LEGALUPDATES.COM

• Impounding vehicles due solely to outstanding unpaid parking citations is unconstitutional. 
• The Community Caretaking Doctrine and impounding lawfully parked vehicles Vehicle Code § 22651(i) and the warrantless impound of vehicles 
• A graduated forfeiture process and the impoundment of vehicles

The warrantless impoundment of a vehicle for unpaid parking citations violates the Fourth Amendment. The Community Caretaking Doctrine does not provide an exception to this rule absent evidence that the vehicle in question is parked illegally, blocking traffic or passage or stands at risk of theft or vandalism. 

The deterrent effect of towing vehicles with unpaid parking citations is insufficient to bring it within the scope of the community caretaking exception. Also, the towing of cars with outstanding unpaid parking citations is not justified as a graduated forfeiture process. 

Vehicle Code § 22651(i)(1) provides statutory authority for the towing and impoundment of any vehicle “found upon a highway or public land” whenever “it is known that the vehicle has been issued five or more notices of parking violations to which the owner or person in control of the vehicle has not responded within 21 calendar days” of issuance. 

Subdivision (i)(3) provides for a written “warning that repeated violations may result in the impounding of the vehicle” that is to accompany a notice of a parking violation, i.e., when the car is cited.   

Once a vehicle has been towed, local authorities may keep it in storage until the fines for the outstanding tickets are paid (V.C. § 22651(i)(1)(C)) or a “hearing examiner” rules that the person is not required to pay for the parking violations. (V.C. § 22651(i)(3)). During such a hearing, “the storing agency shall have the burden of establishing the authority for, and the validity of, the removal.” (V.C. § 22650(c))  

Absent a ruling from the hearing examiner in favor of the vehicle’s owner, “the vehicle may be sold...to satisfy” liens for towing and storage, and for the outstanding parking violations. (V.C. § 22851.1(a))  

The plaintiff/appellant in this lawsuit, the Coalition on Homelessness, sued to prevent the City and County of San Francisco (the defendant/respondent) from towing vehicles under the authority of the above statutes, absent San Francisco’s compliance with the rules as provided for under the Community Caretaking Doctrine. The trial court denied the plaintiff/appellant’s motion for a writ of mandate and declaratory and injunctive relief. In other words, the lawsuit as filed by the Coalition on Homelessness was dismissed. The Coalition appealed. 

The First District Court of Appeal (Div. 5) reversed the trial court’s decision. 

The Community Caretaking Doctrine: The principal issue on appeal was whether the challenged warrantless tows, as authorized by V.C. § 22651(i), are permissible under the so-called “vehicular community caretaking” exception to the Fourth Amendment’s warrant requirement. 

The respondent (the City and County of San Francisco) argued that their interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception. The appellant (the Coalition on Homelessness) countered with the argument that the towing of legally and safely parked motor vehicles — no matter how many outstanding unpaid parking citations existed — fails to satisfy the community caretaking requirements for towing and impounding the vehicles in issue, at least without first obtaining a warrant.   

The appellant alleged the warrantless tows — by failing to meet the community caretaking requirements — violated article I, section 13 of the California Constitution, and, by extension, the Fourth Amendment.   

The First District Court of Appeal agreed with the appellant. In the argument on appeal, the respondents conceded that city/county officials don’t seek a warrant prior to towing a vehicle under authority of V.C. § 22651(i)(1), and that such vehicles are towed without regard to whether they are legally or safely parked at the time of the tow and without regard to whether the vehicle was involved in any crime.   

The basic law on this issue is well settled. The Fourth Amendment (as well as Section 13 of Article I of the California Constitution) protects against unlawful seizures as well as searches.  “A property seizure (the type of action challenged in the present case) ‘occurs when “there is some meaningful interference with an individual’s possessory interests in [his or her] property.”’” (Soldal v. Cook County, Illinois?(1992) 506 U.S. 56, at p. 61.)  “The impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.”  (Miranda v. City of Cornelius?(9th Cir. 2005) 429 F.3rd 858, 862.)  

It was therefore undisputed that the respondent’s practice of towing vehicles constitutes a “seizure.” As such, the general rule is that pursuant to the Fourth Amendment, a warrant is required.  

An exception to the general rule, however, has been established under what has become known as the Community Caretaking Doctrine. First described by the U.S. Supreme Court in Cady v. Dombrowski?(1973) 413 U.S. 433, the High Court allowed for the warrantless towing of vehicles under limited circumstances. This relaxed constitutional rule, when compared with one’s residence or office, is justified by the lessened expectation of privacy in a vehicle, resulting from the “pervasive governmental regulation” of vehicles capable of traveling on public highways.  

Also from Cady v. Dombrowski, supra, at pg. 441: “Local police officers,?unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community?caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” As a result, it is recognized that there is a diminished right to privacy in vehicles as compared to one’s home or business. (South Dakota v. Opperman (1976) 428 U.S. 364.)  

As noted by the Supreme Court: “To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances, and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” (Id.?at pp. 368-369.) 

As a result of all this, the community caretaking theory allows for the towing of a vehicle only under limited specific circumstances; i.e., when a vehicle is parked illegally, is blocking traffic or passage, or stands at risk of theft or vandalism.  (People v. Lee (2019) 40 Cal.App.5th 853; People v. Torres (2010) 188 Cal.App.4th 775; People v. Williams (2006) 145 Cal.App.4th 756.)  

Contrary to the arguments made by the city/county, the fact that a vehicle has outstanding, unpaid traffic tickets does not fall into any of these categories. The community caretaking theory, therefore, cannot be constitutionally used to impound vehicles merely because its owner has failed to pay for his or her parking tickets despite the Legislature’s attempt to allow for such an impoundment by statute.   

And there is no other authority for the argument that outstanding parking tickets allows a warrantless tow?of a legally parked car. In so ruling, the High Court rejected the respondent’s arguments to the effect that towing cars that accrue numerous unpaid tickets will deter violations of parking laws and that tows to achieve such deterrence are within the scope of the caretaking exception.   

Not doubting that the threat of impoundment may encourage compliance with parking laws, the court could find no authority to the effect that such deterrence is a sufficient basis for a warrantless tow?of a legally parked car?under the vehicular community caretaker exception. The Court held instead that “the deterrence rationale is incompatible with the principles of the community caretaking doctrine.”  

On the other side of this coin, the Court noted that “vehicle tows are a significant intrusion on property rights that may seriously impact the lives of the owners.” “The private interest in the uninterrupted use of an automobile is substantial. A person's ability to make a living and his access to both the necessities and amenities of life may depend upon the availability of an automobile when needed.”  (Stypmann v. City & County. of San Francisco?(9th Cir. 1977) 557 F.2nd 1338, 1342-1343.) Per the Court: “The Fourth Amendment warrant requirement protects those property interests.” Attempting to bypass this constitutional principle under the guise of some unpaid parking citations cannot be justified.”   

A Graduated Forfeiture Process 

Also, the Court rejected the respondent’s argument that the towing of vehicles for unpaid parking citations is lawful under “a sort of graduated forfeiture process...which both deters drivers from committing traffic and parking infractions in the first instances and induces delinquents to pay penalties once incurred.”   

The respondent’s argument on this theory was based upon a single case out of the federal Washington D.C. Circuit Court of Appeal, Tate v. D.C.?(D.C. Cir. 2010) 627 F.3rd 904.  Under Tate; “[t]he District’s practice of auctioning a vehicle when tickets go unpaid is the culmination of a sort of graduated forfeiture process...which both deters drivers from committing traffic and parking infractions in the first instance and induces delinquents to pay penalties once incurred.”  (Id., at p. 909) The Tate court concluded: “Like other?forfeiture statutes, the District’s booting and towing provisions can be effected by the warrantless seizure of a vehicle subject to impoundment thereunder.” (Id., at p. 911.) The court here rejected Tate’s reasoning, finding that the Tate court based its decision upon a misinterpretation and unjustified extension of a U.S. Supreme Court decision involving the warrantless impoundment of a vehicle that was determined by the High Court, under the circumstances, to be contraband itself.  (See Florida v. White?(1999) 526 U.S. 559, “The police had probable cause to believe the vehicle was contraband subject to forfeiture under the Florida Contraband Forfeiture Act because they had observed it being used to deliver cocaine on three occasions.” (Pg. 561.) 

Conclusion 

Finding no other authority for forfeiting a vehicle merely due to unpaid parking citations, the court here held that there was no legal justification for impounding the appellants’ vehicles.  The trial court’s judgment was therefore reversed, and the matter was remanded for further proceedings consistent with this decision. 

I briefed this case because it provides an opportunity to emphasize three important legal concepts upon which I occasionally get challenged.   

(1) The Community Caretaking Doctrine allows for the impoundment of vehicles only under limited circumstances, despite much broader statutory authority for such an impoundment. I still get officers arguing with me that because a California statute provides for the towing of a vehicle (such as Vehicle Code § 22651(i), as discussed in this case), such an impounded is lawful.  However, as noted so graphically above, it is a hard-and-fast rule that a state statute does not take precedence over a constitutional principle. The community caretaking theory provides a judicially recognized exception to the Fourth Amendment seizure rules. Absent the applicability of an exception in your case, the constitutional principles (such as the Fourth Amendment) take precedence over a state statute. Period. No exceptions. 

(2) As discussed above, community caretaking only applies when the impoundment of a vehicle is parked illegally, blocking traffic or passage, or stands at risk of theft or vandalism.  Impounding a vehicle merely because the driver and/or other occupants were arrested is illegal absent one or more of the above limited circumstances, or where some other legal theory applies (e.g., where the vehicle itself is evidence of a crime.)   

(3)  Lastly, note that the U.S. Supreme Court has held that the Community Caretaking Doctrine applies to vehicles only, and not to residences or businesses. (Caniglia v. Strom (May 17, 2021) __ U.S. __ [141 S.Ct. 1596; 209 L.Ed.2nd 604].) The California Supreme Court ruled similarly even before Caniglia. (See People v. Ovieda (2019) 7 Cal.5th 1034.)  

As noted by the Court here, “there is no recognized exception to the warrant requirement?for community caretaking?outside the vehicular context.”  “Based on those recent and authoritative pronouncements, it would be inaccurate?to state there is a recognized ‘community caretaking’ exception to the (Fourth Amendment) warrant requirement. Instead, there is only a recognized?vehicular?community caretaking exception.”  

Conclusion 

Despite all this, I still get arguments from various law enforcement officers that they routinely impound vehicles any time the driver is arrested, no matter what the circumstances, and that their department allows (or even encourages) them to do so.  (E.g., see Veh. Code § 22651(h)(1))   

All I can say is that in the circumstances often described to me by such officers, they likely were not criticized only because no one up the chain was even thinking about the community caretaking rules, it never became an issue in a court proceeding (e.g., no evidence was found that was subject to suppression or no case was ever filed), or no one has yet sued them. But violate these rules long enough and your day will come.  

An officer is not required to take the potentially dangerous route of failing to shoot simply because there is reason to believe that a weapon pointed at the officer by a suspect may not be real. 

• Fourth Amendment seizure by shooting a suspect 
• Use of deadly force by law enforcement officers 
• Brandishing a replica firearm and an officer’s use of deadly force in response 

When a suspect points a firearm at an officer, the Constitution entitles the officer to respond with deadly force. The officer, however, need only have “probable cause” to believe that the weapon used by the suspect was, in fact, a real firearm. The officer is entitled to be reasonably mistaken about the nature of the threat. The fact that the weapon used appeared to be nothing more than a replica firearm does not make it unreasonable for the officer to assume otherwise.  

Gabriel Strickland was well known to the Nevada County Sheriff’s Office as a homeless man with serious mental issues, including bipolar disorder, PTSD, and anxiety disorder. Since at least 2016, he’d been in and out of custody and undergone a number of mental evaluations.  

On Dec. 26, 2019, he was arrested again (unknown for what) and incarcerated at a correctional facility in Nevada City, Ca. At that time, Wellpath Management, Inc., a contractor providing medical services at the facility, performed a physical and mental intake assessment, determining that Strickland was uncooperative, angry, and had active mental health issues. It was further determined that he needed an urgent and more complete mental health evaluation. However, he was released after four days by the Nevada County Superior Court following a pretrial release hearing without further mental health evaluation.  

Two days later, on Jan. 1, 2020, the Nevada County Regional Dispatch received reports of a man walking on a residential road near a neighboring town –­­ Grass Valley – ­ with “what appeared to be a shotgun” slung over his shoulder. Officers from the Grass Valley Police Department and the Nevada County Sheriff’s Office arrived at the scene, finding Strickland to be carrying what appeared to be a black plastic airsoft rifle marked with a telltale orange tip to its barrel, signifying that it was a replica and not a real firearm. At least some of the officers recognized Strickland from prior contacts and knew that he had mental issues and thus “would” (or should) “have known that Strickland?was likely suffering from a mental health episode and would not likely respond to their commands in a ‘normal or expected manner.’”  

With guns drawn, five officers surrounded Strickland while repeatedly yelling at him to drop the gun. Strickland initially held the gun away from his body, telling the officers that it was a BB gun, and pointing to the orange tip as he slapped it with his hand making a noise that sounded more like plastic than metal. Taking no chances, the officers nonetheless continued to yell at him to drop the gun, that they didn’t want to kill him, and that he could have painted the orange tip. Strickland responded that he was “not doing nothing wrong.”  

Up to this point, Strickland merely stood there while pointing the gun toward the ground. As the officers began to tighten a circle around him, Strickland dropped to his knees. But then he started waving the gun around, pointing it at times toward the sky and then toward several of the officers. One officer deployed a Taser but missed. Seconds later, Strickland lowered the barrel, pointing it directly toward the officers, resulting in three of the officers opening fire.  

Struck several times, Strickland was taken to a nearby hospital where he was pronounced dead. The whole encounter, from the initial contact until Strickland was shot, lasted a little more than three minutes. A year later, Strickland’s mother, child, and estate sued the officers and their departments in federal court pursuant to 42 U.S.C. § 1983. The district (trial) court dismissed the case, and the plaintiffs appealed. 

The Ninth Circuit Court of Appeal affirmed.  

In so holding, the court first noted that shooting someone qualifies as a “seizure” of that person, and thus falls within the gambit of the Fourth Amendment. To be lawful under the dictates of the Fourth Amendment, such a seizure must be “reasonable.” A seizure is not reasonable if excessive force is used. The U.S. Supreme Court in Graham v. Connor (1989) 490 U.S. 386, long ago established the standards to be applied in such a circumstance, first noting that “(t)his inquiry requires balancing ‘the nature and quality of the intrusion on the individual’s?Fourth Amendment?interests against the countervailing governmental interests at stake.’” (pg. 396)  

In making this determination, the Graham Court determined that the following factors must be considered; (1) “the type and amount of force inflicted,” (2) “the severity of the crime at issue,” (3) “whether the suspect posed an immediate threat to the safety of the officers or others” and “whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” (Ibid.)  

But this list was not intended to be exhaustive, leaving open a court’s obligation to also consider other relevant factors such as (4) “the availability of less intrusive alternatives to the force employed,” (5) “whether proper warnings were given,” and (6) “whether it should have been apparent to officers that the person they used force against was emotionally disturbed.” (S.B. v. County of San Diego (9th Cir. 2017) 864 F.3rd 1010, 1013.)  

The Ninth Circuit first determined in this case that some of the Graham factors support the plaintiffs’ argument that the force used against Strickland was unconstitutionally excessive. First, Strickland was known to the officers to be homeless and mentally ill. Secondly, Strickland was not suspected of having committed a serious crime. At least at the start of this confrontation with police, Strickland had not yet brandished the gun at anyone nor threatened the life or property of others. Third, the Court noted that the officers had failed to employ de-escalation techniques, wait for supervisors, or call in for the backup of someone with crisis or mental health training (assuming at this point that it was practical to do any of these things under the circumstances). 

To the contrary, the officers seemingly exacerbated the situation by aggressively shouting directions at Strickland immediately upon their arrival. Lastly, under Graham, the officers employed deadly force, firing several rounds at Strickland and killing him. Based upon all this, the Court determined that “the bulk of the Graham factors favor(ed) Strickland.”  

However, that does not end the inquiry. The more important question is, per the Court; “whether the immediacy of the threat that Strickland posed outweigh(ed) those considerations here.”  

The Court held that they did, ruling that “(o)f all the use-of-force factors, the ‘most important’ is whether the suspect posed an ‘immediate threat.’” “Although the Constitution does not allow an officer to use lethal force to seize an unarmed, non-dangerous suspect by shooting him dead,” that is not what occurred here. Under the circumstances of this case, the “objective factors” justified the officers’ reasonable “fear for (their) safety or the safety of others.”?(Citing Deorle v. Rutherford (9th Cir. 2001) 272 F.3rd 1272, at 1281.) “In other words, ‘the objective facts indicate(d) that the suspect (i.e., Strickland) pose[d] an immediate threat to the officer(s) or a member of the public.’” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3rd 805, 826.)  

While noting that the circumstances in a case such as this are not “static,” with the reasonableness of the force used “chang(ing) as the circumstances evolve,” the basic rule is that “when a suspect points a gun in an officer’s direction, ‘the Constitution undoubtedly entitles the officer to respond with deadly force.’” (George v. Morris (9th Cir. 2013) 736 F.3rd 829, 838.)  

As to whether it was an actual firearm being pointed at the officers, the standard of proof is “probable cause.” It is “well settled that lethal force is justified if an officer has ‘probable?cause to believe that [a] suspect poses a significant threat of death or serious physical injury to the officer or others.’” (Long v. City & County. of Honolulu (9th Cir. 2007) 511 F.3rd 901, 906.)  

Also, the reasonableness standard does not always require that the officers delay their fire until a suspect actually turns his weapon on them. “If the person is armed – ­­ or reasonably suspected of being armed – ­­ a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.” (George v. Morris, supra.) Further, the officers are entitled to be reasonably mistaken about the nature of the threat.  

The issue in this case was whether the fact that the weapon Strickland brandished appeared to be nothing more than a replica of a firearm (i.e., a BB gun), as indicated by the orange tip of the barrel and Strickland’s assertions that that was all he was carrying, made it unreasonable for the officers to assume otherwise. To this, the Court held that the officers were not required to take that chance.  

Per the Court, the officers were reasonably justified in not taking Strickland’s assurances at face value, or even the fact that the barrel of the gun had an orange tip, in that a “misplaced trust in this circumstance could (have been) fatal for the officers.” Based upon all this, “under the totality of the circumstances, it was objectively reasonable for the officers to believe?Strickland posed an?immediate threat” despite that, afterward, it turned out to be otherwise.  

Shooting Strickland was held to be justified as a matter of law. The district court, therefore, correctly dismissed the plaintiffs’ lawsuit. 

I have to say that this case surprises me a bit. While I’m happy with the results (for the officers’ sake), it’s interesting to note that of the five officers at the scene, only three of them opened fire when Strickland pointed his BB gun at them.  

I probably would have been one of the two who declined to react with deadly force, having a history (when I was a cop way back in the ’70s) of not shooting potentially dangerous persons in situations where I could have legally done so – ­­decisions, by the way, for which I have never had any regrets. At least three of these situations involved potentially dangerous fleeing felons, one case where it was known that the suspects had just committed an armed robbery. In two of these cases, including the armed robbery, the suspects were taken into custody with no one getting hurt. In the third, the suspects were later arrested by detectives. Another case, for which I was later chastised by my sergeant for not having used deadly force, involved a dope-crazed 17-year-old girl, waiving two kitchen knives at me and my partner in close quarters. Ultimately, she – ­­along with her equally crazy mother and brother, who tried to interfere – ­­was physically subdued without having to shoot her, although I was told after the fact that I broke her arm while handcuffing her.  

But my personal reluctance to shoot and kill another human being is totally irrelevant to the rule of this case decision – ­­that an officer is not required to take the potentially dangerous route of failing to shoot simply because there is reason to believe that a weapon pointed at the officer by a suspect is not real. This is a good decision for law enforcement officers.  

Case Law and Legal Issues: A private citizen’s refusal to cooperate in an investigation does not provide an officer with probable cause to arrest, use of excessive force, or retaliate.  

• Arrests 
• Probable Cause to Arrest 
• Refusing to Cooperate as Probable Cause to Arrest 
• Excessive Force in Making an Arrest 
• Retaliatory Arrests 

• Absent the use of physical force or a submission to the assertion of authority, a person is not arrested. 
   
• Qualified immunity protects an officer from civil liability when it is objectively reasonable for an officer to believe that he or she had probable cause to make an arrest.  
   
• In determining how much force may be used in making an arrest, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight, all are to be considered.  
   
• Arresting someone in retaliation for them having expressed an opinion or making a comment violates that person’s First Amendment right to freedom of expression. 

On April 30, 2019, someone (not named) observed a “dark grey Ford Mustang” being driven “erratically” in Fountain Valley, California, by a white male with black hair between the ages of 25 and 30. More importantly, the caller reported seeing a blindfolded female passenger in the car. The caller was able to record the license number and report that as well. A registration check provided the police with the name of the owner, Benjamin Hill, and an address.  

Fountain Valley Police Department Officers Stuart Chase and Gannon Kelly drove to Hill’s home to check the well-being of the passenger. Unbeknownst to the officers, Hill was taking his blindfolded wife to a restaurant for a surprise anniversary dinner.  

As the officers arrived at the residence, Teresa Hill – Benjamin’s mother – happened to be pulling into the driveway with her grandchildren in tow. She verified that Benjamin did in fact live there, and that he owned a grey Mustang. Asked for Benjamin’s cellphone number, she declined to answer the question, wanting to first warn her son about the officers before they had a chance to call him. Why she wanted to warn him is never explained. Stephen Hill – Benjamin’s father – then came out of the house. The officers told the couple that they were investigating a report of “erratic driving,” and that they needed to talk to Benjamin. Stephen didn’t believe the officers. As Teresa went inside, intending to call Benjamin and warn him about the police looking for him, Stephen continued to talk with the officers, demanding that they tell him “what was really going on.”  

So, the officers told him about the report of a blindfolded female passenger in the car. Still declining the officers’ requests for Benjamin’s cellphone number, Stephen told the officers that his son was merely out with his wife and that he would pass along the officers’ business cards. The officers told Stephen to take his granddaughter inside the house and return with Stephen’s cellphone number. Stephen went inside.  

About then, the officers noticed someone in the house through a bedroom window. Chase approached the window and saw a young male who matched Benjamin’s description. Believing this person to be Benjamin, the officer told him through the window to come out of the house. But the young male – who turned out to be Benjamin’s brother, Brett – walked out of sight. Stephen was then seen entering the bedroom and closing the curtains, not hearing (or ignoring) Chase ask through the window who the other person was.  

With this lack of cooperation, the officers suspected that Benjamin’s parents were hiding him from them. Seeing Teresa, Stephen and the as-of-yet unidentified young male through a window of the apparently locked front door, the officers threatened to arrest them all for “obstruction” if they didn’t come out.  

Stephen and Brett then came out, with Stephen attempting to close the door behind him as he told the officers they could not go in. As he did so, Officer Kelly placed his foot in the doorjamb, preventing it from being fully closed. Stephen later denied that he closed the door on Kelly’s foot. The officers then grabbed Stephen, led him to the lawn and took him to the ground while kneeling on his back as they handcuffed him. Teresa and Brett then came out of the house. Stephen later said that in the process of being arrested, his glasses cut his forehead and that he suffered injuries to his neck and back. It is unknown whether Benjamin was ever contacted. 

The Hills sued the officers and the city of Fountain Valley in federal court pursuant to 42 U.S.C. § 1983, for using excessive force on Stephen and the unreasonable seizure of all the Hills on Fourth Amendment issues. The lawsuit also alleged First Amendment retaliation on behalf of Stephen. The officers’ summary judgment motion was granted, dismissing the entire case, and the Hills appealed the Fourth and First Amendment issues. 

The Ninth Circuit Court of Appeal, in a 2-to-1 decision, affirmed the dismissal.  

Fourth Amendment issues: Brett, Teresa, and Stephen Hill all maintained that the police officers violated their?Fourth Amendment?rights against unreasonable seizure when they were ordered to exit the home or face arrest for obstruction. (Benjamin, who was not a party to the incident at the Hills’ residence, was not a part of this lawsuit.)  

The court summarily disposed of Brett and Teresa’s argument, noting that they neither of them were ever seized. As such, they cannot say that they were unlawfully arrested. In so ruling, it was noted that for a seizure to occur, there must be “either physical force...or, where that is absent, submission to the assertion of authority.” (California v. Hodari D. (1991) 499 U.S. 621, 626.) Neither Brett nor Teresa were ever physically arrested nor submitted to the threat of an arrest. They stayed locked behind their front door, only to exit for the purpose of checking on Stephen when he was physically subdued by the officers. Thus, the court ruled that “Brett and Teresa were not seized and they cannot pursue their?Fourth Amendment?claims.”  

As for Stephen, however, he was arrested, being taken down physically and summarily handcuffed. “Law enforcement can make a warrantless...arrest if the officers faced exigent circumstances and had probable cause supporting the arrest.”?(Payton v. New York (1980) 445 U.S. 573, 589-590.) The court held that the officers here did not have probable cause to arrest Stephen for obstruction. That’s because “it is well established under California law that even an outright refusal to cooperate with police officers cannot create adequate grounds for police intrusion without more.”?(Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3rd 1010, 1023.)  

California law has also held that passively blocking a door or refusing to open a door after a proper police demand are examples of permissible refusals to cooperate with police.?(People v. Wetzel (1974) 11 Cal.3rd 104.)  

Even so, however, the court found that “qualified immunity” protects an officer from civil liability when it is objectively reasonable for an officer to believe that he or she had probable cause to make an arrest. Here, the two-judge majority held that the rules as described above were not so sufficiently settled as to put the officers on notice that arresting Stephen for obstruction of justice was unlawful. “Given these unique facts and the urgency to act, we do not believe?that all reasonable officers would agree that there was no probable cause in this instance.” The officers, therefore, were entitled to qualified immunity. The dissenting justice disagreed on this issue and would have found civil liability for having made a false arrest. 

Excessive Force claims: Stephen Hill also alleged that when the officers arrested him, they used excessive force in doing so, also a violation of the Fourth Amendment. Issues of excessive force “require a careful balancing of ‘the nature and quality of the intrusion on the individual’s?Fourth Amendment?interests against the countervailing governmental interests at stake.’” (Graham v. Connor (1989) 490 U.S. 386, 388, quoting Tennessee v. Garner (1985) 471 U.S. 1, 8.)  

The Supreme Court has provided an “inexhaustive list” of government interests that might justify an officer’s use of force, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Ibid; citing?Garner at pages 8-9). The Court further noted what all law enforcement officers have known from the first day on the job: that “police officers are often forced to make split-second?judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”?(Id.?at 396-397.)  

With these basic rules in mind, the court held that Stephen experienced only an inadvertent cut on his head from the take-down on the grassy lawn, injuries that were minimal when compared to other use-of-force cases. The court ignored his claims of back and neck injuries. Further, Stephen’s noncompliance occurred during an investigation into a potential kidnapping, not a minor offense. Although the situation at the Hills’ home was tense and escalating, it was not as dangerous as in other cases.?With all this in mind, the court found the balance of interests favored the government. The court thus concluded that the officers did not violate Stephen’s?Fourth Amendment?right against excessive force, the force as used here being reasonable under the circumstances.  

First Amendment/Retaliation allegations: Stephen claimed that his arrest was conducted in retaliation for inquiring about why the officers really wanted to contact his son, and as such, his First Amendment freedom of speech rights were violated. The court disagreed. The rule is that if a plaintiff is able to establish the lack of probable cause for his arrest, “then the?Mt. Healthy?test governs.” (Referring to Mt. Healthy City Board of Education?v.?Doyle (1977) 429 U.S. 274.) Per Mt. Healthy: “The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant (officers) can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.”  

In ruling that this retaliation allegation was properly dismissed by the trial court in this case, the Ninth Circuit held that Stephen failed to show that “retaliatory animus” was a substantial factor behind his arrest, rejecting his claim that his comment “what was really going on” and saying that he wanted to make sure “everything’s on the up and up” had “perturbed the officers.” Stephen was unable to provide any evidence to show that the officers?were in fact perturbed, finding instead that “it seems dubious that the officers would be upset because of benign statements such as “what was really going on.”  

The court noted that “law enforcement officers are routinely subjected to much more vitriolic rhetoric” than occurred in this case. The court further noted that “even if the officers were ‘perturbed,’ no evidence suggests that they would not have arrested him absent those statements.” Rather, “(t)he record suggests the officers arrested Stephen because they believed, though mistakenly, that he was hiding a suspect in a potential kidnapping case.” 

Conclusion:  “The Hills (were) understandably aggrieved by what happened to them. But the law protects good-faith?mistakes by the Fountain Valley police officers investigating a potential kidnapping,” the ruling stated. The trial court’s granting of the Fountain Valley officers’ summary judgment motion, therefore, was upheld.  

I happen to be wearing a sweatshirt as I write this brief that says, “BREATHE EASY, DON’T BREAK THE LAW.” What this shirt reflects is my sincere belief that too many police-citizen confrontations are precipitated by the citizen’s lack of simple cooperation. Although private citizens are not legally required to cooperate with law enforcement, as noted above (at least generally), confrontations such as occurred here can most often be avoided if the citizen had just done so.  

In teaching classes to private – non-law enforcement – individuals, I tell them that if they feel they are being wronged in some way during a contact with a police officer, it is best to simply cooperate. Later, after the fact, they can file a formal citizen’s complaint. It is my experience that such citizen complaints are thoroughly and fairly investigated with appropriate disciplinary measures taken if the officer is found to be in the wrong. 

That way, no one gets arrested and, if the officer is found to have inappropriately handled the contact, recognizing he or she is also entitled to due process, the appropriate punishment will be administered later. Seems simple enough to me.