Appeal from denial of summary judgment denying qualified immunity for defendant police officers and a municipality.
At 1:30 a.m. a police officer driving southbound and stopped at a red light on a city street observed a vehicle northbound. The evidence is in dispute whether the car windows of the driver of the other car were tinted, but according to plaintiff the officer could see each other, and could follow “him with his eyes.” The officer U turned, activated his red lights, and followed plaintiff who made a right turn at the next traffic light, then immediately made a left turn into a parking lot behind a burger stand, parked near a dumpster and turned off his lights.
According to the Ninth Circuit panel, plaintiff was a “designated driver.
Obviously the officer did not know that. And the panel noted the driver was an African American as was his passenger and the third occupant a Mexican American. How the officer could see that at 1:30 a.m through tinted rear windows is not questioned by the panel. And if the driver was the “designated driver” the other occupants must be intoxicated.
Plaintiff testified traffic was light yet he was uncertain whether a police car exhibiting red lights was following him. At 1:30 a.m.
Does the conduct of the driver warrant investigation? Does driving into an unlit parking lot after two contradictory vehicular turns and extinguishing the car lights while hiding behind a dumpster sound innocent?
The panel launches into an extended legal analysis of the Fourth Amendment and conclude the officer lacked a basis to stop the vehicle or arrest anyone. This case exemplifies the naivete of 9th Circuit panel members who have no experience in “street work” by police. Experience, intuition and conduct warrant investigation. And the panel could not resist racial identification.
In suppor of its decision in Liberal the panel cites Rodis v. City of San Francisco, 558 F.3d 964 (9th Cir. 2009) and adds “cert. denied.” The Rodis 9th Circuit opinion was originally reversed by the Supreme Court and remanded. On remand the 9th Circuit panel wrote its decison in compliance with the Supreme Court order. In Liberal, the panel sites Rodis and adds “cert. denied” ignoring the fact the Supreme Court reversed its original opinion.