FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIRSTIN JOHNSON; F.M.; M.D.M.; No. 21-16547
M.P.M.; V.M.; T.M.,
D.C. No. 3:20-
Plaintiffs-Appellants, cv-01569-SK
v.
OPINION
KIERSTIE BARR; SAMSON HUNG;
MARINA CHACON; FLINT PAUL;
CITY AND COUNTY OF SAN
FRANCISCO,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted January 24, 2023
San Francisco, California
Filed July 6, 2023
Before: Ronald M. Gould, Johnnie B. Rawlinson, and
Daniel A. Bress, Circuit Judges.
2 JOHNSON V. BARR
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by
Judge Rawlinson
SUMMARY *
Civil Rights / Qualified Immunity
In an action brought by Kirstin Johnson and her five
minor children alleging federal and state law claims arising
out of Johnson’s arrest, the panel affirmed the district court’s
grant of summary judgment to the defendants—individual
police officers and the City and County of San Francisco—
on Johnson’s federal claims based on qualified immunity;
remanded to the district court Johnson’s state law claims for
false arrest and negligence; affirmed the district court’s grant
of summary judgment to the defendants on the remaining
state law claims; and affirmed the district court’s denial of
the motion to recuse.
The panel first considered whether there was probable
cause to arrest Johnson under the three statutes cited by
defendants. The panel held that there was a jury question
whether officers had probable cause to arrest Johnson. Some
of the bases on which the defendants attempt to claim
probable cause are not supported by the record. On the other
hand, there were other facts, even when viewed in the light
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JOHNSON V. BARR 3
most favorable to Johnson, that suggest defendants may have
had probable cause to arrest Johnson.
However, Johnson’s federal claims are still subject to
qualified immunity. In applying the qualified immunity
analysis to claims of unlawful arrest, there is a two-step
inquiry: whether there was probable cause for the arrest, and
whether reasonable officers could disagree as to the legality
of the arrest. The panel held that although a reasonable jury
could find that defendants lacked probable cause to arrest
Johnson, the defendants were entitled to qualified immunity
because, even construing all facts in Johnson’s favor, the law
did not clearly establish that probable cause was
lacking. Johnson did not sufficiently show how her arrest
violated a clearly established right to be free from an
unlawful arrest when the undisputed evidence (under the
probable cause analysis) presented before the district court
does not show that every reasonable officer would be on
notice that the actions taken by the defendants were
unconstitutional. The facts supported the defendants’
assertion that no clearly established law prevented the
officers from believing Johnson was in violation of either
California Penal Code § 647(f), prohibiting public
intoxication, or California Penal Code § 273a, prohibiting
child endangerment. The panel held that qualified immunity
applied in the context of either of these statutes, and that
determination is sufficient to resolve Johnson’s 42 U.S.C. §
1983 claims.
However, because the panel concluded that there was a
jury question as to whether defendants had probable cause to
arrest Johnson, the panel vacated the district court’s grant of
summary judgment on Johnson’s state law false arrest and
negligence claims, which were premised on a finding that
probable cause existed as a matter of law. The panel
4 JOHNSON V. BARR
remanded the vacated state law claims to the district court
for further proceedings. On remand, because there is no
longer any federal claim in this case, the district court may
determine, under its discretion, whether to retain
supplemental jurisdiction over the remaining state law
claims or to remand the case to state court.
Finally, the panel considered the motion to disqualify or
recuse Magistrate Judge Kim. To prevail, the party filing the
motion must show extrajudicial bias or prejudice. In
granting a confidentiality designation for all parts of
bodycam footage showing Johnson’s children, Judge Kim
wrote that Johnson’s actions were “disturbing.” Johnson
filed a motion to recuse or disqualify Judge Kim, and Judge
Donato denied the motion. The panel affirmed the district
court and held that Judge Donato did not abuse his discretion
in denying the recusal motion.
Concurring in part and dissenting in part, Judge
Rawlinson concurred with the holding that the officers in
this case were entitled to qualified immunity on Johnson’s
federal claims. She dissented with the treatment of the state
law claims. Rather than vacating the district court’s grant of
summary judgment on some state law claims, she would
vacate the district court’s grant of summary judgment on the
state law claims in its entirety. She would then remand for
the district court to decide, in the first instance, whether to
continue to exercise supplemental jurisdiction over the state
law claims.
JOHNSON V. BARR 5
COUNSEL
Ben Rosenfeld (argued), Law Office of Dennis
Cunningham, San Francisco, California; Gerald B.
Singleton, Singleton Schreiber LLC, San Diego, California;
for Plaintiffs-Appellants.
Kaitlyn M. Murphy (argued), Renee E. Rosenblit, and
Rebecca Bers, Deputy City Attorney; Meredith B. Osborn,
Chief Trial Deputy; David Chiu, City Attorney; Office of the
San Francisco City Attorney; San Francisco, California; for
Defendants-Appellees.
OPINION
GOULD, Circuit Judge:
Plaintiff-Appellant Kirstin Johnson (“Johnson”), on
behalf of herself and her five minor children, appeals the
district court’s grant of summary judgment in favor of the
individual defendant police officers and the City and County
of San Francisco (“Defendants”). This case arises out of the
arrest of Johnson in San Francisco on January 31, 2019. The
district court granted summary judgment in favor of
Defendants on Johnson’s federal 42 U.S.C. § 1983 claims
and state law claims, concluding that officers had probable
cause to arrest Johnson. Alternatively, the district court held
that Defendants were entitled to qualified immunity on
Johnson’s § 1983 claims. We have jurisdiction under 28
U.S.C. § 1291 to review final decisions of the district court.
We review de novo the grant of summary judgment, Animal
Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987,
988 (9th Cir. 2016) (en banc), and review pursuant to
6 JOHNSON V. BARR
Federal Rule of Civil Procedure 56(c), under which the
contested evidence is viewed in the light most favorable to
the nonmoving party, in this case Johnson. As part of the
summary judgment review, we also review the district
court’s qualified immunity determination de novo. Hughes
v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022). We affirm
the district court’s grant of summary judgment to the
Defendants on Johnson’s federal claims based on qualified
immunity. Because we hold that the question of whether
police officers had probable cause is properly a question for
the jury, we remand to the district court Johnson’s state law
claims for false arrest and negligence. We affirm the district
court’s grant of summary judgment to the Defendants on the
remaining state law claims. We also affirm the district
court’s denial of the motion to recuse.
I. Background
Johnson was arrested on January 31, 2019, after an
encounter with several members of the San Francisco Police
Department, including the named individual defendants.
Johnson brought several federal claims under 42 U.S.C. §
1983 stemming from her alleged unlawful and unreasonable
arrest and subsequent separation from her children. Johnson
also brought state law claims based on her alleged unlawful
arrest.
In any case involving probable cause or the invocation
of qualified immunity as a defense, we must carefully
consider the facts that led to the action in question. In this
case, we draw not just on the factual allegations in the
amended complaint, but also the body camera footage
(“bodycam footage”) submitted by both parties to determine
if there is a “genuine dispute as to any material fact” as
required under Federal Rule of Civil Procedure 56. We have
JOHNSON V. BARR 7
carefully reviewed the bodycam footage submitted in the
excerpts of record. The summary below is not intended to
be a comprehensive retelling of every event that occurred,
but should assist a reader in evaluating the claims asserted
and their disposition.
A. Johnson’s Arrest
On January 31, 2019, at around 9:00 pm, Lieutenant
Marina Chacon and Officer Kierstie Barr approached
Johnson, her four children, and another woman as Johnson
and the other woman talked near Johnson’s van, parked on a
street adjoining Dolores Park in San Francisco, California.
Officer Barr initiated the conversation with Johnson by
introducing herself and stating that she was “just coming
over here to check on [Johnson and her kids].” Officer Barr
asked Johnson if she was doing alright, and Johnson smiled
and said “yes.” Officer Barr later asked to speak with
Johnson privately. Officer Barr then explained that someone
had called in because of a concern about Johnson’s partner,
and asked if Johnson knew where he was. Johnson stated
that “he went for a walk, I’m not sure.”
Officer Barr asked if Johnson had consumed any drugs
or alcohol, reassuring Johnson that she “was not in any
trouble, not in any trouble at all.” Johnson responded, “I’m
good.” Officer Barr explained that she was asking because
Officer Barr could “smell something,” presumably on
Johnson’s breath or body. At that point, an unidentified man
arrived to alert Officer Barr to an intoxicated man with a
child nearby. When one of the officers mentioned that
Johnson had previously said that her husband had gone for a
walk, Johnson added, “He went on a walk, but I didn’t know
where he was, though whenever you said that I saw him up
there playing basketball with our son.” During this time,
8 JOHNSON V. BARR
Johnson explained that they do not “live around here” and
that they live “up north.”
One of the officers then asked Johnson, “Do you have
any ID on you?” to which Johnson responded “absolutely”
and produced the document after a short search. Johnson
explained that they had come to San Francisco “on this
adventure, but then [her] husband started drinking.” Officer
Barr asked what else had happened and said that Johnson
“had been drinking clearly,” to which Johnson responded
“Yeah, I’ve been drinking a little bit.” Officer Barr asked
how much Johnson had been drinking, but Johnson did not
answer the question. Lieutenant Chacon then asked Johnson
where they were headed, and Johnson responded that they
“were going to get a hotel room.”
Johnson asked to speak with Officer Barr about “what
[Johnson] should do and what is going on.” Officer Barr
asked Johnson to wait, and eventually said to Lieutenant
Chacon that Johnson was “811,” which refers to an
intoxicated individual. When backup officers arrived,
Lieutenant Chacon left to brief the other officers, including
Sergeant Flint Paul, and told the other officers that the dad
is “811” and that the “mom is also 811.”
In response to more questions from Officer Barr,
Johnson stated that she had a “mixed drink earlier” but did
not elaborate. When Officer Barr asked Johnson when she
started drinking, Johnson replied, “It’s not that I don’t know,
but like, I really don’t feel that like—if I answer any of your
questions right now, I don’t feel like you have my heart at
interest, so I don’t really feel like as though I should answer
any of your questions, because I don’t feel like you are
looking at me with eyes of love. . . . I feel like [Lieutenant
Chacon] looks at me a little bit more like a mother, and so I
JOHNSON V. BARR 9
feel like it’s hard for me to answer your questions –” At that
point, Officer Barr got a request to assist in the arrest of
Johnson’s husband and left, at which point Johnson became
visibly animated at the fact that her husband was being
arrested.
Johnson stated to Lieutenant Chacon, who remained
with Johnson, “Listen, my husband is a doctor, he’s an
emergency room [trails off]. He doesn’t drink, we don’t do
this stuff ever.” Shortly thereafter, Johnson became
animated when she saw that someone she did not know was
holding her infant. Johnson exclaimed, while speaking with
Lieutenant Chacon, “Oh, oh, that’s my baby, that’s my baby.
Oh, please please please ask this man to give me my child,
please ask this man to give me my child . . . por favor.” At
the same time that Johnson was making these statements,
Officer Hung was speaking with another officer and an
apparent civilian about not being able to hold a baby
correctly. Officer Hung handed the baby to a civilian for
about a minute. Lieutenant Chacon told Johnson, “Your
husband was up there. [Johnson: “playing basketball”] He’s
intoxicated with your infant. [Johnson: “I know, I know,
I’ve been trying to control him, but I’m a person and I cannot
control another person. I have asked repeatedly that he listen
to me, he is not listening to me . . . throughout the night.”]”
Lieutenant Chacon repeatedly told Johnson that she needed
to calm down because her kids were watching.
During Johnson and Lieutenant Chacon’s conversation,
one of Johnson’s children came toward the pair crying,
leading Johnson to state to Lieutenant Chacon, “Please stop,
please do not let these people—you don’t understand how
much you will hurt my children, keep them away from my
kids please.” Lieutenant Chacon responded, “They’re not
taking your children.” Sergeant Paul came to consult with
10 JOHNSON V. BARR
Lieutenant Chacon, and Sergeant Paul stated, “obviously
they’re going to go to [Child Protective Services],” to which
Chacon agreed. They also agreed on the need to go to the
station.
Another officer now on the scene, Officer Roman, asked
for Johnson’s ID. Johnson responded that she gave the ID to
another officer, to which Officer Roman said, “That’s ok.”
Johnson continued to express concern for her infant who was
now being held by Officer Hung.
The officers at the scene began to arrange Johnson’s van
to transport the children to the police precinct. Lieutenant
Chacon asked Johnson if she had car seats in the van, to
which Johnson responded “yes,” explaining that she had
enough seats for the children. Johnson further explained that
most of the car seats were in the back of the van and that
“[they] move them around because it’s kind of like a
playhouse.” Johnson asked if she “could see the rest of the
kids.” Officer Roman said that her kids are fine and
mentioned that Officer Hung had her infant. Johnson
responded, “I know, I would like to see my baby” and got
visibly emotional.
Sergeant Paul told Johnson that they were all going back
to the station where it was safer and off the street, to which
Johnson replied at varying points, “Yes sir” and “I
understand.” Sergeant Paul asked for Johnson’s permission
to allow police officers to drive her children back to the
station in their van, to which Johnson responded “Okay.”
Sergeant Paul then mentioned that they would be separating
Johnson from her children and would have Johnson ride with
her husband in a police car. Johnson responded that she was
not sure if one of her children would be comfortable riding
back “without Mommy,” to which Sergeant Paul responded
JOHNSON V. BARR 11
that he required Johnson’s assistance in making things “go
as smooth as possible.” Johnson began to comfort her
children as requested by Sergeant Paul. Johnson then
warned the officers that her infant would not like being
placed in a car seat, to which Sergeant Paul responded,
“Well, most of us are parents, we have dealt with squirrely
kids before. Thank you very much.”
The officers began asking questions regarding the
arrangement of the car seats. During Johnson’s explanation,
Johnson’s children can be heard crying. Johnson asked to
nurse her child, a request denied by Officer Barr, who stated,
“You told me you were intoxicated . . . I’m not going to let
you be able to nurse your child.” Johnson responded, “First
off, I never said I was intoxicated. . . .”
Sergeant Paul and an animal care and control officer
spoke with Johnson as Sergeant Paul noted that Johnson had
“handed her dog off to a person walking down the street.”
Johnson began to explain that “was part of the reason we
came to San Francisco, we had . . .” but Sergeant Paul cut
Johnson off and asked if she would like to “surrender [her]
dog to Animal Care and Control.” Sergeant Paul left
Johnson to speak with the animal care and control officer.
Johnson approached the van again, as one of her children
appeared to be crying. Johnson again requested to nurse her
child, stating that “My infant is crying, he needs to nurse.”
After a request from Officer Ospital to step back, Johnson
stepped to the back of her van, followed by Officer Ospital.
Johnson said that she was “grabbing some coconut water.”
Officer Ospital replied, “OK, just do me a favor and get back
on the sidewalk though, OK? Your kids are going to be taken
care of.” Johnson asked how her children were being taken
care of “if you aren’t even letting me touch my child.”
12 JOHNSON V. BARR
At that point, the animal care and control officer asked if
Johnson had an ID and requested to see it. Johnson
responded by stating “I absolutely do” but then asked if it
was “necessary” to provide her ID. The animal control
officer responded by stating, “Yes, it is” and Johnson asked
Sergeant Paul if she “would go to jail if I don’t give it to this
gentleman?” Sergeant Paul responded, “You need to give it
to him,” and Johnson reiterated her question to Paul and
stated that she “would gladly give it to [Sergeant Paul].”
After further discussion, Sergeant Paul stated, “I would like
have your ID.” After Johnson continued to speak, Sergeant
Paul told Johnson, “Why don’t you go ahead and put the lid
back on there,” referring to her coconut water. In response,
Johnson took a swig of her coconut water. Sergeant Paul
reached for her coconut water, leading Johnson to jerk back.
Sergeant Paul said, “Ma’am, your kids are watching. . .
[unclear dialogue] All you have to do is calm down.”
Sergeant Paul then arrested Johnson, while Johnson
continued to protest loudly that she “was not doing anything
wrong.”
B. Subsequent Events
The police officers took Johnson and her children to the
local police station in separate vehicles, with the children in
Johnson’s van accompanied by at least one of the officers.
At the station, Johnson was booked on one misdemeanor
count of public intoxication in violation of California Penal
Code § 647(f) and five counts (for each of her children) of
felony child endangerment under California Penal Code §
273a(a). Also, in the police report, Johnson’s actions were
classified as resisting, delaying, or obstructing a peace
officer under California Penal Code § 148(a)(1), and
although Johnson was not booked under that charge, the
Defendants point to this statute as an alternative source of
JOHNSON V. BARR 13
probable cause. Meanwhile, Johnson’s children were placed
in the custody of Family and Children Services. As Johnson
was visiting San Francisco from Mendocino County, her
children were eventually placed in the custody of the
Mendocino County Family and Children Services and
transported to Ukiah, California, a town north of San
Francisco.
Johnson and her husband each paid $20,000 in non-
refundable bail bonds and were released the next day. The
two retrieved their van from South San Francisco, picked up
the husband’s parents in Santa Cruz as a condition of the
children’s release, and subsequently drove up to Ukiah to
retrieve their children, who were released into their custody
soon after. The District Attorney declined to prosecute
Johnson and her husband and dropped all charges.
C. Procedural History
Johnson and her husband initially filed suit in San
Francisco Superior Court on October 25, 2019. In their
complaint, Johnson and her husband brought the following
federal claims under 42 U.S.C. § 1983: unlawful and
unreasonable arrest under the Fourth Amendment,
interference with and retaliation against free exercise of
expression under the First Amendment, unlawful and
unreasonable search and seizure under the Fourth
Amendment, and deprivation of due process under the
Fourteenth Amendment. Johnson and her husband also
alleged state law claims of false arrest and imprisonment,
intentional and negligent infliction of emotional distress,
Bane Act violations, trespass to chattels, and negligence.
The case was removed to the Northern District of California
by the Defendants, and the parties stipulated to dismiss all
claims by Johnson’s husband and claims against some
14 JOHNSON V. BARR
Defendants. During discovery, Johnson filed a motion to
recuse or disqualify Magistrate Judge Kim based on
statements Judge Kim made during proceedings related to a
motion to keep the bodycam footage confidential. Judge
Donato, to whom the motion was referred, denied the
motion.
Defendants moved for summary judgment on May 28,
2021. After briefing and a hearing, Judge Kim granted
summary judgment on August 24, 2021 to Defendants on the
basis of a finding of probable cause, and alternatively, on the
basis of qualified immunity. This timely appeal followed.
II. Standards of Review
We review de novo the grant of summary judgment.
Animal Legal Def. Fund, 836 F.3d at 988. Pursuant to
Federal Rule of Civil Procedure 56(c), we “view the
evidence in the light most favorable to the nonmoving party,
determine whether there are any genuine issues of material
fact, and decide whether the district court correctly applied
the relevant substantive law.” Id. On summary judgment,
we also review the district court’s qualified immunity
determination de novo. Hughes, 31 F.4th at 1218. We can
also affirm on any ground supported by the record even if
not explicitly relied upon by the district court. CFPB v.
Gordon, 819 F.3d 1179, 1187 (9th Cir. 2016).
Under our precedent in Act Up!/Portland v. Bagley, the
threshold “determination of whether the facts alleged could
support a reasonable belief in the existence of probable cause
. . . is [] a question of law to be determined by the court.”
988 F.2d 868, 873 (9th Cir. 1993); see also Peng v. Mei Chin
Penghu, 335 F.3d 970, 979–80 (9th Cir. 2003). We look to
state law (in this case California state law) to determine
JOHNSON V. BARR 15
“[w]hether an officer is authorized to make an arrest.”
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
The denial of a motion to disqualify the assigned judge
is reviewed for abuse of discretion. Thomassen v. United
States, 835 F.2d 727, 732 (9th Cir. 1987).
III. Discussion
Three main questions arise in this dispute: (1) whether
there was probable cause to arrest Johnson under either of
the three statutes cited by Defendants; (2) whether the
Defendants were entitled to qualified immunity as to the
federal claims; and (3) whether the district court erred in
denying Johnson’s motion to recuse or disqualify Judge
Kim. We affirm the district court’s grant of summary
judgment on the federal claims on the grounds of qualified
immunity, remand some of the state law claims, and affirm
the district court’s denial of the motion to recuse Judge Kim.
A. Probable Cause
In evaluating the record, we note that there is a
substantial question whether the facts, when evaluated in the
light most favorable to Johnson, would permit a grant of
summary judgment in favor of Defendants on the issue of
whether there was probable cause to arrest Johnson. We
have previously stated that we must “examine whether the
facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person to believe a suspect
has committed, is committing, or is about to commit a
crime.” United States v. Willy, 40 F.4th 1074, 1080 (9th Cir.
2022) (quoting United States v. Valencia, 24 F.3d 1106,
1108 (9th Cir. 1994)).
Here, whether officers had probable cause to arrest
Johnson presents a jury question. On the one hand, there are
16 JOHNSON V. BARR
some facts that suggested the absence of probable cause,
because they supported “mere suspicion, common rumor, or
even strong reason to suspect,” but did not necessarily rise
to the legal standard for probable cause. Harper v. City of
Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008) (quoting
McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)).
Some of the bases on which the Defendants attempt to claim
probable cause are not supported by the record. For
example, although the Defendants contend that Johnson had
no plans for where to stay for the night, Johnson did express
that they were going to obtain a hotel room. Other
explanations, such as Johnson’s children being up late that
night (the incident occurred around 9:00 pm) and one of her
children wearing short sleeves on a night when the
temperature was in the 50s, are by themselves not sufficient
to meet the legal standard for probable cause for an arrest for
child endangerment or public intoxication. Additionally,
although Johnson was understandably upset at times while
interacting with the police officers, it is not apparent from
the videos, when viewing the evidence in the light most
favorable to Johnson as required under FRCP 56(c), that
Johnson is intoxicated, and she generally responded to the
officers’ requests in a coherent way.
On the other hand, there were other facts, even when
viewed in the light most favorable to Johnson, that suggest
Defendants may have had probable cause to arrest Johnson.
First, for example, at least one officer reported the smell of
alcohol on Johnson’s breath, as evidenced in both the
bodycam footage and the Defendants’ documentation after
the arrest. Second, as another example, Johnson herself
admitted to having a drink at some indeterminate time
earlier. Third, the family van used to transport Johnson’s
children was in disarray: there were unsealed bottles of
JOHNSON V. BARR 17
alcohol in the van, potentially within reach of the children,
and the car seats were not installed. Although Johnson is
correct that we view the facts in the light most favorable to
the nonmoving party, Johnson cannot dispute certain facts,
such as her prior admission to having a drink and the
presence of alcohol containers in the van.
We hold that on the record at summary judgment, “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
However, under the Supreme Court’s precedent,
Johnson’s federal claims are still subject to qualified
immunity.
B. Qualified Immunity
The two steps in the qualified immunity analysis are (1)
“whether the facts that a plaintiff has alleged . . . or shown .
. . make out a violation of a constitutional right” and (2)
“whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (internal citations
omitted). The rationale of the Pearson Court in changing the
rigid two-step procedure adopted in Saucier v. Katz, 533
U.S. 194 (2001), guides our analysis in this case: “[T]he
rigid Saucier procedure . . . sometimes results in a substantial
expenditure of scarce judicial resources on difficult
questions that have no effect on the outcome of the case.”
555 U.S. at 236-37. The Supreme Court has also made clear
that we must not “define clearly established law at a high
level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (quoting City & Cnty. of San Francisco, Calif. v.
Sheehan, 575 U.S. 600, 613 (2015)). We hold that
regardless of whether there was a violation of Johnson’s
18 JOHNSON V. BARR
constitutional rights, Johnson did not show that the right at
issue was clearly established at the time of the case.
We have recognized that “[i]n the context of a § 1983
action, a Fourth Amendment violation occurs when a person
is arrested ‘without probable cause or other justification.’”
Vanegas v. City of Pasadena, 46 F.4th 1159, 1164 (9th Cir.
2022) (quoting Lacey v. Maricopa Cnty., 693 F.3d 896, 918
(9th Cir. 2012) (en banc)). We also have stated that “[w]here
the officers’ entitlement to qualified immunity depends on
the resolution of disputed issues of fact in their favor, and
against the non-moving party, summary judgment is not
appropriate.” Wilkins v. City of Oakland, 350 F.3d 949, 956
(9th Cir. 2003). In applying the qualified immunity analysis
to claims of unlawful arrest, we have summarized the two-
step qualified immunity inquiry as “(1) whether there was
probable cause for the arrest; and (2) 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).
We hold here that although a reasonable jury could find
that Defendants lacked probable cause to arrest Johnson, the
Defendants are entitled to qualified immunity because, even
construing all facts in Johnson’s favor, the law did not
clearly establish that probable cause was lacking. This
reasonable officer standard for qualified immunity differs
from the prudent person standard guiding our probable cause
for arrest analysis. See Willy, 40 F.4th at 1080. Although
officers might seem to lack probable cause under the prudent
person standard, especially when we evaluate their actions
post hoc, a reasonable officer on the ground might perceive
the situation differently. An officer would not be on notice
JOHNSON V. BARR 19
that his or her action was unreasonable unless “all reasonable
officers would agree that there was no probable cause in this
instance.” Rosenbaum, 663 F.3d at 1078. In so holding, we
do not put aside our responsibility to determine unlawful and
unconstitutional behavior, but rather recognize the purposes
for which qualified immunity exists and Johnson’s failure to
meet the burden required to defeat qualified immunity under
Supreme Court and circuit precedent. See Pearson, 555 U.S.
at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640
n.2 (1987)) (citing the need to protect government officials
from the burdens associated with discovery and trial for
behavior that is not clearly unconstitutional).
Here, Johnson did not sufficiently show how her arrest
violated a clearly established right to be free from an
unlawful arrest when the undisputed evidence (under the
probable cause analysis) presented before the district court
does not show that every reasonable officer would be on
notice that these actions were unconstitutional.
The broader availability of bodycam footage allows for
prompt and accurate resolutions of motions for summary
judgment. Footage that has been properly introduced into
the record can eliminate ambiguities that might otherwise
have precluded a grant of summary judgment. In other
cases, the footage could show sufficient evidence of police
misconduct that could prevent a grant of summary judgment
in favor of the Defendants. In this case, the bodycam footage
verifies Johnson’s claim that she did not admit to being
drunk, but the bodycam footage also makes clear that
Johnson did tell a police officer that she had had a mixed
drink earlier in the day and that was reinforced by the
contemporaneous observation by a police officer that
Johnson smelled like alcohol. Additionally, the existence of
unsealed alcohol containers in the car, which Johnson
20 JOHNSON V. BARR
similarly does not dispute (focusing instead on the location
of the bottles), weighs heavily against Johnson. These facts,
in addition to the other facts indicated above in the previous
section on probable cause, support the Defendants’ assertion
that no clearly established law prevented the officers from
believing Johnson was in violation of either California Penal
Code § 647(f) prohibiting public intoxication or California
Penal Code § 273a prohibiting child endangerment.
Johnson did not adequately identify cases that indicated
that the Defendants’ actions in arresting Johnson were
clearly prohibited. As the Supreme Court has stressed, “An
officer ‘cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite
that any reasonable official in the defendant’s shoes would
have understood that he was violating it.’” Kisela, 138 S. Ct.
at 1153 (quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79
(2014)).
The cases that Johnson cites, namely Rosenbaum v.
Washoe County, 663 F.3d 1071 (9th Cir. 2011), are
inapposite and relying upon them would violate the Supreme
Court’s mandate that rights should not be defined at a high
level of generality. In Rosenbaum, we held that a reasonable
officer could not have found the plaintiff’s actions to be
outlawed under an unambiguous statute that did not
criminalize the acts in question, and therefore reliance on the
reasonable officer standard was inappropriate. 663 F.3d at
1078-79. However, the actions and other facts identified by
the Defendants in support of their probable cause analysis
arguably could support probable cause, and a plain reading
of the public intoxication and child endangerment statutes
does not demonstrate that a reasonable officer should have
known that Johnson’s actions were clearly not prohibited.
The other cases Johnson cites involve fact patterns related to
JOHNSON V. BARR 21
a child’s removal from a home, which is a situation not
present here. See, e.g., Rogers v. Cnty. of San Joaquin, 487
F.3d 1288, 1295 (9th Cir. 2007). We hold that in the absence
of any other cases that would place Defendants on notice that
their actions were unreasonable or other arguments such as
those advanced by the plaintiffs in Rosenbaum regarding the
inapplicability of statutes in question to Johnson’s specific
circumstance, qualified immunity must apply to the
Defendants for their federal claims.
Because we hold that qualified immunity applies in the
context of either the child endangerment or public
intoxication statutes, that determination is sufficient to
resolve Johnson’s § 1983 claims. It is not necessary to
analyze the resisting, delaying, or obstructing a peace officer
statute under California Penal Code § 148(a)(1).
However, because we conclude there is a jury question
as to whether Defendants had probable cause to arrest
Johnson, we vacate the district court’s grant of summary
judgment on Johnson’s state law false arrest and negligence
claims, which were premised on a finding that probable
cause existed as a matter of law. 1 See Johnson v. Bay Area
Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013)
1
We affirm the district court’s grant of summary judgment on Johnson’s
intentional infliction of emotional distress, Bane Act, and trespass to
chattels claims. Defendants argue those claims can be rejected on
alternative grounds unrelated to probable cause. We conclude those
alternative grounds are supported in the record. The trespass to chattels
claims fails because of Johnson’s failure to comply with the California
Government Claims Act, Cal. Gov’t Code §§ 900 et seq, or alternatively,
under the community caretaker doctrine. The Bane Act claim fails
because Johnson did not show that officers had the requisite specific
intent. The IIED claim fails because the officers’ conduct was not
extreme or outrageous.
22 JOHNSON V. BARR
(“[T]he doctrine of qualified immunity does not shield
defendants from state law claims.”). We remand the vacated
state law claims to the district court for proceedings
consistent with this ruling. 2
C. The Motion to Disqualify or Recuse Magistrate
Judge Kim
To prevail on a motion to disqualify a judge, the party
filing the motion must show extrajudicial bias or prejudice. 3
We review the district court’s decision for abuse of
discretion. Thomassen v. United States, 835 F.2d 727, 732
(9th Cir. 1987).
The Defendants, in the course of discovery, produced
videos of the incident and proposed to designate the videos
as confidential, while Johnson contended that the bodycam
footage should be freely available to the public. Judge Kim
granted a confidentiality designation for all parts of the
footage showing the children. Judge Kim acknowledged
that while she had not reviewed all bodycam footage, she
was open to potentially revising the confidentiality
designations in the future. Judge Kim wrote, “The minor
Plaintiffs may suffer embarrassment or harm if these images
are shown in the public, as images once made public cannot
2
Although the partial concurrence and partial dissent disagrees with our
treatment of the state law claims, we note that the district court had
already exercised its discretion to exercise supplemental jurisdiction
over the state law claims under 28 U.S.C. § 1367(c) (stating that the
“district courts may decline to exercise supplemental jurisdiction”)
(emphasis added). The state law claims are therefore properly before us,
and we can review the merits of these claims.
3
The language of one of the applicable statutes, 28 U.S.C. § 455(a),
covers both actual bias and the appearance of bias or prejudice. See
Liteky v. United States, 510 U.S. 540, 548 (1994).
JOHNSON V. BARR 23
be recalled, and the failure of the minor Plaintiffs’ parents to
protect them from this harm is disturbing.” Johnson
challenged the portrayal of her actions as “disturbing,” and
filed another motion to recuse or disqualify Judge Kim. That
latter motion was randomly reassigned to Judge Donato,
who denied the motion, viewing Judge Kim’s statement as
appropriate in context because of Judge Kim’s responsibility
to safeguard the well-being of minor children. See Robidoux
v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (detailing
the “special duty” of a district court “to safeguard the
interests of litigants who are minors”).
We affirm the district court and hold that Judge Donato
did not abuse his discretion in denying the recusal motion.
There is no proper basis to require recusal.
IV. Conclusion
We affirm the district court’s grant of summary
judgment to the Defendants on Johnson’s federal claims on
the basis of qualified immunity. We also affirm the district
court’s grant of summary judgment on some of Johnson’s
state law claims (the Bane Act, trespass to chattels, and
intentional infliction of emotional distress claims). Because
we hold that the question of whether the Defendants had
probable cause is properly one for a jury, we vacate the
district court’s grant of summary judgment on Johnson’s
state law claims of negligence and false arrest and
imprisonment. On remand, as there is no longer any federal
claim in this case, the district court may determine, using its
sound discretion, whether to retain supplemental jurisdiction
over the remaining state law claims or to remand this case to
state court. 28 U.S.C. § 1367(c); see Arroyo v. Rosas, 19
F.4th 1202, 1210 (9th Cir. 2021) (quoting the statute and
applying the abuse of discretion standard to evaluate the
24 JOHNSON V. BARR
district court’s decision to decline to exercise supplemental
jurisdiction). We also affirm the district court’s denial of the
recusal motion. Each party shall bear its own costs.
AFFIRMED in part, VACATED in part, and
REMANDED for proceedings consistent with this
opinion.
Rawlinson, Circuit Judge, concurring in part and dissenting
in part:
I join my esteemed colleagues in concluding that the
officers in this case were entitled to qualified immunity.
However, I disagree with my colleagues’ treatment of the
state law claims. Rather than vacating the district court’s
grant of summary judgment on some state law claims and
affirming the grant of summary judgment on other state law
claims, I would vacate the district court’s grant of summary
judgment on the state law claims in its entirety. I would then
remand for the district court to decide, in the first instance,
whether to continue to exercise supplemental jurisdiction
over the state law claims.
This approach has strong support in our precedent. In
Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1258
(9th Cir. 2016), the plaintiff alleged claims for wrongful
discharge under state law and “a variety of other state law
claims.” She also alleged “that her First Amendment rights
were infringed, [and] that she was retaliated against for
exercising such rights.” Id. The claims were initially filed
in Washington state court. See id. Following removal to
federal court and discovery, the federal district court granted
summary judgment in favor of the defendants on the state
JOHNSON V. BARR 25
law claims. See id. On appeal to this court, the plaintiff
“contend[ed] that the district court improperly granted
summary judgment on her claim under Washington law for
wrongful discharge against public policy.” Id. at 1265.
Because an intervening decision of the Washington Supreme
Court had overruled the decision upon which the federal
district court relied in granting summary judgment on the
wrongful discharge claim, we vacated that ruling. See id.
We remanded to the district court for consideration of the
wrongful discharge claim in light of the intervening decision
from the Washington Supreme Court. See id. However,
because “we affirm[ed] the district court’s grant of summary
judgment with respect to [the plaintiff’s] claim under federal
law,” we concluded that “the district court should first
consider whether to continue to exercise its supplemental
jurisdiction” over the state law claim. Id. (citation omitted)
(emphasis added); see also Acri v. Varian Assocs., Inc., 114
F.3d 999, 1001 (9th Cir. 1997) (en banc) (“[W]e emphasize
that actually exercising discretion and deciding whether to
decline, or to retain, supplemental jurisdiction over state law
claims . . . is a responsibility that district courts are duty-
bound to take seriously. . . .”) (citation omitted) (emphases
added).
The majority’s decision remands the state law claims to
the district court without “first” allowing the district court to
consider whether to continue to exercise its supplemental
jurisdiction over the state law claims. Coomes, 816 F.3d at
1265. Because the majority’s approach usurps the
discretionary authority of the district court to decide
“whether to continue to exercise its supplemental
26 JOHNSON V. BARR
jurisdiction,” id., I respectfully dissent from that portion of
the majority opinion. 1
1
The majority concludes that the state law claims are properly before us
because “the district court had already exercised its discretion to exercise
supplemental jurisdiction over the state law claims.” Majority Opinion,
p. 22 n.2. But the district court has not had the opportunity to exercise its
discretion to determine “whether . . . to retain supplemental jurisdiction
over state law claims” following remand. Acri, 114 F.3d at 1001
(citation and punctuation omitted) (emphasis added); see also Coomes,
816 F.3d at 1265 (“[T]he district court should first consider whether to
continue to exercise its supplemental jurisdiction” over the state law
claim.) (citation omitted) (emphasis added).