• Disturbing the Peace, per P.C. § 415(2)
• Delaying or Obstructing a Peace Officer per P.C. § 148(a)(1)
• Arresting for the Wrong Offense
• Refusal to Identify as a Violation of P.C. § 148(a)(1)
• Arresting for a Misdemeanor That Did Not Occur in the Officers’ Presence
• Civil Liability and Qualified Immunity

(1) For a federal civil rights lawsuit to be sustained, a plaintiff must prove that law enforcement officers violated a federal statutory or constitutional right and that the unlawfulness of their conduct was clearly established at the time. 

(2) So long as there is probable cause supporting an arrest for some offense, it is legally irrelevant that the arresting officers may have chosen the wrong offense. 

(3) A finding of probable cause requires only that there be a fair probability or substantial chance that an arrestee committee a crime. 

(4)  Speech that causes a clear and present danger of imminent violence and was designed to disrupt a lawful endeavor constitutes a violation of Pen. Code § 415(2). 

(5) A detainee who refuses to identify himself may be in violation of Pen. Code § 148(a)(1); delaying or obstructing a peace officer in the performance of his or her duties. 

(6) Police officers are not constitutionally precluded from arresting for a misdemeanor that did not occur in their presence. 

(7) Absent a viable constitutional violation by its officers, a city is not civilly liable for failing to properly train them.

Javier Vanegas and his estranged wife, Sandra Kerguelen, were in the process of getting a divorce.  Kerguelen had an attorney—Karen Suri—while Vanegas was winging it on his own, and apparently not doing a very good job at it.  At a hearing in Pasadena’s family court, after Venegas “raised his voice and yelled” at his wife’s attorney and the judge, the judge had to admonish Vanegas to control himself or face sanctions.  Attorney Suri was so concerned that she asked the court bailiff after the hearing to keep Vanegas from following them as they left.  The bailiff did so, blocking Vanegas’ way as Suri and Kerguelen left the courthouse.  But Vanegas eventually caught up with them outside and renewed his verbal onslaught.  Suri and Kerguelen tried to walk away, but Vanegas continued to follow them, getting in Suri’s face (“within arm’s reach”) while calling her a “scumbag” and a “liar.”  Feeling threatened, Suri called 911, reporting to the operator that there was a man following her and yelling at her on the street in front of the courthouse. A Pasadena Police Department Community Service Officer, who happened to be in the area, saw the confrontation and intervened.  He told Suri and Kerguelen to walk to the police station across the street to file a report, which they did.  In the meantime, Pasadena Police Officer Philip Klotz—in the courthouse on other business—heard the call over his radio.  The call came out identifying the cause of the disturbance as “Javier Vanegas” and who was reported to be walking northbound on Garland Avenue.  The officer exited the courthouse looking for Vanegas.  Seeing only one man in the vicinity, he approached that man (who was in fact Vanegas) and asked him if he was Javier.  Vanegas failed to answer the question, asking the officer instead who he was (the officer apparently being in plain clothes).  Officer Klotz identified himself as a law enforcement officer and then asked Vanegas for identification.  Despite at least three requests for identification, Vanegas refused to comply, taking out his cellphone to record the interaction instead.  Officer Klotz then gave Vanegas the option of either producing his identification or being placed in handcuffs.  Vanegas continued to refuse to comply.  Upon the arrival of other officers, Vanegas was handcuffed.  Suri returned to the scene (still “almost crying and visibly shaking”) and identified Venegas.  He was therefore arrested for disturbing the peace, per Pen. Code § 415(2).  He was later released from the police station on a misdemeanor citation for violating Pen. Code § 148(a)(1); obstructing a peace officer.  The Pasadena City Attorney, however, wimped out and declined to file charges.  Emboldened by this, Vanegas filed suit in federal court (under authority of 42 U.S.C. § 1983) against the officers involved in his arrest—along with the City of Pasadena—alleging a violation of his Fourth (seizure) and Fourteenth (due process) Amendment rights.  The federal district (trial) court granted the civil defendants’ motion for summary judgment (dismissing the case), ruling that Vanegas was lawfully arrested for either Pen. Code §§ 415(2) or 148(a)(1), thus negating any claim that his constitutional rights had been violated.  Vanegas appealed.

The Ninth Circuit Court of Appeal Affirmed. 

(1) General Civil Liability Requirements:  In order to prevail in his lawsuit, Venegas was required to show that the “(1) Pasadena police officers ‘violated a federal statutory or constitutional right’ and (2) ‘the unlawfulness of their conduct was clearly established at the time.’” (District of Columbia v. Wesby (2018) 138 S.Ct. 577, 589.)  To meet the first requirement, Venegas had to prove that he was arrested without probable cause.  The civil defendants (the officers and the City) argued that the officers had probable cause to arrest him for either or both of two offenses; Pen. Code §§ 415(2) (disturbing the peace), and/or 148(a)(1) (delaying or obstructing a peace officer).  (See Section (5), below, for a discussion of the second requirement.)

(2) Arresting for the Wrong Offense:  Upon discussing the two possible offenses, it was first noted that so long as there is probable cause supporting his arrest for some offense, it is legally irrelevant that the officers may have chosen the wrong offense.  “It is well-established that ‘[i]f the facts support probable cause . . . for one offense,’ an arrest may be lawful ‘even if the officer invoked, as the basis for the arrest, a different offense’ which lacks probable cause.”  (United States v. Magallon-Lopez (9th Cir. 2016) 817 F.3rd 671,  675; see also People v. McDonald (2006) 137 Cal.App.4th 521, 530.) 

(3) Probable Cause:  When considering whether the officers had probable cause to arrest Vanegas, the Court defined the term “probable cause” as a “‘fair probability or substantial chance of criminal activity’ by the arrestee based on the totality of the circumstances known to the officers at the time of arrest.” (Lacey v. Maricopa County (9th Cir. 2012) 693 F.3rd 896, 918.) With these basic principles in mind, the Court discussed the two offenses at issue.

(4)  Pen. Code § 415(2):  Subdivision (2) of section 415 reads as follows:  “Any person who maliciously and willfully disturbs another person by loud and unreasonable noise” is guilty of a misdemeanor. “Maliciously” means a wish to “vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.”  “Willfully” means “a purpose or willingness to commit the act.”  (Pen. Code § 7, subdivisions (4) and (1), respectively.)  It has been held that getting in someone’s face and yelling at them, calling them names, constitutes a violation of section 415(2) where the suspect’s “speech . . . present(s) a clear and present danger of imminent violence and was designed to disrupt a lawful endeavor.”  (In re Curtis S. (2013) 215 Cal.App.4th 758, 763.) In this case, the victim Karen Suri reported to the officers that Vanegas followed her and shouted at her, getting to within arm’s reach of her while calling her names, causing her to feel threatened.  These allegations were supported by the officers’ observation of Suri being extremely upset and visibly shaking.  The Court concluded that “(b)ased on the collective knowledge of the officers, there was a fair probability that Vanegas’s verbal actions constituted ‘a clear and present danger of imminent violence’ and a ‘disrupt[ion of] lawful endeavors.’”  Under these circumstances, the officers had probable cause to arrest Vanegas for disturbing the peace pursuant to Pen. Code § 415(2). 

(5)  Pen. Code § 148(a)(1):  Vanegas was eventually cited for a violation of Pen. Code § 148(a)(1) and released from the police station.  Section 148(a)(1) is a misdemeanor which punishes “[e]very person who willfully resists, delays, or obstructs any public officer [or] peace officer, . . . in the discharge or attempt to discharge any duty of his or her office or employment.”  The civil defendants alleged that Vanegas violated this section by refusing to identify himself, arguing that “his refusal to identify himself obstructed Officer Klotz’s investigation of a potential stalking case.”  Vanegas countered with the argument that refusing to identify oneself is not a violation of Pen. Code § 148(a)(1) and, as such, it was illegal to arrest him for this section (a misdemeanor citation being an “arrest and a release” on one’s promise to appear in court on a later date).  This situation brings into play the above-mentioned rule (see Section (1), above) that in order for Venegas to prevail in his civil suit, not only must he prove that the officers violated a federal statutory or constitutional right (that being a Fourth Amendment unlawful arrest in this case), but he must also prove that “the unlawfulness of their conduct was clearly established at the time.”  If the rule is not “clearly established,” then a civil defendant law enforcement officer is entitled to what is commonly referred to as “qualified immunity” from civil liability.  Reciting an abundance of cases on the issue of whether refusing to identify oneself constitutes a violation of Pen. Code § 148(a)(1) (Vanegas being detained for investigation at that point in time when first contacted by Officer Klotz), it was noted that this is an issue that has never really been “clearly established.”  The existing case law on this issue tends to go both ways, or merely notes that no one really knows whether or not a detainee refusing to identify oneself constitutes a violation of Pen. Code § 148(a)(1).  As such, with the courts unable to establish a rule on this issue, the arresting officers in this case cannot be held to have known whether or not a detainee who refuses to identify himself is in fact a violation of 148(a)(1).  Per the Court: “No ‘controlling authority’ or ‘robust consensus of cases’ prohibited Officer Klotz from arresting Vanegas under the facts confronting him.”  The officers, therefore, are entitled to qualified immunity on this issue. 

(6)  Arresting for a Misdemeanor that Did Not Occur in the Officers’ Presence:  In what the Court refers to as a mere “wrinkle” in the legal analysis of this case, it was noted that whether Vanegas was arrested for Pen. Code §§ 415(2) or 148(a)(1), doing so violated California’s statutory requirement that an officer can arrest for a misdemeanor only if that misdemeanor occurred in the officer’s presence.  (See Pen. Code § 836(a)(1).)  In this case, by the time Officer Klotz got involved, the defendant’s crime had already occurred.  It did not occur in Officer Klotz’s presence.  However, the Fourth Amendment has no such limitation.  The “in the presence” rule is a California statutory requirement only, and not one that “is . . . grounded in the Fourth Amendment.”  (See Welsh v. Wisconsin (1984) 466 U.S. 740, 756; and Barry v. Fowler (9th Cir. 199) 902 F.2nd 770, 772.)  In other words, while arresting for a misdemeanor that did not occur in the officer’s presence may violate Pen. Code § 836(a)(1), it does not also violate the Fourth Amendment.  “Rather, the ‘crucial inquiry’ is whether Officer Klotz had probable cause to make the arrest. . . . Here, we hold that he did.”  There being no constitutional violation, no sanctions, including potential civil liability, may be imposed.

(7)  Conclusion, and Monell Liability:  The Court held that the district court properly granted the civil defendants’ motion for summary judgment, dismissing the case.   This included that portion of the lawsuit alleging that the City of Pasadena was civilly liable pursuant to Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658.  Monell provides for a city’s civil liability for its employees’ constitutional violations when a plaintiff can establish that “the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation they suffered.”  This theory is commonly used whenever it is shown that municipality failed to properly train its officers.  Venegas had no such proof in this case. 

For a relatively simple factual situation, this case touches on a whole bunch of legal issues about which I get questions with some regularity.  Aside from (1) the “qualified immunity” issue, used to protect law enforcement officers from civil liability in those areas of the law where they cannot be expected to know the rules, the Court talks about (2) arresting for misdemeanors that occurred in other than the officer’s presence, (3) officers charging the wrong offense, and (4) whether refusing to identify oneself in a detention situation is a crime.  (Note, by the way, it is well-settled law that a person who is only being “consensually encountered” is under no legal obligation to identify himself.  See Kolender v. Lawson (1983) 461 U.S. 352.)  As for this last issue, I have always maintained that Pen. Code § 148(a)(1) is in fact violated where a detainee refuses to identify himself under the theory that such a refusal obviously (at least in most cases) delays or obstructs the officer in the performance of his or her duties.  This to me is a no-brainer.  But the courts in general are undecided on this issue.  The Court here, in about ten pages of concurring opinions, debates this issue, noting in the end that no real consensus among the lower appellate court cases can be found.  What we need, then, is either a California or U.S. Supreme Court decision resolving all this ambiguity.  I’m waiting.  And when I’m proven to be right, I’ll report it to you.

For additional information, please see these articles by Professor Emeritus Ray Hill:  “Stale or Cold Misdemeanor Rule - A Fossil" 3/1/22, CAB00139 and "Stale or Cold Misdemeanor Rule - An Update" 4/28/22 CAB00146