Opinion
No. C 02-02648 CRB.
September 17, 2004
ORDER
Michael Myung-Sup Shin maintains this action for unlawful arrest pursuant to 42 U.S.C. § 1983 against Defendant Officer Bruce Vance. In an order dated February 11, 2004, this Court ruled that, viewing the facts in a light most favorable to the plaintiff, defendant's motion for summary judgment based on qualified immunity would be denied. After a trial on liability, the jury found, inter alia, that Officer Vance arrested plaintiff without probable cause. Defendant now brings a motion for judgment notwithstanding the verdict, renewing his request for qualified immunity. As discussed below, defendant's motion is DENIED.
Also before the Court is plaintiff's request for the Court's permission for an Independent Medical Examination of him. This request, too, is DENIED.
A. Qualified Immunity
The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law;'" defendants can have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation.Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley, 475 U.S. at 341).
A court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right, then proceed to determine if the right was "clearly established." See Wilson v. Layne, 119 S. Ct. 1692, 1694 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999). The threshold question is: did the officer's conduct violate a constitutional right? Saucier, 533 U.S. at 201. If no constitutional right was violated, there is no necessity for further inquiries concerning qualified immunity. Id. On the other hand, if a violation did occur, the next sequential step is to ask whether the right was clearly established. Id. The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.Id. If the law is determined to be clearly established, the next question is whether, under that law, a reasonable official could have believed his conduct was lawful. See Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993).
1) Violation of a Constitutional Right
A warrantless misdemeanor arrest violates the Fourth Amendment where there is no probable cause. See Allen v. City of Portland, 73 F.3d 232, 236 n. 2 (9th Cir. 1995). Here, the jury found explicitly that Officer Vance did not have probable cause to arrest Michael Shin. Jury Verdict Form, Answer to Question 1. Nonetheless, Officer Vance argues that he did not violate plaintiff's constitutional rights because of the jury's finding that defendant was reasonable in believing his failure to arrest Michael Shin would have resulted in Michael willfully delaying or obstructing a peace officer in the discharge of his duty. This determination, however, is insufficient to support a finding that there was probable cause for the arrest.
"Probable cause exists when, at the time of arrest, the agents know reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense." Allen, 73 F.3d at 237 (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292 (9th Cir. 1988)). Here, defendant cites no authority for the proposition that his reasonable belief that plaintiff might have obstructed a peace officer's duties sometime in the future could provide probable cause for an arrest. Indeed, in comparable circumstances the Ninth Circuit has held the opposite: "a reasonable officer would have known there was no grounds to arrest . . . unless intimidation or obstruct[ion] took place in the officer's presence." Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004) (citing Cal. Penal Code §§ 602.1, 836(a)(1)). State law is relevant in determining the reasonableness of an arrest. Id. California law provides that an officer may only make a warrantless misdemeanor arrest where the crime has occurred in his presence. Cal. Penal Code § 836(a)(1). Accordingly, because neither a trespassing violation nor an interference with Officer Vance's duties had yet occurred in his presence, and because there is no allegation that plaintiff would have committed a felony, defendant did not have probable cause to arrest him.
2) Clearly Established
Defendant makes two arguments to support his view that plaintiff's rights were not clearly established at the time of the arrest. First, he argues that the elements of a trespass violation under Cal. Penal Code § 602.1 were not clearly established when he arrested plaintiff because Dubner v. City and County of San Francisco, 266 F.3d 959 (9th Cir. 2001), the first case interpreting the statute, was not announced until after the arrest.
The date of the Dubner decision is immaterial because the elements of a trespass violation are laid out with sufficient clarity by Penal Code § 602.1. The "clearly established" requirement "does not mean that the very action at issue must have been held unlawful before qualified immunity is shed."Wall, 364 F.3d at 1111 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). It is enough that the statute's requirements are clear on its face and that Officer Vance was well outside of those clear bounds when he arrested Michael Shin.
Section 602.1 states in plain terms that:
Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner's agent, or by a peace officer acting at the request of the owner or owner's agent is guilty of a misdemeanor,. . . .
It is abundantly clear from the face of the statute that it requires both (1) an intentional interference and (2) a refusal to leave. The jury found that it was not reasonable for defendant to believe the plaintiff had intentionally interfered with Kinko's business. Jury Verdict Form, Answer to Question 3. Michael Shin, then, was not in violation of the first prong of the statute. Officer Vance was unreasonable to read the statute in any way that would give him the authority to arrest Michael Shin.
At the motion hearing defense counsel raised a second theory to support the claim that plaintiff's rights were not clearly established. Defendant argued that Officer Vance may have been reasonable to interpret the statute to provide for a violation where the trespasser's intentional interference with business activities occurs after his refusal to leave. This creative argument similarly lacks merit.
There is no evidence that Michael Shin interfered in any way with Kinko's business after he was told to leave — besides his refusal to leave itself. Of course, if such a refusal could constitute an intentional interference then the first prong of the statute would be read out entirely — a result this court has already refused to entertain. No matter what chronology defendant gives to the statute, it remains the case that both an interference and a refusal to leave must be demonstrated as separate elements. Again, because the jury found plaintiff did not interfere with Kinko's business, he was not in violation of the statute.
Accordingly, defendant has failed to demonstrate that plaintiffs rights were not clearly established when he arrested plaintiff.
3) Reasonableness
Officer Vance advances two theories justifying the reasonableness of his arrest of plaintiff. First, he asserts that it was reasonable for him to believe that he could arrest plaintiff after plaintiff defied his order to leave the store. However, because the jury found that plaintiff had not interfered with Kinko's business, and thus had not violated section 602.1, Officer Vance had no authority to ask him to leave. It was therefore unreasonable for Officer Vance to have thought that he could arrest plaintiff for defying his order to leave when he had no authority to make such an order.
Second, Officer Vance argues that it was reasonable to arrest plaintiff because of the conduct of plaintiff's brother, Han Shin. However, even if there was probable cause to arrest Han Shin, there is no basis to automatically transfer that ground for arrest to his brother. Since the jury found there was no probable cause to arrest Michael Shin, it was unreasonable for Officer Vance to believe he could arrest him solely based on his brother's conduct.
Accordingly, there is no basis to grant defendant qualified immunity and his motion for judgment notwithstanding the verdict is DENIED.
B. Independent Medical Examination
Plaintiff now asks this Court to permit him to submit to an Independent Medical Examination ("IME"). This request comes after plaintiff failed to appear for an IME scheduled for June 22 and 23, 2004, although he had stipulated to doing so, and again failed to appear for a second scheduled IME on July 2 and 5, 2004, although he was ordered to by this Court. Notwithstanding plaintiff's refusal to comply with the Court order, this Court declined to dismiss this case and allowed the trial on liability to go forward.
This Court finds plaintiff's newly found interest in submitting to an IME suspect. Plaintiff counsel's explanation for plaintiff's failing to appear at prior IME's was that plaintiff's psychiatric condition had worsened. Now that plaintiff requires an IME to support his claim for emotional damages, plaintiff is willing to submit to an IME even though plaintiff's counsel states that his client's condition has not improved.
Moreover, this Court finds that defendant would be prejudiced if plaintiff were now allowed to have the advantage of an IME. Defendant went through the liability phase of this trial without the benefit of an IME even though he requested one. Defendant also undoubtedly made strategic judgments with respect to how he conducted the liability phase of the trial — including a decision not to call the plaintiff to testify in court — based on the fact that plaintiff hadn't submitted to an IME.
Accordingly, plaintiff's request for an IME is denied.
C. Further Proceedings
Having made the above finding regarding qualified immunity, this Court has sustained the jury's finding of liability for Officer Vance and this action may now proceed to the damages phase. However, because all allegations of emotional damages would require an IME to be substantiated, and since it would be unfair to grant plaintiff's request for an IME, plaintiff is necessarily barred from introducing evidence regarding emotional damages. As this Court represented orally during the hearing on September 10, 2004, plaintiff may now select between two options with regard to how this action will proceed.
First, plaintiff may elect to proceed to the damages phase of the trial. If plaintiff selects this option, the Court will enter a judgment in favor of plaintiff for nominal damages in the amount of $1 and for attorneys' fees. Plaintiff's only other alleged damages are based on emotional harms for which he may not now recover.
Second, plaintiff may in the alternative choose to submit to a new trial on liability. If plaintiff does so, the Court would permit him to attend an IME and seek recovery for his alleged emotional harms. At the new trial the Court would not bifurcate the liability and compensatory damages phases of the trial.
IT IS SO ORDERED.