Edgerly v. City and County of San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERRIS EDGERLY, 
Plaintiff-Appellant,
v. No. 05-15080
CITY AND COUNTY OF SAN  D.C. No.
FRANCISCO; DAVID GOFF; JOHN CV-03-02169-WHA
CONEFREY; FREDERICK SCHIFF,
Defendants-Appellees.


ERRIS EDGERLY, 
Plaintiff-Appellant,
No. 05-15382
v.
CITY AND COUNTY OF SAN  D.C. No.
CV-03-02169-WHA
FRANCISCO; DAVID GOFF; JOHN
OPINION
CONEFREY; FREDERICK SCHIFF,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding

Argued and Submitted November 13, 2006
Opinion Filed July 17, 2007
Opinion and Submission Vacated May 22, 2008
Resubmitted March 12, 2010
San Francisco, California

Filed March 19, 2010

Before: William C. Canby, Jr., John T. Noonan, and
Richard A. Paez, Circuit Judges.

4451
4452 EDGERLY v. SAN FRANCISCO
Opinion by Judge Paez
 EDGERLY v. SAN FRANCISCO 4457
COUNSEL

Gregory M. Haynes, San Francisco, California, for plaintiff-
appellant Erris Edgerly.

Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial
Attorney, Sean F. Connolly, Deputy City Attorney, San Fran-
cisco City Attorney’s Office, San Francisco, California, for
defendants-appellees City and County of San Francisco, John
Conefrey, and David Goff.

Jeremy Sugerman, Daniel J. O’Rielly, Gordon-Creed, Kelley,
Holl & Sugerman, LLP, San Francisco, California, for
defendant-appellee Frederick Schiff.

OPINION

PAEZ, Circuit Judge:

San Francisco Police Department Officers David Goff and
John Conefrey (“Officers”) arrested Erris Edgerly for tres-
passing within the gated area of the Martin Luther
King/Marcus Garvey Housing Cooperative (“Cooperative”).
The Officers transported Edgerly to the local police station,
where they searched him for contraband. The search did not
reveal any contraband and Sergeant Frederick Schiff, the
police supervisor on duty at the time, authorized the Officers
to issue Edgerly a citation for trespass and release him.
Edgerly was not prosecuted for trespass or any other offense.
Edgerly then filed this 42 U.S.C. § 1983 action against the
Officers, Schiff, and the City and County of San Francisco
(“City”), alleging that the Officers unlawfully arrested and
searched him in violation of the Fourth Amendment, and that
Schiff and the City were liable for the Officers’ unconstitu-
tional actions. He also asserted various state tort claims
against the Officers, Schiff, and the City.
4458 EDGERLY v. SAN FRANCISCO
In ruling on the parties’ motions for summary judgment,1
the district court dismissed Edgerly’s § 1983 claims against
the City and all claims against Schiff, but found that there
were genuine issues of material fact with regard to Edgerly’s
constitutional and state law claims against the Officers and
state law claims against the City, and therefore allowed those
claims to proceed to trial.

Following the presentation of all evidence, the district court
granted the defendants’ motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a) and dis-
missed Edgerly’s remaining claims. The court also awarded
attorneys’ fees to Schiff under 42 U.S.C. § 1988 and imposed
sanctions against Edgerly and his attorney, Gregory Haynes,
under Federal Rule of Civil Procedure 11(b). We have juris-
diction pursuant to 28 U.S.C. § 1291. We reverse in part,
affirm in part, and remand for further proceedings.

On Edgerly’s § 1983 arrest claim, we hold that the Officers
had probable cause to arrest Edgerly for trespass in violation
of California Penal Code section 602.8. Accordingly, we
affirm the district court’s grant of summary judgment to the
City, and of judgment as a matter of law to the Officers, on
the Fourth Amendment arrest claim. However, because a cus-
todial arrest was not authorized under state law, we reverse
the district court’s grant of judgment as a matter of law to the
Officers and the City on Edgerly’s state law false arrest claim,
and remand for further proceedings.

On Edgerly’s search claims, we hold that, viewing the evi-
dence in the light most favorable to Edgerly, a reasonable jury
could find that the Officers subjected him to an unreasonable
search in violation of the Fourth Amendment and California
1
The Officers and the City filed joint motions for summary judgment
and, later at trial, for judgment as a matter of law. Schiff filed separate
motions. Edgerly filed a motion for partial summary judgment and
requested partial judgment as a matter of law on his arrest claims.
 EDGERLY v. SAN FRANCISCO 4459
Penal Code section 4030(f). We also hold that the Officers are
not entitled to qualified immunity for the search as alleged.
Consequently, we reverse and remand for further proceedings
on Edgerly’s § 1983 unlawful search claim against the Offi-
cers and state law search claims against the Officers and the
City. We affirm the grant of summary judgment to the City
on Edgerly’s related Monell2 search claim, however, because
Edgerly has not provided sufficient evidence that the Officers
were acting pursuant to a City policy of conducting strip
searches without reasonable suspicion.

Finally, as to Edgerly’s other claims, we reverse the Rule
50(a) ruling dismissing his additional state law claims against
the Officers and the City. We affirm, however, (1) the grant
of summary judgment to Schiff, (2) the award of attorneys’
fees to Schiff under 42 U.S.C. § 1988, and (3) the imposition
of sanctions against Edgerly and his counsel.

I. Background

In reviewing the district court’s summary judgment ruling,
we consider only the evidence submitted in connection with
the parties’ motions, which consisted primarily of their pre-
trial depositions. Conversely, in reviewing the district court’s
Rule 50(a) ruling, we consider only the evidence presented at
trial. However, other than one discrepancy in Edgerly’s testi-
mony that is not relevant to our disposition,3 there were no
significant differences between the parties’ depositions and
trial testimony. Therefore, we do not expressly distinguish
between the two in our description of the facts.

The material evidence regarding Edgerly’s arrest is not in
2
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
3
At his deposition, Edgerly testified that he told the Officers before the
arrest that he was at the Cooperative “waiting for a resident.” At trial,
however, he did not testify that he told the Officers why he was at the
Cooperative.
4460 EDGERLY v. SAN FRANCISCO
dispute. On August 29, 2000, while on daytime patrol, Offi-
cers Goff and Conefrey drove by the Cooperative and
observed Edgerly standing inside the fence that surrounds the
property, next to a playground area. “No trespassing” signs
were posted at the Cooperative’s gated entrances. The Offi-
cers continued on their patrol and returned about five minutes
later to find Edgerly standing at the same location. According
to the Officers, they knew that Edgerly did not live at the
Cooperative and that he had previously been arrested for a
drug offense at a nearby street corner.4

The Officers stopped their car, approached Edgerly, and
asked him “what he was doing.” According to the Officers,
Edgerly responded that he was “just chilling,” which meant
“just hanging out for no reason.”5 Having “determin[ed] that
he had no specific reason to be [at the Cooperative],” the Offi-
cers arrested Edgerly for trespassing in violation of California
Penal Code section 602(l). The Officers testified that Edgerly
was trespassing because he was loitering on the property and
the Cooperative’s management had requested that officers
enforce the “no trespassing” signs.

After the arrest, the Officers conducted a pat-down search
of Edgerly and transported him to the Park Police Station,
4
The Officers also testified that the Cooperative was in a high-crime
area known for drug dealing and that Edgerly was an “associate” of neigh-
borhood gang members. Edgerly testified that he lived one block away
from the Cooperative and regularly visited his friends who lived there. He
also testified that he rang the doorbell to a friend’s home shortly before
his arrest and that he was waiting for her to return home when he was
arrested.
5
Edgerly’s trial testimony was slightly different. He testified that the
Officers asked him whether he lived at the Cooperative and that he said
“no.” We agree with the district court that this minor difference is not rele-
vant to the probable cause analysis. Crediting either version of events,
Edgerly did not provide the Officers with a specific explanation for his
presence, but neither did he refuse to offer an explanation or suggest that
he was on the premises for an unlawful purpose.
 EDGERLY v. SAN FRANCISCO 4461
where they performed an additional search. There is conflict-
ing evidence regarding the station search. Edgerly testified
that Officer Goff asked him to remove his shoes and socks,
pull his pants down to his ankles, and bend over and cough.
He also testified that Goff looked inside his boxer shorts
before telling him that he could get dressed. The Officers,
however, testified that Goff conducted only a routine clothing
search. In any event, the search did not reveal any contraband.
Sergeant Schiff was the supervisor on duty at the police sta-
tion at the time, but he was not aware of the arrest or search
until after they were completed, at which time he authorized
the Officers to cite and release Edgerly. Edgerly was never
prosecuted for any offense.

Edgerly filed an action against the Officers, Schiff, and the
City in the Superior Court of California, seeking damages
under § 1983 for violations of his Fourth Amendment rights.
Edgerly also alleged state law claims for negligence, negli-
gent and intentional infliction of emotional distress, false
arrest, and unlawful search. The City properly removed the
case to federal court. After the parties completed discovery,
the district court granted summary judgment to the City on
Edgerly’s § 1983 Monell claims and to Schiff on all claims
against him. The court found, however, that there were genu-
ine issues of material fact with regard to Edgerly’s § 1983 and
state law claims against the Officers and state law claims
against the City, and therefore denied summary judgment on
those claims.

At trial, at the close of all the evidence, the district court
granted the Officers and City’s motion for judgment as a mat-
ter of law “for the reasons stated on the record and memoran-
dum submitted by [the Officers and City].”6 The court ruled
6
Although Edgerly did not file a separate Rule 50(a) motion, he
requested that the court rule as a matter of law that the Officers lacked
probable cause to arrest him, in his “Response to Defendants’ Request for
Curative Instructions and Plaintiff’s Request for order of No probable
cause for 602(L) trespass arrest.”
4462 EDGERLY v. SAN FRANCISCO
that, as a matter of law, the Officers had probable cause to
arrest Edgerly, if not under section 602(l), then under another
state trespassing or loitering statute. As the court explained at
the Rule 50 hearing:

On this record and these circumstances no jury could
find otherwise than these officers had probable cause
to believe a crime of some sort had been committed.
That’s true even if it wasn’t 602(l). It didn’t have to
be 602(l). In addition, I want to say that counsel
should have brought to my attention California Penal
Code 602.8. . . . But I want to say that I’m not limit-
ing my analysis to 602.8. I am adopting each and
every other provision that the City Attorney’s Office
has suggested . . . .7

The court also held that the Officers’ search of Edgerly at
the police station was not a strip search and was reasonable
under the Fourth Amendment. In the alternative, the court
held that, under federal and state law, the Officers were enti-
tled to immunity from all of Edgerly’s claims.

After entry of judgment, the district court granted Schiff’s
motion for attorneys’ fees, because Edgerly failed to dismiss
Schiff after discovery revealed that the claims against him
lacked merit. The court also granted Schiff’s motion for sanc-
tions against Edgerly and his attorney, finding that they filed
two frivolous motions for reconsideration of the court’s sum-
mary judgment ruling.
7
As we discuss below, the Officers and the City suggested that probable
cause also existed to arrest Edgerly under California Penal Code sections
602.5 and 647(h).
 EDGERLY v. SAN FRANCISCO 4463
II. Discussion

A. Officers Goff and Conefrey

We review de novo the district court’s order granting the
Officers’ and the City’s motion for judgment as a matter of
law under Rule 50(a). See Santos v. Gates, 287 F.3d 846, 851
(9th Cir. 2002). “Judgment as a matter of law is appropriate
when the evidence presented at trial permits only one reason-
able conclusion.” Id.

1. Section 1983 Unlawful Arrest Claim

[1] Edgerly argues that the Officers arrested him without
probable cause, in violation of the Fourth Amendment. To
determine whether the Officers had probable cause at the time
of the arrest, we consider “whether at that moment the facts
and circumstances within [the Officers’] knowledge . . . were
sufficient to warrant a prudent man in believing that the peti-
tioner had committed or was committing an offense.” Beck v.
Ohio, 379 U.S. 89, 91 (1964). Although conclusive evidence
of guilt is not necessary to establish probable cause, “mere
suspicion, common rumor, or even strong reason to suspect
are not enough.” United States v. Lopez, 482 F.3d 1067, 1072
(9th Cir. 2007) (internal quotation marks, citation, and alter-
ation omitted). Generally, officers need not have probable
cause for every element of the offense, but they must have
probable cause for specific intent when it is a required ele-
ment. Id. at 1072-73.

[2] Because the probable cause standard is objective, prob-
able cause supports an arrest so long as the arresting officers
had probable cause to arrest the suspect for any criminal
offense, regardless of their stated reason for the arrest. Deven-
peck v. Alford, 543 U.S. 146, 153-55 (2004). Probable cause,
however, must still exist under some specific criminal statute.
See id. at 155-56; see also Alford v. Haner, 446 F.3d 935, 937
(9th Cir. 2006). It is therefore not enough that probable cause
4464 EDGERLY v. SAN FRANCISCO
existed to arrest Edgerly for some metaphysical criminal
offense; the Officers must ultimately point to a particular stat-
utory offense.

Although the Officers lacked probable cause to arrest
Edgerly for violating California Penal Code section 602(l)—
now section 602(m)8—the statute under which they cited him,
we ultimately conclude that probable cause existed to arrest
Edgerly under another trespass provision, California Penal
Code section 602.8(a). We therefore affirm the district court’s
grant of judgment as a matter of law to the Officers on Edger-
ly’s § 1983 unlawful arrest claim.

[3] The Officers cited Edgerly for violating California
Penal Code section 602(l), now section 602(m). Under this
section, a person commits a trespass if he or she “willfully . . .
[e]nter[s] and occup[ies] real property or structures of any
kind without the consent of the owner.” Long before Edger-
ly’s arrest, however, the California Supreme Court had clearly
held that section 602(l) “requires occupation of the property,
a ‘nontransient, continuous type of possession.’ ” In re Cata-
lano, 623 P.2d 228, 234 n.8 (Cal. 1981) (quoting People v.
Wilkinson, 56 Cal. Rptr. 261, 264 (Cal. App. Dep’t Super. Ct.
1967)). As Wilkinson explained, section 602(l) requires the
specific “inten[t] to remain permanently, or until ousted.” 56
Cal. Rptr. at 262; see also Cal. Jury Instr., Crim., No. 16.340
(6th ed. 1996) (requiring, for a conviction under section
602(l), proof that the defendant “entered and occupied the
property with the specific intent to dispossess those lawfully
entitled to possession”).

[4] Here, the Officers knew only that Edgerly was not a
resident of the Cooperative and that he had been on the prop-
8
In 2003, the California legislature amended Penal Code section 602,
resulting in a renumbering of subdivision 602(l) to subdivision 602(m).
2003 Cal. Legis. Serv. ch. 805 (S.B. No. 993) (West). There were no sub-
stantive changes to this provision.
 EDGERLY v. SAN FRANCISCO 4465
erty for a matter of minutes. On the basis of these facts, a rea-
sonable officer would not have believed that Edgerly had
violated or was about to violate section 602(l).

Nor did probable cause exist to arrest Edgerly for several
of the other criminal offenses suggested by the Officers and
City to the district court. Loitering, under California Penal
Code section 647(h), also has a specific intent requirement,
for which the Officers had no probable cause.9 Specifically,
that section requires that the alleged loiterer “delay or linger”
on the property “for the purpose of committing a crime as
opportunity may be discovered.”10 Id.; see also In re Joshua
M., 110 Cal. Rptr. 2d 662, 664-65 (Cal. Ct. App. 2001) (not-
ing that the California courts first added this “specific intent
element” to the state’s loitering statute, and that “[t]he Legis-
lature included this intent element when it redrafted [the loi-
tering statute] as present section 647, subdivision (h)”). And
trespass under the 2000 version of California Penal Code sec-
tion 602.5 in effect at the time of Edgerly’s arrest, which pro-
hibited “enter[ing] or remain[ing] in any noncommercial
dwelling house, apartment, or other such place,”11 applied by
its terms only to “structures of the most private character, i.e.,
places of habitation.” In re D.C.L., 147 Cal. Rptr. 54, 55 (Cal.
9
California Penal Code section 647(h) provides, in full: “[Everyone
who] loiters, prowls, or wanders upon the private property of another, at
any time, without visible or lawful business with the owner or occupant
[is guilty of disorderly conduct, a misdemeanor]. As used in this subdivi-
sion, ‘loiter’ means to delay or linger without a lawful purpose for being
on the property and for the purpose of committing a crime as opportunity
may be discovered.”
10
Although we recognize that the probable cause and qualified immu-
nity standards are objective, see Lopez, 482 F.3d at 1072, we note that the
Officers and City do not argue, and the Officers did not testify, that the
Officers had probable cause to believe that Edgerly was on the Coopera-
tive property for the purpose of committing a crime.
11
Effective January 1, 2001, California amended section 602.5 to
replace “other such place” with “other residential place.” 2000 Cal. Legis.
Serv. ch. 563 (S.B. No. 1486) (West).
4466 EDGERLY v. SAN FRANCISCO
Ct. App. 1978) (holding that unauthorized entry of a shed
adjacent to a house does not violate the section).12 A reason-
able officer would not have believed that Edgerly, who was
standing in the Cooperative’s playground area, had entered or
was about to enter a dwelling unit in the Cooperative in viola-
tion of section 602.5.

[5] Probable cause did, however, exist to believe that
Edgerly was acting in violation of California Penal Code sec-
tion 602.8(a). Section 602.8(a) prohibits unauthorized entry of
“lands under cultivation or enclosed by fence . . . [or] unculti-
vated or unenclosed lands where signs forbidding trespass are
displayed at intervals not less than three to a mile.”13 Because
12
As In re D.C.L. also noted, to construe the section otherwise “would
be inconsistent with the legislative intent expressed in [section 602(l)], in
that a penalty could be imposed for an unauthorized entry of any noncom-
mercial structure even though no substantial occupation occurred.” Id.
(footnote omitted).
13
The reference to “lands under cultivation,” may suggest that the stat-
ute was intended to apply only to agricultural or rural land. See Quarter-
man v. Kefauver, 64 Cal. Rptr. 2d 741, 745-46 (Cal. Ct. App. 1997) (citing
to section 602.8(a), among other statutes, in noting that “when the Legisla-
ture refers to land as . . . under cultivation . . . the ordinary import of the
description usually is to agricultural land . . . , or at least rural land as
opposed to urban backyards”). By its plain terms, however, section
602.8(a) applies not only to “lands under cultivation,” but also to “lands
where signs forbidding trespass are displayed” at requisite intervals. More-
over, in addressing whether owners of apartment complexes, condomin-
ium projects, and mobile home parks may bar personal distribution of
political campaign materials on their property, the California Attorney
General specifically noted section 602.8 as authority for excluding politi-
cal candidates from such property. See 81 Ops. Cal. Atty. Gen. 71. This
suggests, at least in the Attorney General’s view, that the statute is appli-
cable to non-rural land. Finally, the only two state cases we have found
applying section 602.8(a) did so in non-rural contexts, though both are
unpublished and nonprecedential. See People v. McGill, No. A095525,
2002 WL 1978970, *2 (Cal. Ct. App. Aug. 28, 2002) (holding that a
detention for trespass into a fenced-in dumpster area behind a market was
lawful because the detaining officer had probable cause to believe that a
trespass occurred in violation of section 602.8(a)); Haroonian v. Upton,
 EDGERLY v. SAN FRANCISCO 4467
the Cooperative where the Officers encountered Edgerly was
fenced in and had “No trespassing” signs posted at its
entrances, the officers had probable cause to believe that
Edgerly was in violation of section 602.8(a).

[6] We recognize that under state law, an arrest for viola-
tion of section 602.8 was nonetheless unauthorized. A first
offense under section 602.8(a) is punishable only as an infrac-
tion and, under California law, “[i]n all cases . . . in which a
person is arrested for an infraction, a peace officer shall only
require the arrestee to present . . . satisfactory [proof of iden-
tity] and to sign a written promise to appear.” Cal. Penal Code
§ 853.5(a). “Only if the arrestee refuses to sign a written
promise, has no satisfactory identification, or refuses to pro-
vide a thumbprint or fingerprint may the arrestee be taken into
custody.” Id. Here, because the Officers did not testify that
Edgerly did any of these three things, or that they had reason
to believe that he previously violated section 602.8(a), custo-
dial arrest was improper under state law even though probable
cause existed to believe that Edgerly was violating the law.
However, “state restrictions [on arrest] do not alter the Fourth
Amendment’s protections,” and under federal law, “warrant-
less arrests for crimes committed in the presence of an arrest-
ing officer are reasonable under the Constitution.”14 Virginia

No. B150987, 2002 WL 1155585, *7-8 (Cal. Ct. App. May 31, 2002)
(reversing the grant of summary judgment on a trespass claim for consid-
eration of whether defendant process server may have had privilege to
enter plaintiff’s suburban home under 602.8(c)(3)). Although we are not
bound by either the unpublished state cases or the Attorney General’s
opinion, we find them persuasive, and we decline to read a narrowing
interpretation into the state statute when the state has not only not done so,
but has affirmatively applied the statute to non-rural lands.
14
In our previous opinion, we held that Edgerly’s arrest was unconstitu-
tional and that the Officers were not entitled to qualified immunity in light
of the state law restriction on arrests for first-time offenses of this kind.
See Edgerly v. City and County of San Francisco, 495 F.3d 645, 653-55
(9th Cir. 2007), rehearing granted, opinion withdrawn by 527 F.3d 841
4468 EDGERLY v. SAN FRANCISCO
v. Moore, 128 S. Ct. 1598, 1607 (2008) (holding that police
officers did not violate the Fourth Amendment by arresting a
motorist whom they had probable cause to believe had vio-
lated a state driving law even though under Virginia law the
officers should have issued a summons for the misdemeanor
rather than made an arrest). We therefore hold that Edgerly’s
arrest was constitutional, even though it was impermissible
under state law, and affirm the district court’s grant of judg-
ment as a matter of law to the Officers on Edgerly’s § 1983
Fourth Amendment arrest claim.

2. Section 1983 Unlawful Search Claim

Edgerly also challenges the search that the Officers con-
ducted following his arrest as more invasive than was reason-
able under the circumstances. We conclude that the district
court erroneously entered judgment as a matter of law for the
Officers on Edgerly’s § 1983 unlawful search claim. Viewing
the evidence at trial in the light most favorable to Edgerly, a
reasonable jury could find that the Officers’ search of Edgerly

(9th Cir. 2008). In so holding, we relied on Ninth Circuit law holding that
“federal courts must determine the reasonableness of the arrest in refer-
ence to state law governing the arrest” and that state law restrictions on
arrest for minor crimes were thus applicable to Fourth Amendment analy-
ses. Id. at 655 (citing Bingham v. City of Manhattan Beach, 341 F.3d 939,
950 (9th Cir. 2003)); see also Reed v. Hoy, 909 F.2d 324, 330 n.5 (9th Cir.
1989) (indicating that state law is also relevant in analyzing the reason-
ableness of a search under the Fourth Amendment). We withdrew our
opinion after the Supreme Court decided Virginia v. Moore, in which it
held that such state arrest restrictions are irrelevant to our Fourth Amend-
ment inquiry. 128 S. Ct. at 1607. We are now bound by Moore, and to the
extent that Bingham and Reed are inconsistent with Moore, they are effec-
tively overruled. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)
(en banc) (holding that “where the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or theory of interven-
ing higher authority, a three-judge panel should consider itself bound by
the later and controlling authority, and should reject the prior circuit opin-
ion as having been effectively overruled”).
 EDGERLY v. SAN FRANCISCO 4469
at the police station was unreasonable, in violation of the
Fourth Amendment. Also, because no reasonable officer
could have believed, in light of clearly established law, that
the search as described by Edgerly was constitutional, the
Officers are not entitled to qualified immunity for the search.
Because the evidence from trial permits more than one rea-
sonable conclusion as to the constitutionality of the search, we
remand for further proceedings.

a. Reasonableness of the Search

[7] To determine whether a search is reasonable under the
Fourth Amendment, we balance “the need for the particular
search against the invasion of personal rights that the search
entails.”15 Way v. County of Ventura, 445 F.3d 1157, 1160
(9th Cir. 2006) (quoting Bell v. Wolfish, 441 U.S. 520, 559
(1979)). Applying this balancing test, we first held in Giles v.
Ackerman that “arrestees charged with minor offenses may be
subjected to a strip search only if jail officials possess a rea-
sonable suspicion that the individual arrestee is carrying or
concealing contraband.” Giles v. Ackerman, 746 F.2d 614,
617 (9th Cir. 1984), overruled by Bull v. City and County of
San Francisco, No. 05-17080, slip op. 2238, 2268 (9th Cir.
Feb. 9, 2010) (en banc). We have repeatedly applied this rule
in cases following Giles. E.g., Act Up!/Portland v. Bagley,
988 F.2d 868, 871-72 (9th Cir. 1993); Fuller v. M.G. Jewelry,
950 F.2d 1437, 1446 (9th Cir. 1991). We recently carved out
an exception to this rule in Bull v. City and County of San
Francisco, in which we overruled Giles and held that such an
arrestee could be strip searched without individualized suspi-
cion if the arrestee would be introduced into the general jail
population. Bull, slip op. at 2268. In those circumstances, the
institutional need to prevent arrestees from bringing contra-
band into the jail justified the “the invasion of personal rights
15
As with arrests, state law restrictions on searches do not change
Fourth Amendment protections. See Moore, 128 S. Ct. at 1607 (“[S]tate
restrictions do not alter the Fourth Amendment’s protections.”).
4470 EDGERLY v. SAN FRANCISCO
that the search entails.” Bull, slip op. at 2259 (citing Bell, 441
U.S. at 559). Bull, however, left undisturbed our line of prece-
dent requiring reasonable suspicion to strip search arrestees
charged with minor offenses who are not classified for hous-
ing in the general jail population. Bull, slip op. at 2268-69.
This precedent controls here because Edgerly was never
placed in the general jail population, but was merely cited and
released at the station. We therefore first consider Edgerly’s
contention that he was strip searched; if he was, we must then
consider whether the Officers had a reasonable suspicion that
he was carrying or concealing contraband.

[8] In Giles, we held that visually inspecting an arrestee’s
naked body, even without a “visual examination of body cavi-
ties,” constitutes a strip search.16 Giles, 746 F.2d at 615, 616.
16
The Supreme Court also recently held that a search very similar to the
search that Edgerly alleges was conducted on him constitutes a strip
search. In Safford Unified School District No. 1 v. Redding, 129 S. Ct.
2633, 2641 (2009), school officials had directed a student to strip down
to her underwear and then to “pull out” her bra and the elastic band on her
underpants. The Supreme Court noted that it would be “fair” to call this
a “strip search.” Id. Notably, the Supreme Court expressly declined to
ascribe any significance to whether the officials “s[aw] anything,” explain-
ing that it “would not define strip search and its Fourth Amendment conse-
quences in a way that would guarantee litigation about who was looking
and how much was seen.” Id. Rather, the Court held that “pulling her
underwear away from her body in the presence of the two officials who
were able to see her necessarily exposed her breasts and pelvic area to
some degree.” Id. This exposure amounted to a “degree of intrusion” that,
in that context, required greater justification than a search of outer clothing
and belongings. Id. at 2642.
Similarly, we have held in the border search context that requiring an
arrestee to expose only his or her undergarments “tend[s] toward [a] strip
search in that if conducted in public it can be said to result in embarrass-
ment to one of reasonable sensibilities.” United States v. Palmer, 575 F.2d
721, 723 (9th Cir. 1978). We further held that, although it is “hardly feasi-
ble to enunciate a clear and simple standard for each possible degree of
intrusiveness,” such a search requires “suspicion . . . founded on facts spe-
cifically relating to the person to be searched, and [that] the search [be]
no more intrusive than necessary to obtain the truth respecting the suspi-
cious circumstances.” Id.
 EDGERLY v. SAN FRANCISCO 4471
Although Bull overruled Giles’s holding that officials need
individualized suspicion to strip search minor-offense
arrestees who would be placed in the general jail population,
it did not disturb its conclusion that a mere visual inspection
of an arrestee’s naked body constitutes a strip search. See
Bull, slip op. at 2262-68. Viewing the evidence in the light
most favorable to Edgerly, a reasonable jury could find that
the Officers strip searched him. According to Edgerly’s trial
testimony, Officer Goff required him to arrange his clothing
so as to permit a visual inspection of his undergarments, by
asking him to pull his pants down to his ankles. Edgerly testi-
fied that Goff then placed his finger within Edgerly’s boxers
and “kind of just looked around.” This would permit a reason-
able inference that Goff visually inspected Edgerly’s buttocks
or genitalia, which would amount to a strip search under
Giles, 746 F.2d at 616, 618. Therefore, if the jury credits
Edgerly’s testimony, it could reasonably conclude that the
Officers’ search was a strip search that required reasonable
suspicion that Edgerly was concealing contraband.

The Officers, however, did not testify that they had reason-
able suspicion for the search. Rather, they testified that they
arrested Edgerly only for trespass, a minor offense not involv-
ing contraband, weapons, or violence. Also, Officer Cone-
ferey testified that Edgerly was not required to lower his pants
at the police station because there was no reason to believe
that he was concealing a weapon or contraband.

[9] Accordingly, a dispute of fact exists, and a reasonable
jury could find that the Officers strip searched Edgerly, and
did so without the requisite reasonable suspicion, in violation
of Edgerly’s Fourth Amendment rights.

b. Qualified Immunity for the Search

[10] Even assuming the Officers’ conduct violated Edger-
ly’s constitutional rights, the grant of judgment as a matter of
law would be appropriate if the Officers are entitled to quali-
4472 EDGERLY v. SAN FRANCISCO
fied immunity for the strip search Edgerly alleges they per-
formed. We therefore must consider whether the law was
“clearly established” such that “it would be clear to a reason-
able officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001); see
also Way, 445 F.3d at 1159.

[11] We conclude that the Officers are not entitled to qual-
ified immunity for their alleged strip search of Edgerly by
visually inspecting his genitalia or buttocks. As we explained
above, without reasonable individualized suspicion, a strip
search like that alleged here is unconstitutional. See Fuller,
950 F.2d at 1446. The law on this point was clearly estab-
lished at the time of this search: we have previously held that
it was clearly established in 1989 “that it is unlawful to strip
search an arrestee brought to a jail facility on charges of com-
mitting a minor offense, unless the officer directing the search
possesses ‘a reasonable suspicion that the individual arrestee
is carrying or concealing contraband.’ ” Act Up!/Portland,
988 F.2d at 871-72 (quoting Giles, 746 F.2d at 617) (footnote
omitted).17 In light of this clearly established law, no reason-
able officer could have believed that the police station search,
as described by Edgerly at trial, was lawful. See Way, 445
F.3d at 1159; see also Saucier, 533 U.S. at 202. We therefore
reverse the grant of judgment as a matter of law, and remand
Edgerly’s § 1983 unlawful search claim for further proceed-
ings.

3. State Law Claims

a. False Arrest Claim

[12] In addition to his federal unlawful arrest claim,
17
Because Bull did not disturb our cases requiring individualized suspi-
cion for strip searches of arrestees not classified for housing in the general
jail population, Bull’s overruling of Giles in no way affects our conclusion
that the law was clearly established here. Bull, slip op. at 2268-69.
 EDGERLY v. SAN FRANCISCO 4473
Edgerly maintains a state law false arrest claim. For the rea-
sons explained above, the only offense that the Officers had
probable cause to believe Edgerly was committing when they
encountered him was trespass, in violation of California Penal
Code section 602.8. While the existence of probable cause
renders the arrest reasonable under the Fourth Amendment,
and thus constitutional, more is needed to authorize Edgerly’s
custodial arrest under state law. Cf. People v. McKay, 41 P.3d
59, 71 (Cal. 2002) (holding that state arrest procedures do not
limit the constitutionality of arrests under the Fourth Amend-
ment, but emphasizing that that holding “in no way counte-
nance[s] violations of state arrest procedure,” as “[v]iolation
of those rights exposes the peace officers and their depart-
ments to civil actions seeking injunctive or other relief”). As
noted above, a first offense under section 602.8(a) is punish-
able only as an infraction and, under California law, “[i]n all
cases . . . in which a person is arrested for an infraction,” cus-
todial arrest is authorized “[o]nly if the arrestee refuses to sign
a written promise [to appear], has no satisfactory identifica-
tion, or refuses to provide a thumbprint or fingerprint.” Cal.
Penal Code § 853.5(a).

[13] Here, because the Officers did not testify that Edgerly
met any of these three requirements, or that they had reason
to believe that he previously violated section 602.8(a), the
custodial arrest was not authorized by state law. Further,
because this limitation on arrests for mere infractions was
clearly established by statutory law, the officers did not have
“reasonable cause to believe the arrest was lawful” under state
law, and they are not entitled to immunity from civil liability.
See Cal. Penal Code § 847(b)(1) (providing that officers are
entitled to immunity from false arrest claims if “the arrest was
lawful” or the officers had “reasonable cause to believe the
arrest was lawful”); see also O’Toole v. Superior Court, 44
Cal. Rptr. 3d 531, 548-49 (Cal. Ct. App. 2006) (noting that
police officers are not granted governmental immunity for
false arrest or false imprisonment under California law, but
that California Penal Code section 847 protects them from
4474 EDGERLY v. SAN FRANCISCO
civil liability under certain circumstances). We therefore
reverse and remand for further proceedings on this state law
claim.

b. Unlawful Search Claim

[14] Although the legal basis for Edgerly’s state law
unlawful search claim is not entirely clear from his complaint
or the district court’s orders, it appears to be California Penal
Code section 4030(p), which provides a private right of action
for persons unlawfully strip searched in violation of the sec-
tion. Section 4030(f) states that “[n]o person arrested and held
in custody on a misdemeanor or infraction offense, except
those involving weapons, controlled substances or violence
. . . shall be subjected to a strip search . . . unless a peace offi-
cer has determined there is reasonable suspicion based on spe-
cific and articulable facts to believe such person is concealing
a weapon or contraband, and a strip search will result in the
discovery of the weapon or contraband.” It further requires
“prior written authorization of the supervising officer on
duty” before such a strip search may occur. Id. The term
“strip search” is defined in section 4030(c) as “a search which
requires a person to remove or arrange some or all of his or
her clothing so as to permit a visual inspection of the under-
clothing, breasts, buttocks, or genitalia of such person.”

[15] Viewing the evidence in the light most favorable to
Edgerly, a reasonable jury could find that the Officers strip
searched him in violation of section 4030(f). We therefore
reverse and remand for the district court to clarify the legal
basis of this claim and to proceed accordingly.

c. Negligence, Negligent and Intentional Infliction of
Emotional Distress

[16] Edgerly’s claims for negligence and negligent and
intentional infliction of emotional distress, however, raise
substantial legal and factual questions beyond the lawfulness
 EDGERLY v. SAN FRANCISCO 4475
of Edgerly’s arrest and search, such as whether Edgerly suf-
fered severe emotional distress and what duties the Officers
owed to Edgerly. Because the district court mistakenly con-
cluded that Edgerly’s arrest and search were lawful, it did not
reach these questions. We therefore remand these claims so
that the district court can address the necessary questions in
the first instance.

B. The City

1. Section 1983 Monell Claims

We review de novo the district court’s order granting sum-
mary judgment to the City for Edgerly’s § 1983 claims
against it. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th
Cir. 2006). Viewing the facts in the light most favorable to the
nonmoving party, “we must determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Id. We con-
clude that the district court properly granted summary judg-
ment to the City on both of Edgerly’s § 1983 Monell claims.

[17] Local government entities “can be sued directly under
§ 1983 . . . where . . . the action that is alleged to be unconsti-
tutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
that [entity’s] officers.” Monell, 436 U.S. at 690. However,
liability attaches only where the entity’s policies evince a “de-
liberate indifference” to the constitutional right and are the
“moving force behind the constitutional violation.” Levine v.
City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (internal
quotation marks and citation omitted).

[18] Because we conclude that the Officers did not inflict
a constitutional injury on Edgerly by arresting him, Edgerly
cannot maintain a § 1983 claim against the City on the basis
of his arrest, regardless of whether the City had a policy of
making arrests under section 602(l) where probable cause was
4476 EDGERLY v. SAN FRANCISCO
lacking. We therefore affirm the grant of summary judgment
to the City on Edgerly’s § 1983 Monell claim for unlawful
arrest.

[19] We also affirm the grant of summary judgment on
Edgerly’s Monell claim premised on the Officers’ allegedly
unconstitutional search. Some evidence in the record does
support Edgerly’s contention that the Officers were not
trained to request authorization from a supervisor before
requiring an arrestee to reveal his underclothing, including
Schiff’s deposition testimony that he followed “department
policy” in requiring officers to request authorization only for
full body cavity searches. This alleged insufficiency in train-
ing, however, relates only to a possible state law violation
under California Penal Code section 4030, which requires
prior supervisor authorization for searches in which an
arrestee is required to “remove or arrange some or all of his
or her clothing so as to permit a visual inspection of the
underclothing.” Cal. Penal Code § 4030(c), (f). No such
supervisor authorization is required by the Fourth Amend-
ment, and thus this alleged failure to train is not the moving
force behind a constitutional violation, as required for Monell
liability. Because Edgerly has not presented evidence of a
City policy of conducting strip searches, as defined by Fourth
Amendment standards, without reasonable suspicion, judg-
ment was properly granted to the City.

2. State Law Claims

[20] We conclude, however, that the district court erred by
granting judgment as a matter of law for the City on Edgerly’s
state law tort claims. First, Edgerly is correct that the City is
vicariously liable for the Officers’ actions under California
law, which “has rejected the Monell rule and imposes liability
on [cities] under the doctrine of respondeat superior for acts
of [city] employees.” See Robinson v. Solano County, 278
F.3d 1007, 1016 (9th Cir. 2002) (en banc) (citing Cal. Gov’t
Code § 815.2). The City is therefore liable to the same extent
 EDGERLY v. SAN FRANCISCO 4477
as the Officers for Edgerly’s state law claims against them,
and Edgerly may recover from the City any damages awarded
on remand. See id.

[21] Second, Edgerly’s claim that the City is directly liable
for his injuries because it negligently trained and supervised
the Officers raises legal and factual questions that the district
court has not yet addressed, such as whether the City owed
Edgerly a relevant duty of care. We therefore remand this
claim for the district court to address the necessary questions
in the first instance.

C. Sergeant Schiff

We affirm the district court’s grant of summary judgment
to Sergeant Schiff as to all claims against him.

We have found supervisorial liability under § 1983 where
the supervisor “was personally involved in the constitutional
deprivation or a sufficient causal connection exists between
the supervisor’s unlawful conduct and the constitutional vio-
lation.” Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir.
2003) (quoting Jackson v. City of Bremerton, 268 F.3d 646,
653 (9th Cir. 2001)). Thus, supervisors “can be held liable
for: 1) their own culpable action or inaction in the training,
supervision, or control of subordinates; 2) their acquiescence
in the constitutional deprivation of which a complaint is
made; or 3) for conduct that showed a reckless or callous
indifference to the rights of others.” Cunningham v. Gates,
229 F.3d 1271, 1292 (9th Cir. 2000).

[22] Taking the facts in the light most favorable to
Edgerly, Sergeant Schiff was a police supervisor who was
responsible for the day-to-day operations at the station when
he was on duty, and who provided only informal training to
officers—as Schiff testified at his deposition, when officers
asked him questions, he would try to answer them. These
facts do not establish supervisorial liability for Schiff. No rea-
4478 EDGERLY v. SAN FRANCISCO
sonable trier of fact could find that Schiff had any personal
involvement in the incident because he was not aware of the
arrest or search until after they were completed, when he
authorized the Officers to cite and release Edgerly. Nor could
a reasonable trier of fact find that a sufficient causal connec-
tion existed between Schiff and the Officers’ potentially
unconstitutional search of Edgerly. Schiff was not responsible
for station policy; he was required to enforce the rules and
regulations set forth by his supervising captain and other
higher-ranking officers. Cf. Redman v. County of San Diego,
942 F.2d 1435, 1446-48 (9th Cir. 1991) (en banc) (holding,
where petitioner alleged that he was sexually assaulted in
prison due to a deficient inmate assignment policy, that a rea-
sonable jury could find supervisorial liability based on evi-
dence that the defendant sheriff was responsible for the
“ultimate direction of operations at the [prison]”). Nor do the
facts suggest that Schiff provided any training to Officers
Goff or Conefrey in particular, or that he was responsible for
providing formal training to any officers. See Canell v. Light-
ner, 143 F.3d 1210, 1213 (9th Cir. 1998) (holding that, to
establish supervisorial liability for failure to train, a plaintiff
must show that the failure “amounted to deliberate indiffer-
ence”).

[23] Accordingly, the district court properly dismissed
Edgerly’s § 1983 claims against Schiff. For similar reasons,
the court properly dismissed Edgerly’s state law claims
against Schiff. Each of these state law claims required proof
of causation and, as discussed, the facts do not establish a suf-
ficient causal connection between Schiff and the Officers’
actions. We therefore affirm the district court’s grant of sum-
mary judgment to Schiff.

D. Attorneys’ Fees

We review an award of attorneys’ fees pursuant to 42
U.S.C. § 1988 for abuse of discretion. LSO, Ltd. v. Stroh, 205
F.3d 1146, 1160 (9th Cir. 2000). A district court may award
 EDGERLY v. SAN FRANCISCO 4479
attorneys’ fees to a prevailing defendant “only where the
action brought is found to be unreasonable, frivolous, merit-
less or vexatious.”18 Patton v. County of Kings, 857 F.2d
1379, 1381 (9th Cir. 1988) (quoting Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421 (1978)).

Prior to Schiff’s deposition on May 4, 2004, his attorney
sent three letters to Edgerly’s attorney requesting that he dis-
miss Schiff because the Officers’ depositions established that
Schiff was not liable for the arrest or search. Edgerly’s attor-
ney declined to do so. After the district court ordered sum-
mary judgment on October 14, 2004, Schiff’s attorney filed a
motion for attorneys’ fees pursuant to 42 U.S.C. § 1988.

The district court granted Schiff’s motion in part, awarding
him reasonable attorneys’ fees starting from May 11, 2004,
when the parties completed discovery. The court found that it
was reasonable for Edgerly not to dismiss Schiff before com-
pleting discovery, since it was possible that Schiff’s deposi-
tion would reveal that he had a more significant role in
training or supervising the Officers than the Officers’ deposi-
tions had disclosed. The court found, however, that it was
unreasonable for Edgerly not to dismiss Schiff after his depo-
sition confirmed that there was no basis for supervisorial lia-
bility.

[24] We conclude that the district court did not abuse its
discretion in awarding reasonable post-discovery attorneys’
fees to Schiff.19
18
Edgerly does not challenge the amount of the fee award.
19
Edgerly also argues that the district court abused its discretion because
it decided the motion for attorneys’ fees without allowing oral argument.
Local Rule 7-1(b) for the Northern District of California, however, pro-
vides that a district court may decide motions without oral argument, and
Edgerly does not explain why oral argument was necessary for the court
to rule properly on Schiff’s motion.
4480 EDGERLY v. SAN FRANCISCO
E. Sanctions

We also review a district court’s imposition of sanctions for
abuse of discretion. Patelco Credit Union v. Sahni, 262 F.3d
897, 912-13 (9th Cir. 2001). “A district court abuses its dis-
cretion in imposing sanctions when it bases its decision on an
erroneous view of the law or on a clearly erroneous assess-
ment of the evidence.” Id. at 913. A motion for reconsidera-
tion is sanctionable if it is frivolous, but not if it raises new
issues. See Conn v. Borjorquez, 967 F.2d 1418, 1421 (9th Cir.
1992).

Here, the district court awarded sanctions against Edgerly
and his attorney, Gregory Haynes, under Federal Rule of Civil
Procedure 11(b) on the basis of its finding that they filed two
frivolous motions for reconsideration.20 Thus, the court
awarded sanctions in the amount of attorneys’ fees that Schiff
incurred in responding to the motions.

[25] We conclude that the district court did not abuse its
discretion in imposing these sanctions. The court did not com-
mit any legal error and its finding that Edgerly and Haynes’
two motions for reconsideration did not raise any new issues
was not clearly erroneous.21

III. Conclusion

[26] In sum, we conclude that the Officers did not violate
Edgerly’s Fourth Amendment rights by arresting him because
probable cause existed to believe that he was present within
the Cooperative in violation of California Penal Code section
20
The district court also found in the alternative that the award of sanc-
tions was justified under 28 U.S.C. § 1987. Because we affirm the award
of sanctions under Federal Rule of Civil Procedure 11(b), we do not
address this alternate basis for the sanctions.
21
For the reasons discussed supra in note 18, the district court did not
abuse its discretion in granting the motion without allowing oral argument.
 EDGERLY v. SAN FRANCISCO 4481
602.8. We therefore affirm the district court’s entry of judg-
ment as a matter of law for the Officers on Edgerly’s § 1983
unlawful arrest claim. For the same reason, we affirm the
grant of summary judgment to the City on the § 1983 Monell
arrest claim. However, because a custodial arrest was not
authorized under state law, we reverse the district court’s
grant of judgment as a matter of law to the Officers and the
City on Edgerly’s state law false arrest claim, and remand for
further proceedings.

We further hold that, viewing the evidence in the light most
favorable to Edgerly, a reasonable jury could find that the
Officers unlawfully strip searched him in violation of the
Fourth Amendment and California Penal Code section
4030(f), and that the Officers are not entitled to qualified
immunity for the search. We therefore reverse and remand for
further proceedings with respect to Edgerly’s § 1983 unlawful
search claim against the Officers and state law unlawful
search claims against the Officers and the City. We affirm the
grant of summary judgment to the City on Edgerly’s related
Monell claim, however, because Edgerly has not provided
sufficient evidence that the Officers were acting pursuant to
a City policy of conducting strip searches without reasonable
suspicion.

We reverse and remand for the district court to address in
the first instance Edgerly’s claims of state law negligence,
negligent infliction of emotional distress, and intentional
infliction of emotional distress against the Officers and the
City, and his negligent training and supervision claim against
the City.

Finally, we affirm the district court’s grant of summary
judgment and award of attorneys’ fees to Schiff and the impo-
sition of sanctions against Edgerly and his attorney, Gregory
Haynes.
4482 EDGERLY v. SAN FRANCISCO
AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings consistent with this
opinion.

In Appeal No. 05-15382, the parties shall bear their own
costs of appeal.

In Appeal No. 05-15080, the Appellees shall recover their
costs of appeal.