Charles Gillis v. City & County of San Francisco

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 04 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CHARLES GILLIS, et al., No. 11-17556

Plaintiffs–Appellants, D.C. No. 3:08-cv-03871-RS

v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO, et al.,

Defendants–Appellees.

Appeal from the United States District Court
for the Northern District of California
Richard G. Seeborg, District Judge, Presiding

Argued and Submitted February 10, 2014
Stanford, California

Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and MUELLER, District
Judge.**

In this case brought under 42 U.S.C. § 1983, plaintiffs–appellants Charles

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kimberly J. Mueller, United States District Judge for
the Eastern District of California, sitting by designation.
Gillis, Joseph Hall, and Anthony Lawrence appeal from the district court’s grant of

summary judgment in favor of defendants–appellees the City and County of San

Francisco, former Police Chief Heather Fong, Sergeant Gregory Dare, Inspector

Phillip Wong, and officers Thomas, Contreras, F. Wong, Wilson, Frazier, Terry,

O’Neal, and Ho. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court’s grant of summary judgment.

“Viewing the evidence and drawing all inferences in the light most favorable to the

non-moving party, we must determine whether any genuine issues of material fact

remain and whether the district court correctly applied the relevant substantive

law.” Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011).

Appellants assert the following claims: (1) false arrest; (2) violation of due

process; (3) unequal treatment; (4) supervisory and municipal liability; and

(5) state law claims of false arrest, intentional and negligent infliction of emotional

distress, and violations of California Civil Code sections 52.1 (“Bane Act”) and

51.7 (“Ralph Act”).

1. Hall and Gillis do not prevail on their false arrest claims because the

arresting officers possessed probable cause to transport them from the initial

investigation scene to the police station, and there was further probable cause to

continue detaining them after the police station interviews.
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 “Probable cause to arrest exists when officers have knowledge or reasonably

trustworthy information sufficient to lead a person of reasonable caution to believe

that an offense has been or is being committed by the person being arrested.”

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

Here, at the time of the arrest, the police officers knew an armed robbery had

been committed by three African-American males wearing dark clothing. The

officers knew the robbers were last seen running towards the Balboa BART

station. Six minutes after the broadcast of the robbery, the officers observed three

African-American males in dark clothing sitting in a parked car a few blocks from

the place of the robbery and in the direction the suspects were last seen heading.

The victims provided sufficient identifications and confirmed that Hall and Gillis

were two of the three alleged robbers. Given the “cold show” admonition read to

the victims before their identifications, the use of the field line-up with appellants

in handcuffs was not impermissibly suggestive. See United States v. Drake, 543

F.3d 1080, 1089 (9th Cir. 2008).

The police station interviews did not negate probable cause to further detain

Hall and Gillis. Both victims positively identified Hall and Gillis as the alleged

robbers during the interviews. The victims’ identifications were consistent with

their initial identifications, and the victims provided more details to support their
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beliefs that Hall and Gillis were the robbers. Additionally, appellants’ explanation

for having stopped in the area of the arrest, close to Hall’s residence, was

questionable.

Even if Lawrence’s arrest was not supported by probable cause, the arresting

officers are entitled to qualified immunity. The dispositive question is “whether it

is reasonably arguable that there was probable cause for arrest—that is, whether

reasonable officers could disagree as to the legality of the arrest such that the

arresting officer is entitled to qualified immunity.” Rosenbaum v. Washoe Cnty.,

663 F.3d 1071, 1076 (9th Cir. 2011) (emphasis in original).

Here, the victims did not affirmatively state Lawrence was not involved but

said they did not know whether he was one of the alleged robbers. The officers

knew the alleged robbers were three African-American males, and there were three

African-American males in the car, of which Lawrence was one. Lawrence’s

clothing also matched that of the third robber. Accordingly, the circumstances

existing at the time of the arrest were sufficient to warrant a prudent officer’s belief

Lawrence had been involved in the robbery.

2. Hall and Gillis do not prevail on their claims for violations of due process

because they have not introduced sufficient evidence to establish a violation of due

process. Hall and Gillis do not point to any evidence to show Inspector Wong
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continued the investigation knowing of their innocence or used coercive or abusive

investigative techniques. See Gausvik v. Perez, 345 F.3d 813, 817 (9th Cir. 2003).

Nothing in the record shows that once Inspector Wong established probable cause

to arrest Hall and Gillis, he knew or should have known Lawrence possessed

potentially exculpatory evidence. See N. Mariana Islands v. Bowie, 243 F.3d 1109,

1117 (9th Cir. 2001).

3. Hall and Gillis do not prevail on their claims for unequal treatment because

Hall and Gillis have not met their burden of showing that Inspector Wong’s

decision to arrest them was based on their race and not on probable cause. See

Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2011).

4. Hall and Gillis do not prevail on their supervisory and municipal liability

claims because we find no underlying constitutional violation. See Starr v. Baca,

652 F.3d 1202, 1207 (9th Cir. 2011); Dixon v. Wallowa Cnty., 336 F.3d 1013,

1021 (9th Cir. 2003).

5. Appellants’ state law false arrest claims cannot proceed because at the time

of the arrest, the arresting officers “had reasonable cause to believe the arrest was

lawful.” See Cal. Penal Code § 847(b)(1). Appellants’ negligent and intentional

infliction of emotional distress claims cannot proceed because appellants do not

offer citations to authorities and parts of the record, and this court is not required to
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comb the record for them. Fed. R. App. P. 28(a)(8)(A); see S. Cal. Gas Co. v. City

of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

Appellants’ claims under the Bane Act cannot proceed because there was no

unlawful interference with appellants’ liberty. Cal. Civ. Code § 52.1(a). Hall and

Gillis do not prevail on their claims under the Ralph Act because they do not point

to any evidence of violence or intimidation by threat of violence against their

persons or property. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274

F.3d 1276, 1289 (9th Cir. 2001).

AFFIRMED.

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