LEGALUPDATES.COM

• 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. 

Since this case was first published, I’ve received a number of disgruntled inquiries from law enforcement officers who vehemently disagree with the court’s conclusion that auto theft suspects aren’t inherently dangerous and/or that a high-risk vehicle stop of an auto theft suspect is not an appropriate tactic under the circumstances.  

While there is authority (generally in “dicta”) to the effect that traffic stops are always “potentially” dangerous, try as I might, I could not find any case to the effect that auto theft is an inherently dangerous felony. In fact, auto theft is not even always charged as a felony. (See V.C. § 10851, a felony/wobbler, and P.C. § 487(d)(1), with an intent to permanently deprive the owner of his vehicle, a straight felony).  

While it appears that the officers could have conducted a “Terry stop,” or “tactical investigatory stop,” as described above, a “high-risk felony” stop was not necessarily warranted by the circumstances here, according to the court’s reasoning.  

It should also be noted that this case does not specifically say that high-risk vehicle stops of an auto theft suspect is always going to be a Fourth Amendment violation. Rather, the court tells us that it might be, depending upon what justifications the officers can submit for why this tactic was used, and what a jury, after a full evidentiary trial, decides.  

So the only advice I can offer is that upon making a stop of an auto theft suspect, if the officer intends to get the occupants out of the car at gunpoint and have them lie in the street while being handcuffed, the officer must be ready to provide an “articulable reason” he or she has that caused the officer to believe the occupants of the vehicle are (or at least, might be) armed or otherwise dangerous.  

The simple fact that in the officer’s opinion, all auto theft suspects may be armed or dangerous is not enough. Also, the fact that the vehicle is cold-plated alone is not enough to make the situation dangerous. So, until we get another case with more clarification, this is the law.  ? 

• Pretextual Traffic Stops
• Prolonged Traffic Stops
• The Mission of a Traffic Stop
• California Vehicle Code § 2806.5 

The duration of a traffic stop is measured from the time the stop is made until the subject is either released or a reasonable suspicion of other criminal activity is developed, justifying a continued detention, whichever occurs first.  That point in time when a violation is first observed is irrelevant when measuring the duration of a traffic stop.  California Vehicle Code § 2806.5 does not make illegal a pretextual traffic stop, but rather only requires that an officer inform the detainee of the reasons for the stop and document the same in later reports. 

On March 31, 2023, at approximately 10:00 p.m., Santa Rosa Police Officer Brett Wright and his partner, Officer Dane Schindler, observed defendant Adrian Osvaldo Valle pumping gas into his vehicle at a local gas station.  Officer Wright (being a member of Santa Rosa Police Department’s Special Enforcement Team) recognized defendant as an active gang member, and knew that the gang he belonged to (a subset of the Sureño gang) was currently feuding at the time with another subset of that same gang.  He also noticed that defendant was missing the front license plate on his car; a violation of Veh. Code § 5200(a). 

Knowing that they were in an area known for its gang activity, Officer Wright suspected that defendant might be carrying a firearm.  So the officer decided that as soon as defendant left the gas station, he would make a traffic stop for the V.C. § 5200(a) violation.  While waiting, Officer Schindler called for a K-9 unit with a gun-sniffing dog. The plan was to stop defendant for the Vehicle Code violation and while writing him a citation, have the dog do an “open-air sniff” of his vehicle. 

In accordance with this plan, Officer Wright and Officer Schindler followed defendant out of the gas station and made a traffic stop in a parking lot less than a quarter mile away. The time of the stop was 10:03 p.m.  Upon stopping defendant, Officer Wright informed him why he was being stopped.  Obtaining defendant’s driver’s license and registration, the officer returned to his patrol car where he ran a license check. It was quickly determined that his license was valid but that he did indeed have prior arrests for drugs and firearms, with at least one felony conviction. Officer Wright then began writing the citation.  While this was happening, K-9 Officer Aaron Gonzales-Campos arrived on scene with his gun-sniffing dog "Ghost".  The time was 10:06 p.m.  As Officer Wright continued working on the citation, K-9 Officer Gonzales-Campos began running his dog around defendant’s vehicle.  Within a minute and a half, K-9 "Ghost" alerted to the driver’s side door.  The time was 10:10 p.m.  At this time, Officer Wright stopped writing the citation and began an investigation into the possible presence of a firearm in defendant’s car.  Upon searching the car, a loaded handgun that appeared to be functional was in fact found in the center console.  Defendant was arrested. 

Charged in state court with various firearms-related offenses (including being a felon in possession of a firearm), defendant filed a motion at his preliminary hearing to suppress the firearm.  The prelim magistrate granted defendant’s motion, ruling that the traffic stop was (1) unlawfully prolonged and (2) in violation of recently enacted Veh. Code section 2806.5.  The People appealed. 

The First District Court of Appeal (Div. 1) reversed.   

(1) Prolonged Traffic Stops:  It is well-settled that law enforcement officers may not extend the duration of a traffic stop for the purpose of conducting a dog sniff longer than it would have reasonably taken to write a citation, at least absent a newly developed reasonable suspicion of some other criminal activity.  Per the U.S. Supreme Court: “(A) police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”  (Rodriguez v. United States?(2015) 575 U.S. 348, 250-351, 353.)  In this case, the preliminary hearing magistrate measured the time of the traffic stop from when Officer Wright first observed the missing license plate at the gas station up until when the K-9 sniffed the gun in defendant’s car.  This was error.  “A traffic stop begins for purposes of the Fourth Amendment when an officer pulls a vehicle over for a traffic infraction.” (People v. McDaniel?(2021) 12 Cal.5th 97, 129-130; People v. Ayon?(2022) 80 Cal.App.5th 926, 936.)  The traffic stop did not begin merely upon the officer’s observation of a Vehicle Code violation.  The fact that Officer Wright may have delayed in making the stop in order to allow time for a gun-sniffing dog to be brought to the scene before the stop was made was held to be irrelevant.  In this case, the total elapsed time between the actual traffic stop and when the K-9 sniffed defendant’s gun was only 7 minutes, occurring before Office Wright had even finished the ticket.  The officer testified that it typically takes up to 10 minutes to write a citation, which the Court inferably found to be reasonable. And once the dog sniffed the gun, prolonging the stop longer for the purpose of investigating this newly developed information is lawful.  The traffic stop, therefore, was not unlawfully prolonged.   

(2): Vehicle Code section 2806.5:  The magistrate also ruled that Officer Wright unlawfully conducted a so-called “pretext stop,” in violation of the recently enacted Veh. Code § 2806.5 (effective Jan. 1, 2024; AB 2773).  Again, the magistrate was in error.  First, section 2806.5 does not make illegal pretextual stops. All section 2806.5 requires is that the officer “state the reason for the stop” and then “document the reason for the stop on any citation or police report resulting from the stop.”  (Subds. (a) & (b).)  Officer Wright complied with at least the first requirement, telling defendant up front as to why he was being stopped. (It is assumed that Officer Wright also documented this in his arrest report.) Also, The United States Supreme Court has long since held that, under the Fourth Amendment, “the constitutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers involved.” (Whren v. United States?(1996) 517 U.S. 806, 813.)  In other words, an officer’s “subjective” intent in making a traffic stop is irrelevant.  Even before Whren, the rule has been that; “[w]hether a Fourth Amendment violation has occurred ‘turns on an objective (emphasis added) assessment of the officer’s actions in light of the facts and circumstances confronting [him or her] at the time,’ . . . and not on the officer’s actual state of mind (i.e., “subjective intent”) at the time the challenged action was taken.” (Maryland v. Macon?(1985) 472 U.S. 463, 470-471.)  The Court here, therefore, held that “the only pertinent inquiry is whether the officer had an objective basis for conducting the traffic stop.”  The missing license plate (a violation of Veh. Code § 5200(a), consistently held to be legal justification upon which to base a traffic stop. [People v. Saunders (2006) 38 Cal.4th 1129, 1136; People v. Vibanco (2007) 151 Cal.App.4th 1, 8.]) supplied the required objective basis.   

Conclusion:  With the K-9 sniff itself not being contested, the Court determined that the traffic stop and subsequent search of defendant’s car were both lawful.  The case was remanded for further proceedings consistent with this opinion.

There is nothing surprising in this decision.  Officers Wright, Schindler, and Gonzales-Campos [and "Ghost"] did everything by the book.  The only surprise here is how the preliminary hearing magistrate could have possibly have gotten it so wrong in light of the strong and unambiguous case law and the obvious meaning of Veh. Code § 2806.5 as it is written.  It is true that section 2806.5, as initially submitted to the State Assembly, was intended to outlaw pretextual traffic stops.  But more rational minds eventually prevailed, with this section being watered it down to its present wording.  The magistrate should have known this. 

Robert Phillips
Deputy District Attorney (Ret).

Publisher Notes:
The prosecution team credited with appealing this decision includes Carla C. Rodriguez, District Attorney; Anne C. Masterson, Chief Deputy District Attorney; and Sarah A. Brooks, Deputy District Attorney.

• The Fourth Amendment and excessive force 
• The Fourteenth Amendment substantive due process right to familial association 
• Qualified immunity from civil liability 
• Use of force in subduing a mentally ill person 

Under the Fourth Amendment, an officer’s use of force in taking a mentally ill person into protective custody must be reasonable. With the law on this issue being clear, the doctrine of qualified immunity from civil liability does not apply. The use of deadly force on a plaintiff’s father potentially deprives the plaintiff of her Fourteenth Amendment substantive due process right to “familial association.” The illegality of using force on a mentally ill person as a due process violation, however, is not sufficiently established in the law, allowing for a finding of qualified immunity from civil liability.

Roy Scott called the police early in the morning on March 3, 2019, reporting that multiple assailants were outside his apartment, one armed with a saw. Officers from the Las Vegas Metropolitan Police Department (LVMPD) responded. LVMPD dispatch notified the officers that Scott appeared to be mentally ill. Upon officers’ arrival, it was apparent that Scott was “distressed and hallucinating.” When officers knocked on his door, Scott yelled for them to “break the door down,” while claiming there were people inside his apartment. The conversation between the officers, as recorded on their bodycams, reflected the fact that they were well aware Scott was mentally ill.  

Believing there was no one else inside with Scott, the officers continued to knock, trying to convince him to open the door. After about seven minutes and numerous pleas from the officers, Scott opened the door, holding a metal pipe at his side. As the officers backed away from the entrance and descended the stairs, Scott followed. When told to drop the pipe, he readily complied. An obviously disoriented Scott asked twice: “What am I supposed to do?”  

Told to stand near a wall at the base of the stairs, Scott did so. Asked if he had any other weapons, Scott produced a knife from his front pants pocket. Telling the officers that he was sorry, he handed the knife to one of the officers, handle-side out, without making any threatening gestures. Scott complained that the flashlights the officers were using bothered him, telling them he suffered from paranoid schizophrenia. He asked twice: “Can you just put me in the car, please?” Asked about the pipe and the knife he had already relinquished, Scott explained, “I think people are after me.”  

The officers concluded that Scott was in “some sort of distress” and that he met the qualifications for a medical hold for his mental health and safety. However, when told to face the wall, Scott replied; “I’m paranoid, I can’t turn around.” When the officers tried to convince him they were there to help him, Scott repeatedly responded that he was “not fine.” The officers then approached him and grabbed his arms. As Scott repeatedly pleaded in a distressed voice, “please,” and “what are you doing?” the officers pulled him to the ground. As they tried to handcuff him, Scott screamed and struggled, pleading with the officers to leave him alone.  

The officers rolled Scott onto his stomach with his hands restrained behind his back. In this position, one of the officers put his bodyweight on Scott’s back and neck for about two minutes as another put his weight on his legs, restraining Scott’s lower body. Scott’s pleas turned increasingly incoherent and breathless as the officers remained on top of him. Upon getting Scott handcuffed, the officers attempted to roll him onto his side.  

His face bloodied from being in contact with the ground, Scott had stopped yelling and thrashing and failed to respond when the officers tried to revive him. Paramedics were called. Scott, however, was pronounced dead after the paramedics removed him from the scene.  

The plaintiffs’ expert later testified that Scott had died from “restraint asphyxia.” Scott’s daughter, Rochelle Scott, as co-special administrator of his estate, sued the officers and the LVMPD in federal court pursuant to 42 U.S.C. § 1983, alleging (1) a violation of Scott’s?Fourth Amendment right to be free from excessive force and (2) Rochelle Scott’s?Fourteenth Amendment substantive due process?right to familial association, among other claims. The trail court dismissed the civil defendants’ motion for summary judgment to dismiss the case. The defendants appealed. 

The Ninth Circuit Court of Appeals affirmed in part and reversed in part. The issue on appeal was whether the officers were entitled to qualified immunity as to either or both the Fourth and Fourteenth Amendment issues.  

In deciding this issue, the court was required to view the facts in the light most favorable to the plaintiffs – to assume that the plaintiffs’ factual allegations were true. The analysis involves a finding of whether the officer did violate a constitutional right, and if so, if was it a clearly established right. Rights at issue here were: (1) Roy Scott’s Fourth Amendment rights protecting him from the use of excessive force, and (2) Rochelle Scott’s?Fourteenth Amendment substantive due process?right to familial association.  

(1) Fourth Amendment/Excessive Force: “Under the?Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances.”?(LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3rd 947, 959.) In considering whether the force used was reasonable, a court is to consider “(1) the severity of the intrusion on the individual’s?Fourth Amendment?rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.” (Rice v. Morehouse (9th Cir. 2021) 989 F.3rd 1112, 1121.) The court must also consider the totality of the circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”?(Graham v. Connor (1989) 490 U.S. 386, 396.)  

With these rules in mind, the court here determined that the officers did in fact violate Scott’s Fourth Amendment rights by using excessive force, resulting in his death. The court ruled that, under factor one above, the officers used “deadly force,” meaning force that “creates a substantial risk of causing death or serious bodily injury.”?(Smith v. City of Hemet (9th Cir. 2005) 394 F.3rd 689, 706.) Sitting on his Scott’s back and neck during and after handcuffing for a total of about one to two minutes while Scott’s pleas turned increasingly incoherent and breathless constituted “severe, deadly force.”  

The court has previously held that bodyweight compression on a prone individual can cause “compression asphyxia.”?(See Drummond ex rel. Drummond v. City of Anaheim (9th Cir. 2003) 343 F.3rd 1052, 1056-1057.)  

In evaluating the government’s interest in using such force, factor two, the court determined that in this case, because Scott did not pose an “immediate threat,” it wasn’t necessary to subdue him in the manner that was done. Taking into account Scott’s apparent mental illness, that he was unarmed (and had voluntarily relinquished any weapons available to him), that he had not committed a crime, and where he was otherwise cooperative (telling the officers that he was ready to leave with them), it did not appear to be necessary to subject him to a forced handcuffing.  

Further, the officers ignored less-intrusive alternatives to the force they employed, such as verbal de-escalation strategies, waiting for the support of additional officers to execute a safer “team takedown,” or waiting for paramedics to use a “soft restraint.” All of this limited the government’s interest in applying the force that was used.  

In balancing the interests, factor three, the court first noted that it “must balance the force used against the need for such force to determine whether the force used was ‘greater than is reasonable under the circumstances.’” (Espinosa v. City and County of San Francisco (9th Cir. 2010) 598 F.3rd 528, at pg. 537.) “Generally, deadly force is not permissible ‘unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’” “Force ‘is permissible only when a strong government interest?compels the degree of force used.”?(Italics in original; Smith v. City of Hemet, supra, at pg. 704.)  

Using these standards, the court held that the officers in this case were not justified in using the force they used against Scott in that he was not suspected of having committed a crime and presented, under the circumstances, little if any danger to the officers. Under these circumstances, a reasonable jury could certainly find that the officers’ use of severe or deadly force was constitutionally excessive.  

The court further found that the Ninth Circuit’s case law on this issue is clearly established, citing a number of cases to that effect. (E.g., see Drummond ex rel. Drummond v. City of Anaheim, supra.) It is important to know also that the law is especially clear where, as here, the officers knew that the prone individual was suffering from a mental illness and was not suspected of a crime. Finding that the force used was excessive, and that the law was clear on this issue, the court affirmed the district court’s denial of qualified immunity for the civil defendants, allowing the case to go to trial.    

It is important to know also that the law is especially clear where, as here, the officers knew that the prone individual is suffering from a mental illness and is not suspected of a crime.? Finding that the force used was excessive, and that the law was clear on this issue, the court affirmed the district court’s denial of qualified immunity for the civil defendants, allowing the case to go to trial. 

(2) Fourteenth Amendment Due Process Right to Familial Association: The plaintiff, Rochelle Scott, also alleged that the officers’ use of deadly force on her father deprived her of her Fourteenth Amendment substantive due process right to “familial association.” On this issue, the court again ruled that the law on this is clearly established. The rules are clear, though a bit complex: parents and children have a substantive due process right to a familial relationship free from unwarranted state interference.?(Hardwick v. County of Orange (9th Cir. 2020) 980 F.3rd 733, 740-741 & fn. 9.)  

To prove a violation of the right to familial association under the?Fourteenth Amendment based upon an officer’s use of force, a plaintiff must establish that an officer’s conduct “shocks the conscience.” (Nicholson v. City of Los Angeles (9th Cir. 2019) 935 F.3rd 685, 692.) Two tests govern whether an officer’s conduct shocks the conscience. Which test applies turns on whether the officers had time to deliberate in how to handle the situation. The “deliberate-indifference test” applies when a situation “evolve[s] in a time frame that permits the officer to deliberate before acting.” At the other end of the spectrum, the more demanding “purpose-to-harm test” applies when a situation escalates so quickly that the officer must make a snap judgment. (Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.)  

To decide which test applies, a court must ask itself whether deliberation by the officer was “practical” under the circumstances, recognizing that the necessary deliberation may be practical even without an extended timeline of events. (See Moreland v. Las Vegas Metropolitan Police Department (9th Cir. 1998) 159 F.3rd 365, 372.)  

With these rules in mind, the court here held that the officers had more than enough time to deliberate and consider their next steps. Applying the deliberate-indifference standard, therefore, the court held that the officers clearly violated Rochelle Scott’s?Fourteenth Amendment rights in that they were “deliberately indifferent to the risk that their use of force could seriously injure or kill Scott.”  

However, the court further ruled that the case law on this issue was not clearly established, at least enough to put the officers on notice that by doing what they did, they could be subjecting themselves to civil liability. As such, the trial court should have granted the civil defendants’ motion for qualified immunity. The district court was therefore reversed on this issue. 

I briefed this case to highlight the issue of the advisability of using an officer’s body weight on the back and neck of a resisting subject. Only four and a-half years ago, then-Minneapolis patrol officer Derek Chauvin applied such force (and to a more aggravated degree) to George Floyd, resulting in Floyd’s death and Chauvin’s firing, prosecution, conviction and imprisonment for murder.  

While I’m sure that using the knee-to-the-neck and/or back technique is very effective in holding a resisting subject still long enough to get him or her handcuffed, you have to be very careful. Civil liability for applying your body weight to a subject in such a manner may be the least of your worries should you do so too hard and/or for too long. Add to this the problem that the subject in this case, Roy Scott, was not even accused of having committed a crime, and you can pretty much assume you’re going to be held civilly, if not criminally, liable should you take it too far.  

In this case, a fully cooperative Roy Scott was openly seeking the officers’ assistance while volunteering to get into the police car. You can certainly see why the court questioned the necessity of handcuffing him at all, let alone using deadly force to do so. While any officer knows that a mentally distressed individual, such as Scott in this case, can turn on you in a heartbeat, it is arguable, as the court noted, that convincing Scott to voluntarily submit to some sort of restraint was a tactic that should have been tried first. Merely pouncing on him did not seem to be the best choice of tactics – at least this court didn’t think so. And Scott’s death certainly highlights the court’s conclusions on this issue.