• Auto theft 
• High-risk vehicle traffic stops and potential civil liability 
• Qualified Immunity
• Civil Liability

Having cause to believe a vehicle is stolen, or even that it is “cold-plated” (i.e., using a license plate not assigned to that vehicle), is insufficient by itself to justify subjecting the vehicle’s occupants to a high-risk felony vehicle stop (i.e., a “hot-stop”) absent an articulable reason to believe the occupants are armed or otherwise dangerous. Officers are subject to potential civil liability for conducting a high-risk vehicle stop based upon nothing more than a reasonable suspicion (or even probable cause) that the vehicle was stolen, absent a reason to believe the occupants are armed and/or dangerous. 

On June 16, 2019, Hasmik Chinaryan, while innocently driving home from a family Father’s Day celebration with her teenage daughter and a friend in the car, suddenly became the target of a high-risk felony traffic stop by a dozen Los Angeles Police Department officers plus a helicopter unit. The officers were acting upon information that a black Chevrolet Suburban limousine had been stolen three days earlier. The stolen Suburban was equipped with a “LoJack device.” The day after it was stolen, LAPD’s Foothill Division detected a signal from that device. Two patrol officers located the LoJack signal’s approximate source, which the court noted are not as accurate as GPS. The officers, however, were confident that the signal was originating from within a specific two or three businesses in an industrial area on Glenoaks Boulevard, which was known to have many “chop shops,” where stolen vehicles are taken apart and sold for parts. But because it was a weekend and the businesses were closed, they decided to wait until Monday the 16th to continue the investigation.  

The car Chinaryan was driving on the 16th was a black Suburban limousine which, although three years newer (2018 vs. 2015) than the stolen Suburban, looked very similar. Chinaryan in her Suburban was spotted by a police sergeant about half a mile from where the stolen Suburban’s LoJack signal had been detected the day before. Thinking, “What are the chances?” the sergeant did a radio check on Chinaryan’s license plate number, requesting DMV information. The communications unit informed him that the license plate belonged to a Dodge Ram and gave him information regarding the registered owner, which was someone other than Chinaryan. The Dodge Ram had not been reported stolen.  

Based upon this information, the sergeant suspected that Chinaryan’s Suburban was “cold-plated” with a license plate other than the one registered with DMV, and thus likely stolen. He called for backup, including a helicopter unit. While following Chinaryan for the next 10 minutes, it was noted that she neither exceeded the speed limit nor drove evasively, following all traffic laws. And while it was still daylight, the sergeant could not see the vehicle’s occupants from behind due to its heavily tinted windows. The two officers who had responded to the LoJack signal report two days earlier, driving toward the location from the opposite direction, could see Chinaryan and her female passenger from the front of the vehicle as they passed. 

The LoJack receiver in the officers’ vehicle did not register a signal. However, the officers did not consider this usual, knowing that car thieves would often disable a vehicle’s LoJack. Doing a U-turn, the officers waited until there were about a dozen officers in the area before making a traffic stop. Chinaryan, seeing the police cars and hearing the helicopter, believed that they must be after some heinous criminal. To get out of the way, she activated her turn signal and pulled to the side of the road.  

As she did so, however, the officers activated their siren and pulled in behind her. Using their vehicle’s loudspeaker, the officers “yelled louder and louder to get out of the car,” at which time Chinaryan finally realized they were talking to her. One of the two lead officers ordered Chinaryan to turn off her engine, throw her keys outside, step out of the car and keep her hands up. As she complied, several other officers “pointed their pistols at her or in her direction.”  

Chinaryan was ordered to walk away from the vehicle into the traffic lane, lie on her stomach and put her hands out “like a plane.” She was also ordered to turn her head to the side, facing away from the vehicle, with her cheek touching the ground. Chinaryan later testified that she was “extremely scared,” and that she could hear her daughter crying from inside her car. She remained prone on the ground for about three minutes and 25 seconds, apparently as measured by the officers’ bodycams, while the officers cleared the car, after which they holstered their weapons and handcuffed her.  

During this time, officers ordered Chinaryan’s daughter and the other passenger to exit the vehicle, one at a time, as officers pointed their guns, which included an AR-15 rifle and a shotgun, at them. Both were handcuffed. Chinaryan’s daughter cried throughout this ordeal, urinating on herself in the process “because (as she later testified) [she] was so scared.” Once everyone was in handcuffs, the officers holstered their firearms and “racked” their rifles.  

Upon further investigation, including checking Chinaryan’s vehicle’s VIN number, it was determined that DMV had apparently issued the wrong license plate –  one digit off – to her car, and that the Suburban she was driving was indeed registered to Chinaryan’s husband. Everyone was eventually unhandcuffed and released, with the traffic stop itself lasting 24 minutes. 

Chinaryan and her passengers sued the officers, the LAPD and the City of Los Angeles in federal court pursuant to 42 U.S.C. § 1983, alleging that the officers illegally seized them and used excessive force in doing so.  

The federal district (trial) court granted summary judgment in favor of the civil defendants on this issue, dismissing the lawsuit. There were other allegations included in this lawsuit relative to California’s Bane act, under Civil Code § 52.1, alleging that the City and the LAPD did not properly train their officers, and as to certain jury instructions as they occurred in a related civil trial for the alleged violation of the Bane Act, but these are not discussed here. The plaintiffs appealed. 

The Ninth Circuit Court of Appeal, in a 2-to-1 decision, reversed. The court’s ruling centered on the constitutional legality or illegality of the officers’ decision to conduct a “high-risk vehicle stop” when the suspected violation was that the vehicle was stolen.  

The LAPD trains its officers on three types of vehicle stops:  

(1) A “traffic enforcement stop,” where the car’s occupants generally stay in their vehicle while officers approach the vehicle from opposite sides, contacting the occupants.  

(2) A “tactical investigatory stop” (sometimes referred to as a “Terry stop,” pursuant to Terry v. Ohio (1968) 392 U.S. 1.), commonly resulting in an arrest, where the officers take a position of cover such as behind the bulletproof police car doors, order the occupants of the vehicle to get out of the car, and instruct them to lift up their clothing and turn around to reveal any weapons in their waistbands. During this type of stop, the officers typically keep their guns holstered and do not normally order a suspect to lie down on the street.  

(3) A “high-risk vehicle stop,” sometimes called a “felony hot-stop”, where the officers draw and hold their weapons at the “low ready” position, meaning pointed anywhere below the suspect’s waist, during which the vehicle’s passengers are ordered to get out of the vehicle and into a prone position on the ground. (Note: Peace Officers Standards and Training provides for similar training in Domain 22, Chapter 1, “Introduction to Vehicle Pullovers.”)  

In this case, the officers conducted a “high-risk vehicle stop” on the plaintiffs. Plaintiffs argued that to do so under these circumstances constituted excessive force and an illegal arrest, either of which is a violation of the Fourth Amendment. The trial court did not specifically disagree, but granted the civil defendants’ motion for summary judgment on the basis that the officers were entitled to qualified immunity in that it was not clearly established by any prior case law that the officers’ conduct in this case violated plaintiffs’?Fourth Amendment?rights.  

A majority of this panel of the Ninth Circuit Court of Appeals disagreed. As noted by the court: “Qualified immunity shields government officials (from civil liability) under?(42 U.S.C.) § 1983?unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” (Italics added: Hernandez v. Town of Gilbert (9th Cir. 2021) 989 F.3rd 739, 743; quoting District of Columbia v. Wesby (2018) 583 U.S. 48, 62-63.)  

The court here held that contrary to the trial court’s ruling, the use of a “high-risk vehicle stop” in circumstances such as occurred here has been “clearly established” by prior case law to constitute a Fourth Amendment violation. Specifically, the court noted that the U.S. Supreme Court has provided a three-part test for such situations in its decision in Graham v. Connor (1989) 490 U.S. 386.  

Specifically, a court is to consider: (1) “the severity of the crime at issue,” (2) whether the suspects posed “an immediate threat to the safety of the officers or others,” and (3) whether the suspects are “actively resisting arrest or attempting to evade arrest by flight.” In this case, the court held that although vehicle theft is an “arguably severe” crime, the officers had no articulable basis to suspect that the plaintiffs posed a threat to anyone beyond the generic threat that any suspected vehicle thief poses.  

Also, the plaintiffs were not “uncooperative or tak[ing] action at the scene that raise[d] a reasonable possibility of danger or flight.” Chinaryan pulled over even before the officers flashed their lights to initiate the stop. Once stopped, she and her passengers complied with all of officers’ commands.  

Of concern to the court was the fact that the officers had no information that plaintiffs were “currently armed” or that “a crime that may involve violence?[was] about to occur.” Nor was this a situation “where the stop closely follow[ed] a violent crime.” The owner of the stolen Suburban was not even present when his vehicle was taken, and the theft took place multiple nights before the officers encountered plaintiffs.  

The Ninth Circuit felt that even if the plaintiffs’ vehicle was the one that had been stolen, as the officers suspected, the passage of time gave rise to the possibility that the occupants were unconnected to the crime. Further, any safety-based justification to restrain plaintiffs in handcuffs weakened considerably once the DMV error had become apparent and the officers ascertained that plaintiffs were cooperative and unarmed.  

Yet the officers did not immediately remove the handcuffs from the plaintiffs, “inexplicably restrain(ing them) for several additional minutes.” As ruled by the court: “Construing the facts in the light most favorable to plaintiffs, as the court must do under these circumstances, the officers’ reasonable suspicion that plaintiffs had stolen the Suburban, standing alone, was ‘not enough to justify such intrusive tactics.’”? 

Under these circumstances, the officers are entitled to qualified immunity only if it was unclear that employing these tactics violated plaintiffs’?Fourth Amendment?rights. The court first provided the rules on what is required for a “right to be clearly established,” noting first that “existing ‘precedent must have placed the statutory or constitutional question beyond debate,’ such that ‘every’ reasonable official, not just ‘a’ reasonable official, would have understood that he was violating a clearly established right.” (Thompson v. Rahr (9th Cir. 2018) 885 F.3rd 582, 587; quoting?Ashcroft v. al-Kidd“(c)ourts cannot ‘define clearly established law at a high level of generality.’ . . . . The legal principle must ‘clearly prohibit the officer’s conduct in the particular circumstances before him.’” (District of Columbia v. Wesby (2018) 583 U.S. 48, 63.)  “Although there need not be a (prior) case (decision) directly on point,?. . . or even one with ‘fundamentally similar’ facts,?. . . a plaintiff claiming excessive force normally must identify a ‘case that addresses facts like the ones at issue’ such that the officer was ‘put . . . on notice that his specific conduct was unlawful.’ . . .  The facts of the prior case cannot be ‘materially distinguishable.’” (See Perez v. City of Fresno (9th Cir. 2024) 98 F.4th 919, 924; Cates v. Stroud (9th Cir. 2020) 976 F.3rd 972, 978; Rivas-Villegas v. Cortesluna (2021) 595 U.S. 1, 6.)  As for the prior case law that should have put the officers on notice in this case that their actions violated the Fourth Amendment, the Court first cited Green v. City & County of San Francisco (9th Cir. Feb. 12, 2014) 751 F.3rd 1039.  (Briefed at California Legal Update, Vol. 19, #11; Oct. 10, 2014.)  In Green, the plaintiff was subjected to a high-risk traffic stop after an automated license plate reader misread her license number by one digit and erroneously identified the plate as belonging to a stolen vehicle.  The plaintiff was then subjected to a high-risk felony stop just as Chinaryan was in this case.  The Ninth Circuit reversed the trial court’s summary judgment finding, rejecting the civil defendants’ argument that “the crime of vehicular theft is enough in itself to support a finding that Green posed an immediate threat.” While Green was more a case dealing with the flaws of an Automatic License Plate Reader (it alone not amounting to even a reasonable suspicion), the point made here is that suspicion (or even probable cause) that a vehicle that is about to be stopped is stolen is insufficient by itself to justify a high-risk vehicle stop.  For such a procedure to be legal, there must be some reason to believe the occupant of the vehicle is armed or otherwise poses “an immediate threat” to the officers.  The Court also cited Washington v. Lambert (9th Cir. 1996) 98 F.3rd 1181.  Washington, despite not being an auto theft case, does note that; “The law was . . . clearly established that if the?Terry-stop suspects are cooperative and the officers do not have specific information that they are armed or specific information linking them to a recent or inchoate dangerous crime, the use of such aggressive and highly intrusive tactics is not warranted, at least when, as here, there are no other extraordinary circumstances involved.” The Court here rejected the civil defendants’ attempts to differentiate the current case from Green and Washington, noting simply that the issue is whether there is a “likelihood that the suspected vehicle thieves were armed or dangerous or that any other special circumstances called for the use of high-risk tactics.”  Despite this case involving a possibly stolen vehicle, the Court found no such “special circumstances.”  But neither does this fact settle the issue.  Whether or not officers use of a high-risk vehicle stop was warranted is an issue that must be decided by a jury.  Other factors suggested by the civil defendants that made the high-risk vehicle stop necessary (e.g., whether “[t]he approaching nightfall” would have made it “more difficult to search for someone if they fled the vehicle;” the tinted windows making it difficult for the officers to see who was inside; the officers’ “training and personal experience” that “stolen vehicles are often linked with armed and dangerous individuals;” and whether other “generic dangers posed by stopping a cold-plated vehicle may or may not justify a high-risk stop”), are all “inherently factual issues” that are best left for a jury to decide.   As such, the trial court’s granting of the defendant’s motion for summary judgment was error.  The case, therefore, must be set for trial for a jury’s consideration of the above.(c)ourts cannot ‘define clearly established law at a high level of generality.’...The legal principle must ‘clearly prohibit the officer’s conduct in the particular circumstances before him.’” (District of Columbia v. Wesby (2018) 583 U.S. 48, 63.)  

“Although there need not be a (prior) case (decision) directly on point...or even one with ‘fundamentally similar’ facts...a plaintiff claiming excessive force normally must identify a ‘case that addresses facts like the ones at issue’ such that the officer was ‘put...on notice that his specific conduct was unlawful.’...The facts of the prior case cannot be ‘materially distinguishable.’” (See Perez v. City of Fresno (9th Cir. 2024) 98 F.4th 919, 924; Cates v. Stroud (9th Cir. 2020) 976 F.3rd 972, 978; Rivas-Villegas v. Cortesluna (2021) 595 U.S. 1, 6.)  

As for the prior case law that should have put the officers on notice in this case that their actions violated the Fourth Amendment, the court first cited Green v. City & County of San Francisco (9th Cir. Feb. 12, 2014) 751 F.3rd 1039. (Briefed at California Legal Updates, Vol. 19, #11; Oct. 10, 2014.) In Green, the plaintiff was subjected to a high-risk traffic stop after an automated license plate reader misread her license number by one digit and erroneously identified the plate as belonging to a stolen vehicle. The plaintiff was then subjected to a high-risk felony stop just as Chinaryan was in this case.  

The Ninth Circuit reversed the trial court’s summary judgment finding, rejecting the civil defendants’ argument that “the crime of vehicular theft is enough in itself to support a finding that Green posed an immediate threat.” While Green was more a case dealing with the flaws of an Automatic License Plate Reader (it alone not amounting to even a reasonable suspicion), the point made here is that suspicion, or even probable cause, that a vehicle that is about to be stopped is stolen is insufficient by itself to justify a high-risk vehicle stop. For such a procedure to be legal, there must be some reason to believe the occupant of the vehicle is armed or otherwise poses “an immediate threat” to the officers.  

The court also cited Washington v. Lambert (9th Cir. 1996) 98 F.3rd 1181. Washington, despite not being an auto theft case, does note that “The law was...clearly established that if the?Terry-stop suspects are cooperative and the officers do not have specific information that they are armed or specific information linking them to a recent or inchoate dangerous crime, the use of such aggressive and highly intrusive tactics is not warranted, at least when, as here, there are no other extraordinary circumstances involved.”  

The court here rejected the civil defendants’ attempts to differentiate the current case from Green and Washington, noting simply that the issue is whether there is a “likelihood that the suspected vehicle thieves were armed or dangerous or that any other special circumstances called for the use of high-risk tactics.” Despite this case involving a possibly stolen vehicle, the court found no such “special circumstances.”  

But neither does this fact settle the issue. Whether officers' use of a high-risk vehicle stop was warranted is an issue that must be decided by a jury. Other factors suggested by the civil defendants that made the high-risk vehicle stop necessary (whether “approaching nightfall” would have made it “more difficult to search for someone if they fled the vehicle,” the tinted windows making it difficult for officers to see who was inside, the officers’ “training and personal experience” that “stolen vehicles are often linked with armed and dangerous individuals” and whether other “generic dangers posed by stopping a cold-plated vehicle may or may not justify a high-risk stop”), are all “inherently factual issues” that are best left for a jury to decide.  

As such, the trial court’s granting of the defendants’ motion for summary judgment was in error. The ruling said the case, therefore, must be set for trial for a jury’s consideration of the above.