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Green v. City & County of San Francisco

United States Court of Appeals, Ninth Circuit

May 12, 2014

DENISE GREEN, Plaintiff-Appellant,

Page 1040

Argued and Submitted, San Francisco, California February 12, 2014

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:10-cv-02649-RS. Richard Seeborg, District Judge, Presiding.

Michael Haddad (argued), Julia Sherwin, and Gina Altomare, Haddad & Sherwin, Oakland, California, for Plaintiff-Appellant.

Christine Van Aken (argued) and James F. Hannawalt, Deputy City Attorneys, Office of the City Attorney, San Francisco, California, for Defendants-Appellees.

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit Judges, and William K. Sessions III, District Judge.[*] Opinion by Judge Sessions.


Page 1041

SESSIONS, District Judge:

Plaintiff-Appellant Denise Green appeals from the district court's judgment granting summary judgment to Defendants-Appellees dismissing her § 1983 and state law claims for wrongful detention, false arrest, and excessive force. Green's suit arose out of a vehicular stop performed by Sergeant Ja Han Kim of the San Francisco Police Department (" SFPD" ) after the SFPD's Automatic License Plate Reader (" ALPR" ) mistakenly identified Green's Lexus as a stolen vehicle. Without visually confirming the license plate, Sergeant Kim made a " high-risk" stop during which Green was held at gunpoint by multiple officers, handcuffed, forced to her knees, and detained for up to twenty minutes. She was released only after officers eventually ran her plate and discovered the ALPR mistake and that her vehicle was not stolen.

Green filed suit against the City and County of San Francisco, SFPD, and Sergeant Kim alleging Fourth Amendment violations for unreasonable search and seizure and unreasonable use of force, violation of Cal. Civ. Code § 52.1, intentional infliction of emotional distress, assault, and negligence. The Defendants moved for summary judgment, arguing that Sergeant Kim merely subjected Green to an investigatory detention and not an arrest, that he had reasonable suspicion to stop Green's vehicle, and that all force used was reasonable in the context of a lawful investigatory stop. Green also moved for partial summary judgment on her Fourth Amendment and § 52.1 claims. The District Court for the Northern District of California denied Green's motion and granted Defendants' motion. Because a

Page 1042

rational jury could find that Defendants violated Green's Fourth Amendment rights and that Sergeant Kim is not entitled to qualified immunity at this stage, we reverse the district court's grant of summary judgment.[1]


This case regards a vehicular stop made by the San Francisco Police Department following an erroneous read by its automated license plate reader technology. SFPD's ALPR uses mounted cameras on its police cruisers to capture the license plate numbers of passing vehicles and match the captured numbers against a database of wanted numbers. If the ALPR identifies a potential match, it alerts the officer and displays an image of the plate. It is undisputed that the ALPR occasionally makes false " hits" by misreading license plate numbers and mismatching passing license plate numbers with those listed as wanted in the database. Because of the known flaws in the system, SFPD officers are trained that an ALPR hit does not automatically justify a vehicle stop, and SFPD directs its officers to verify the validity of the identified hit before executing a stop. Patrol officers are instructed to take two steps to verify a hit before acting on an ALPR read. The first step is to visually confirm the license plate (to ensure that the vehicle actually bears the license plate number identified by the camera); the second step is to confirm with the system that the identified plate number has actually been reported as stolen or wanted.[2] Defendants' expert on ALPR technology confirmed in deposition that these two steps should be performed and explained how officers in a " camera car" (the cruiser operating the ALPR system) would do so, but did not outright identify any official policy that the responsibility lies solely with the camera car operator. In fact, at the time of the events of this case, the SFPD did not have a policy placing the responsibility of verifying the ALPR hit with the camera car operator or with the officer conducting the subsequent stop.

On the night of March 30, 2009, Appellant Denise Green, a 47-year-old African-American woman with no criminal record, was driving her vehicle, a 1992 burgundy Lexus ES 300 with license plate number 5SOW350, on Mission Street in San Francisco. At approximately 11:15 PM, Green passed a police cruiser equipped with an ALPR operated by SFPD Officers Alberto Esparza and Robert Pedersen. When Green drove past Esparza and Pedersen's camera car, the ALPR misread her license plate number[3] and identified her plate as belonging to a stolen vehicle. It was late and dark outside, which rendered the ALPR photograph blurry and illegible. As a result, Officer Esparza could not read the ALPR photograph, nor could he get a direct visual of Green's license plate. Because Esparza and Pedersen had a suspect in custody at the time of the ALPR read, they radioed the hit to dispatch in case another officer in the vicinity would be

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able to act upon the alert. On the radio, Officer Esparza described the vehicle as a dark Lexus and read the entire plate number identified by the ALPR (5SOW750, not the license plate number on the Lexus). He also asked dispatch to confirm that plate number 5SOW750 was wanted. At no point did Officer Esparza state on the radio that he had or had not visually confirmed the plate himself. Dispatch ran plate number 5SOW750 and notified Officer Esparza that it was in fact wanted and that it belonged to a gray GMC truck.

Sergeant Kim, patrolling nearby, observed Green's vehicle pass him. Based on the radio traffic, Sergeant Kim knew that there had been a hit on a license plate number 5SOW750, that the plate number had been matched to a gray GMC truck, and that the vehicle the camera car officers had seen was a dark Lexus. Sergeant Kim saw that the first three numbers of Green's license plate matched the plate read over the radio, but he did not visually identify all seven numbers on Green's license plate. He also radioed Officer Esparza for a description of the vehicle, and Officer Esparza confirmed that the vehicle he saw was a dark burgundy Lexus. Sergeant Kim then decided to make a " high-risk" or " felony" stop. Officers perform " high-risk" stops when they perceive there to be a danger to the police effecting the stop. Such stops typically involve handcuffing the suspect at gunpoint and require the participation of multiple officers. Because Sergeant Kim believed that Green posed a risk, he waited for backup before pulling her over. While he waited, he followed her vehicle for a brief amount of time and, at one point, even stopped behind her at a red light. At no point while he was following or stopped behind Green's vehicle did Sergeant Kim visually confirm the entirety of Green's license plate number, even though nothing obscured his ability to do so. Furthermore, Sergeant Kim did not confirm Green's plate number with dispatch, but he did hear Officer Esparza inquire whether the vehicle with the plate number 5SOW750 was stolen. Sergeant Kim admits that if he had read the full plate, he would not have had the reasonable suspicion to effect the stop.

After backup arrived, Sergeant Kim directed Green to pull over, and she immediately complied. At this point, the officers all drew their weapons and pointed them at Green. The number of officers involved in the stop is disputed: Green estimates as many as six but it is undisputed that there were at least four. An unknown officer ordered Green to raise her hands and exit the vehicle and Green complied. As she exited the vehicle, Green observed a police officer pointing a shotgun at her. The officers gave her conflicting orders, and eventually Sergeant Kim took charge in issuing commands. He holstered his gun while the remaining officers kept their weapons trained on Green, and he directed her to lower to her knees where he proceeded to handcuff her. At the time of the incident, Green was 5'6" and 250 pounds and experienced knee problems, so she faced some difficulty in lowering to the ground and in standing back up. Sergeant Kim had to help her back to her feet. Green says she saw four officers training their weapons on her while she was handcuffed; Sergeant Kim does not recall how many officers were pointing their guns at Green.

Officers then searched Green's vehicle and performed a pat-down search of her person. After the searches uncovered nothing, Sergeant Kim finally ran a check of Green's entire plate number. The license plate check confirmed that the plate belonged to a burgundy Lexus registered to Green that had never been reported as stolen. Green's handcuffs were promptly removed, but she was directed to remain

Page 1044

until the officers had completed paperwork documenting the stop. The parties dispute the duration of the stop. Green states that she was handcuffed for at least ten minutes and that the entire stop lasted 18-20 minutes, while Defendants maintain that the stop was much shorter. It is undisputed that Green was wholly compliant and nonresistant for the entirety of the stop and that there was no indication that she was armed.

Green brought § 1983 claims against the City and County of San Francisco, SFPD, and Sergeant Kim alleging violations of her Fourth Amendment rights on the grounds that the incident constituted an unreasonable search and seizure and a de facto arrest without probable cause and involved an unreasonable use of force. Green's claims against the City and SFPD are premised on Monell liability, which allows local governments to be sued under § 1983 for constitutional deprivations effected pursuant to a governmental custom. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Green also brought several claims under California state law. These included claims under Cal. Civ. Code § 52.1[4] alleging a constitutional violation and tort law claims of intentional infliction of emotional distress, assault, and negligence. Green moved for partial summary judgment on her Fourth Amendment claim against Sergeant Kim and on her § 52.1 claim against all Defendants. Defendants moved for summary judgment on all claims on the basis that Sergeant Kim had reasonable suspicion to stop Green and that the force used was reasonable in the context of a lawful investigatory detention.

The district court granted summary judgment to Defendants and denied Green's motion for partial summary judgment. Despite the lack of a SFPD policy placing the responsibility of checking the ALPR read on the camera car operator, the district court determined that it was reasonable for Sergeant Kim to assume that Officer Esparza had visually confirmed Green's plate based on the fact that Officer Esparza did not expressly state otherwise. The district court concluded that Sergeant Kim's belief that the plates had been matched to the ALPR hit was a " good faith, reasonable mistake" and that " no reasonable jury could find that Kim lacked reasonable suspicion to conduct an investigatory stop." Green v. City & County of San Francisco, No. C 10-02649 RS, 2011 WL 4434801, at *5 (N.D. Cal. Sept. 23, 2011). On the remaining Fourth Amendment claims, the district court decided that the tactics used by the officers were objectively reasonable in the context of a lawful investigatory stop and rejected Green's unlawful arrest and excessive force claims. The court also determined that Sergeant Kim was entitled to qualified immunity based on its finding that Green had not established a constitutional violation. It dismissed Green's Monell and § 52.1 claims on the same grounds: they both require a showing of unlawful conduct and the district court found that Green had not made such a showing. Finally, the court dismissed Green's state law tort claims based on its finding that Defendants' conduct was reasonable pursuant to a lawful investigatory stop.

After the court's initial judgment, Green filed a motion to alter or ...

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