Johnson v. Bay Area Rapid Transit District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WANDA JOHNSON, individually No. 11-16456
and as personal representative of
the Estate of Oscar J. Grant, III; D.C. Nos.
ESTATE OF OSCAR J. GRANT III; 3:09-cv-00901-EMC
SOPHINA MESA, as Guardian ad 3:09-cv-04014-EMC
Litem of minor, T.G.; JACK 3:09-cv-04835-EMC
BRYSON, JR.; NIGEL BRYSON; 3:10-cv-00005-EMC
MICHAEL GREER; CARLOS
REYES; FERNANDO ANICETE, JR.;
OSCAR JULIUS GRANT, JR.;
JOHNTUE CALDWELL (now
deceased),
Plaintiffs-Appellees,

v.

BAY AREA RAPID TRANSIT
DISTRICT; GARY GEE, in his
official capacity as chief of
police for BART; DOROTHY
DUGGER, in her official capacity
as general manager for BART;
ANTHONY PIRONE, individually
and in his official capacity as a
police officer for BART;
MARYSOL DOMENICI,
individually and in her official
capacity as a police officer for
BART; DOES 1-50,
Defendants,
2 JOHNSON V. BART

and

JOHANNES MEHSERLE,
individually and in his official
capacity as a police officer for
BART,
Defendant-Appellant.

WANDA JOHNSON, individually No. 11-16480
and as personal representative of
the Estate of Oscar J. Grant, III; D.C. Nos.
ESTATE OF OSCAR J. GRANT III; 3:09-cv-00901-EMC
SOPHINA MESA, as Guardian ad 3:09-cv-04014-EMC
Litem of minor, T.G.; JACK 3:09-cv-04835-EMC
BRYSON, JR.; NIGEL BRYSON; 3:10-cv-00005-EMC
MICHAEL GREER; FERNANDO
ANICETE, JR.; CARLOS REYES;
OSCAR JULIUS GRANT, JR.;
JOHNTUE CALDWELL (now
deceased),
Plaintiffs-Appellees,

v.

BAY AREA RAPID TRANSIT
DISTRICT; GARY GEE, in his
official capacity as chief of
police for BART; DOROTHY
DUGGER, in her official capacity
as general manager for BART;
JOHANNES MEHSERLE,
individually and in his official
capacity as a police officer for
 JOHNSON V. BART 3

BART; MARYSOL DOMENICI,
individually and in her official
capacity as a police officer for
BART; DOES 1-50,
Defendants,

and

ANTHONY PIRONE, individually
and in his official capacity as a
police officer for BART,
Defendant-Appellant.

WANDA JOHNSON, individually No. 11-16481
and as personal representative of
the Estate of Oscar J. Grant, III; D.C. Nos.
ESTATE OF OSCAR J. GRANT III; 3:09-cv-00901-EMC
SOPHINA MESA, as Guardian ad 3:09-cv-04014-EMC
Litem of minor, T.G.; JACK 3:09-cv-04835-EMC
BRYSON, JR.; NIGEL BRYSON; 3:10-cv-00005-EMC
MICHAEL GREER; FERNANDO
ANICETE, JR.; CARLOS REYES;
OSCAR JULIUS GRANT, JR.; OPINION
JOHNTUE CALDWELL (now
deceased),
Plaintiffs-Appellees,

v.

BAY AREA RAPID TRANSIT
DISTRICT; GARY GEE, in his
official capacity as chief of
4 JOHNSON V. BART

police for BART; DOROTHY
DUGGER, in her official capacity
as general manager for BART;
JOHANNES MEHSERLE,
individually and in his official
capacity as a police officer for
BART; ANTHONY PIRONE,
individually and in his official
capacity as a police officer for
BART; DOES 1-50,
Defendants,

and

MARYSOL DOMENICI,
individually and in her official
capacity as a police officer for
BART,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding

Argued and Submitted
December 3, 2012—San Francisco, California

Filed July 30, 2013

Before: Michael Daly Hawkins, A. Wallace Tashima, and
Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
 JOHNSON V. BART 5

SUMMARY*

Civil Rights

The panel affirmed in part, vacated in part, and reversed
in part the district court’s denial in part of qualified immunity
to Bay Area Rapid Transit police officers, and dismissed a
portion of one officer's appeal, in two civil rights suits arising
from an encounter on a train platform that ended with the
shooting and death of Oscar Grant III.

Grant’s friends who were involved in the encounter, Nigel
Bryson, Jack Bryson, Jr., Carlos Reyes, Michael Greer, and
Fernando Anicete, Jr., brought suit alleging that transit
officers Mehserle, Pirone and Domenici committed various
violations of the United States Constitution and state law by
detaining and arresting them and holding them handcuffed at
the BART police headquarters overnight after shooting Grant.
Grant’s father filed a separate complaint alleging that the
officers violated his right to a familial relationship with his
son.

The panel first held that Mehserle was not entitled to
qualified immunity from Grant’s father’s Fourteenth
Amendment claim for deprivation of a familial relationship.
The panel declined Mehserle’s invitation to find, as a matter
of law, that Grant and his father lacked a sufficiently strong
father–son bond to support the claim. The panel further
determined that given the factual dispute as to whether
Mehserle’s actions were required by a legitimate law

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 JOHNSON V. BART

enforcement purpose, the district court could not have
properly granted Mehserle qualified immunity. The panel
therefore affirmed the district court’s judgment as to the
Fourteenth Amendment claim.

Citing Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011),
the panel determined that it lacked jurisdiction to review the
district court’s judgment denying Mehserle qualified
immunity from the plaintiffs’ California Civil Code § 52.1
claim, and dismissed that portion of Mehserle’s appeal.

Reversing the judgment, the panel held that Mehserle was
entitled to qualified immunity from Anicete’s unlawful arrest
claim because there was no evidence that he played any part
in the arrest.

The panel held that the district court relied improperly on
Dubner v. City and County of San Francisco, 266 F.3d 959
(9th Cir. 2001), in denying Mehserle qualified immunity as
to Anicete’s, Reyes’s and Nigel Bryson’s extended detention
claims at BART police headquarters, and therefore vacated
the judgment, with instructions that on remand, the district
court should determine whether there was any evidence that
Mehserle was responsible for those extended detentions.

Affirming the district court, the panel held that: (1)
Mehserle was not entitled to qualified immunity from Jack
Bryson’s unlawful arrest claim; (2) Pirone was not entitled to
qualified immunity from Reyes’s, Greer’s and the Brysons’
claim for unlawful detention given the questionable nature of
Pirone’s authority to detain the group for a misdemeanor that
abated before his arrival; (3) Pirone was not entitled to
qualified immunity from Reyes’s and the Brysons’ claim that
he conducted a de facto arrest, without the requisite probable
 JOHNSON V. BART 7

cause, by drawing his Taser; (4) Pirone was not entitled to
qualified immunity for arresting Greer for his refusal to
accede to the unlawful detention.

Finally, the panel held that to the extent the district court
relied solely on Dubner to deny Domenici immunity from
any of the plaintiffs’ claims, the judgment was vacated and on
remand the district court should reconsider its decision in
accordance with the panel’s opinion. To the extent the district
court relied upon disputed facts to deny Domenici immunity,
the panel stated that it lacked jurisdiction to review that
denial.

COUNSEL

Michael L. Rains (argued) and Lara Cullinane-Smith, Rains
Lucia Stern, PC, Pleasant Hill, California, for
Defendant–Appellant Johannes Mehserle.

Donald T. Ramsey (argued), Law Offices of Donald T.
Ramsey, San Francisco, California; William R. Rapoport,
Law Offices of William R. Rapoport, Redwood City,
California, for Defendant–Appellant Anthony Pirone.

Alison Berry Wilkinson (argued), Berry Wilkinson Law
Group, Inc., San Rafael, California, for Defendant–Appellant
Marysol Domenici.

John L. Burris (argued) and Adanté D. Pointer, Law Offices
of John L. Burris, Oakland, California; Dan Siegel (argued)
and Dean Royer, Siegel & Yee, Oakland, California, for
Plaintiffs–Appellees Fernando Anicete, Jr., Jack Bryson, Jr.,
Nigel Bryson, and Carlos Reyes.
8 JOHNSON V. BART

Panos Lagos, Law Offices of Panos Lagos, Oakland,
California, for Plaintiff–Appellee Oscar Julius Grant, Jr.

OPINION

MURGUIA, Circuit Judge:

In the early morning hours of January 1, 2009, on a train
platform in Oakland, an encounter between a group of young
men and several officers of the Bay Area Rapid Transit
(“BART”) police ended with the shooting and death of Oscar
Grant III and the allegedly unconstitutional detentions of
Grant’s friends, Nigel Bryson, Jack Bryson, Jr., Carlos Reyes,
Michael Greer, and Fernando Anicete, Jr. A train full of
witnesses observed the encounter; several made video
recordings that were replayed widely in the news media and
made available on the Internet. Johannes Mehserle, the
BART police officer who shot and killed Grant, was
convicted criminally for his role in the incident, which also
gave rise to several civil suits against Mehserle and the other
officers involved in the morning’s events. Two of those suits
are the source of the interlocutory appeals now before us.

The Brysons, Reyes, Greer, and Anicete filed a complaint
against Mehserle, as well as against Anthony Pirone—the
officer who first detained the group—and Pirone’s partner,
Marysol Domenici.1 Among other things, their complaint
alleged, under 42 U.S.C. § 1983, that the officers committed
various violations of the United States Constitution that

1
The Brysons, et al., also sued other officers and advanced other
theories of liability, none of which are relevant to the matter now before
the Court, and are therefore not part of our analysis.
 JOHNSON V. BART 9

morning. Grant’s father, Oscar Grant, Jr., filed a separate
complaint alleging Mehserle, Pirone, and Domenici violated
his right to a familial relationship with his son.2 Mehserle,
Pirone, and Domenici each moved for summary judgment,
arguing that they are entitled to qualified immunity—that is,
to be shielded from claims arising out of their
policework—from all the plaintiffs’ claims. The district court
denied the officers qualified immunity, at least in part. The
officers appealed those denials immediately.

Our jurisdiction over these appeals is limited: we may
review only the district court’s legal conclusion that an
officer is not entitled to qualified immunity. Johnson v.
Jones, 515 U.S. 304, 319–20 (1995); Eng v. Cooley,
552 F.3d 1062, 1067 (9th Cir. 2009); Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1060 (9th Cir. 2006). “Our
jurisdiction . . . does not extend to qualified immunity claims
involving disputed issues of material fact.” KRL v. Estates of
Moore, 512 F.3d 1184, 1188–89 (9th Cir. 2008). For the
reasons that follow, we AFFIRM in large part the district
court’s ruling, VACATE it in small part, REVERSE it in
smaller part, and remand for further proceedings consistent
with this opinion.

I.

Resolving any disputed facts in the plaintiffs’ favor (as
we must), Scott v. Harris, 550 U.S. 372, 378 (2007), the
following events occurred over the span of 12 minutes, early
on New Year’s Day, 2009.

2
Grant’s mother, daughter, and estate settled their claims arising out of
this incident.
10 JOHNSON V. BART

1:59:21 A.M.

Keecha Williams operated an eastbound BART train,
carrying New Year’s revelers out of San Francisco and across
the Bay. Shortly before Williams’s train pulled into
Oakland’s Fruitvale Station, a passenger used the train’s
emergency intercom to report a fight in the train’s lead car.
Williams relayed the passenger’s report to BART dispatch,
which instructed Williams to stop the train at Fruitvale and
wait for the police.

Officer Pirone was dispatched to the Fruitvale platform
with information that the troublemakers on Williams’s train
were a group of black males, in the lead car, wearing dark
clothing. Dispatch also told Pirone that no weapons were
used in the fight.

2:04:00 A.M.

Arriving on the platform, Pirone passed through a group
of people loosely fitting the description of the alleged
combatants and headed towards another group, also fitting
that description, whose members were standing and talking
on the platform near the train’s lead car. Pirone approached
the men and, as he said when later questioned, unholstered his
Taser in an effort to intimidate them. Three of the men—the
Brysons and Reyes—began to walk toward the stairs and the
station exit, behind Pirone. Pirone asked the men to stop, but
they continued to walk toward the exit. He then commanded
them to “sit the [expletive] down,” and they did. In the
meantime, two other members of the group, Grant and Greer,
stepped back aboard the train. Pirone radioed his partner,
Officer Domenici, who jogged up to the platform, drew her
 JOHNSON V. BART 11

own Taser, and assumed watch over Reyes and the Brysons
so Pirone could search for Grant and Greer.

2:06:33 A.M.

Pirone was pacing the platform, yelling “get the
[expletive] off my train,” when he spotted Grant through one
of the train’s windows. He pointed his Taser at Grant through
the glass, prompting Grant to maneuver his way out of the car
and on to the platform. Pirone led Grant to the wall where
Reyes and the Brysons sat, and then returned to the train to
search for Greer. Pirone located Greer shortly and demanded
he get off the train. When Greer failed to comply with
Pirone’s order, Pirone grabbed him by the shirt and dragged
him from the train, pushing him to the wall where the other
men were seated. Greer extended his arms to avoid striking
the wall, and then turn to face Pirone. Pirone described
Greer’s position as “a combative stance,” purportedly
justifying his response: Pirone grabbed Greer by the hair and
swept his legs from under him, dropping him to the station
floor. Pirone moved to handcuff Greer.

2:08:06 A.M.

Alarmed by Pirone’s treatment of Greer, Jack Bryson
stood and protested, exchanging profanities with Domenici.
Grant stood between Domenici and Bryson, extending a hand
between them and imploring Bryson to remain calm. Pirone,
claiming to have seen Grant touch Domenici, leapt from
Greer’s side, punched Grant in the head, and slung him to the
floor.
12 JOHNSON V. BART

2:08:36 A.M.

Other passengers, including the detainees’ friend,
Anicete, stepped from the idling train, protesting Pirone’s
actions. Officer Mehserle and Officer Jon Woffinden (who
is not a party to the appeals before us) sprinted on to the
platform. Seeing Pirone and Domenici with their Tasers
drawn, Mehserle removed his Taser from its holster on the
left side of his body—the side opposite his gun. Pirone
walked away from the assembled group of officers and
detainees, leaving the officers to keep watch without having
said anything to anyone about why he detained the group in
the first place.

“What do we have here,” Pirone asked Williams, as he
arrived at the operator’s booth at the front of the train’s lead
car. “Some BS,” Williams replied, referring to problems, like
fighting, that occur on BART trains on New Year’s Eve.
Pirone did not inquire further, and Williams said nothing else.
Pirone returned to the assembled officers and detained men.

2:09:53 A.M.

Walking back towards the group, Pirone pointed a finger
at the seated men, and generally at Grant, ordering Mehserle
to arrest “him and him” for “148” (California Penal Code
§ 148—misdemeanor resistance, delay, or obstruction of an
officer in the conduct of his duties). Mehserle thought Pirone
meant for him to arrest Grant and Jack Bryson; Pirone
actually meant for Mehserle to arrest Grant and the already-
handcuffed Greer. Mehserle began to handcuff Bryson.
Bryson argued with Mehserle, who threatened to use his
Taser if Bryson continued to resist.
 JOHNSON V. BART 13

2:10:19 A.M.

Bryson capitulated, kneeled, and put his hands behind his
back. Mehserle handcuffed him. Mehserle then turned to
Grant, who was seated to Mehserle’s left and facing Pirone.
Mehserle grabbed Grant, causing Grant to fall forward on to
Reyes, who was sitting on the floor as Pirone ordered
previously. Mehserle crouched behind Grant, and Pirone
knelt in front of Grant. Reyes implored Pirone and Mehserle
to get Grant off of him, and the two officers rolled Grant, face
down, on to the station floor, with Grant’s hands coming to
rest underneath his body.

2:10:53 A.M.

Pirone then knelt on Grant’s neck. Mehserle straddled
Grant, trying to pull his hands out from under his prostrate
body. Grant struggled, complaining that he was unable to
breathe. Despite his struggling, Pirone was satisfied that
Grant was subdued. Mehserle, however, stood, unholstered
his gun, and directed Pirone to get back. Puzzled by
Mehserle’s request, Pirone stood, allowing onlookers who
were recording the scene to see Grant’s hands resting visibly
behind his back.

2:11:00 A.M.

Another officer, Emery Knudtson (who also is not a party
to these appeals), arrived on the platform. Knudtson saw
Anicete pacing and cursing at the other officers, so Knudtson
tackled and handcuffed him, applying extra pressure to
Anicete’s hip after Anicete complained of a preexisting injury
there. As Anicete fell to the floor, he and Knudtson both
heard a popping sound. Knudtson thought it was a
14 JOHNSON V. BART

firecracker. It was actually the sound of Mehserle shooting
Grant in the back.

“You shot me,” Grant repeated frantically. “Oh,
[expletive], I shot him,” Mehserle exclaimed, raising his
hands to his head. Mehserle handcuffed the mortally
wounded Grant and searched him. He then removed the
handcuffs and tried to stanch the blood flowing from the hole
in Grant’s back.

Knudtson dragged Anicete to the wall, putting him with
the other detained men. Reyes stood and attempted to leave,
but Woffinden and Knudtson handcuffed him. The other
officers herded passengers back on to the train, attempting to
clear the platform.

2:12:41 A.M.

The train’s doors closed, and it pulled out of the Fruitvale
Station.

* * *

An unknown officer handcuffed Nigel Bryson, the last of
the group of men who remained free. Pirone had already
handcuffed Greer, Mehserle handcuffed Jack Bryson,
Knudtson handcuffed Anicete, and Knudtson and Woffinden
handcuffed Reyes. The Brysons, Reyes, Greer, and Anicete
were then taken to BART police headquarters by unknown
officers, at the command of police officials who are not
parties to these appeals or the underlying lawsuit. None of
the young men were charged with any crime in connection
with the morning’s events, though all remained handcuffed in
 JOHNSON V. BART 15

holding rooms at the station for several hours. Grant was
taken to the hospital, where he died.

II.

A.

Pursuant to 42 U.S.C. § 1983, Reyes, the Brysons, Greer,
and Anicete sued Mehserle, Pirone, and Domenici for
detaining them in violation of the Fourth Amendment;
additionally, they claimed Mehserle, Pirone, and Domenici
unlawfully arrested them, also in violation of the Fourth
Amendment. All five men alleged a violation of California
Civil Code § 52.1, the California state law analog to section
1983. Further, Anicete and Greer alleged that Pirone and
Knudtson used unconstitutionally excessive force against
them.

Separately, Oscar Grant, Jr. brought a Fourteenth
Amendment claim alleging that Mehserle, Pirone, and
Domenici deprived him of his familial relationship with his
deceased son, “in violation of the rights, privileges, and
immunities secured by the First, Fourth, and Fourteenth
Amendments to the United States Constitution.” Mehserle,
Pirone, and Domenici filed motions for summary judgment,
each seeking qualified immunity from the claims made
against him or her.

B.

In analyzing the officers’ motions, the district court
created a three-part chronology of the morning’s events,
granting or denying the officers immunity from the plaintiffs’
claims depending on the point in time at which the claims
16 JOHNSON V. BART

arose. The district court’s first time period began when
Pirone detained Reyes and the Brysons, the second began
when Pirone ordered Mehserle to arrest “him and him,” and
the third encompassed the prolonged detentions of Reyes, the
Brysons, and Anicete, beginning when Mehserle shot Grant.

The district court denied Pirone qualified immunity—for
all three time periods—from Reyes’s, the Brysons’, Greer’s,
and Anicete’s claims that Pirone both unlawfully seized and
unlawfully arrested the group. The district court granted
Mehserle and Domenici qualified immunity from the same
claims during the first time period, but denied both of them
immunity from the time Pirone ordered Mehserle to arrest
“him and him,” onward—that is, for the second and third time
periods. Moreover, and specifically as to Jack Bryson’s
claim that Mehserle arrested him unlawfully, the district
court’s denial of qualified immunity was premised on its
finding that there remained a triable issue of fact as to
whether Mehserle reasonably mistook Pirone’s command in
arresting the wrong person. The district court also denied the
officers qualified immunity from the men’s claim under
California Civil Code § 52.1. Finally, the district court
denied Mehserle immunity from Oscar Grant, Jr.’s Fourteenth
Amendment claim.

C.

Mehserle asks us to determine whether the district court
erred in denying him immunity from: (1) Oscar Grant, Jr.’s
Fourteenth Amendment claim for deprivation of a familial
relationship; (2) any claim under California Civil Code
§ 52.1; (3) Anicete’s unlawful arrest claim; (4) claims arising
from the extended detentions of Anicete, Reyes, and Nigel
Bryson at BART police headquarters; and (5) Jack Bryson’s
 JOHNSON V. BART 17

unlawful arrest claim. Pirone asks us to review the district
court’s decision to deny him immunity from: (1) the claim
that he detained Reyes and the Brysons unlawfully; (2) the
claim that, at some point, Pirone’s detention of Reyes and the
Brysons became a de facto unlawful arrest; and (3) Greer’s
unlawful arrest claim. Domenici seeks review of the district
court’s decision denying her immunity from the portion of
Reyes’s and the Brysons’ unlawful detention claims arising
out of their extended detentions at BART headquarters.
Because this is an appeal from the denial of summary
judgment, we adopt the view of any disputed facts most
favorable to the plaintiffs—the one we have set forth,
above—and then, premised upon those facts, review de novo
the district court’s denials of qualified immunity. Karl v. City
of Mountlake Terrace, 678 F.3d 1062, 1067–68 (9th Cir.
2012).

D.

When police officers are sued for their conduct in the line
of duty, courts must balance two competing needs: “the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231
(2009).

We apply a two-part test to determine which way the
balance tips in a given case. Id. at 232; Lacey v. Maricopa
Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc). We may
begin with either part of the test, but typically, taking the
facts in the light most favorable to the plaintiffs, we first ask
whether those facts demonstrate that the defendant police
officers violated one or more of the plaintiffs’ constitutional
18 JOHNSON V. BART

rights. Pearson, 555 U.S. at 236; Maxwell v. Cnty. of San
Diego, 697 F.3d 941, 947 (9th Cir. 2012); Lacey, 693 F.3d at
915. If the answer to that question is “no,” we stop: without
a violation, there is no basis for the plaintiffs’ lawsuit to
proceed. Id.

If the answer to our first question is “yes,” then for the
second step, we call on a familiar character, the hypothetical
“reasonable officer.” The reasonable officer avoids
committing acts that have been clearly established as
unconstitutional—for example, handcuffing a prisoner to a
fence for a long period of time—as well as other, similar acts,
like handcuffing a prisoner not to a fence, but instead to a
hitching post. See Hope v. Pelzer, 536 U.S. 730, 739–43
(2002) (holding that an act—there, handcuffing a shirtless
inmate to a hitching post in the sun for seven hours—may be
clearly established as unconstitutional even if there is no case
addressing it specifically, as long as existing law provides
“fair warning” that the act is unconstitutional); Mattos v.
Agarano, 661 F.3d 433, 442 (9th Cir. 2011). Nevertheless,
our reasonable officer sometimes makes mistakes—
reasonable mistakes—of fact or law, and thereby commits an
unconstitutional act. Though we may excuse the reasonable
officer for such a mistake, Pearson, 555 U.S. at 231, it
sometimes proves necessary for a jury to determine first
whether the mistake was, in fact, reasonable, Santos v. Gates,
287 F.3d 846, 855 n.12 (9th Cir. 2002).

To complete the second step of the qualified immunity
analysis, we place our hypothetical reasonable officer in the
same situation as the defendant police officers, and then ask
whether the reasonable officer also would have committed the
act that the plaintiffs contend is unconstitutional. Lacey,
693 F.3d at 915. If the answer is “yes,” the defendant officers
 JOHNSON V. BART 19

are entitled to qualified immunity. Id. If the answer is “no,”
the plaintiffs’ claim against the defendant officers may
proceed. Id.

III.

A.

Johannes Mehserle

1. Mehserle is not entitled to immunity from Oscar
Grant, Jr.’s Fourteenth Amendment claim.

Parents have a Fourteenth Amendment right to the
companionship of a child, which a police officer violates by
“act[ing] with a purpose to harm” the child “that [is]
unrelated to legitimate law enforcement objectives.” Porter
v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Oscar Grant,
Jr. claims Mehserle violated his right to his child’s
companionship by shooting and killing his child; Mehserle
seeks qualified immunity from that claim. The district court
denied Mehserle this immunity, and we affirm.

Mehserle first argues that we should scrutinize the
strength of the relationship between Grant and his father, and
determine that they lacked a degree of familiarity sufficient
to warrant a claim for loss of companionship. In a scant
paragraph supporting this argument, Mehserle cites two
cases. First, Mehserle cites the Seventh Circuit’s opinion in
Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), which he
describes as holding “that where a child had created a new
life away from the parents, the parents were not entitled to a
claim under the Fourteenth Amendment.” Second, Mehserle
cites our opinion in Lee v. City of Los Angeles, 250 F.3d 668,
20 JOHNSON V. BART

685 (9th Cir. 2001), for the truism that a Fourteenth
Amendment claim for loss of companionship is intended to
protect “those relationships, including family relationships,
that presuppose ‘deep attachments and commitments to the
necessarily few other individuals with whom one shares not
only a special community of thoughts, experiences, and
beliefs but also distinctively personal aspects of one’s life.’”
(internal citation omitted).

The upshot of Russ, however, is not that courts should
determine, as a matter of law, that at some indeterminate
point in time a child has created enough of a life away from
home to strip his parents of their right to his companionship.
It is instead that at some determinate point in time—when the
child reaches the age of majority—his parents’ Fourteenth
Amendment right to his companionship is extinguished.
Russ, 414 F.3d at 791. But that is not the argument Mehserle
makes as to Grant’s relationship with his father. See
Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu,
626 F.3d 483, 487–88 (9th Cir. 2010) (recalling previous
admonishments that we decline to address arguments not
made distinctly in an appellant’s opening brief). Moreover,
in past cases, we have recognized a parent’s right to a child’s
companionship without regard to the child’s age. See
Strandberg v. City of Helena, 791 F.2d 744, 748 & n.1 (9th
Cir. 1986) (recognizing, at least in passing, parents’ right to
the companionship and society of their deceased 22-year-old
son); see, e.g., Lee, 250 F.3d at 685–86 (holding that a mother
successfully stated a violation of the Fourteenth Amendment
by alleging that the Los Angeles Police Department
recklessly deprived her of the companionship of her mentally
disabled adult son); Smith v. City of Fontana, 818 F.2d 1411,
1419 (9th Cir. 1987) (describing Strandberg as recognizing
a Fourteenth Amendment right of parents to the
 JOHNSON V. BART 21

companionship of adult children, because “the familial
relationship, and not the more narrow custodial interest of the
parents, gave rise to the due process action”), overruled on
other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d
1037 (9th Cir. 1999) (en banc); see also Reynolds v. Cnty. of
San Diego, 858 F. Supp. 1064, 1070 (S.D. Cal. 1994) (“The
parent’s constitutionally-protected interest is not extinguished
as a matter of law when an adult child leaves his parents’
home and marries.”).3 With no authority to support it, we
decline Mehserle’s invitation to find, as a matter of law, that
Grant and his father lacked a sufficiently strong father–son
bond to support the father’s Fourteenth Amendment claim.4

Mehserle next contends that “the facts overwhelmingly
show that [he] was acting consistently within the legitimate
law enforcement objective of arresting Grant” at the time that

3
Several of our sister circuits have held that a parent’s protected interest
in the companionship of his or her child, at least as far as the Constitution
is concerned, ends when the child reaches the age of majority. See, e.g.,
Russ, 414 F.3d at 791 (overruling a prior decision “insofar as it recognized
a constitutional right to recover for the loss of the companionship of an
adult child when that relationship is terminated as an incidental result of
state action”); McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir. 2003) (“[W]e
hold that the fundamental guarantees of the Due Process Clause do not
extend to a parent’s interest in the companionship of his independent adult
child.”); Butera v. Dist. of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001)
(“[W]e hold that a parent does not have a constitutionally-protected liberty
interest in the companionship of a child who is past minority and
independent.”). Should Mehserle raise this issue properly in the district
court, and brief it in a future appeal, we may have occasion to consider it.
4
That is not to say that the strength of a parent’s relationship with a
child has no bearing on the parent’s claim for loss of the child’s
companionship. It is instead to say that the closeness of a parent’s
relationship with a child is a quintessential question of fact (and on this
record, a disputed one).
22 JOHNSON V. BART

he shot Grant in the back. We construe the facts,
overwhelming or otherwise, in Grant’s father’s favor and ask
whether the district court properly denied Mehserle immunity
on the basis of those facts. As recounted above, before the
district court was evidence that: Grant struggled with
Mehserle and Pirone because they were preventing him from
breathing; Grant was adequately subdued before Mehserle
shot him; Pirone was surprised by Mehserle’s command that
he stand back (because Pirone thought Grant was adequately
subdued); and Grant’s hands were behind his back when
Mehserle shot him. See Porter, 546 F.3d at 1135, 1141–42
(remanding to the district court with instructions to consider,
among other things, that a second officer who witnessed a
fatal officer-involved shooting was “shocked” by the five
shots his colleague fired into the decedent’s car).

In light of these and other facts, which Mehserle disputes,
the district court concluded that “there is a genuine issue of
material fact as to whether Mehserle’s actions were required
by a legitimate law enforcement purpose . . . .” We do not
disturb that conclusion, Johnson, 515 U.S. at 314, and agree
that given the factual dispute before it, which must be
resolved by a jury, the district court could not have properly
granted Mehserle qualified immunity. Accordingly, and
correctly, it did not.5

5
We note that Oscar Grant, Jr.’s Fourteenth Amendment claim makes
reference to “rights, privileges, and immunities secured by the First,
Fourth, and Fourteenth Amendments.” There is, however, no argument
as to what First or Fourth Amendment rights Oscar Grant, Jr. is attempting
to assert, either on his own behalf or that of his deceased son—though
Mehserle argues that Oscar Grant, Jr. may not assert any Fourth
Amendment rights vicariously on his son’s behalf. See Alderman v.
United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights are
personal rights which, like some other constitutional rights, may not be
 JOHNSON V. BART 23

2. We lack jurisdiction to hear an appeal asserting a
right to federal law qualified immunity from a
California state law (Civil Code § 52.1) violation.

Mehserle seeks qualified immunity from the California
Civil Code § 52.1 claim against him (based on the same
conduct underlying the plaintiffs’ section 1983 claims), but
the doctrine of qualified immunity does not shield defendants
from state law claims. Cousins v. Lockyer, 568 F.3d 1063,
1072 (9th Cir. 2009); see Richard H. Fallon, Jr., et al., Hart
and Wechsler’s The Federal Courts and the Federal System
1006 (6th ed. 2009) (“The immunity of state officials in
actions based on state law is itself governed by state law, for
absent wholly arbitrary action by the state, there is no
distinctive federal interest.”). Nevertheless, Mehserle urges,
because the plaintiffs’ section 52.1 claim reaches the same
underlying conduct as their section 1983 claims, Mehserle
should be equally immune to both.

We rejected an identical argument in Liberal v. Estrada,
632 F.3d 1064 (9th Cir. 2011), in which we held that we
lacked jurisdiction to entertain a defendant’s interlocutory

vicariously asserted.”). But see Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (“In § 1983 actions, however, the
survivors of an individual killed as a result of an officer’s excessive use
of force may assert a Fourth Amendment claim on that individual’s behalf
if the relevant state’s law authorizes a survival action.”); Smith, 818 F.2d
at 1416–17 (finding, under California law, a Fourth Amendment claim
under section 1983 survives the death of the plaintiff). Though Mehserle
made the same argument in the district court, the district court failed to
address it in its order. On remand, if Oscar Grant, Jr. intends to proceed
with any theory other than a deprivation of familial companionship under
the Fourteenth Amendment, the district court should determine whether
he is entitled to assert such a claim under California’s survival statute.
24 JOHNSON V. BART

appeal that he was entitled to qualified immunity from a
section 52.1 claim. Id. at 1076. We cannot deviate from
Liberal’s holding. Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc). Nor are we inclined to: Mehserle
could have appealed the district court’s decision to deny him
immunity under California state law, rather than under the
federal law doctrine of qualified immunity; he did not.
Liberal, 632 F.3d at 1074–76. Absent appellate jurisdiction,
we do not reach the district court’s ruling denying Mehserle
immunity from the plaintiffs’ section 52.1 claim.

3. Mehserle is entitled to qualified immunity from a
claim that he unlawfully arrested Anicete.

Mehserle protests that the district court neglected to
address Anicete’s claims against him entirely, even though
Mehserle sought immunity from those claims. We agree with
Mehserle that the district court did not give adequate
consideration to Anicete’s claims against him, though we do
so mindful of the enormity of the task the district court faced.

The parties presented the district court with a host of
claims against a group of officers and municipal entities, and
then made cross-motions for summary judgment that they
supported in a disorderly, muddled, and confusing manner.
The district court attempted to impose some level of
coherence on the case by discussing those claims that made
sense for a given plaintiff to bring against a particular officer.
But by structuring its decision in that fashion, the district
court analyzed claims that appeared nowhere in the pleadings,
and omitted claims that did appear in the pleadings. For
instance, the district court asked whether Mehserle used
excessive force against the Brysons (one of whom Mehserle
handcuffed), Reyes (with whom Mehserle had no contact),
 JOHNSON V. BART 25

and Greer (likewise), but the plaintiffs’ excessive force claim
was made only on behalf of Greer and Anicete, and against
Pirone (who threw Greer on the ground) and Knudtson (who
tackled and handcuffed Anicete) only. There was no need for
the district court to conduct an excessive force analysis as to
Mehserle, though we understand why it did: the plaintiffs, in
opposing summary judgment, argued that the officers’ use of
Tasers in detaining all the plaintiffs constituted excessive
force—a claim the plaintiffs never before raised.

Anicete did, however, plead unconstitutional seizure and
unconstitutional arrest claims against Mehserle, and Mehserle
moved for summary judgment on those claims. Nonetheless,
the district court did not discuss Anicete at all when
addressing the initial seizures of Reyes, the Brysons, and
Greer (unsurprisingly, since Anicete was not yet detained),
and when discussing unconstitutional arrest, the district court
only addressed Mehserle’s treatment of the two people he
handcuffed—Grant and Jack Bryson.

What to do with Anicete’s claims against Mehserle?
There is only one point at which the district court’s order can
be read to reach those claims: when the district court denied
all the officers (including Mehserle) qualified immunity for
the detention of all of the plaintiffs (including Anicete),
beginning at the point at which Pirone ordered Mehserle to
arrest “him and him” (the second and third of the district
court’s time periods). Anicete, however, was not detained or
arrested until after Pirone gave his order; Knudtson tackled
and handcuffed Anicete just as Mehserle shot Grant. The
plaintiffs would have us stop with this observation and
conclude that the district court intended, implicitly, to leave
Mehserle—and every other officer sued—responsible for
Anicete’s arrest and detention.
26 JOHNSON V. BART

But we must grant Mehserle qualified immunity from suit
over an act in which he played no part. See Hopkins v.
Bonvicino, 573 F.3d 752, 769–70 (9th Cir. 2009) (granting an
officer qualified immunity for his partner’s unlawful entry of
a house, which occurred while the officer interviewed a
witness on the front lawn). There is no evidence in the record
that Mehserle played any part in Anicete’s arrest;
consequently, we hold that he is entitled to qualified
immunity from a claim that he unlawfully arrested Anicete.

The district court’s order also denies Mehserle qualified
immunity from claims arising from Anicete’s extended
detention at BART police headquarters, and from the
extended detentions of Reyes and Nigel Bryson. Mehserle
contends he is entitled to immunity from those claims, as
well; we turn now to that argument.

4. The district court failed to consider whether there was
any evidence that Mehserle participated in the
extended detentions of Anicete, Reyes, or Nigel
Bryson.

On the orders of BART police Commanders White and
Gibson (neither of whom is a defendant in this case), Reyes,
both of the Brysons, Greer, and Anicete were taken to BART
police headquarters and detained, in handcuffs, for hours.
Mehserle argues he had nothing to do with the prolonged
detentions of Anicete, Reyes, or Nigel Bryson, and is
therefore entitled to qualified immunity from their claims
arising out of those detentions. The district court held that it
did not matter whether Anicete, Reyes, and Nigel Bryson had
any evidence implicating Mehserle in their prolonged
detentions, and instead, that the burden fell to Mehserle to
exculpate himself from their claims.
 JOHNSON V. BART 27

In reaching that conclusion, the district court appears to
have misread our opinion in Dubner v. City and County of
San Francisco, 266 F.3d 959 (9th Cir. 2001). In that case,
Dubner, a photographer, sued after being arrested without
probable cause during a demonstration outside San
Francisco’s Moscone Center. Ziegler, the officer listed as
having arrested Dubner, had no recollection of arresting her
at all. Id. at 964. No other officer recalled even having seen
Dubner at the demonstration. Id. at 965. Ultimately, the
success of Dubner’s claim for unlawful arrest depended on
her being able to show that she was arrested without probable
cause; however, once Dubner demonstrated that the police
lacked a warrant to arrest her, the burden shifted to the police
to produce some evidence they had probable cause for the
arrest. Id. We held that because Dubner had made every
effort to ascertain the identity of the officers responsible for
her arrest, and because the burden fell to the police to
demonstrate they had probable cause to arrest Dubner, then
the burden also fell to the police to come up with the identity
of the officer who actually made the arrest—without it, there
would be no way to demonstrate that the officer had the
necessary probable cause. Id. at 965–66.

In the case before us, the district court quoted from
Dubner—“‘[i]f the defendant is unable or refuses to come
forward with any evidence that the arresting officers had
probable cause and the plaintiff’s own testimony does not
establish it, the court should presume the arrest was
unlawful’”—and then concluded that Mehserle was required
to demonstrate he had nothing to do with the prolonged
detentions of Anicete, Reyes, and Nigel Bryson in order to
escape liability for them. Dubner, however, establishes only
that we will find the police lack probable cause to make an
arrest—and therefore that the arrest is unlawful—if the police
28 JOHNSON V. BART

are unable to identify who made the arrest, or why. But the
issue we must evaluate here is not whether Mehserle had
probable cause to arrest Anicete, Reyes, or Nigel Bryson; it
is whether Mehserle was at all responsible for their prolonged
detentions. The district court did not rely on the record in
trying to resolve the question, and instead relied erroneously
on Dubner to conclude that the absence of evidence
implicating Mehsrele was, as a matter of law, “of no
account.” Because the district court’s legal error prevented
it from making the factual findings necessary to decide
whether Mehserle is entitled to immunity from claims arising
out of Anicete’s, Reyes’s, and Nigel Bryson’s prolonged
detentions, we remand this issue to the district court with
instructions to review the record and determine whether there
are disputed issues of fact as to Mehserle’s involvement with
Anicete’s, Reyes’s, and Nigel Bryson’s detentions.

5. The district court properly denied Mehserle qualified
immunity from Jack Bryson’s unlawful arrest claim.

Mehserle arrested Jack Bryson on Pirone’s order to arrest
“him and him,” and argued before the district court that he
made a reasonable mistake when he arrested the wrong
“him,” Jack Bryson. (Pirone testified that he meant for
Mehserle to arrest Grant and Greer.) The district court denied
Mehserle qualified immunity for the arrest, concluding that
whether Mehserle’s mistake was reasonable is a question for
the jury. We agree. See, e.g., Wilkins v. City of Oakland,
350 F.3d 949, 955–56 (9th Cir. 2003) (holding that the
question of whether officers made a reasonable mistake when
they shot their own undercover colleague must be submitted
to a jury).
 JOHNSON V. BART 29

Mehserle argues that he is otherwise entitled to qualified
immunity from Jack Bryson’s unlawful arrest claim, because
he had probable cause to arrest Bryson independently of
Pirone’s order. See Rosenbaum v. Washoe Cnty., 663 F.3d
1071, 1076 (9th Cir. 2011) (noting that an officer is immune
to a claim of unlawful arrest if he had probable cause for the
arrest, i.e., it was not actually unlawful, or if “it is reasonably
arguable that there was probable cause for arrest”).
Specifically, Mehserle posits, he had probable cause to arrest
Jack Bryson for violating California Penal Code § 148, which
penalizes interference with a law enforcement officer in the
performance of his duties, because Mehserle “personally
observed Bryson creat[ing] a disturbance, incit[ing] the
crowd, and disregard[ing] Mehserle’s instructions during a
tense, escalating event on the platform to which Mehserle had
been called for backup.”

Bryson’s alleged creation of a disturbance consisted of his
cursing the officers, but “[e]ven though the police may dislike
being the object of abusive language,” section 148 does not
allow them “to use the awesome power which they possess to
punish individuals for conduct that is not only lawful, but
which is protected by the First Amendment.” In re
Muhammed C., 95 Cal. App. 4th 1325, 1330–31 (2002); see
also Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir.
1990) (opining that “making obscene gestures” and “yelling
profanities in Spanish,” while “boorish, crass and, initially at
least, unjustified,” is “not illegal”); cf. Swartz v. Insogna,
704 F.3d 105, 109–11 (2d Cir. 2013) (observing, among other
things, that police officers cannot arrest someone for the
“disorderly conduct” of giving the officers the finger). If
Bryson was exhorting people to commit violence against the
officers, it would be arguable that Mehserle had probable
cause to arrest him. See generally Brandenberg v. Ohio,
30 JOHNSON V. BART

395 U.S. 444, 447 (1969) (per curiam) (observing that states
may criminalize speech that is “directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action”). But what Bryson may have said to the
crowd is at least a disputed question of fact—the record
reflects only what Bryson said to the officers—and thus, like
the question whether Mehserle reasonably misunderstood
Pirone’s command, must be left to a jury. We therefore
affirm the district court’s ruling denying Mehserle qualified
immunity from Jack Bryson’s unlawful arrest claim.

B.

Anthony Pirone

1. Pirone was properly denied qualified immunity for his
initial detention of Reyes, the Brysons, and Greer.

Pirone stopped Reyes, the Brysons, and Greer to
investigate a misdemeanor violation of California Penal Code
§ 242 (i.e., a misdemeanor battery); such an investigatory
stop requires a police officer to have “reasonable suspicion
supported by articulable facts that criminal activity ‘may be
afoot.’” United States v. Basher, 629 F.3d 1161, 1165 (9th
Cir. 2011) (internal citations omitted). Pirone argued, and
argues, that he had reasonable suspicion to stop the men
based on a report that a group of black males, wearing similar
clothing, were fighting in the train car outside of which he
spotted the group—and that the group attempted to evade
Pirone as he approached. The district court held these facts
were insufficient to arouse suspicion in support of Pirone’s
investigatory stop, and therefore denied him qualified
immunity from Reyes’s, the Brysons’, and Greer’s unlawful
detention claims. We agree with the district court’s
 JOHNSON V. BART 31

conclusion that Pirone is not entitled to qualified immunity
from those claims, but arrive at that conclusion by a different
route.

Determining whether an officer had reasonable suspicion
to conduct an investigatory stop can be a tricky proposition,
particularly when one of the factors motivating the stop was,
as in this case, the race of the suspects. Race is of little value
in distinguishing one suspect from others, particularly where
everyone in the pool of possible suspects is of the same race.
See United States v. Montero-Camargo, 208 F.3d 1122, 1135
(9th Cir. 2000) (en banc) (observing that where most people
who transverse a checkpoint are Hispanic, the fact that a
particular person transversing it is Hispanic is of little value
in establishing reasonable suspicion); Morgan v. Woessner,
997 F.2d 1244, 1254 (9th Cir. 1993) (holding that a tip to
look out for a black person, without more, does not give rise
to reasonable suspicion to stop anyone). But race is a trait
that, when combined with others, can reasonably lead an
officer to zero in on a particular suspect. Montero-Camargo,
208 F.3d at 1134 nn.21 & 22. A reviewing court must
therefore consider all the factors on which an officer relied in
combination, rather than separately, in determining whether
the officer had reasonable suspicion to stop a particular
suspect. United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Sokolow, 490 U.S. 1, 8 (1989); United States
v. Cortez, 449 U.S. 411, 417 (1981); see, e.g., Terry v. Ohio,
392 U.S. 1, 22 (1968) (noting that the investigating officer
“observed Terry . . . go through a series of acts, each of them
perhaps innocent in itself, but which taken together warranted
further investigation”); Paine v. City of Lompoc, 160 F.3d
562, 566 (9th Cir. 1998) (finding that the police had
reasonable suspicion to stop a suspected pugilist after
receiving a report of a fight, witnessing a ring of apparent
32 JOHNSON V. BART

spectators, and after an onlooker yelled, “Cops!,” observing
the suspect leave with a second, bloodied person).

Here, many of the factors Pirone listed as his basis for
suspecting the group of being the fighters he was looking for
are, by themselves, innocuous. Other than their race, Pirone
cited the group’s attempt to elude him on the train platform,
but see Florida v. Royer, 460 U.S. 491, 497–98 (1983)
(holding that one does not arouse reasonable suspicion merely
by attempting to walk away from the police), and the fact that
its members were standing and talking near the train car from
which the fight was reported. Whether combining these
factors creates sufficient suspicion to stop the group is a
difficult question, but it is one we need not resolve, because
Pirone’s stop was constitutionally unsound in another respect:
when Pirone arrived on the platform, it is undisputed that no
crime was afoot. Pirone was instead, as he conceded at
argument, investigating a completed misdemeanor, and we
held—prior to the events at issue here—that the Fourth
Amendment constrains officers who conduct stops to
investigate completed misdemeanors. United States v. Grigg,
498 F.3d 1070, 1079–81 (9th Cir. 2007).

In determining whether the Fourth Amendment permits
an officer to detain a suspected misdemeanant, Grigg requires
us to “consider the nature of the misdemeanor offense in
question, with particular attention to the potential for ongoing
or repeated danger (e.g., drunken and/or reckless driving),
and any risk of escalation (e.g., disorderly conduct, assault,
domestic violence).” Id. at 1081; see also United States v.
Hensley, 469 U.S. 221, 228 (1985) (“[T]he exigent
circumstances which require a police officer to step in before
a crime is committed or completed are not necessarily as
pressing long afterwards. Public safety may be less
 JOHNSON V. BART 33

threatened by a suspect in a past crime who now appears to be
going about his lawful business . . . .”). Here, Pirone came
upon a group of black men who were doing nothing but
talking when he arrived. There is an insufficient basis to
conclude, from anything Pirone witnessed, that there was a
likelihood for “ongoing or repeated danger,” or “escalation.”
Pirone nevertheless pulled a weapon (his Taser) on the young
men, admittedly for the purpose of “intimidation,” and using
profanity, ordered them to be seated.

Would our hypothetical reasonable officer, given the law
we articulated in Grigg and his task of avoiding constitutional
violations, have behaved as Pirone did? We think not.
Whether or not Pirone articulated facts sufficient to support
his suspicion of Reyes, the Brysons, and Greer, we conclude
that given the questionable nature of Pirone’s authority to
detain the group for a misdemeanor that abated before his
arrival, the district court properly denied Pirone qualified
immunity—at this stage of the proceedings and on the record
before it—from their claim of unlawful detention.

2. Pirone is not entitled to qualified immunity for
conducting a de facto arrest of Reyes and the Brysons.

The district court found that Pirone, in pulling his Taser
on Reyes and the Brysons to facilitate their detention, may
have effectively placed them under arrest without the
requisite probable cause. The district court denied Pirone
qualified immunity from Reyes’s and the Brysons’ claims
that he unlawfully arrested them, allowing a jury to determine
whether Pirone behaved reasonably in using a Taser to
facilitate an investigatory stop. Pirone argues that the district
court erred, and that he is entitled to qualified immunity from
the Brysons’ and Reyes’s unlawful arrest claims, because
34 JOHNSON V. BART

brandishing his Taser did not transform an investigatory stop
into a de facto arrest, or if it did, that Pirone made a
reasonable mistake in doing it.

Courts “examine the ‘totality of the circumstances’ in
deciding ‘whether an investigative detention has ripened into
an arrest,’” focusing “on the perspective of the person seized,
rather than the subjective beliefs of the law enforcement
officers.” United States v. Charley, 396 F.3d 1074, 1080 (9th
Cir. 2005) (quoting Eberle v. City of Anaheim, 901 F.2d 814,
819 (9th Cir. 1990)). “The question is thus whether a
reasonable innocent person in [the same] circumstances
would not have felt free to leave after brief questioning.” Id.
(internal quotation marks omitted). While this standard
suggests that “[u]nder ordinary circumstances, drawing
weapons and using handcuffs are not part of a Terry stop,”
United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001),
we have recognized some circumstances in which it is
appropriate for an officer to use a level of force that would
ordinarily bring to mind arrest, i.e.: (1) “where the suspect is
uncooperative or takes action at the scene that raises a
reasonable possibility of danger or flight;” (2) “where the
police have information that the suspect is currently armed;”
(3) “where the stop closely follows a violent crime;” and (4)
“where the police have information that a crime that may
involve violence is about to occur.” Washington v. Lambert,
98 F.3d 1181, 1189 (9th Cir. 1996); see United States v.
Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (“The use of
force during a stop does not convert the stop into an arrest if
it occurs under circumstances justifying fears for personal
safety.”).

The district court applied this standard and determined
that Pirone threatened Reyes and the Brysons with his Taser
 JOHNSON V. BART 35

even though “there appeared to be no objective indication of
violent activity or of any criminal activity for that matter,”
and Pirone’s limited knowledge of the fight aboard the train
included that no weapons were used. The court therefore
found that a jury “could conclude that a reasonable person
would not believe that he was at liberty to leave.” Pirone
contends that “from the perspective of a reasonable officer on
the scene,” brandishing a Taser was appropriate: Pirone was
outnumbered, responding to a violent crime, had no way of
knowing whether the men were armed (he knew only that no
weapons were used in the fight), and was surrounded by
intoxicated BART patrons. Moreover, Pirone argues, the stop
lasted only a few minutes, and when he attempted to make the
stop, Grant and Greer fled on to the train. And at no time did
Pirone strike or handcuff Reyes or the Brysons.

We note that the specific quantum of force involved in
using a Taser was not clearly established at the time that
Pirone merely threatened its use, see Bryan v. MacPherson,
630 F.3d 805, 824–26 (9th Cir. 2010), a fact that suggests the
application of qualified immunity—if the claim at issue
turned on the amount of force Pirone applied to stop Reyes
and the Brysons. But that is not the claim at issue.6
Regardless of the injury a weapon is capable of inflicting, we
begin from the presumption that no weapons are used at all in
conducting an investigatory stop. Miles, 247 F.3d at 1012.
After all, a reasonable person is unlikely to feel free to leave
after answering a few questions, Charley, 396 F.3d at 1080,
if the prelude to the officer’s query involves the display of a
weapon for the explicit purpose of intimidating that
reasonable person. Although the level of force resulting from

6
The district court granted Pirone qualified immunity from an excessive
force claim related to his display of the Taser.
36 JOHNSON V. BART

a Taser’s application had yet to be established at the time of
these events, it was already established that using a Taser
constitutes some level of force, Bryan, 630 F.3d at 833, and
it was certainly beyond cavil that a Taser is a weapon. See
United States v. Wallace, 800 F.2d 1509, 1512–13 (9th Cir.
1986) (affirming the district court’s finding that, as a matter
of law, “an electronic taser or stun gun” is a “dangerous
weapon” for the purpose of committing the crime of boarding
a plane with a concealed dangerous weapon). Of course, we
allow that in extraordinary circumstances, an officer may
“draw[] weapons,” Miles, 247 F.3d at 1012, but we agree
with the district court’s assessment that the evidence does not
demonstrate indisputably that Pirone found himself in those
circumstances.

Despite Pirone’s argument about the conditions on the
platform when he arrived, Pirone testified he pulled his Taser
on the young men for the purpose of “intimidation,” and not
because he feared for his safety or the safety of anyone else
on the platform.7 A desire to cow suspects into compliance
is not one of the previously enumerated reasons for which we
countenance the use of weapons during an investigatory stop.
Moreover, Pirone testified that he drew his Taser before he

7
Moreover, while we recognize video recordings may offer an imperfect
account of an event for a number of reasons, e.g., because of acts
occurring outside the camera’s field of vision, we note that video from the
platform security camera does not appear to support Pirone’s contention
that the Fruitvale platform was crowded with intoxicated passengers when
he arrived. See Terry, 392 U.S. at 20 (framing the relevant inquiry as
“whether the officer’s action was justified at its inception, and whether it
was reasonably related in scope to the circumstances which justified the
interference in the first place” (emphasis added)). Instead, it appears that
no other passengers stepped off the train until after Pirone threw Greer to
the floor, long after he pulled his Taser.
 JOHNSON V. BART 37

“made contact” with the group, belying an argument that he
did so to prevent Reyes or the Brysons, or anyone else, from
taking flight—a flight which would have been futile, since the
train on to which they might have fled could not leave the
Fruitvale Station until BART released it. And not knowing
whether a suspect is armed is not the same as having reason
to believe the suspect is actually armed.

We are therefore left with the question whether it was
reasonable, on the facts with which he was presented, for
Pirone to use, or threaten to use, any weapon at all in
conducting an investigatory stop—or whether Pirone
effectively arrested Reyes and the Brysons.8 That question
must be resolved by a jury. Accordingly, we affirm the
district court’s decision to deny Pirone qualified immunity
from Reyes’s and the Brysons’ claims that by drawing his
Taser, Pirone arrested them unlawfully.

8
The cases cited by Pirone are not to the contrary; all involve
circumstances under which a suspect was uncooperative or likely armed.
See, e.g., Allen v. City of L.A., 66 F.3d 1052, 1055–57 (9th Cir. 1995)
(finding no unlawful arrest when a suspect was ordered from a car at
gunpoint, handcuffed, and held for no more than 24 minutes—when the
police just completed a high-speed pursuit of the car); United States v.
Alvarez, 899 F.2d 833, 836–39 (9th Cir. 1990) (finding no unlawful arrest
when a suspect was removed from his car at gunpoint—when the police
were tipped off that the suspect was armed with explosives and about to
rob a bank); United States v. Greene, 783 F.2d 1364, 1366–68 (9th Cir.
1986) (finding no unlawful arrest when two suspects were taken from their
car at gunpoint—when the police were told the men, suspected of bank
robbery, had a pistol).
38 JOHNSON V. BART

3. Pirone is not entitled to qualified immunity from
Greer’s unlawful arrest claim.

Lastly, Pirone argues the district court incorrectly denied
him qualified immunity for arresting Greer, whom he pulled
from the idling train, threw to the ground, and handcuffed.
Pirone contends he had probable cause to arrest Greer for
impeding him in the performance of his duties—a violation
of California Penal Code § 148—because by returning to the
train, Greer evaded Pirone’s attempt to detain and question
the entire group of young men. The district court found that
because Pirone lacked both “probable cause to believe that
plaintiffs had committed any underlying criminal violation,”
and “reasonable suspicion to detain plaintiffs for
investigatory purposes,” Pirone also lacked probable cause to
arrest Greer for violating section 148.

A suspect cannot be arrested for violating section 148
because he evaded an officer’s attempt to arrest him
unlawfully. See, e.g., Blankenhorn v. City of Orange,
485 F.3d 463, 472 (9th Cir. 2007) (“Although Blankenhorn
was also arrested . . . under California Penal Code section
148(a), any such resistance (and corresponding probable
cause) arose out of the initial arrest for trespassing. If there
was no probable cause to arrest Blankenhorn for trespassing
in the first place, it makes no difference for the present
purposes if he resisted arrest.”); Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 920 (9th Cir. 2001) (“Officers
Stone and Barnes arrived after the alleged battery occurred.
The officers could therefore not lawfully arrest Arpin for the
battery. If the officers could not lawfully arrest Arpin for the
battery, the officers could also not lawfully arrest Arpin for
resisting arrest.”). Here, the district court found that Pirone
had no lawful basis for stopping Reyes, the Brysons, Greer,
 JOHNSON V. BART 39

and Grant, and therefore had no lawful basis to pursue and
arrest Greer for not acceding to the investigatory stop. A
reasonable officer, it continued, would have known as much
after Blankenhorn. Because we agree with the district court
that Pirone had no lawful basis to detain the group initially,
we also agree with the district court that he is not entitled to
qualified immunity for arresting Greer over Greer’s refusal to
accede to the unlawful detention.

C.

Marysol Domenici

Domenici raises only one issue on appeal: she contends
that she is entitled to qualified immunity for Reyes’s, Greer’s,
Anicete’s, and the Brysons’ prolonged detentions at BART
headquarters, because like Mehserle, there is no evidence of
her involvement in those detentions. Unlike Mehserle,
however, the district court did make a factual finding
regarding Domenici’s involvement in the extended detentions
of the Brysons and Reyes, pointing to her appearance in
eyewitness video of the incident, after Mehserle shot Grant,
and therefore observing that the “[e]vidence suggests that
nonetheless Domenici continued to participate in [the]
detentions up until the time that Mehserle shot Grant and
thereafter” (emphasis added). The district court reached no
conclusions about Domenici’s immunity from claims arising
out of Greer’s and Anicete’s extended detentions, relying
improperly on Dubner (as it did with Mehserle). To the
extent the district court relied solely on Dubner to deny
Domenici immunity from any of the plaintiffs’ claims, we
remand to the district court to determine whether the facts
support granting Domenici immunity from those claims.
40 JOHNSON V. BART

To the extent the district court relied upon disputed facts
to deny Domenici immunity, we lack jurisdiction to review
that denial. Johnson, 515 U.S. at 319–20. In Johnson, the
seminal case on this point, the Supreme Court affirmed the
Seventh Circuit’s decision not to review a district court’s
denial of qualified immunity to three out of five police
officers who allegedly beat the plaintiff, Jones. The officers
argued for qualified immunity, because “whatever evidence
Jones might have about the other two officers, he could point
to no evidence that these three had beaten him or had been
present while others did so.” Id. at 307. In response, Jones
pointed to his deposition testimony, in which he claimed that
unknown officers used excessive force when arresting him
and later at the police station. Id. He then pointed to portions
of the depositions of the three protesting officers, in which all
three admitted they were present both at Jones’s arrest and at
the police station afterwards. Id. at 307–08. The district
court denied the officers summary judgment on the question
of their immunity, finding that Jones had presented sufficient
evidence of the three officers’ involvement to proceed to trial.
Id. at 308. The Seventh Circuit affirmed, and the Supreme
Court affirmed the Seventh Circuit, holding that “a defendant,
entitled to invoke a qualified immunity defense, may not
appeal a district court’s summary judgment order insofar as
that order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.” Id. at 319–20; see
also Wilkins, 350 F.3d at 952 (“On an interlocutory appeal of
a denial of qualified immunity, this court . . . may [not] . . .
conduct an inquiry into the sufficiency of evidence to support
a finding” that police officers did, in fact, violate a plaintiff’s
constitutional right).

Domenici nevertheless urges us to review the issue here,
because the district court never gave her the opportunity at
 JOHNSON V. BART 41

summary judgment to address her presence in the eyewitness
video. Federal Rule of Civil Procedure 56(e) or (f), Domenici
argues, requires the district court to permit her to respond to
what she characterizes as the district court’s sua sponte denial
of her motion for summary judgment. But the ability to
appeal any denial of summary judgment is the narrow
exception, not the rule. Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 106–07 (2009). Even if the district court made
a mistake in denying Domenici qualified immunity solely on
the basis of her presence on the platform at the conclusion of
a witness’s video, it is a mistake that can be sorted out later:
either Domenici will prevail at trial, or she may appeal
following a trial in which she is found liable for the plaintiffs’
extended detentions. If the record then is similarly devoid of
evidence of her involvement, the matter will be resolved
easily in her favor. See Johnson, 515 U.S. at 316–17 (noting
that the courts of appeals can resolve, after trial, the factual
issues that are off-limits during interlocutory appeals of
denials of qualified immunity). We recognize that the entire
point of the doctrine of qualified immunity is to spare officers
the burden of unnecessary litigation, but we will not lightly
expand the basis on which any officer may appeal a denial of
qualified immunity just because of the possibility the district
court erred in this case. See id. at 315 (“We of course decide
appealability for categories of orders rather than individual
orders.”).

IV.

We conclude by returning to basic principles. “The
resolution of immunity questions,” like those presented by
these appeals, “inherently requires a balance between the
evils inevitable in any available alternative.” Harlow v.
Fitzgerald, 457 U.S. 800, 813 (1982). On one hand, culpable
42 JOHNSON V. BART

officials should not receive blanket immunity from liability;
on the other, officials who make reasonable mistakes while
trying to do their jobs should not bear the costs of
litigation—nor should the taxpayers underwriting the
officials’ defense. Id. at 814. Our society vests law
enforcement officers with the authority to carry and use
weapons and tactics that may injure, sometimes fatally,
people they suspect of committing crimes. Officers are given
a degree of responsibility concomitant with that grave
authority, with the expectation that they will exercise it
discerningly. Because of that expectation, the doctrine of
qualified immunity dictates that courts will not substitute
their judgment for the officers’ own in evaluating the
officers’ reactions to novel and dangerous situations. But
none of that means we abandon our expectation that the
police will discharge their duties professionally and
responsibly.

Bearing that expectation in mind, we are presented with
the plaintiffs’ account of facts in which one officer, Pirone,
responded to a call regarding a misdemeanor scrape on a
train—which concluded before he arrived—by pulling a
weapon on a group of men who were standing around talking.
Pirone sought to intimidate the group, which he assumed may
have been responsible for the fight. Pirone then sought out
two of the men who walked away from him by pacing the
platform and screaming profanities in his search for them.
The men were all handcuffed and held overnight—but never
charged with a crime—after another officer, Mehserle, shot
and killed one among them. It is possible that a jury will
conclude, after weighing all the facts, that the officers
committed no constitutional wrongs. But our task at this
stage in the litigation is not to attempt to weigh the facts and
resolve the issues definitively in favor of one party or
 JOHNSON V. BART 43

another. It is instead to construe the facts in the manner most
favorable to the plaintiffs, who have a right to their day in
court, and then ask if our solicitude of the judgment of law
enforcement in this case requires us to shield the officers
from further participation in this lawsuit. (Even though “an
action for damages may offer the only realistic avenue for
vindication of constitutional guarantees.” Id. at 814.)
Construing the facts in the plaintiffs’ favor, we agree largely
with the district court that the officers should stand trial for
the constitutional violations of which they are accused.
Accordingly, we hold:

• Mehserle is not entitled to qualified immunity from Oscar
Grant, Jr.’s Fourteenth Amendment claim, and AFFIRM
the district court’s judgment;

• We lack jurisdiction to review the district court’s
judgment denying Mehserle qualified immunity from the
plaintiffs’ California Civil Code § 52.1 claim, and
DISMISS that portion of Mehserle’s appeal;

• Mehserle is entitled to qualified immunity from Fernando
Anicete, Jr.’s unlawful arrest claim, and REVERSE the
district court’s judgment;

• Because the district court relied improperly on Dubner in
denying Mehserle qualified immunity as to their extended
detention claims, its judgment is VACATED, and on
remand, the district court shall determine whether there is
any evidence that Mehserle is responsible for the
extended detentions of Fernando Anicete, Jr., Carlos
Reyes, or Nigel Bryson;
44 JOHNSON V. BART

• Mehserle is not entitled to qualified immunity from Jack
Bryson, Jr.’s unlawful arrest claim, and AFFIRM the
district court’s judgment;

• Pirone is not entitled to qualified immunity from Reyes’s,
the Brysons’, and Greer’s claim for unlawful detention,
and AFFIRM the district court’s judgment;

• Pirone is not entitled to qualified immunity from Reyes’s
and the Brysons’ claim for unlawful arrest, and AFFIRM
the district court’s judgment;

• Pirone is not entitled to qualified immunity from Michael
Greer’s unlawful arrest claim, and AFFIRM the district
court’s judgment; and

• To the extent the district court relied on Dubner to deny
Domenici immunity, its judgment is VACATED, and it
shall reconsider its decision on remand in accordance
with this opinion; beyond that, we lack jurisdiction to
review Domenici’s appeal.

• Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, DISMISSED IN PART, AND
REMANDED.