The Ninth Circuit issued a decision in Green v. City and County of San Francisco, Case No. 11-117892 (9th Cir. May 12, 2014) this week, a case arising out of a vehicle stop made by San Francisco police officers on a vehicle mistakenly identified as stolen by the city’s Automatic License Plate Reader. The Court held that officers lacked reasonable suspicion to effectuate a traffic stop based on a hit from the PD’s automatic license plate reader because officers failed to visually verify the license plate and confirm that the identified license was actually one that had been reported as stolen or wanted. The Court also rejected the lower court’s determination that, as a matter of law, where a lawful investigatory stop occurs and tactics involved in effectuating that stop form the basis of a plaintiff’s excessive force claim, such a claim must fail.
A more detailed summary of the decision follows, and a copy of the decision can be accessed here.
The San Francisco Police Department (SFPD) employs automatic license plate reader (ALPR) technology. The technology relies on cameras mounted on SFPD’s cruisers, called “camera cars,” that capture license plate numbers of passing cars. Captured plate numbers are then compared against wanted numbers in a database and, when a hit is made, the system alerts the officer with an image of the relevant plate. Officers are trained that because the system sometimes generates “false hits,” the system’s identification of a hit does not, alone, justify a stop. Instead, officers are trained they must employ a two step process before making a stop: (1) they must visually verify the license plate and (2) confirm with the system that the “hit” is real by ensuring the identified license number has actually been been reported as either stolen or wanted. At the time of the stop at issue in the case, SFPD did not have a policy requiring verification of the hit by either the officer in the camera car, or the officer conducting the stop.
On the night in question, two SFPD officers – Esperaza and Pedersen – were in an SFPD camera car when Plaintiff Green’s vehicle passed by. The ALPR misread the license plate on Green’s car, identifying it as belonging to a stolen vehicle. Because it was late and therefore dark outside, Officer Esparaza could neither read the ALPR photo, nor visually confirm the license plate number on Green’s car. Officers Esperaza and Pedersen could not personally stop Green, as they had a suspect in custody, so they radioed the hit to dispatch. In so doing, Officer Esparaza described the vehicle as a dark Lexus and read the entire license plate number from the ALPR, which was not the actual license on Green’s car. Esparaza confirmed with dispatch that the plate number he read – the one generated by the APLR – in fact was a wanted plate number. Dispatch ran it and confirmed it was wanted, and that it belonged to a gray GMC truck.
In the meantime, Sergeant Kim saw Green’s vehicle and noticed the first three numbers of Green’s plate matched the plate read over the radio. He also knew that the wanted plate number matched a GMC truck and that the vehicle observed by the camera car was a dark Lexus. Kim did not visually confirm all seven numbers on Green’s license plate. Nevertheless, he radioed Officers Esparaza and Pedersen and confirmed the car they’d observed was a dark Lexus. Upon doing so, Kim decided to make a high-risk, or felony, stop, which involves handcuffing the suspect at gunpoint and therefore necessitates participation from multiple officers.
While Kim waited for backup, he followed Green. At no point did he visually confirm her license plate. Nor did Kim confirm Green’s plate number with dispatch as wanted. Kim admitted that had he read the full plate, he would not have had reasonable suspicion to stop Green.
Once backup arrived, Kim initiated the stop. There was a dispute as to the number of officers who participated – Green said six, Kim recalled at least four officers. As she exited her vehicle, Green saw an officer pointing a shotgun at her. She had difficulty lowering to, and getting back up from, a kneeling position on the ground. Green also reported that several officers had their weapons trained on her during the stop. After searching the vehicle and patting Green down, Kim ran Green’s entire license plate and discovered that it indeed belonged to her dark colored Lexus, which had never been reported as stolen. Green says that the stop lasted 18-20 minutes, and that she was handcuffed for at least ten minutes of the stop. There was no fact dispute that Green was complaint and did not resist during the stop.
Green filed multiple Fourth Amendment claims, claiming unreasonable search and seizure, arrest without probable cause, and unreasonable force. She also alleged Monell claims against the City and SFPD, along with raising state and tort law claims.
The lower court granted summary judgment to all Defendants. Thought SFPD did not have a policy at the time requiring the camera car officer to verify an ALPR hit, the district court determined it was reasonable for Kim to assume Officer Esparaza had visually confirmed Green’s plate. Thus, that court held that Kim had a good faith belief as to the match. The lower court likewise determined the tactics the officers used in effectuating the stop were objectively reasonable. Kim was also deemed entitled to qualified immunity based on the fact that he’d not been found to commit a constitutional violation. That same fact led to dismissal of the Monell claims. And all state law claims were dismissed based on the lawfulness of the stop.
The Ninth Circuit, in reversing summary judgment for the defendants, first examined whether Kim had reasonable suspicion for the stop. The Court began by noting that an unconfirmed hit from the ALPR was indisputably not sufficient to establish reasonable suspicion. It then noted the SFPD’s policy of both visually confirming a plate number’s match with the ALPR system and confirming the plate is actually wanted per the database. The Court noted that Kim performed the second step, but not the first. Green argued both steps must be taken by the officer making the stop, while Defendants argued that the camera car officer should make verification efforts.
Noting that Kim was entitled to rely on information from Esparaza as establishing reasonable suspicion, the Court nevertheless went on to say reliance is only allowed where objectively reasonable. Esparaza neither made the visual confirmation required, nor said over the radio that he had done so. As a result, reasoned the Court, the lower court’s determination that Kim’s reliance was objectively reasonable, while plausible, did not support a grant of summary judgment because that determination relied on an inference in Defendants’ favor. More particularly, the Ninth Circuit discussed Kim’s “ongoing duty to make appropriate inquiries as to the facts . . . if insufficient details [were] relayed.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005), overruled on other grounds, United States v. King, 687 F.3d 1189 (9th Cir. 2012). The Court noted that multiple facts suggested the need for further investigation, including that the plate identified by the ALPR belonged to a different make of car, model, and color than Green’s and that Kim was aware of the discrepancy.
The Court then turned to whether a de facto arrest occurred. Noting that there is no bright line rule to measure when an investigatory stop rises to the level of an arrest, the Court examined the totality of the circumstances, paying special attention to the level of intrusiveness of the methods used in light of circumstances present. The methods used in this case were deemed highly intrusive and therefore the Court looked to whether the circumstances of the arrest justified the use of the subject methods. The Ninth Circuit found that none of the special circumstances justifying highly intrusive methods of stop/arrest existed in the case – an uncooperative suspect or one at risk of flight; belief the suspect is armed; stop closely follows a violent crime; or where officers believe that crime that might involve violence is imminent. The Court remarked that the number officers involved was one highly relevant factor in determining whether officers crossed the line from stop to arrest. And ultimately, the Court concluded a reasonable jury could conclude Green was arrested based on the fact that the tactics used were “extremely intrusive,” she was complaint, the officers had no information that she was armed, the stop didn’t follow a violent crime, and the officers had no information that a violent crime was about to occur. Moreover, the officers lacked information that Green was a proper suspect, or one that she posed a threat. Thus, the six officers on scene who participated in the stop, assuming Plaintiff’s version of events to be accurate, was excessive.
Ultimately, the Court concluded that the level of intrusiveness involved in the stop suggested that, in fact, an arrest had occurred. And because it had already determined a triable issue existed as to whether reasonable suspicion existed for the stop itself, the Court went on to say the existence of probable cause was likewise a triable question.
The Court then turned to Green’s excessive force claim, which the Court indicated would be decided based on a balancing of the “nature and quality of the intrusion” against the “countervailing government interest at stake.” In considering Green’s excessive force claim, the Ninth Circuit flatly rejected the lower court’s findings in favor of the officers on this claim. Specifically, the lower court found that because the tactics at issue were employed in the course of a lawful investigatory stop involving suspicion of driving a vehicle with stolen plates, no reasonable jury could find excessive force. Relying on its holding with respect to the reasonableness of the stop, the Ninth Circuit rejected the district court’s holding and noted that the existence of a lawful investigatory stop, even where it exists, cannot form the basis of a finding that force is not excessive as a matter of law.
The Court next considered whether Sergeant Kim was entitled to qualified immunity. The lower court found him entitled to immunity because it also concluded Kim hadn’t violated Green’s constitutional rights. The Ninth Circuit began its immunity analysis with the second prong of the immunity rubric, which examines whether the right at issue is clearly established at the time of alleged violation. That prong of the immunity analysis looks to (1) whether the law governing the conduct at issue is clearly established and (2) whether the facts as alleged could support a reasonable belief that the officer’s conduct conformed to established law. Because the law was clearly established that an investigatory stop must be backed by reasonable suspicion, the Court turned its eye to Sergeant Kim’s conduct. Again pointing to the fact that Kim did not know for certain whether Officer Esparaza had visually confirmed Kim’s plate, the Court said it could not conclusively deem him entitled to qualified immunity. Similarly, because it was unclear what Kim knew at the time of the stop, a court could not determine as a matter of law what was reasonable regarding the amount of force used in effectuating the stop.
Finally, the Court reversed summary judgment on Green’s Monell claims because of its rejection of the lower court’s underlying determination that no constitutional violation had occurred in the case.