U.S.C.

section 1331, because Rodis alleged that his federal

constitutional rights had been violated by petitioners’

actions ard raised a claim under 42 U.S.C. section

1983.

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

The Fourth Amendment to the United States Consti-

tution states:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

42 U.S.C. section 1983 states in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citi-

zen of the United States or other person

within the jurisdiction thereof to the depri-

vation of any rights, privileges, or immuni-

ties secured by the Constitution and laws,

shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper

proceeding for redress, except that in any ac-

tion brought against a judicial officer for an

act or omission taken in such officer’s judi-

cial capacity, injunctive relief shall not be

granted unless a declaratory decree was vio-

lated or declaratory relief was unavailable.

18 U.S.C. section 472 states:

Whoever, with intent to defraud, passes, ut-

ters, publishes, or sells, or attempts to pass,

utter, publish, or sell, or with like intent

brings into the United States or keeps in

possession or conceals any falsely made,

forged, counterfeited, or altered obligation or

other security of the United States, shall be

fined under this title or imprisoned not more

than 20 years, or both.

STATEMENT

In the decision below, a divided panel of the

Ninth Circuit held that an officer may not arrest an

individual on suspicion of passing a counterfeit bill

unless the officer has evidence of “intent to defraud”

above and beyond the intent inferred from the pass-

ing of the bill. This holding creates a split with the

Eleventh and Fifth Circuits, both of which have made

clear that an attempt to pass a counterfeit bill is

sufficient to establish probable cause to arrest. See

United States v. Everett, 719 F.2d 1119, 1120 (11th

Cir. 1983) (“While intent is an element of the crime

which must be proved at trial, it is not necessary in

order to establish probable cause to arrest. The

passing of a counterfeit note coupled with an identifi-

cation of the person who passed the note furnishes

probable cause to arrest the individual identified as

passing the note.”); United States v. Hernandez, 825

F.2d 846, 849 (5th Cir. 1987) (“Generally, probable

cause to arrest for the offense of passing a counterfeit

note is established by circumstances showing the

passing of a counterfeit note coupled with an identifi-

cation of the individual who passed the note.”). This

circuit split is of great consequence because it will

impede the ability of law enforcement agencies to

enforce the federal counterfeiting statute effectively

and uniformly. The Court should grant certiorari to

resolve the split and correct the Ninth Circuit’s error.

The Ninth Circuit also erred in denying qualified

immunity to the arresting officers. Every decision in

existence at the time of the arrest had held or implied

that officers may arrest an individual on suspicion of

passing a counterfeit bill when the individual at-

tempts to pass the bill, and that no additional evi-

dence of intent to defraud is required to establish

probable cause. Yet, despite that case law, the Ninth

Circuit held that the officers had violated Rodis’s

clearly established right not to be arrested without

additional evidence of intent. It did so by defining the

right at the highest level of generality possible, in

direct contravention of this Court’s prior rulings in

Saucier v. Katz, 533 U.S. 194, 201-02 (2001), and

Brosseau v. Haugen, 543 U.S. 194 (2004). As such, the

Ninth Circuit’s error is identical to that of the Tenth

Circuit in Pearson v. Callahan, No. 07-751, in which

the Court recently granted certiorari.

If the only error in the decision below were the

denial of qualified immunity, petitioners would re-

quest that the Court hold the petition for a decision in

Pearson. However, because the Ninth Circuit’s ruling

also creates a certworthy split on the probable cause

requirement for 18 U.S.C. section 472, petitioners

respectfully request that the Court grant certiorari in

this case, and calendar it for ergument with Pearson

so that the Court may address the overlapping quali-

fied immunity issue simultaneously. An additional

benefit to calendaring the petition for argument with

Pearson is that the City and County of San Francisco,

which is annually named along with its law enforce-

ment officers in dozens of lawsuits that implicate

qualified immunity, can provide the Court with guid-

ance on the third question presented in Pearson and in

this petition: whether Saucier should be overruled.

The City’s experience suggests that although the

Court should overrule Saucier to the extent it re-

quires courts to adjudicate the underlying constitu-

tional issue before turning to qualified immunity, the

Court should not preclude lower courts from doing so,

because the simultaneous resolution of both issues

often promotes judicial economy and allows munici-

palities to avoid the unnecessary expense of litigating

constitutional and state-law claims that are clearly

meritless.

* * *

1. On February 17, 2003, respondent Rodel

Rodis attempted to make a purchase at a Walgreens

drugstore in San Francisco with a $100 bill. The

cashier suspected the bill was counterfeit because of

its odd texture and reported her suspicion to the store

manager. The manager, who handles multiple $100

bills every day, examined the bill, compared it to

another $100 bill, observed that the bill lacked a

magnetic strip and watermark, and therefore agreed

with the clerk’s suspicion that the bill was counter-

feit.

The manager then called 911 to summon the

police and informed the 911 dispatcher that he sus-

pected the bill was counterfeit. Several San Francisco

police officers — including Sergeant Jeff Barry, Officer

Michelle Liddicoet, Officer James Nguyen, and Offi-

cer Barbara Dullea — arrived at the scene in, response

to that dispatch. The officers arrested Rodis, basing

probable cause on several facts. First, the officers

independently examined the bill by touching it and

inspecting it visually. Second, the Walgreens employ-

ees, experienced in handling currency, communicated

their suspicions about the genuineness of the bill.

Officer Nguyen spoke with the manager and cashier,

who expressed their belief that the bill was counter-

feit. The cashier informed Officer Nguyen that Rodis

had used the $100 bill to pay for a few small items.

The manager told Officer Nguyen he had compared

the bill to another $100 bill from the same year.

Based on these facts, the officers determined tne

bill likely was counterfeit and decided to investigate

further by contacting the United States Secret Ser-

vice for guidance. The San Francisco Police Depart-

ment has access to a Secret Service hotline for such

inquiries, and officers are trained to contact the

Secret Service to confirm the authenticity or lack

thereof of suspect bills.

The officers conducted this portion of their inves-

tigation from the police station. Conducting such an

investigation at the Walgreens store was impractical

because the Walgreens office was very small and

cramped. In addition, conducting the investigation at

the police station would be more effective and less

embarrassing for Rodis, given the potential delay in

hearing back from the Secret Service. Under stan-

dard procedures governing arrests, the officers hand-

cuffed Rodis and transported him to the police

station.

After arriving at the station, Officer Nguyen

called and left a message for the Secret Service and

received a return call from an agent twenty or thirty

minutes later. After interviewing Officer Nguyen

about the bill, the Secret Service agent informed

Officer Nguyen that the bill likely was genuine. Upon

learning this information, the officers immediately

released Rodis, removed his handcuffs, and drove him

back to the Walgreens store in the front seat of the

police car. The officers returned the $100 bill to Rodis.

The entire incident lasted approximately one hour.

2. On October 1, 20038, Rodis filed suit in the

Superior Court of California for the County of San

Francisco, against Defendants City and County of

San Francisco, then-Chief of Police Alex Fagan (in his

official capacity only), Sergeant Barry, and Officer

Liddicoet. The complaint alleged a cause of action

under 42 U.S.C. section 1983, for violation of Rodis’s

Fourth Amendment rights, and state-law claims as

well. After the City was served, it removed the case to

the United States District Court for the Northern

District of California.

Petitioners moved for summary judgment, and on

March 22, 2005, the district court granted the motion

in part and denied it in part. Pertinent here, the

district court held that Rodis had a viable claim

against the individual officers for violation of his

rights under the Fourth Amendment and further held

that those rights were clearly established at the time

of the arrest. The district court thus denied the

officers’ request for qualified immunity. Pet. App. 33-

49.

Petitioners appealed the denial of qualified

immunity, and on August 28, 2007, a divided three-

judge panel of the Ninth Circuit affirmed the denial.

The majority opinion, written by Judge Dorothy

Nelson (and joined by District Judge Cormac Carney,

sitting by designation), held that even though there

was probable cause to believe Rodis had attempted to

pass a counterfeit bill, the officers violated his clearly

established rights by arresting him without addi-

tional, independent evidence that he had intended to

defraud Walgreens:

[A]rresting Rodis without any evidence he

intended to use the bill to defraud the store

or that he knew (or believed) the bill was

fake was a violation of his Fourth Amend-

ment rights. Further, it was clearly estab-

lished at the time of the arrest thac

Defendants’ conduct was unlawful.

Pet. App. 7-8.

In concluding the officers lacked probable cause

to arrest, the majority stressed that to obtain a con-

viction at trial, the government must independently

prove intent to defraud. Pet.-App. 9-10. The majority

acknowledged the general rule that officers need not

have probable cause as to each element of a crime to

effect a legal arrest, Pet. App. 11, but then held that

“at least some evidence of Rodis’s alleged intent to

defraud would have been required to establish prob-

able cause.” Pet. App. 10 n.2; see also Pet. App. 13.’

Turning to the qualified immunity question, the

majority concluded that the requirement that officers

' The majority placed special emphasis on one factor that

“decreased the probability that Rodis violated section 472,”

namely, that the officers knew that he had high social standing

in the community and that he was an attorney and an elected

member of the San Francisco Community College Board. Pet.

App. 12-13.

develop additional evidence of intent before making a

counterfeiting arrest was clearly established at the

time of Rodis’s arrest. The majority did not cite any

cases to support the conclusion that the law was

clearly established at the time. Instead, it relied on

the “fluidity” of the probable cause analysis:

[I]t was well established at the time of Ro-

dis’s arrest that “probable cause is a fluid

concept — turning on the assessment of prob-

abilities in particular factual contexts — not

readily, or even usefully, reduced to a neat

set of legal rules.” .. . Based on the totality of

the circumstances, no prudent officer rea-

sonably could have concluded there was a

fair probability that Rodis violated § 472 or

any other offense.

Pet. App. 15-16 (quoting Illinois v. Gates, 462 U.S.

213, 232 (1983)).

The majority acknowledged the existence of cases

in the Ninth Circuit and elsewhere that explicitly or

implicitly had validated counterfeiting arrests with-

out evidence of intent beyond the intent inferred from

the act of passing a counterfeit bill. But, it rejected

those cases as being either insufficiently specific, too

short, too old, or not binding because they were from

other circuits. Thus, according to the majority, the

cases did not undermine the conclusion that the

intent requirement for counterfeiting arrests was

clearly established at the time of the arrest. Pet. App.

16-17 & n.5.

3. Judge Consuelo Callahan dissented from the

panel decision. Judge Callahan first reasoned that

the officers had probable cause because they had a

basis for believing that the odd bill was counterfeit,

based on the reports from Walgreens staff and the

officers’ own examination of the bill. Pet. App. 20-21.

Judge Callahan noted that by requiring additional

evidence of intent to sustain a counterfeiting arrest,

“the majority opinion improperly imposes the gov-

ernment’s burden of proof at trial on the probable

cause inquiry.” Pet. App. 22-23.

Judge Callahan described the problems with

requiring officers to have additional evidence of

intent before effecting a legal counterfeiting arrest:

Imposing a requirement that asks officers to

read criminals’ minds to discern their subjec-

tive knowledge and intent is not practical or

grounded in reality. Intent to defraud is often

established through evidence concerning

knowledge such as additional counterfeit

bills, reproduction equipment, plates, ledg-

ers, and other evidence that officers would no

longer be able to gather incident to arrest or

through a search warrant.

Pet. App. 26.

Judge Callahan then disagreed with Judge

Nelson’s conclusion that the requirement of addi-

tional evidence of intent was clearly established at

the time of Rodis’s arrest:

The majority cites to no case specifically re-

quiring that officers have explicit evidence of

a suspect’s subjective intent to defraud be-

fore they have probable cause to arrest on

suspicion of violating 18 U.S.C. § 472. This

lack of precedent to support the majority’s

approach is telling. ... In my view, the case

law allowing officers to infer the intent to de-

fraud from the attempted passing of the

counterfeit note is sufficient to establish

probable cause was the clearly established

law prior to this decision. We cannot expect

the officers to anticipate the majority’s ruling

that they should have had explicit and con-

clusive evidence of the suspect’s subjective

intent to defraud prior to arrest, because it is

found nowhere else in any federal court’s ju-

risprudence concerning probable cause to ar-

rest under 18 U.S.C. § 472.

Pet. App. 31-32.

4. The Ninth Circuit denied petitioners’ timely

Petition for Rehearing and Rehearing En Banc on

February 6, 2008. Pet. App. 51-52.

REASONS FOR GRANTING THE PETITION

I. THE COURT SHOULD GRANT CERTIO-

RARI TO RESOLVE THE SPLIT AMONG

THE CIRCUITS OVER WHETHER INDE-

PENDENT EVIDENCE OF INTENT TO DE-

FRAUD, BEYOND THE ATTEMPT TO PASS

THE COUNTERFEIT BILL ITSELF, IS RE-

QUIRED TO SUPPORT PROBABLE CAUSE

TO ARREST AN INDIVIDUAL FOR SUS-

PECTED VIOLATION OF 18 U.S.C. SEC-

TION 472.

The Court should grant certiorari to resolve the

circuit split that the Ninth Circuit created by holding

that petitioners lacked probable cause to arrest Rodis

because of the lack of evidence of intent to defraud

beyond the act itself of passing a counterfeit bill. The

Ninth Circuit’s holding is categorical in nature:

“Without at least some evidence regarding the knowl-

edge or intent elements of the crime, probable cause

is necessarily lacking.” Pet. App. 13. Thus, if the

Ninth Circuit’s ruling stands, additional evidence of

knowledge or intent will be required in every counter-

feiting arrest in the western United States for prob-

able cause to exist.

This rule is inconsistent with the rule in other

circuits. The Fifth and Eleventh Circuits have con-

cluded that evidence of intent to defraud, beyond the

intent inferred from the act of passing the bill, is not

required to have probable cause to arrest for attempt-

ing to pass a counterfeit bill. See Everett, 719 F.2d at

1120 (“While intent is an element of the crime which

must be proved at trial, it is not necessary in order to

establish probable cause to arrest. The passing of a

counterfeit note coupled with an identification of the

person who passed the note furnishes probable cause

to arrest the individual identified as passing the

note.”); Hernandez, 825 F2d at 849 (“Generally,

probable cause to arrest for the offense of passing a

counterfeit note is established by circumstances

showing the passing of a counterfeit note coupled

with an identification of the individual who passed

the note.”); United States v. Allison, 616 F.2d 779, 782

(5th Cir. 1980) (“Although mere possession of counter-

feit money is not a crime, when possession is coupled

with reliable information that the possessor has

attempted to pass the bill as genuine, the officer in

the field is justified in concluding that an offense has

been committed.”). Indeed, the approach of the major-

ity below is arguably inconsistent with the Ninth

Circuit's own past rulings, which have _ strongly

implied that evidence of intent beyond the passing of

the bill is not required for counterfeiting arrests. See

United States v. Ford, 461 F.2d 534 (9th Cir. 1972);

United States v. Blum, 432 F.2d 250 (9th Cir. 1970);

cf. Bates v. United States, 352 F.2d 399 (9th Cir. 1965)

(relating to 18 U.S.C. section 474, which has intent

language identical to section 472).’

* In concluding that there was no evidence of intent to

defraud in this case, the majority assumed that the act of

passing a counterfeit bill has no evidentiary bearing on whether

the individual possessed such an intent. This assumption, in

(Continued on following page)

The decision below is also in tension with this

Court’s holding that an officer is not required to

investigate every claim of innocence and every poten-

tial defense “such as lack of requisite intent” before

making an arrest. See Baker v. McCollan, 443 US.

137, 145-46 (1979); see also United States v. Mayo,

394 F.3d 1271, 1276 (9th Cir. 2005) (affirming prob-

able cause for crime requiring intent to defraud and

reasoning: “Although Mayo told the officers that he

was buying the car and did not realize that the

sticker was on the license plate, the officers did not

have to accept Mayo’s version of the facts. The stan-

dard for probable cause is not so demanding.”); Marks

v. Carmody, 234 F.3d 1006, 1009 (7th Cir. 2000) (“The

fact that Marks had alerted the officers to possible

defenses he might have had to the crime does not

change this result [i.e., a finding of probable

cause].... [The officers did not] need to accept as

established the evidence Marks had proffered that

tended to show that he did not act with the requisite

itself, is erroneous. Just as a factfinder may infer from the fact

that a person is driving a stolen vehicle that he did, in fact, steal

the vehicle, a factfinder may infer from the fact that a person

attempted to pass a counterfeit bill that he intended to defraud

the person to whom he passed the bill. This error, however, is

beside the point for purposes of this petition for certiorari. The

bottom line is that the Ninth Circuit held that an officer needs

something more than the act of passing a counterfeit bill before

he or she may arrest a suspect, while the rule in the Eleventh

and Fifth Circuits is that the act of passing the bill alone is

sufficient to establish probable cause.

intent to defraud the Bechars. Issues of mental state

and credibility are for judges and juries to decide.”).

The Ninth Circuit’s new rule creates significant

practical problems for enforcement of the counterfeit-

ing laws. While convictions for passing counterfeit

currency may require independent proof of intent, it

makes sense to permit officers to make counterfeiting

arrests without proof of intent beyond the act of

passing the counterfeit currency. Requiring such

additional proof of intent before arrest would impede

the effective enforcement of the counterfeiting laws.

Intent is difficult to ascertain, especially during the

short periods of time that officers have to make arrest

decisions based on limited information. Accordingly,

the Ninth Circuit’s approach will provide criminals

with an easy way to game the system, secure in the

knowledge that they cannot be arrested unless offi-

cers have probable cause — independent of the pass-

ing of the bill — to believe that they intended to

defraud. Criminals will be able take simple steps to

undermine any conclusion on the scene that they

intended to defraud and thus defeat probable cause,

even if they unquestionably passed counterfeit cur-

rency. Judge Callahan described this problem in her

dissent:

Applying the majority’s newly announced

standard will also result in absurd results. If

a suspect simply says that he does not know

if the bill is real or fake, or if he carries

around a real bill and offers to substitute

it for the counterfeit one, officers may not

arrest him to investigate the probable unlaw-

ful conduct. In the case of a clever criminal

who is skilled at lying, officers would be

powerless to arrest the suspect even when he

attempts to pass a clearly counterfeit bill, if

the suspect verbally disavows knowledge or

intent and pays with a legitimate bill. A

criminal] could test the counterfeit detection

skills of clerks, bartenders, and other con-

sumers at will without fear of arrest.

Pet. App. 26.

The circuit split created by the decision below, if

left unresolved, will be particularly harmful because

enforcement of the federal counterfeiting laws will be

uneven, with law enforcement officers in the Ninth

Circuit being significantly limited in their ability to

conduct counterfeiting investigations and to arrest

suspects who have passed counterfeit currency.

Uneven enforcement of the counterfeiting laws could

have significant ramifications for the ability of the

government to ensure the integrity of the currency

and would particularly hamper multi-state investiga-

tions of counterfeiting operations, because authorities

would have to apply different investigatory and

arrest standards in different circuits, even as part of

a single investigation.

Additional percolation among the courts of ap-

peals is unnecessary in light of the significance of the

issue and the obviousness of the error committed by

the majority below. The probable cause requirement

for counterfeiting arrests has been agreed upon in

almost forty years’ worth of case law on this issue.

The Ninth Circuit’s brand new approach — that

“(wjithout at least some evidence regarding the

knowledge or intent elements of the crime, probable

cause is necessarily lacking,” Pet. App. 13 — creates

significant uncertainty, will deter officers from ag-

gressively enforcing federal counterfeiting laws, and

therefore merits immediate review by this Court to

resolve the conflict.

il. THE COURT SHOULD GRANT CERTIO-

RARI TO CORRECT THE NINTH CIRCUIT’S

ERRONEOUS DENIAL OF QUALIFIED IM-

MUNITY.

In denying the officers qualified immunity, the

majority below did not cite a single case that has ever

held that officers must have evidence of intent, above

and beyond the passing of the bill, in order to arrest

for passing counterfeit. currency. The majority noted

the existence of cases that have held or strongly

implied that further evidence of intent was not re-

quired, but the majority rejected those cases because

they were either too vague, too old, too short, or not

binding because they were out of circuit. These cases

included Ninth Circuit authority, as well as authority

from other circuits. See Hernandez, 825 F.2d at 849;

Everett, 719 F.2d 1119; Allison, 616 F.2d at 782; Ford,

461 F.2d 534; Blum, 482 F.2d 250; Bates, 352 F.2d

399.

The court then reasoned that despite the lack of

any precedent holding that officers needed evidence of

intent beyond the passing of the bill in order to

arrest, qualified immunity did not apply because “it

was well established at the time of Rodis’s arrest that

probable cause is a fluid concept — turning on the

assessment of probabilities in particular factual

contexts — not readily, or even usefully, reduced to a

neat set of legal rules.” Pet. App. 15 (quotations

omitted).

This rationale — that because it was clearly

established that probable cause is a “fluid concept,” it

was therefore clearly established that evidence of

intent beyond the passing of the bill was required to

arrest for passing counterfeit currency — is exactly the

kind of reasoning that this Court repeatedly has

forbade, namely, denying qualified immunity because

a broad principle of law was clearly established:

[T]here is no doubt that Graham v. Connor

. clearly establishes the general proposi-

tion that use of force is contrary to the

Fourth Amendment if it is excessive under

objective standards of reasonableness. Yet

that is not enough. Rather, we emphasized

... that the right the official is alleged to

have violated must have been clearly estab-

lished in a more particularized, and hence

more relevant, sense: The contours of the

right must be sufficiently clear that a rea-

sonable official would understand that what

he is doing violates that right. ... The rele-

vant, dispositive inquiry in determining

whether a right is clearly established is

whether it would be clear to a reasonable of-

ficer that his conduct was unlawful in the

situation he confronted.

Saucier, 533 U.S. at 201-02 (citation and quotations

omitted).

This Court recently reiterated Saucier’s adraoni-

tion in summarily reversing a misapplication of

qualified immunity by the Ninth Circuit that was

very similar to the majority’s ruling in this case. In

Brosseau, the Court stressed the importance of focus-

ing on the specific factual context in assessing

whether a right is clearly established, as opposed to

finding a right clearly established based on a general

principle, in that case the principle that excessive

force is impermissible. 543 U.S. at 198 (stating that

assessment of whether conduct violates clearly estab-

lished law “must be undertaken in light of the specific

context of the case, not as a broad general proposi-

tion”) (citation omitted). In finding qualified immu-

nity in Brosseau, the Court canvassed the law in

contextually similar cases to determine whether the

cases clearly established that the conduct was prohib-

ited. The Court concluded that the cases, taken

together, did not clearly establish the conduct’s ille-

gality. See id. at 200-01.

In this case, the Ninth Circuit disregarded

Brosseau and Saucier’s articulation of what “clearly

established” means and defined the concept at such a

high level that it is hard to imagine how any officer

being sued for false arrest would be able to claim

qualified immunity. The Ninth Circuit’s holding, in

essence, v.as that because probable cause is based on

the totality of the circumstances and incapable of

precise definition, an officer is always on notice that

for any given set of facts, a judge may decide that the

circumstances did not give rise to probable cause. The

officer, of course, has no way of predicting what a

judge or panel of judges will do, but because the

officer knows that a judge may decide that the arrest

is illegal, the officer is not immune.

The Court recently granted certiorari in Pearson

v. Callahan, No. 07-751, on this same issue. In Pear-

son, the Tenth Circuit denied qualified immunity to

officers on a Fourth Amendment search issue even

though no court had ever held that the type of search

they had conducted was illegal. As in this case, the

Tenth Circuit denied qualified immunity by defining

the constitutional right at the highest level of gener-

ality possible, rather than with reference to contextu-

ally similar cases, and held that because those broad

principles were clearly established qualified immu-

nity did not apply. And, as in this case, the Tenth

Circuit denied qualified immunity even though the

only case law on point at the time of the arrest cut in

favor of the officers’ actions.

If the only error by the majority below were on

qualified immunity, petitioners would simply request

that the Court hold the petition for a decision in

Pearson. However, because the decision below also

creates a split on the probable cause requirement for

a violation of 18 U.S.C. section 472, petitioners re-

spectfully request that the Court grant the petition

and calendar the case for argument with Pearson, so

that the Court may consider the qualified immunity

issues presented by both cases concurrently, while

considering the underlying constitutional questions

separately. Furthermore, as discussed below, peti-

tioners believe that the City and County of San

Francisco’s participation would assist the Court in its

consideration of the third question presented in

Pearson and this petition, namely, whether Saucier

should be overruled.”

lil. THE COURT SHOULD GRANT CERTIO-

RARI TO RECEIVE THE CITY’S INPUT ON

WHETHER, AND THE EXTENT TO WHICH,

SAUCIER V. KATZ SHOULD BE OVER-

RULED.

In granting certiorari in Pearson v. Callahan, No.

07-751, the Court asked the parties to address

whether Saucier should be overruled. This case

presents a vehicle for addressing that question as

well. Moreover, the City and County of San Francisco

— which along with its law enforcement officers is

° If, in the alternative, the Court opts to hold this petition

for a decision in Pearson, the result of a reversal of the Tenth

Circuit in Pearson very well could be to summarily reverse the

decision below in this matter (rather than to grant, vacate and

remand), given that the qualified immunity issues preserted by

the two cases are virtually identical.

named in approximately thirty-five section 1983 cases

per year, which routinely litigates qualified immunity

in the district court and court of appeals, and which is

keenly aware of the practical advantages and disad-

vantages of the Saucier rule — is in an ideal position

to brief and evaluate the key issues that the Court

will face in deciding the future of Saucier.

The City’s experience suggests that although the

Court should overrule Saucter to the extent it re-

quires courts of appeals, on interlocutory qualified

immunity review, to decide substantive constitutional

issues before turning to the ouestion of qualified

immunity, the Court should not preclude courts of

appeals from doing so in certain cases. Allowing

courts of appeals discretion to apply the Saucier two-

step process can be particularly useful in cases where

an interlocutory appellate ruling eliminating a non-

meritorious federal constitutional claim against

officers will also result in the elimination of equally

non-meritorious Monell and state-law claims that

would otherwise, on remand, proceed through

lengthy, unnecessary, and expensive litigation. Per-

mitting courts of appeals to turn first to the underly-

ing constitutional issue allows for more efficient

disvosition of entire cases that clearly have no merit,

rather than issuing an initial ruling on qualified

immunity that forces parties, on remand, to litigate

further federal and state claims related to the alleged

constitutional violation.

This case highlights some of the potential disad-

vantages of categorically discarding the current two-

step analysis under Saucier altogether. Imagine first

that, instead of ruling in Rodis’s favor, the Ninth

Circuit had ruled in favor of the officers on the quali-

fied immunity question without addressing the un-

derlying constitutional issue. Such a ruling would

have left numerous claims for the district court to

adjudicate on remand, and would have wasted judi-

cial and litigant resources as the parties litigated a

meritless claim.

For example, Rodis made a section 1983 claim

against municipal defendants, specifically, the City

and County of San Francisco and its Chief of Police,

under Monell v. Department of Social Servs. , 436 U.S.

658 (1978). Such a claim cannot be disposed of pursu-

ant to a claim of qualified immunity, which is a

defense available only to individual defendants. See

Owen v. City of Independence, Mo., 445 U.S. 622, 650

(1980). However, if the court of appeals, on interlocu-

tory appeal, were to conclude that no constitutional

violation had occurred, the Monell claim automati-

cally would be disposed of because a constitutional

violation is an indispensable predicate to a Monell

claim. See City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986). Wile the claim also could be disposed of

by a showing that there was no municipal policy that

was the moving force behind the violation, see Monell,

436 U.S. 658, it would be more efficient for such a

claim to be disposed of on the basis that there was no

underlying constitutional violation. Thus, to the

extent that individual defendants challenge a denial

of qualified immunity as part of an interlocutory

appeal, a reviewing court proceeding according to

Saucier’s two-step analysis might rule on this possi-

bly dispositive issue — i.e., the lack of a constitutional

violation — and thus avoid an unnecessary trial on

municipal liability under Monell. Litigating a Monell

claim can consume enormous judicial and municipal

resources, both in discovery and trial, given the focus

of such a claim on systemic and long-term policies,

practices, and customs of frequently large municipal

entities. Avoiding unnecessary discovery and trial in

non-meritorious Monell claims thus would be a posi-

tive result.

Likewise, Rodis asserted state-law claims for

false arrest and battery against petitioners. These

claims, too, could be efficiently dismissed where a

court proceeding according to the Saucier two-step

analysis determined that there was no constitutional

violation, in light of the frequent overlap of elements

between federal constitutional claims and state-law

claims. For example, in California, as in various other

states, false arrest claims against officers and battery

claims arising from officers’ allegedly unlawful use of

force are governed by the same standards as under

federal law: for a false arrest claim, a plaintiff must

establish that the officer lacked probable cause, and

for a battery claim, a plaintiff must prove that the

force used was objectively unreasonable. See Edson v.

City of Anaheim, 74 Cal. Rptr. 2d 614, 617 (Cal. App.

1998) (battery); White v. Martin, 30 Cal. Rptr. 367,

368 (Cal. App. 1963) (false arrest); see also Van Vorous

v. Burmeister, 687 N.W.2d 132, 142-43 (Mich. App.

2004); Williams v. City of Jacksonville, 599 S.E.2d

422, 428-31 (N.C. App. 2004); Tom v. Voida, 654

N.E.2d 776, 784-85 (Ind. App. 1995).

However, qualified immunity may or may not be

a defense to state-law claims. Compare Cal. Penal

Code § 547(b)\(1) (providing immunity from false

arrest claims where “[t]he arrest was lawful, or the

peace officer, at the time of the arrest, had reasonable

cause to believe the arrest was lawful.”); George uv.

City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992);

and Salazar v. Burresch, 47 F. Supp. 2d 1105, 1116

n.1i (C.D. Cal. 1999), with Venegas v. County of Los

Angeles, 63 Cal. Rptr. 3d 741, 751 (Cal. App. 2007) (no

qualified immunity for state civil rights statute

claims); and Asgari v. City of Los Angeles, 937 P.2d

273, 280-81 (Cal. 1997) (noting differences between

federal and California immunities). Thus, a decision

that skipped the first Saucier step would not dispose

of state-law claims in various states even if it was

clear that no constitutional violation — and hence no

state-law tort — had occurred. Such a result could

lead to unnecessary and wasteful litigation of non-

meritorious state-law claims.

In contrast, had the Ninth Circuit decided the

case in favor of the officers after applying Saucier’s

two-step approach and concluded that no constitu-

tional violation had occurred, such a ruling would

have disposed of Rodis’s additional claims — his

Monell claim for municipal liability and his state-law

claims. It would be of great benefit to district courts —

and to cash-strapped municipalities that are often

forced to defend unmeritorious civil-rights and state-

law claims in long, drawn-out litigation — to allow

courts of appeals the discretion to decide the underly-

ing constitutional question in some qualified immu-

nity cases, particularly those where the constitutional

claim is clearly lacking in merit and where a ruling

on the constitutional claim could eliminate non-

meritorious Monell and state-law claims. Petitioners

respectfully submit that, given the City and County

of San Francisco’s experience in this and many other

section 1983 cases, petitioners’ participation on this

issue would assist the Court in its evaluation of the

extent to which it should overrule Saucier.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition and calendar the case for argument with

Pearson.

Respectfully submitted,

DENNIS J. HERRERA

City Attorney

JOANNE HOEPER

Chief Trial Deputy

ScoTT D. WIENER,

Counsel of Record

VINCE CHHABRIA

Deputy City Attorneys

Counsel for Petitioners

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODEL E. Ronis,

Plaintiff-Appellee,

CITY AND COUNTY OF SAN FRANCISCO,

a municipality; LIDDICOET,

Officer, San Francisco Police

Officer; BARRY, Sergeant, San

Francisco Police Sargeant; ALEX

FAGAN, San Francisco Police Chief,

Defendants-Appellants,

and

SAN FRANCISCO POLICE

DEPARTMENT,

Defendant.

No. 05-15522

D.C. No.

CV-04-00314-MMC

OPINION

Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted

April 20, 2007 — San Francisco, California

Filed August 28, 2007

App. 2

Before: Dorothy W. Nelson and

Consuelo M. Callahan, Circuit Judges,

and Cormac J. Carney,* District Judge.

Opinion by Judge D.W. Nelson;

Dissent by Judge Callahan

COUNSEL

Scott D. Wiener of San Francisco, California, briefed

and argued for the defendants-appellants.

Lawrence W. Fasano, Jr. of San Francisco, California,

briefed and argued for the plaintiff-appellee.

OPINION

D.W. NELSON, Circuit Judge:

Rodel E. Rodis brought suit against the City and

County of San Francisco, the San Francisco Police

Department, the police chief, and two police officers

under 42 U.S.C. § 1983 alleging a violation of his

Fourth Amendment rights during a February 17, 2003

arrest. The district court dismissed the suit against

the City and the police chief, but it rejected an asser-

tion of qualified immunity by two of the officers

(“Defendants”). Defendants brought an interlocutory

* The Honorable Cormac J. Carney, United States District

Judge for the Central District of California, sitting by designa-

tion.

App. 3

appeal, and we affirm, finding the Defendants not

entitled to qualified immunity.

I. FACTUAL & PROCEDURAL BACKGROUND

Rodis is an attorney and an elected public official

who sits on the Community College Board of the San

Francisco City College. On February 17, 2003, Rodis

entered a drugstore near his office to purchase a few

items. He tendered to the cashier a $100 bill, and she

examined it for authenticity. Because it was an old

bill (a 1985 series), and because it appeared to have a

texture different than bills with which the cashier

was familiar, she asked the store manager for assis-

tance. The manager came to the counter and exam-

ined the bill. Suspecting that it might be counterfeit,

the manager took the bill to an office in the back of

the store to compare it to other $100 bills from the

store’s safe.

While the manager was examining the bill, Rodis

pulled another $100 bill from his wallet and paid the

cashier. After determining that the second bill was

authentic, the cashier gave Rodis his change, receipt,

and items. Rodis then waited for the manager to

return with his bill. After comparing Rodis’s bill with

similar bills, the manager returned to the front of the

store and tested the bill with a counterfeit detector

pen, which indicated it was authentic. Nevertheless,

the manager remained suspicious because of the bill’s

appearance and texture. The manager told Rodis he

thought the bill might be fake and he was going to

App. 4

call the police so that they could settle the issue.

Rodis was frustrated with the delay but remained in

the store willingly until the officers arrived.

Sergeant Jeff Barry and officer Barbara Dullea

arrived first on the scene. Officers Michelle Liddicoet

and James Nguyen arrived soon thereafter. The

drugstore’s employees conveyed to the officers their

suspicions regarding the bill. The manager told

Nguyen he had compared the bill to another and was

uncertain about the bill’s authenticity. The officers

also examined the bill themselves. They concluded it

was probably counterfeit, but because they were not

certain, the officers decided it would be necessary to

call the United States Secret Service to get an expert

opinion. Before doing so, however, they arrested Rodis

for violating 18 U.S.C. § 472,' which criminalizes the

possession and/or use of counterfeit currency, because

the officers believed it would be easiest to continue

the investigation from the police station. Notably, no

effort was made to investigate whether Rodis in-

tended to use an ersatz bill or whether he believed

the bill to be counterfeit. Furthermore, the officers

’ Section 472 states:

Whoever, with intent to defraud, passes, utters, pub-

lishes, or sells, or attempts to pass, utter, publish, or

sell, or with like intent brings into the United States

or keeps in possession or conceals any falsely made,

forged, counterfeited, or altered obligation or other se-

curity of the United States, shall be fined under this

title or imprisoned not more than 20 years, or both.

18 U.S.C. § 472.

ilar

App. 5

never asked to see the other $100 bill Rodis had used

to complete the purchase, nor did they ask to see the

bills the manager stated he had compared with the

bill in question.

Liddicoet and Nguyen handcuffed and trans-

ported Rodis in the back of a squad car to the police

station. Once they arrived, the officers restrained

Rodis in a holding area while Nguyen called the

Secret Service. Unable to speak with an agent right

away, Nguyen left a message requesting assistance,

and after twenty to thirty minutes, a Secret Service

agent returned the call. Nguyen and the agent dis-

cussed the-details of the bill in question for five to ten

minutes, during which the agent confirmed that the

bill was in fact genuine. The officers released Redis

from custody, and Nguyen drove him back to the

drugstore.

On October 1, 2003, Rodis filed suit against the

City and County of San Francisco, then Chief of

Police Alex Fagan, Sergeant Barry, and Officer Liddi-

coet. The complaint alleged false arrest and excessive

force in violation of Rodis’s Fourth Amendment

rights, conspiracy to violate Rodis’s rights, injunctive

relief, and several state law claims, including false

arrest and intentional and negligent infliction of

emotional distress.

On February 11, 2005, the defendants moved for

summary judgment, and on March 22, 2005, the

district court granted the motion as to Rodis’s con-

spiracy, municipal liability, and injunctive relief

App. 6

claims. The district court denied the motion in all

other respects, holding that because the officers

lacked evidence regarding Rodis’s intent to defraud,

probable cause was lacking and the arrest was

unlawful. The court also found Barry and Liddicoet

not entitled to qualified immunity because the illegal-

ity of the arrest was clearly established at the time.

Il. DISCUSSION

A. Jurisdiction & Standard of Review

Normally, a district court’s interlocutory order

denying a motion for summary judgment is not

immediately appealable. Morgan v. Morgensen, 465

F.3d 1041, 1044 (9th Cir. 2006). There is an exception,

however, when a defendant’s motion for summary

judgment on the basis of qualified immunity is de-

nied. Gausvik v. Perez, 345 F.3d 813, 816 (9th Cir.

2003); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Under this exception, we have jurisdiction pursuant

to 28 U.S.C. § 1291, Behrens v. Pelletier, 516 U.S. 299,

301 (1996), and we review the qualified immunity

determination de novo. Osolinski v. Kane, 92 F.3d

934, 936 (9th Cir. 1996).

B. Defendants are Not Entitled to Quali-

fied Immunity

Qualified immunity serves as a defense to § 1983

claims against government officers “insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

App. 7

would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982) (citations omitted). To determine

whether qualified immunity applies, we engage in a

two-part inquiry:

[We first must ask whether a constitutional

right would have been violated on the facts

alleged. If no constitutional right would have

been violated were the allegations estab-

lished, there is no necessity for further in-

quiries concerning qualified immunity. If a

constitutional violation is established, we

consider whether that right was clearly es-

tablished such that it would be clear to a

reasonable officer that his conduct was

unlawful in the situation he confronted. This

inquiry is wholly objective. . . .

Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir. 2006)

(internal citations and quotation marks omitted); see

also Saucier v. Katz, 533 U.S. 194, 202 (2001).

Defendants argue they are entitled to qualified

immunity because (]) they did not violate Rodis’s

constitutional rights, and (2) even if they did not have

probable cause to arrest him, at the time of the arrest

the law was not clearly established such that a rea-

sonable officer should have known the arrest violated

the Fourth Amendment. However, arresting Rodis

without any evidence he intended to use the bill to

defraud the store or that he knew (or believed) the

bill was fake was a violation of his Fourth Amend-

ment rights. Further, it was clearly established at the

time of the arrest that Defendants’ conduct was

App. 8

unlawful. Thus, both arguments Defendants put forth

are without merit.

1. Defendants did not have probable

cause to arrest Rodis.

Defendants concede they arrested Rodis without

evidence he used the bill with the intention to de-

fraud or that he believed the bill to be fake. They also

concede the arrest required probable cause as it was

more than merely an investigatory stop. To be enti-

tled to qualified immunity, therefore, Defendants

must show probable cause existed absent any evi-

dence of Rodis’s intent or knowledge. This they can-

not do.

Defendants’ argument can be summarized in the

following manner. First, they cite our decision in

United States v. Thornton, 710 F.2d 513, 515 (9th Cir.

1983), for the premise that probable cause does not

require specific evidence of every element of an

offense. Second, they posit that only where “specific

intent” is an element of the offense, is evidence of

intent required for probable cause, citing our holding

in Easyriders Freedom F1I.G.H.T. v. Hannigan, 92

F.3d 1486 (9th Cir. 1996). Third, Defendants contend

that 18 U.S.C. § 472 is not a specific intent crime,

and, therefore, evidence regarding Rodis’s intent or

knowledge was not required te establish probable

cause.

By focusing on the distinction between specific

and general intent, Defendants lose sight of the

App. 9

principal inquiry: whether they had probable cause to

effectuate an arrest. Probable cause cannot be deter-

mined by applying “precise definition[s]” or rigid

classifications of conduct, as Defendants suggest,

“because it deals with probabilities and depends on

the totality of the circumstances.” Maryland uv.

Pringle, 540 U.S. 366, 371 (2003). Indeed, “probable

cause is a fluid concept — turning on the assessment

of probabilities in particular factua] contexts — not

readily, or even usefully, reduced to a neat set of legal

rules.” Jllinois v. Gates, 462 U.S. 213, 232 (1983).

Thus, the specific circumstances surrounding the

arrest are an indispensable part of the analysis: “[WJe

«€xamine the events leading up to the arrest, and then

decide ‘whether these historical facts, viewed froin

the standpcint of an objectively reasonable police

officer, imount to’ probable cause.” Pringle, 540 U.S.

at 371 (quoting Ornelas v. United States, 517 U.S.

690, 696 (1996)).

A review of the record reveals that the circum-

stances surrounding Rodis’s arrest fell far short of

creating a “fair probability” he had committed any

crime, much less the crime in question. See United

States v. Rodriquez, 464 F.3d 1072, 1078 (9th Cir.

2006) (“Probable cause exists when there is a fair

probability or substantial chance of criminal activ-

ity.”). Rodis was arrested on suspicion of v.slating 18

U.S.C. § 472. It was clear well before Rodis’s arrest

that “[tlo support a conviction for possession of coun-

terfeit currency with intent to defraud under ...

§ 472, the government must prove three elements:

App. 10

(1) possession of counterfeit money; (2) knowledge, at

the time of possession, that the money is counterfeit;

and (3) possession with intent to defraud.” United

States v. Rodriguez, 761 F.2d 1339, 1340 (9th Cir.

1985); see also Albillo-Figueroa v. I.N.S., 221 F.3d

1070, 1073 (9th Cir. 2000) (reciting same three re-

quired elements); United States v. McCall, 592 ¥.2d

1066, 1068 (9th Cir. 1979) (per curiam) (same). There-

fore, to violate § 472, the defendant must not only

possess or pass counterfeit money, but he must know

the money is counterfeit and he must intend to use

the mone to defraud another.

Notwithstanding the statute’s three require-

ments, Defendants assert they had probable cause to

arrest Rodis based solely on evidence suggesting the

bill might have been fake. Specifically, they point to

the manager’s suspicion that the bill was counterfeit,

the fact Rodis used the bill to pay for small items, and

the officers’ own “diligent” and “independent” exami-

nation of the bill. Although it is not clear whether this

evidence was enough to create the fair probability the

bill was fake, even if we assume it was, this evidence

speaks to only one of the three elements of the of-

fense; indeed, these facts have no bearing on the

* Our dissenting colleague argues that probable cause

existed because “officers are allowed to make reasonable mis-

takes” and the officers here made a mistake in assuming the bill

was counterfeit. Dissent at 10686. Of course, this is irrelevant,

for even if the bill was fake, at least some evidence of Rodis’s

alleged intent to defraud would have been required to establish

probable cause.

App. 11

crime’s two mens rea components (i.e., knowledge and

intent to defraud), which are indispensable in the

probable cause calculus. See Gasho, 39 F.3d 1420,

1429 (9th Cir. 1994) (opining, in the context of a

probable cause inquiry, “(i]t is fundamental that a

person is not criminally responsible unless criminal

intent accompanies the wrongful act”); Morissette v.

United States, 342 U.S. 246, 251 (1952) (noting that a

crime is the “concurrence of an evil-meaning mind

with an evil-doing hand”).

Defendants are correct that not every element

required for a conviction is necessarily required to

establish probable cause. See Thornton, 710 F.2d at

515. However, this rule must be applied with an eye

to the core probable cause requirement; namely, that

“under the totality of the circumstances, a prudent

person would have concluded that there was a fair

probability that the suspect had committed a crime.”

Hart v. Parks, 450 F.3d 1059, 1066-67 (9th Cir. 2006).°

The record shows, and Defendants concede, they had

no evidence whatsoever demonstrating that Rodis

intended to use the bill to defraud the store, nor was

there any reason to believe Rodis believed the bill

was fake. Of course, the dearth of evidence regarding

* The dissent protests our citation to legal authority

identifying what is required for a conviction under § 472 in

determining what is required to establish probable cause.

Dissent at 10687-88. But surely, identifying the elements of a

crime, and evaluating which, if any, are present in a given

situation are necessary to determine whether there is a “fair

probability” that the crime has been committed.

App. 12

the mens rea elements is not surprising given that (1)

the officers did not even attempt to investigate Ro-

dis’s state of mind before arresting him, and (2) the

bill was in fact genuine.

What is more, several facts known to the officers

at the time of the arrest significantly decreased the

probability that Rodis violated § 472. Viz., Rodis had

other $100 bills in his possession that were genuine,

one of which he used to complete the transaction; the

counterfeit detector pen indicated the bill was genu-

ine; and the officers knew Rodis was both a San

Francisco attorney and a locally-elected public official

with strong ties to the community in which the store

was located. Specifically, Barry had known Rodis for

several years. He knew Rodis was a member of the

Community College Board, and he had interacted

with Rodis personally, encountering him at activities

associated with the elementary school that both

Barry’s and Rodis’s children attended. Also, Rodis

informed Liddicoet prior to his arrest that he was a

public figure, and that he lived and worked within

two blocks of the store. Liddicoet told him she knew

who he was and that he “should be ashamed” of

himself.

Thus, the officers’ knowledge regarding Rodis’s

identity and background discounted any probability

that Rodis might have intentionally passed a fake

bill. Defendants argue that this iiforimation is irrele-

vant because police officers do not provide favored

treatment based on a rerson’s identity. Rodis was not

entitled to special treatment, however, nor did he

App. 13

request it. Instead, Rodis’s strong ties to the local

community should have been incorporated into the

probable cause determination because ali the facts

known to the officers were relevant. See United States

v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (reiterat-

ing that probable cause requires analysis of “the

totality of the circumstances”).

In any event, 2ven without knowledge of Rodis’s

identity and local ties, based on the totality of the

other reicvant facts, no reasonable or prudent officer

could have concluded that Rodis intentionally and

knowingly used a counterfeit bill, especially when

“(t]he key element of section 472 is its mens rea, the

specific intent to defraud.” United States v. DeFilip-

pis, 637 F.2d 1370, 1873 (9th Cir. 1981). Without at

least some evidence regarding the knowledge or

intent elements of the crime, probable cause is neces-

sarily lacking. To hold otherwise would render any

individual vulnerable to arrest who unknowingly,

through the normal stream of commerce, comes to

possess or use a counterfeit bill, even if other circum-

stances suggest that a crime has not been committed.

This is not and cannot be the law. See United States v.

Lorenzo, 570 F.2d 294, 299 (9th Cir. 1978) (“The mere

passing of a counterfeit bill is not a criminal of-

fense....”)."

* Defendants’ reliance on Easyriders is also misplaced. In

that case, we opined, “when specific intent is a required element

of the offense, the arresting officer must have probable cause for

that element in order to reasonably believe that a crime has

(Continued on following page)

App. 14

2. At the time of RKodis’s arrest, it was

clearly established that evidence of

intent was required to establish

probable cause.

Defendants contend that, even if they did not

have probable cause to arrest Rodis for the offense,

occurred.” 92 F.3d at 1499 (quoting Gasho v. United States, 39

F.3d 1420, 1428 (9th Cir. 1994)). Erroneously, Defendants cite

Easyriders for the proposition that only where an offense is a

specific intent crime is evidence of intent required to establish

probable cause. Thus, Defendants blatantly misconstrue our

holding by confusing a sufficient condition (i.e., if the underlying

offense is a specific intent crime, evidence of intent must be

present prior to an arrest) with a necessary one (i.e., if evidence

of intent is required prior to an arrest, the underlying offense

must be a specific intent crime). Furthermore, Defendants’

interpretation runs contrary to the fact-specific nature of a

probable cause inquiry. Probable causz does not always require a

showing of every element of the crime because it “is a fluid

concept — turning on the assessment of probabilities in particu-

lar factual contexts....” Illinois v. Gates, 462 U.S. 213, 238

(1983). Consequently, it is patently unreasonable to say that

evidence of a defendant’s intent or knowledge is never required

to establish probable cause for a general intent crime, as

Defendants would have us hold.

In any event, Defendants are also incorrect that passing

counterfeit currency is a general intent crime. Generally, “[t]o

act with the ‘intent to defraud’ means to act willfully, and with

the specific intent to deceive or cheat for the purpose of either

causing some financial loss to another, or bringing about some

financial gain to oneself.” United States v. Cloud, 872 F.2d 846,

852 n.6 (9th Cir. 1989) (emphasis added). Section 472 expressly

requires an “intent to defraud.” 18 U.S.C. § 472. Thus, under

Easyriders, proof of Rodis’s specific intent to deceive or cheat

was required to arrest him. See also DeFilippis, 637 F.2d at 1373

(stating that § 472 requires the specific intent to defraud).

App. 15

the law was not clearly established at the time such

that a reasonable officer would have known the arrest

was unlawful. They are incorrect.

Requiring the law to be clearly established “is not

to say that an official action is protected by qualified

immunity unless the very action in question has

previously been held unlawful, but it is to say that in

light of pre-existing law the July 5, 2007 unlawful-

ness must be apparent.” Anderson v. Creighton, 483

U.S. 635, 640 (1987) (citation omitted) (emphasis

added). This means that the right may be clearly

established even when “[t]he reasoning, though not

the holding” of a prior court of appeals decision puts

the officer on notice. Hope v. Pelzer, 536 U.S. 730, 743

(2002). Thus, “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances” and the facts need not be “materially

similar” to the plaintiff’s situation. Jd. at 741. If the

law were otherwise, “officers would escape responsi-

bility for the most egregious forms of conduct simply

because there was no case on all fours prohibiting

that particular manifestation of unconstitutional

conduct.” Deorle v. Rutherford, 272 F.3d 1272, 1286

(9th Cir. 2001).

As heretofore explained, it was well established

_ at the time of Rodis’s arrest that “probable cause is a

fluid concept — turning on the assessment of prob-

abilities in particular factual contexts — not readily, or

even usefully, reduced to a neat set of legal rules.”

Gates, 462 U.S. at 232. Based on the totality of the

circumstances, no prudent officer reasonably could

App. 16

have concluded there was a fair probability that

Rodis violated § 472 or any other offense. “Mere

suspicion, common rumor, or even strong reason to

suspect are not enough” to establish probable cause,

Easyriders, 92 F.3d at 1498, and the evidence in this

case fell short of creating even a strong reason to

suspect. Therefore, the officers were on notice that

something more was required.

The only Ninth Circuit authority to which Defen-

dants’ point for support is United States v. Bates 352

F.2d 399 (9th Cir. 1965) (per curiam), and United

States v. Ford, 461 F.2d 534 (9th Cir. 1972) (per

curiam). These cases do not stand for the proposition

Defendants claim — that probable cause to arrest for a

violation of § 472 can exist with nothing more than a

reason to believe the bill might be fake. In fact, the

* Our dissenting colleague cites three out-of-circuit cases

and United States v. Blum, 432 F.2d 250 (9th Cir. 1970), con-

tending that evidence of intent is unnecessary to establish

probable cause. Dissent at 10688-89. Her contention, however,

lacks merit. First, the out-of-circuit cases, even if applicable to

the circumstances in this case, are not binding on this panel.

Second, Blum is easily distinguishable, in that numerous facts —

such as the suspect fleeing the scene and the fact the suspect

lived outside the state — could have been enough to create a “fair

probability” he passed counterfeit bills. In any event, Blum is an

old case, and since it was decided (nearly forty years ago), we

have made clear that (1) “[t]he key element of section 472 is...

the specific intent to defraud,” DeFilippis, 637 F.2d at 1373, and

(2) “when specific intent is a required element of the offense, the

arresting officer must have probable cause for that element in

order to reasonably believe that a crime has occurred.” Easyrid-

ers, 92 F.3d at 1499.

App. 17

opinion in Ford, which consists of only two para-

graphs, is so lacking in factual background, that what

the panel deemed sufficient for probable cause is

unknown. The opinion in Bates also fails to provide a

factual context sufficient to give the decision mean-

ing. The opinion acknowledges that a third party, a

tow truck operator at the scene of the arrest, “filled in

chinks of circumstances to give probable cause,” and

that “the circumstances pointing to Bates as a par-

ticipant in counterfeit transactions ... certainly

pointed an accusing finger at him — enough for prob-

able cause.” 352 F.2d at 400. However, there is no

explanation of what any of those circumstances were.

Thus, in doth Ford and Bates we are left to our

own devices to determine what the relevant facts

could have been in establishing probable cause.

Consequently, neither case supports a finding of

probable cause in the instant case.

Il. CONCLUSION

Probable cause requires “information sufficient to

warrant a prudent person in believing that the ac-

cused had committed or was committing an offense.”

Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir.

1996). Given all of the circumstances surrounding

Rodis’s arrest, no prudent person could have con-

cluded reasonably that there was a fair probability

Rodis had committed a crime. Consequently, Defen-

dants are not entitled to qualified immunity.

AFFIRMED.

App. 18

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent.

What happened to Mr. Rodis was unfortunate,

and certainly could have been handled in a different

manner. Arresting him due to a failure to recognize

an older series 100 dollar bill, however, was not an

intentional violation of Mr. Rodis’s constitutional

rights, nor was the law that probable cause for arrest-

ing someone on suspicion of violating 18 U.S.C. § 472

requires proof of the suspect’s subjective intent

clearly established. Therefore, the officers are enti-

tled to qualified immunity. In fact, prior case law

established that in order to have probable cause to

arrest someone for a suspected violation of 18 U.S.C.

§ 472, an officer simply had to have evidence that 1)

someone attempted to pass a false note, and 2) the

identity of the person suspected of passing the note.

See United States v. Everett, 719 F.2d 1119, 1120 (11th

Cir. 1983) (collecting cases).

The officers did not violate Mr. Rodis’s

constitutional rights.

Our analysis should begin with the basic princi-

ples of qualified immunity. “Qualified immunity is ‘an

entitlement not to stand trial or face the other bur-

dens of litigation.” Saucier v. Katz, 533 U.S. 194, 200

(2001) (quoting Mitchell, 472 U.S. 511, 526 (1985)).

“The privilege is ‘an immunity from suit rather than a

mere defense to liability; and like an absolute immu-

nity, it is effectively lost if a case is erroneously

App. 19

permitted to go to trial.’” Jd. at 200-01 (quoting

Mitchell v. Forsyth, 472 U.S. at 526). “(I]t is funda-

mental that in a defense of qualified immunity in

order to have the public official relieved from time-

consuming pre-trial procedures and trial itself, it is

important to resolve this issue at an early stage of the

litigation.” Cunningham v. City of Wenatchee, 345

F.3d 802, 808 (9th Cir. 2003).

“A court required to rule upon the qualified

immunity issue must consider, then, this threshold

question: Taken in the light most favorable to the

party asserting the injury, do the facts show the

officer’s conduct violated a constitutional right?”

Saucier, 533 U.S. at 201. The reason for this initial

inquiry is to state principles that “will become the

basis for holding that a right is clearly established” to

advance the interpretation of the law. Id. “If no

constitutional right would have been violated were

the allegations established, there is no necessity for

further inquiries concerning qualified immunity.” Id.

' The majority’s opinion appears to begin its analysis by

deciding that the right to avoid arrest if there is no evidence of

specific intent is clearly established without first finding a

constitutional violation. (Maj. Op. at 10678.) The Supreme Court

specifically rejected this approach in Saucier v. Katz, 533 U.S. at

200.

App. 20

A. Officers are allowed to make reasonable

mistakes of fact without violating constitu-

tional rights.

Mr. Rodis contends that the officers violated his

Fourth Amendment rights by arresting him without

probable cause to believe that he possessed the intent

to defraud, one of the elements of a violation of 18

U.S.C. § 472. “Officers can have reasonable, but

mistaken, beliefs as to the facts establishing the

existence of probable cause or exigent circumstances,

for example, and in those situations courts will not

hold that they have violated the Constitution.” Sau-

cier, 5383 U.S. at 205. “Section 1983 imposes lability

for violations of rights protected by the Constitution,

not for violations of duties of care arising out of tort

law.” Baker v. McCollan, 443 U.S. 137, 146 (1979).

In this case, the officers made a simple mistake —

they mistook a genuine 1985 series 100 dollar bill for

a fake because the clerk who received the bill from

Mr. Rodis, the manager who examined the bill, and

the officers who responded to the scene had never

seen a pre-1991 100 dollar bill before.’ The bill Mr.

Rodis presented lacked the security thread, water-

marks, microprinting, and other anticounterfeiting

features of current 100 dollar bills.” The fact that

* The district court noted that Officer Liddicoet testified

that the bill looked real to her. However, a review of the record

shows that Liddicoet testified that the bill did not look real.

* The Treasury introduced security thread and microprint-

ing in $50 and $100 bills in 1990 to deter counterfeiting. See

(Continued on following page)

App. 21

there is another branch of government, the Depart-

ment of the Treasury, that has agents specifically

trained and tasked with detecting counterfeit bills

shows that the average street-level officer is not held

to have infallible counterfeit detection skills. The fact

that a clerk, and the manager both continued to think

that the bill was counterfeit indicates that the offi-

cers’ mistake was objectively reasonable. That we

have a different view of the evidence should not

change our analysis. See Hunter v. Bryant, 502 U.S.

224, 226-27 (1991) (reversing the Ninth Circuit’s

refusal to grant qualified immunity because officials

are entitled to an accommodation for reasonable error

as a matter of law). Although qualified immunity does

not protect “the plainly incompetent,” in this case the

failure of the officers to recognize an outdated bill

lacking modern security features was not plainly

incompetent, but rather an unfortunate mistake that

any reasonable officer could have made. Malley v.

Briggs, 475 U.S. 335, 341 (1986).

Federal Reserve Bank of San Francisco, http://www.frbsf.org/

federalreserve/money/funfacts.html (last accessed August 9,

2007). The Treasury also redesigned and added new security

features to the $100 bill in 1996. Jd.

App. 22

B. The majority improperly uses the stan-

dards for conviction in creating a new

standard for probable cause to arrest under

18 U.S.C. § 472.

Assuming the mistake of fact does not completely

dispose of Mr. Rodis’s claim, the majority opinion

improperly imposes the government’s burden of proof

at trial on the probable cause inquiry. “Probable cause

must be evaluated from the viewpoint of prudent and

cautious police officers on the scene at the time of

arrest.” Long v. United States, 422 F.2d 1024, 1026

(9th Cir. 1970). “The issue is whether police officers,

acting together, in particuiar circumstances, all

conditioned by their observations and information

and guided by their total police experience, reasona-

bly could have believed that a crime had been com-

mitted by the person to be arrested.” Jd. Our court

has acknowledged time and time again that

“([p]robable cause exists when there is a fair probabil-

ity or substantial chance of criminal activity.” United

States v. Rodriquez, 464 F.3d 1072, 1078 (9th Cir.

2006) (quoting United States v. Soriano, 361 F.3d 494,

505 (9th Cir. 2004)). The Supreme Court has long

held that “[p]robable cause does not require the same

type of specific evidence of each element of the offense

as would be needed to support a conviction.” Adams uv.

Williams, 407 U.S. 143, 149 (1972); see also Draper v.

United States, 358 U.S. 307, 311-12 (1959).

Yet the majority does precisely that by stating

that “[iJt was clear well before Rodis’s arrest that ‘[t]o

support a conviction for possession of counterfeit

App. 23

currency with intent to defraud under ... § 472, the

government must prove three elements: (1) posses-

sion of counterfeit money; (2) knowledge, at the time

of possession, that the money is counterfeit; and (3)

possession with intent to defraud.’” (emphasis added)

(Maj. Op. at 10678) (quoting United States v. Rodri-

guez, 761 F.2d 1339, 1340 (9th Cir. 1985)). The major-

ity cites over and over cases concerning what must be

proven at trial to sustain a conviction under 18

U.S.C. $472, not cases specifically stating what is

required for probable cause to believe that a person

has attempted to pass a counterfeit note with intent

to defraud. (Maj. Op. at 10678, 10679-80.) The gov-

ernment’s burden at trial is not the same as the

standard for probable cause. Conflating the two and

imposing a new requirement that officers must have

conclusive evidence of specific intent in order to have

probable cause to arrest violates the basic principles

of qualified immunity in arrest cases. |

C. Under existing law, the officers had prob-

able cause to arrest Mr. Rodis on suspicion

that he violated 18 U.S.C. § 472; therefore

they did not violate his constitutional

rights.

So what was the proper inquiry for analyzing

whether the officers had probable cause to arrest Mr.

Rodis? In Everett, 719 F.2d at 1120, the Eleventh

Circuit held that, “[t]he passing of a counterfeit note

coupled with an identification of the person who

passed the note furnishes probable cause to arrest the

App. 24

individual identified as passing the note.” “Generally,

probable cause to arrest for the offense of passing a

counterfeit note is established by circumstances

showing the passing of a counterfeit note coupled

with an identification of the individual who passed

the note.” United States v. Hernandez, 825 F.2d 846,

849 (5th Cir. 1987). In United States v. Blum, 432

F.2d 250, 251-53 (9th Cir. 1970), we upheld a finding

of probable cause based on a merchant’s report that

he received bills he believed were counterfeit, and the

officer’s examination of the bills. The arrest in that

case was based solely on the report of the service

station owner, his description of the suspect and the

suspect’s car, and the officer’s examination of the bill

and determination that it was a counterfeit bill. Jd. at

251-52. A bulletin was broadcast on the radio, and an

officer arrested the defendant without a warrant a

short time later. Jd. at 252. After discussing the

probable cause standard at length, this court affirmed

the denial of a motion to suppress, stating “we con-

clude that on the basis of the facts and circumstances

known to the police officers involved, or as to which

they had reasonably trustworthy information, that

probable cause existed for Blum’s arrest.” Jd. at 253.

Nothing in our case law undermines the premise

of Blum, or the Fifth and Eleventh Circuit’s determi-

nation that probable cause that a person violated 18

U.S.C. § 472 is satisfied upon the attempted passing

of an apparently counterfeit note and the identifica-

tion of the person who tried to pass the note. See also

United States v. Allison, 616 F.2d 779, 782 (5th Cir.

App. 25

1980) (concluding that officer’s lack of firsthand

knowledge concerning defendant’s intent to defraud

does not eliminate probable cause created by reliable

iuiormation that possessor attempted to pass bill as

genuine); United States v. McCoy, 517 F.2d 41, 43 n.1

(7th Cir. 1975) (“[T]he recerd clearly shows that the

arresting officer had knowledge of facts — namely,

that McCoy had attempted to acquire merchandise in

exchange for a counterfeit bill — which established

probable cause to believe that appellant had violated

§ 943.38 of the Wisconsin Criminal Code (Forgery).”).

Because “[iJntent and knowledge may be inferred

from [a suspect’s] overall actions,” the officers had

probable cause to arrest him, and did not have to

have probable cause of Mr. Rodis’s specific intent to

defraud. United States v. Lorenzo, 570 F.2d 294, 299

(9th Cir. 1978). An attempt to pass a counterfeit bill,

even if the bill is recognized and rejected, is sufficient

to sustain the intent element for the purposes of a

conviction. See id. at 295-96, 299 (noting waitress

rejected counterfeit bill, but sustaining conviction);

see also United States v. McCall, 592 F.2d 1066, 1068

(9th Cir. 1979) (affirming conviction where the defen-

dant told inconsistent stories about the source of the

counterfeit bills, even though the manager detected

the counterfeit bill and called police immediately).

Even the case cited by the majority, United States v.

DeFilippis, 637 F.2d 1370, 1373 (9th Cir. 1981),

declined. to impose any additional elements, or to

raise the burden of proof to sustain a conviction

under 18 U.S.C. § 472. Based on well-established

principles concerning probable cause, and case law

App. 26

specifically holding that officers have probable cause

to arrest someone on suspicion of having violated 18

U.S.C. § 472 if there is evidence of the passing of an

allegedly counterfeit note and the identification of a

suspect, I would conclude that the officers did not

violate Mr. Rodis’s constitutional! right to be free from

arrest absent probable cause.

Applying the majority's newly announced stan-

dard will also result in absurd results. If a suspect

simply says that he does not know if the bill is real or

fake, or if he carries around a real bill and offers to

substitute it for the counterfeit one, officers may not

arrest him to investigate the probable unlawful

conduct. In the case of a clever criminal who is skilled

at lying, officers would be powerless to arrest the

suspect even when he attempts to pass a clearly

counterfeit bill, if the suspect verbally disavows

knowledge or intent and pays with a legitimate bill. A

criminal could test the counterfeit detection skills of

clerks, bartenders, and other consumers at will

without fear of arrest.

Imposing a requirement that asks officers to read

criminals’ minds to discern their subjective knowl-

edge and intent is not practical or grounded in reality.

Intent to defraud is often established through evi-

dence concerning knowledge such as _ additional

counterfeit bills, reproduction equipment, plates,

ledgers, and other evidence that officers would no

longer be able to gather incident to arrest or through

a search warrant. For example, if the bill in this case

happened to be counterfeit, further investigation

App. 27

would have established that Mr. Rodis genuinely

lacked the specific intent to defraud, making him a

victim of counterfeiting. Detectives, or more likely

Secret Service agents, would then investigate to

determine the origin of the bill, and hopefully arrest

the counterfeiters.

In this particular case, however, the officers

made the reasonable mistake of failing to recognize a

genuine pre-1991 100 dollar bill. The majority uses

this mistake to impose a new, higher standard for

probable cause based on the elements necessary to

sustain a conviction, instead of concentrating on

whether it is more probable than not that a crime

occurred under these circumstances. (Maj. Op. at

10678, 10679-80.) I would follow our prior decision in

Blum, as well as the rulings in other circuits estab-

lishing the standard for probable cause for violations

of 18 U.S.C. § 472 and conclude that the officers did

not violate Mr. Rodis’s Fourth Amendment rights

because they had sufficient probable cause for the

arrest. .

D. There is no constitutional requirement that

an officer fully investigate a suspect’s de-

fenses, including his lack of the required

mental state, before arrest.

As an additional justification for concluding that

the officers did not have probable cause, the majority

faults the officers’ investigation under the circum-

stances, arguing that certain facts reduced the prob-

ability that Rodis had the specific intent necessary to

App. 28

secure a conviction. (Maj. Op. at 10679-80.) This

argument concerning inadequate investigation of the

intent element is foreclosed by Baker v. McCollan,

where the Supreme Court granted qualified immu-

nity after the arrest and detention of a suspect in a

case involving mistaken identity. “[I]nnocence of the

charge . . . is largely irrelevant to [a] claim of depriva-

tion of liberty without due process of law.” Baker, 443

U.S. at 145. “The Constitution does not guarantee

that only the guilty will be arrested.” Jd. An arresting |

officer is not “required by the Constitution to investi-

gate independently every claim of innocence, whether

the claim is based on mistaken identity or a defense

such as lack of requisite intent.” (emphasis added) Id.

at 145-46. “Nor is the official charged ... to perform

an error-free investigation of such a claim.” Id. at

146. “The ultimate determination of such claims of

innocence is placed in the hands of the judge and

jury.” Id.

Consistent with Baker, the officers were allowed

to arrest Mr. Rodis because they had objective evi-

dence that Mr. Rodis attempted to pass the note, and

Mr. Rodis did not contest the clerk and the manager’s

statements that he attempted to pay for goods with

the suspicious note even though the clerk, the man-

ager, and the officers were mistaken and the note

turned out to be genuine. After further investigation,

the officers discovered their mistake and released Mr.

Rodis. The officers were not constitutionally required

to conduct an exhaustive investigation into Mr.

Rodis’s state of mind before making an arrest. See id.

App. 29

at 145-46; see also Marks v. Carmody, 234 F.3d 1006,

1009-10 (7th Cir. 2000) (concluding officers acted

reasonably in arresting even though suspect pre-

sented evidence tending to show that he lacked the

intent to defraud); United States v. Bertram, 719 F.2d

735, 737-38 (5th Cir. 1983) (rejecting defendant’s

argument that officers lacked probable cause to

arrest because the counterfeit Krugerrands had the

word “copy” on them, making it impossible for him to

defraud anyone). Nor was the officers’ mistake of fact

a violation of Mr. Rodis’s constitutional rights. There-

fore, I would hold that the officers were entitled to

qualified immunity because they did not violate Mr.

Rodis’s Fourth Amendment rights.

If. The majority’s opinion announces a new

principle that officers must have specific

evidence of intent to defraud in order to

have probable cause to arrest; therefore,

the law was not clearly established and

the officers were entitled to qualified

immunity.

This is precisely a case where “an official could

not reasonably be expected to anticipate subsequent

legal developments.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). As noted above, the case law in this

and other circuits, prior to today’s holding, uniformly

stated that the standard for probable cause to arrest

on suspicion of violating 18 U.S.C. § 472 required

only 1) an attempt to pass an allegedly counterfeit

note, and 2) an identification of the person who

App. 30

attempted to pass the note. See Blum, 432 F.2d at

251-53; Everett, 719 F.2d at 1120; United States v.

Sheppard, 455 F.2d 1081, 1083 (10th Cir. 1972); see

also United States v. Ford, 461 F.2d 534 (9th Cir.

1972) (per curiam) (noting attempt to pass counterfeit

money, a description of the suspect by a storekeeper,

and the key exhibit falling out of the suspect’s pocket

as supporting probable cause); Bates v. United States,

352 F.2d 399, 399-400 (9th Cir. 1965) (per curiam)

(discussing identification of suspect). Our own cases

involving other statutes that require intent to de-

fraud do not require officers to accept a suspect’s

version of events or to determine whether he actually

had that intent. See United States v. Mayo, 394 F.3d

1271, 1276 (9th Cir. 2005) (affirming a finding of

probable cause to arrest for “placing a stolen registra-

tion sticker on a license plate, with intent to defraud”

where there was “no dispute that Mayo admitted that

he was driving the car that day, was in the process of

buying it, and had been in possession of it for the last

month”); United States v. Thomas, 835 F.2d 219, 222

(9th Cir. 1987) (discussing act and identity).’ The

Eleventh Circuit recently reiterated in a § 1983 false

arrest case that “even for a criminal statute that

requires proof of an intent to defraud for a conviction,

* The majority cites two cases, Easyriders Freedom

F.G.H.T. v. Hannigan, 92 F.3d 1486, 1499 (9th Cir. 1996) and

Gasho v. United States, 39 F.3d 1420, 1429 (9th Cir. 1994) where

the specific intent required was a form of specialized knowledge.

For intent to defraud cases, the specific intent is usually in-

ferred from the act itself.

App. 31

an arresting officer does not need evidence of the

intent for probable cause to arrest to exist.” Jordan v.

Mosley, 487 F.3d 1350, 1356 (11th Cir. 2007).

In essence, the specific intent to defraud is in-

ferred from the attempted passing of the bill. It is the

rare case that a person intending to defraud will

admit it. The case law discussed above concerning the

lack of a duty to investigate a suspect’s proffered

defense of a lack of intent exists precisely because

_almost every suspect — innocent or not, will profess a

lack of intent. The majority’s additional requirement

that the officer have some conclusive level of evidence

of intent to defraud is inconsistent with these prece-

dents.

The majority cites to no case specifically requir-

ing that officers have explicit evidence of a suspect’s

subjective intent to defraud before they have probable

cause to arrest on suspicion of violating 18 U.S.C.

§ 472. This lack of precedent to support the majority’s

approach is telling, and I cannot find that an officer

must have conclusive evidence of intent to defraud

before arresting a suspect was clearly established. In

my view, the case law allowing officers to infer the

intent to defraud from the attempted passing of the

counterfeit note is sufficient to establish probable

cause was the clearly established law prior to this

decision. We cannot expect the officers to anticipate

the majority’s ruling that they should have had ex-

plicit and conclusive evidence of the suspect’s subjec-

tive intent to defraud prior to arrest, because it is found

nowhere else in any federal court’s jurisprudence

App. 32

concerning probable cause to arrest under 18 U.S.C.

.§ 472. Therefore, I cannot join in the majority’s con-

clusion that such a requirement was clearly estab-

lished prior to today, and I would grant the officers

qualified immunity.

What happened to Mr. Rodis was an unfortunate

mistake. We cannot allow bad facts to make bad law.

Simple and reasonable mistakes of fact are not con-

stitutional violations, however, nor should a mistake

subject the officers to a lawsuit under 42 U.S.C.

§ 1983. The case law simply does not support the

majority’s view that probable cause to arrest under 18

U.S.C. § 472 requires specific and conclusive evidence

of a suspect’s subjective intent to defraud. The major-

ity’s error is compounded by the fact that it fails to

recognize that it is adding a wholly new requirement

to the probable cause inquiry that has no support

anywhere in federal statutory or case law, and there-

fore cannot be clearly established. I would vacate the

district court’s order and remand with instructions to

grant the officers qualified immunity from suit and

grant their motion for summary judgment.

App. 33

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

RODEL E. RODIS, No. 04-0314 MMC

Plaintiff, ORDER GRANTING IN

: PART AND DENYING

IN PART DEFENDANTS’

CITY AND COUNTY MOTION FOR SUM-

OF SAN FRANCISCO, MARY JUDGMENT;

et al., VACATING HEARING

Defendants —_—; (Docket No. 38)

Before the Court is the motion of defendants City

and County of San Francisco (“the City”), former San

Francisco Police Chief Alex Fagan (“Fagan”), San

Francisco Police Officer Michelle Liddicoet (“Liddi-

coet”), and San Francisco Police Sergeant Jeff Barry

(“Barry”) for summary judgment, pursuant to Rule 56

of the Federal Rules of Civil Procedure. Plaintiff

Rodel Rodis (“Rodis”) has filed opposition, to which

defendants have replied. Having considered the

papers filed in support of and in opposition to the

motion, the Court deems the matter appropriate for

decision on the papers, VACATES the hearing sched-

uled for March 18, 2005, and rules as follows.

BACKGROUND

Rodis is an “elected official of [the] San Francisco

Community College Board, a lawyer in private prac-

tice, and an active member of the Filipino American

community.” (See Compl. ¥ 2.) Rodis alleges that on

App. 34

February 17, 2003, he was “without probable cause,

detained, handcuffed, and transported to the police

station on the pretext he was suspected of using a

counterfeit one hundred dollar bill to purchase goods

from a Walgreens.” (See Compl. J 16.) Based on these

allegations, Rodis alleges six causes of action, specifi-

cally, a claim under 42 U.S.C. § 1983 (First Cause of

Action,), a claim of conspiracy to deprive him of his

civil rights (Second Cause of Action), a claim for a

mandatory injunction (Third Cause of Action), a claim

of false arrest (Fourth Cause of Action), a claim of

negligent infliction of emotional distress (Fifth Cause

of Action), and a claim of intentional infliction of

emotional distress (Sixth Cause of Action).

DISCUSSION

Rodis’s claims are based on two theories. First,

Rodis alleges he was subjected to an unreasonable

seizure when he was placed in handcuffs, arrested

without probable cause, and then detained at a police

station until such time as the officers learned, from

contacting the Secret Service, that the bill he at

tempted to use at Walgreens’ was not counterfeit

Second, Rodis alleges defendants’ actions were taken

on account of racial animus.

App. 35

I. Damages Claims Against Liddicoet and

Barry

A. Federal Claims

Defendants argue that Liddicoet, one of the

arresting officers, and Barry, the ranking officer at

the scene of the arrest, are entitled to summary

judgment because they did not violate any of Rodis’s

rights or, alternatively, if they did, they are entitled to

qualified immunity.’

1. Reasonableness of Seizure

Defendants argue that, based on statements

made to the officers by Walgreens employees that

they suspected the bill presented by Rodis might be

counterfeit,’ and the observations of officers at the

. ' Although Liddicoet and Barry played different roles in the

arrest, defendants do not differentiate between the actions of

these two defendants.

* At Liddicoet’s deposition, she answered “yes,” in response

to the question, “Were you informed that Walgreens suspected

the bill was counterfeit?” (See Wiener Decl. Ex. C at 42.) Denis

Snopikov, Walgreens’ assistant manager, testified he informed

the officers he had used a “counterfeit pen” on Rodis’s bill and

that Rodis’s bill “passe{[d] the test,” but he was “confused” and

“suspected” the bill to be counterfeit because he had also com-

pared Rodis’s bill to a “newer version of the $100 bill” and saw

that Rodis’s bill did not have the same “watermarks or protec-

tive thing” as the newer bill. (See id. Ex. A at 46-47.)

App. 36

scene, defendants had probable cause to arrest Rodis

for violation of 18 U.S.G. § 472.*

Section 472 provides that “[w|hoever, with intent

to defraud, passes, utters, publishes, or sells, or

attempts to pass, utter, publish, or sell, or with like

intent brings into the United States or keeps in

possession or conceals any falsely made, forged,

counterfeit, or altered obligation or other security of

the United States, shall be fined under this title or

imprisoned not more than 20 years, or both.” See 18

U.S.C. § 472. Defendants argue they had probable

cause to believe Rodis violated § 472 because it is

undisputed they had probable cause to believe “Rodis

had attempted to pass a bill that appeared to be

fake.” (See Defs.’ Mot. for Summ. J. at 12:4.)’ Defen-

dants, however, do not argue, at least for the pur-

poses of the instant motion, they had probable cause

° At Liddicoet’s deposition, she answered “yes,” in response

to the question, “Did it [the bill] look real to you?” (See Wiener

Decl. Ex. H at 63.) Barry testified that, although he did not

handle the bill and was somewhere between 10 and 50 feet away

from the officers handling the bill, he formed the “impression

that it seemed bogus” because the bill “seemed very light and

like maybe not like the paper they use for currency.” (See, id. Ex.

E at 54, 57.) Another officer at the scene, Barbara Dullea Officer

Dullea”), testified that the “bill’s color and texture appeared

odd.” (See Dullea Decl. { 3.)

* Defendants do not argue the seizure in question consti-

tuted an investigatory stop.

* In light of the Court’s holding, discussed infra, the Court

does not address the issue of whether the officers had probable

cause to believe the bill was counterfeit.

App. 37

to believe plaintiff had an intent to defraud. Defen-

dants acknowledge that “when specific intent is a

required element of the offense, the arresting officer

m st have probable cause for that element in order to

reasonably believe that a crime has occurred,” see

Easyriders Freedom FI.G.H.T. v. Hannigan, 92 F. 3d

1486, 1499 (9th Cir. 1996), but argue that specific

intent is not a required element of § 472. Defendants

further argue that, in the event this Court finds that

specific intent is a required element, such a finding

would constitute “new law” rather than “clearly

established law,” thus entitling Liddicoet and Barry

to qualified immunity. See, e.g., Robinson v. Solano

County, 278 F. 3d 1007, 1015 (9th Cir. 2002) (holding

defendants, who violated Fourth Amendment by

“pointing a gun to the head of an apparently unarmed

suspect,” were entitled to qualified immunity because

“contours of that right were not at all clear in [the

year of the incident]”).

The Ninth Circuit has held, in an opinion issued

almost twenty years before Rodis’s arrest, that “[t]he

key element of section 472 is its mens rea, the specific

intent to defraud.” See United States v. DeFilippis,

637 F. 2d 1370, 1373 (9th Cir. 1981) (affirming convic-

tion for violation of § 472 where evidence supported

jury’s finding defendant passed bill she knew to be

counterfeit “with an intent to deceive”).

Defendants, nevertheless, rely on cases that, in

defendants’ view, hold that probable cause to arrest

for a violation of § 472 exists even though the officers

only have probable cause to believe the suspect has

App. 38

used a counterfeit bill. The Court initially notes that

none of the gases cited by defendants includes a

specific holding to such effect. Moreover, the cases

cannot be read to support defendants’ position. In

some instances, the nature of the facts found suffi-

cient to support probable cause are unknown. See,

e.g., Bates v. United States, 352 F. 2d 399, 400 (9th

Cir. 1965) (referring to “tow truck operator at the

scene who filled in chunks of circumstance to give

probable cause,” but not selling forth such circum-

stance). Others refer to information known to the

arresting officer that supports a finding of probable

cause as to the element of specific intent to defraud.

See, e.g., United States v. Covelli, 738 F. 2d 847, 853-

54 (7th Cir. 1984) (stating officer, having been advised

by store clerk that defendant had passed bill that

looked counterfeit, “asked to talk to [the defendant]

about something,” and that defendant “immediately

responded, “‘What’s wrong? Was the money bad?,’ even

though the officer had not mentioned money”); see

also United States v. McCall, 924 F. 2d 1066, 1068

(9th Cir. 1979) (holding jury’s finding as to § 472’s

“intent to defraud” element supported by evidence of

defendant’s statements exhibiting “consciousness of

guilt”).°

* The sole case arguably supporting defendants’ position is

Holt v. United States, 404 F. 2d 914 (10th Cir. 1968). In Holt, the

Tenth Circuit stated that because “the mere possession” of

counterfeit money is a felony, “if the arresting agent had probable

cause to believe such felony was being perpetrated, the arrest

was proper.” See id. at 917-18. The Tenth Circuit, however, cited

(Continued on following page)

App. 39

Additionally, defendants cite several cases for the

proposition that specific intent is not a required

element of § 472. See, e.g., United States v. Pitts, 508

F. 2d 1237, 1240 (8th Cir. 1975) (holding, to establish

violation of § 472, prosecution must prove defendant

possessed counterfeit bills, that defendant knew bills

were counterfeit, and that defendant “had a general

intent to defraud unknown persons with those bills”).

The precise holding of such cases, however, is that it

is unnecessary to prove that the defendant intended

to defraud a specific person, not that no intent to

defraud need be proved. See Riggs v. United Siates,

280 F. 2d 750, 752 (5th Cir. 1960) (discussing indict-

ment in which “‘intent to defraud’ under Section 472

is charged generally”; holding “‘intent to defraud’

required by 18 U.S.C. § 472 when, as here, such

intent is not restricted by the terms of the indictment

or by a bill of particulars to any specified person, may

be an ‘intent to defraud’ unknown third persons”).

no authority providing that “mere possession” is unlawful.

Further, the opinion refers to evidence known to the arresting

officers that would appear to support a finding of probable cause

as to specific intent. See id. at 916 (stating agents, who had been

advised by “reliable” informant that defendant had agreed to sell

informant “counterfeit money,” found defendant with counterfeit

money at place described by informant). In any event, the

opinion, if interpreted as holding a person may be convicted of

“mere possession” of a counterfeit bill, is contrary to Ninth

Circuit authority holding that “[t]he mere passing of a counter-

feit bill is not a criminal offense.” See United States v. Lorenzo,

570 F. 2d 294, 299 (9th Cir. 1978).

App. 40

In short, specific intent to defraud is a required

element of § 472, and the law was clearly established

in the Ninth Circuit well before February 2003.

Consequently, it was clearly established before Feb-

ruary 2003 that defendants, in order to validly arrest

Rodis for violation of § 472, were required to have

probable cause to believe Rodis had an intent to

defraud. Because defendants do not argue that, in

arresting Rodis, they had probable cause to believe

Rodis had the specific intent to defraud, defendants

have failed to show that the seizure was reasonable.

Consequently, defendants have failed to demonstrate

that no triable issue of fact exists as to the reason-

ableness of the seizure.’

Similarly, defendants have failed to demonstrate

Liddicoet and Barry are entitled to qualified immu-

nity. As noted, at the time of the events in question,

the law requiring probable cause as to specific intent

was well-established, as was the law making specific

intent to defraud an element of § 472. See Easyriders

Freedom F.1.G.H.T., 92 F. 3d at 1499; DeFilippis, 637

F.2d at 1373. Consequently, defendants’ argument

that to require probable cause as to the specific intent

" Because defendants have failed to establish, for purposes

of summary judgment, that they had probable cause to arrest

Rodis, defendants’ argument that it was reasonable to place

Rodis in handcuffs, to transport him to a police station, and to

restrain him at the station in handcuffs likewise fails. Cf. Frazier

v. City of Philadelphia, 927 F. Supp. 2d 881, 886-87 (E.D. Pa.

1996) (“Certainly arrest is one of the circumstances justifying —

the use of handcuffs.”).

App. 41

to defraud would be to create “new law,” (see Defs.’

Mot. for Summ. J. at 15:1, 6), is of no avail.

Accordingly, defendants have not shown Liddi-

coet and Barry are entitled to summary judgment on

Rodis’s federal claims for damages to the extent such

claims are predicated on the unreasonableness of the

seizure.

2. Equal Protection Claim

As noted, Rodis alleges he was subjected to an

unreasonable seizure on account of his race. To estab-

lish an equal protection deprivation claim, a plaintiff

must offer evidence that the defendant “acted in a

discriminatory manner and that the discrimination

was intentional.” See Bingham v. City of Manhattan

Beach, 341 F. 3d 939, 948 (9th Cir. 2003) (internal

quotation and citation omitted).

Rodis argues that because defendants have not

proffered a “reasonable explanation” for their decision

to “place a publicly elected Filipino city official under

arrest,” a trier of fact could conclude that defendants

took such action on account of Rodis’s race. (See Pl.’s

Opp. at 8:20-9:4.) In essence, plaintiff argues that

evidence of his unreasonable seizure coupled with

evidence that he is Filipino suffices to establish a

prima facie case of racial discrimination. However, as

the Ninth Circuit explained in Bingham, a case

involving an African-American driver stopped by a

white officer, evidence that “(the plaintiff] is African-

American, the officer is white, and they disagree

App. 42

about the reasonableness of the traffic stop” is insuf-

ficient to support an equal protection claim. See

Bingham, 341 F. 3d at 948-49."

Moreover, to the extent evidence of animus has

been introduced, such evidence does not support a

finding of animus on the basis of race. Rather, the

evidence, arguably, supports a finding that Barry

held negative feelings about Rodis based on reasons

having nothing to do with race. Specifically, the

evidence, construed in the light most favorable to

Rodis, is that, several years prior to the arrest at

issue, Barry had a conversation with Rodis during

which Barry expressed his disagreement with the

Community College Board’s policy prohibiting its

police officers from carrying firearms and his opinion

that Rodis’s family was not sufficiently supportive of

the athletic department at their children’s school.’

(See Weiner Dec. Ex. E at 35-40; Fasano Decl. Ex. 1 at

26-28.)

Accordingly, defendants have shown that Liddi-

coet and Barry are entitled to summary judgment on

Rodis’s federal claims to the extent such claims are

predicated on a deprivation of equal protection.

* Rodis does not offer evidence as to the race of Liddicoet or

Barry.

* Barry testified that he was the “athletic director” for the

school. (See Wiener Decl. Ex. E at 36.)

App. 43

B. State Law Claims

Rodis’s state law claims, as pleaded, are deriva-

tive of his federal law claims. (See Compl. {{ 30-31,

35-36, 39-40.) Defendants argue that Liddicoet and

Barry are entitled to summary judgment on such

claims, on the ground Rodis cannot demonstrate he

was subjected to an unreasonable seizure and was

arrested on account of his race.

For the reasons stated above, defendants have

failed to show that Liddicoet and Barry are entitled to

summary judgment on the state law claims, to the

extent such claims are predicated on the unreason-

ableness of the seizure, and are entitled to summary

judgment on the state law claims, to the extent such

claims are predicated on a deprivation of equal pro-

tection.

Il. Damages Claims Against the City and

Fagan

A. Federal Claims

Rodis alleges that the City and Fagan, in his

official capacity, are liable under 42 U.S.C. § 1983 for

the deprivation of Rodis’s federal rights, on the

ground such deprivation occurred pursuant to an

official City policy or custom, specifically, a lack of

training.

A local government entity can be held liable

under 42 U.S.C. § 1983 for actions that result in the

deprivation of a_ plaintiffs federal constitutional

App. 44

rights. See Monell v. Dep't of Social Servs., 436 U.S.

658, 690 (1978). The government entity, however,

cannot be held liable under § 1983 on a respondeat

superior theory. See id. at 691, Rather, the plaintiff

must show that the employee’s unconstitutional

activity was “undertaken pursuant to official policy or

custom.” See Hopper v. City of Pasco, 241 F. 3d 1067,

1082 (9th Cir.) (citing Monell, 435 U.S. at 690-91),

cert. denied, 122 S. Ct. 346 (2001).

A municipality’s failure to train police officers can

constitute a “policy” for Monell purposes where “the

failure to train its employees in a relevant respect

evidences a ‘deliberate indifference’ to the rights of its

inhabitants.” See City of Canton v. Harris, 489 U.S.

378, 389, 390 n.10 (1989) (observing that because

“city policymakers know to a moral certainty that

their police officers will be required to arrest fleeing

felons,” a city’s failure to train officers on the use of

deadly force in such situations “could properly be

characterized as ‘deliberate indifference’ to constitu-

tional rights”). Where, however, a plaintiff bases a

Monell claim on the theory that the training provided

on a specific subject is insufficient, as opposed to

totally lacking, the plaintiff cannot prevail unless the

plaintiff offers evidence that the insufficiency was the

“result of a ‘deliberate’ or ‘conscious’ choice” by the

municipality. See Alexander v. City and County of San

Francisco, 29 F. 3d 1355, 1367 (9th Cir. 1994) (quot-

ing Canton, 489 U.S. at 389). In other words, the

plaintiff must offer evidence to show the municipality

“knew it was creating an unjustifiable risk to its

App. 45

citizenry and ignoring that risk.” See Mateyko uv.

‘elix, 924 F. 2d 824, 826 (9th Cir. 1990), cert. denied,

504 U.S. 814 (1991).

Here, defendants argue Rodis lacks evidence that

any unreasonable seizure was taken pursuant to an

official policy or custom. Specifically, defendants rely

on evidence that the San Francisco Police Depart-

ment (“SFPD”) “periodically issues training updates”

in the form of “Roll Call Training Lessons,” and that

the SFPD has a policy that Roll Call Training Lessons

are distributed to all officers, who are then required

to read them. (See Osborne Decl. 74 3-4.) Defendants

also rely on evidence that, in May 2001, the SFPD

issued a Roll Call Training Lesson (“2001 Lesson”)

regarding “counterfeit currency issues confronting

law enforcement,” and that such Lesson was distrib-

uted to all officers, who, pursuant to official policy,

were required to read it. (See id. 946.) The 2001

Lesson included a “scenario” in which an officer was

called to a store on a complaint of counterfeit cur-

rency; additionally, the 2001 Letter set forth a list of

“critical issues” an officer might confront in such

situation, identified potentially applicable state stat-

utes, and concluded with practice exercises. (See id.

Ex. A) Defendants further rely on evidence that Officer

Dullea, who was present at Walgreens’ during Rodis’s

arrest, recalls seeing written material at the police

station stating, in Dullea’s words, “what to look for

regarding counterfeit currency,” (see Dullea Decl. 4 5),

and that Barry also recalls a “bulletin or some sort of

training” on counterfeit currency being distributed

App. 46

around the police station, (see Wiener ecl. Ex. E at

19-20).

Rodis argues the 2001 Lesson was deficient in

that it did not refer to the element of specific intent to

defraud, did not refer to a specific procedure to be

followed in all counterfeit bill investigations, and only

referred to state statutes. As defendants point out in

their reply, however, the 2001 Lesson did refer to the

state law requirement that a person possessing a

counterfeit bill act with the “intent to utter or pass

[the counterfeit bill] as real currency,” and did include

a list of “issues” that an investigating officer might

confront, e.g., that “[alny bill printed prior to 1965

will indicate as counterfeit” if tested using a counter

feit pen. (See Osborne Decl. Ex. A.) In any event,

evidence that the 2001 Lesson could have been more

specific or written in a more straightforward manner

is insufficient to support a finding that the City or

Fagan deliberately or consciously chose to distribute

inadequate training material. See Alexander, 29 F. 3d

at 1367.

Rodis also relies on Liddicoet’s testimony that

she did not receive training as to counterfeit currency

(See Wiener Decl. Ex. C at 17.) Although such evi-

dence might support a finding that the City’s policy

requiring all officers to read Roll Call Training Les-

sons is not fool-proof and, indeed, that such policy

failed as to Liddicoet, such evidence likewise does not

support a finding that the City or Fagan deliberately

and consciously chose not to train Liddicoet. See

Alexander, 29 F. 3d at 1367 (holding evidence that one

App. 47

officer had not been adequately trained as to proper

procedure for arresting suspect at his home “can only

be classified as negligence on the part of the munici-

pal defendant”).

Lastly, in light of the Court’s finding that Rodis

lacks sufficient evidence to raise a triable issue as to

whether Liddicoet or Barry violated § 1983 by depriv-

ing Rodis of equal protection, Rodis cannot establish a

§ 1983 claim against the City or Fagan predicated on

an equal protection violation. See Orin v. Barclay, 272

F. 3d 1207, 1217 (9th Cir. 2001) (holding civil rights

claim against city “fails as a matter of law” if city

employee did not deprive plaintiff of his civil rights),

cert. denied, 536 U.S. 958 (2002).

Accordingly, defendants are entitled to summary

judgment as to Rodis’s federal damages claims

against the City and Fagan.

B. State Law Claims

The Court next turns to Rodis's state law claims

for damages. A municipality can be held liable under

a respondeat superior theory for its employee’s viola-

tion of state law. See Cal. Gov’t Code § 815.2 (a) (“A

public entity is liable for injury proximately caused

by an act or omission of an employee of the public

entity within the scope of his employment if the act or

omission would, apart from this section, have given

rise to a cause of action against that employee or his

personal representative.”) For the reasons stated

above, defendants have not shown that Rodis, as a

App. 48

matter of law, was not subjected to an unreasonable

seizure.

Accordingly, defendants are not entitled to sum

mary judgment on the state law claims asserted

against the City and Fagan, to the extent such claims

are predicated on the unreasonableness of the sei-

zure, and are entitled to summary judgment on the

state law claims asserted against the City and Fagan,

to the extent such claims are predicated on a der” :va-

tion of equal protection.

IIf. Claim for Injunctive Relief

Rodis alleges, in his Third Cause of Action, that

he is entitled to an injunction compelling defendants

“to allow [Rodis] to be free of discriminatory treat

ment by [dJefendants.” (See SAC ¥ 29.)

Defendants argue that Rodis lacks standing to

seek the requested injunctive relief. See City of Los

Angeles v. Lyons, 461 U.S. 95, 105 (1983) (holding

plaintiff who had been injured by officers’ use of

specific type of chokehold, lacked standing to seek

injunction against future use of such chokehold

because plaintiff did not establish “real and immed:

ate threat” he would again be subjected to such

chokehold). Plaintiff, in his opposition, fails to re-

spond to this argument, and, in any event, fails to

offer any evidence to establish his standing to seek

the requested injunction.

App. 49

Accordingly, defendants are entitled to summary

judgment on the Third Cause of Action.

CONCLUSION

For the reasons stated above, defendants’ motion

for summary judgment is hereby GRANTED in part

and DENIED in part, as follows.

1. Defendants are entitled to summary judg-

ment on the Third Cause of Action, and on all claims,

to the extent they are based on an equal protection

deprivation theory.

2. Defendants City and Fagan are entitled to

summary judgment on Rodis’s federal claims for

damages.

3. In all other respects, the motion is denied.

This order terminates Docket No. 38

IT IS SO ORDERED.

Dated: March 22,2004 #£/s/ Maxine M. Chesney

MAXINE M. CHESNEY

United States District Judge

App. 50

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODEL E. RODIS, No. 05-15522

Plaintiff-Appellee, D.C. No.

is CV-04-00314-MMC

Northern District of

CITY AND COUNTY | California, San Fran-

OF SAN FRANCISCO, ' cisco

a municipality; et al., ORDER

Defendants-Appellants,

and

SAN FRANCISCO

POLICE DEPARTMENT,

Defendant.

(Filed Sep. 10, 2007)

Before: D.W. NELSON and CALLAHAN, Circuit

Judges, and CARNEY,* District Judge.

Appellants’ Motion for Extension of Time to File

Petition for Rehearing and Petition for Rehearing En

Banc is GRANTED. A petition for rehearing/rehearing

en banc shall be filed on or before October 12, 2007.

SO ORDERED.

* The Honorable Cormac J. Carney, United States District

Judge for the Central District of California, sitting by designa-

tion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.