FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERRIS EDGERLY, 

Plaintiff-Appellant,

v. No. 05-15080

C  D.C. No. ITY AND COUNTY OF SAN

FRANCISCO; DAVID GOFF; JOHN CV-03-02169-WHA

CONEFREY; FREDERICK SCHIFF,

Defendants-Appellees. 

ERRIS EDGERLY, 

Plaintiff-Appellant, No. 05-15382

v. D.C. No.

CITY AND COUNTY OF SAN  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, Distict Judge, Presiding

Argued and Submitted

November 13, 2006—San Francisco, California

Filed July 17, 2007

Before: William C. Canby, Jr., John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

8613
COUNSEL

Gregory M. Haynes, San Francisco, California, for plaintiffappellant Erris Edgerly. 

Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial

Attorney, Sean F. Connolly, Deputy City Attorney, San Francisco City Attorney’s Office, San Francisco, California, for

defendants-appellees City and County of San Francisco, John

Conefrey, and David Goff. 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8617
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 trespassing 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 § 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’ unconstitutional actions. He also asserted

various state tort claims against the Officers, Schiff, and the

City. 

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

1The Officers and 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. 

8618 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
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 dismissed 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 jurisdiction pursuant to 28 U.S.C. § 1291. We reverse in part,

affirm in part, and remand for further proceedings. 

On Edgerly’s arrest claims, we hold as a matter of law that

the Officers did not have probable cause to arrest Edgerly for

trespass in violation of then-section 602(l), now section

602(m), of the California Penal Code, or any other criminal

statute identified by the Officers and City. We also hold that

the Officers are not entitled to qualified immunity for the

arrest. Accordingly, Edgerly is entitled to judgment as a matter of law on the arrest claims and we reverse and remand for

a determination of damages. 

On Edgerly’s search claims, we hold that, viewing the evidence 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. We also hold

that the Officers are not entitled to qualified immunity for the

search. Consequently, we reverse and remand Edgerly’s

search claims for further proceedings. 

Finally, as to Edgerly’s other claims, we reverse (1) the

Rule 50(a) ruling dismissing his additional state law claims

against the Officers and the City, and (2) the grant of summary judgment dismissing his § 1983 Monell2

 claims against

the City. We affirm, however, (1) the grant of summary judg2Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978). 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8619
ment to Schiff, (2) the award of attorneys’ fees to Schiff under

42 U.S.C. § 1988, and (3) the award 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 pretrial 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 testimony 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

dispute. On August 29, 2000, while on daytime patrol, Officers 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 Officers 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

3At 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. In granting judgment as a matter of law for the Officers, the

district court mistakenly concluded that the absence of this testimony was

critical. As we explain below, the Officers lacked probable cause whether

or not Edgerly told them that he was waiting for a resident. 

4The Officers also testified that the cooperative was in a high-crime area

known for drug dealing and that Edgerly was an “associate” of neighbor8620 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
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 Officers 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,

where they performed an additional search. There is conflicting 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 station 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. 

hood 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. 

5Edgerly’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 relevant 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. CITY AND COUNTY OF SAN FRANCISCO 8621
Edgerly filed a complaint 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, negligent 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 genuine 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 matter of law “for the reasons stated on the record and memorandum submitted by [the Officers and City].”

6

 The court ruled

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 limiting my analysis to 602.8. I am adopting each and

6Although 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.” 

8622 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
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 entitled 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 sanctions against Edgerly and his attorney, finding that they filed

two frivolous motions for reconsideration of the court’s summary judgment ruling. 

II. Discussion

A. Officers Goff and Conefrey

We review de novo the district court’s order granting the

Officers and 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 reasonable

conclusion.” Id.

1. Section 1983 Unlawful Arrest Claim

a. Probable Cause to Arrest

Edgerly argues that the Officers arrested him without probable cause, in violation of the Fourth Amendment. To deter7As we discuss below, the Officers and City suggested that probable

cause also existed to arrest Edgerly under California Penal Code sections

602.5 and 647(h). 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8623
mine 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 petitioner 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) (alteration 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 element. Id. at 1072-73. 

[1] Also, shortly before the district court entered judgment

for the Officers and City under Rule 50(a), the Supreme Court

decided Devenpeck v. Alford, 543 U.S. 146 (2004), reversing

our decision in Alford v. Haner, 333 F.3d 972 (9th Cir. 2003),

and overturning our precedent holding that probable cause

supports an arrest only if probable cause existed for the

offense invoked by the arresting officers or a closely related

offense. See Devenpeck, 543 U.S. at 153-55. The Court held

that, because the probable cause standard is objective, probable 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. See id.

Under Devenpeck, however, an arrest is still unlawful unless

probable cause existed under a specific criminal statute. See

id. at 156 (remanding for the Ninth Circuit to address whether

probable cause existed to arrest respondent for “obstructing a

law-enforcement officer or for impersonating a lawenforcement officer”); see also Alford v. Haner, 446 F.3d

935, 937 (9th Cir. 2006) (holding, on remand from Devenpeck, that probable cause existed because there was “sufficient evidence in the record to support a finding of objective

probable cause to arrest Alford for the misdemeanor offense

of criminal impersonation in the second degree”). It is therefore not enough, as the Officers and City argue, that probable

8624 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
cause existed to arrest Edgerly for some metaphysical criminal offense;8

 they must ultimately point to a particular statutory offense. 

[2] We conclude that the Officers did not have probable

cause to arrest Edgerly for any offense identified by the Officers and City. 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

Edgerly’s arrest, however, the California Supreme Court had

clearly established that section 602(l) “requires occupation of

the property, a ‘nontransient, continuous type of possession.’ ” In re Catalano, 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”). 

[3] Here, the Officers knew only that Edgerly was not a resident of the Cooperative and that he had been on the property

for a matter of minutes. On the basis of these facts, a reasonable officer would not have believed that Edgerly had violated

or was about to violate section 602(l). 

[4] Nor did probable cause exist to arrest Edgerly for any

of the other criminal offenses suggested by the Officers and

8

In their brief on appeal, the Officers and City do not argue with specificity that probable cause existed to arrest Edgerly under a trespassing or

loitering statute; indeed, they do not even mention any relevant statutes.

They argue only that the Officers “had probable cause to arrest Edgerly

for some type of trespass.” 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8625
City to the district court. First, under California Penal Code

section 647(h), loitering also has a specific intent requirement,

for which the Officers clearly 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) (noting that the California courts first added this “specific intent element” to the state’s loitering statute in 1961,

and that “[t]he Legislature included this intent element when

it redrafted [the loitering statute] as present section 647, subdivision (h)”); Cal. Jury Instr., Crim., No. 16.445 (6th ed.

1996) (requiring, for a conviction under section 647(h), proof

that the defendant “had a specific intent to commit a crime if

[he or she] discovered the opportunity to do so”). 

Second, the 2000 version of California Penal Code section

602.5 in effect at the time of Edgerly’s arrest, which prohibited “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.

App. 1978) (holding that unauthorized entry of a shed adja9California 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 subdivision, ‘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.” 

10Although we recognize that the probable cause and qualified immunity standards are objective, see Lopez, 482 F.3d at 1072; Bingham v. City

of Manhattan Beach, 341 F.3d 939, 950 (9th Cir. 2003), 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 Cooperative property for the purpose of committing a crime. 

11Effective January 1, 2001, California amended section 602.5 to

replace “other such place” with “other residential place.” 2000 Cal. Stat.

ch. 3 (S.B. No. 1486). 

8626 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
cent to a house does not violate the section).12 A reasonable

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 violation

of section 602.5. 

Finally, probable cause could not have existed to place

Edgerly under custodial arrest pursuant to California Penal

Code section 602.8(a). As an initial matter, it is doubtful that

the section applies to residential property, as it prohibits entering, without written permission, “lands under cultivation or

enclosed by fence . . . [or] uncultivated or unenclosed lands

where signs forbidding trespass are displayed at intervals not

less than three to a mile.”

13 In any event, a first offense under

section 602.8(a) is punishable only “as an infraction” and,

under clearly established 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 identity] and to sign a written promise to appear.”

Cal. Penal Code § 853.5. “Only if the arrestee refuses to sign

a written promise, has no satisfactory identification, or refuses

to provide a thumbprint or fingerprint may the arrestee be

taken into custody.” Id.

Here, the Officers did not testify that Edgerly refused to

provide identification, fingerprints, or a signed written promise to appear, or that they had reason to believe that he previ12As 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 noncommercial structure even though no substantial occupation occurred.” Id.

(footnote omitted). 

13As the California Court of Appeal explained in Quarterman v. Kefauver, citing section 602.8(a), among other statutes: “This sampling of statutes suggests that when the Legislature 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.” 64

Cal. Rptr. 2d 741, 745-46 (Cal. Ct. App. 1997).” 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8627
ously violated section 602.8(a). Thus, even if a reasonable

officer might have believed that Edgerly had violated section

602.8(a), the Officers lacked probable cause to place Edgerly

under custodial arrest on this basis. 

[5] In sum, the facts and circumstances within the Officers’

knowledge were not sufficient for a reasonable officer to

believe that Edgerly had violated or was about to violate any

California criminal statute that permitted custodial arrest,14

and we therefore conclude that the Officers did not have probable cause to arrest Edgerly.15 See Beck, 379 U.S. at 91. 

14The Officers and City do not refer us to any relevant municipal code

for which probable cause to arrest may have existed. 

15In Blankenhorn v. City of Orange, we recently held that city police

officers had probable cause to arrest Blankenhorn for trespass under California Penal Code sections 602(j) and 602(n), now sections 602(k) and

602(o). See 485 F.3d 463, 473-75 (9th Cir. 2007). Blankenhorn, however,

involved a unique set of facts distinct from those in the instant case, and

dealt with two sections of the California Penal Code that clearly do not

apply here. 

The officers arrested Blankenhorn at a shopping mall where, six months

before, mall security had issued him written notice evicting and permanently banning him from the premises. Mall security also asked the officers to arrest Blankenhorn on the night of the arrest. In light of these

circumstances, we held that “[r]easonable officers could have thought that

Blankenhorn, knowing he had been banned a few months earlier, could

have intended that his presence would constitute ‘injury to property rights’

or ‘interference’ with [the mall’s] business,” in violation of then-section

602(j). Id. at 473-74 (quoting Cal. Penal Code § 602(j)). Likewise, we

held that reasonable officers could have concluded that Blankenhorn violated then-section 602(n), by his “ ‘[r]efus[al] or fail[ure] to leave’ after

being issued the Notice Forbidding Trespass.” Id. (quoting Cal. Penal

Code § 602(n)) (alterations in original). 

In light of these differences, although Blankenhorn also involved an

arrest for trespass under the California Penal Code, it does not affect our

analysis of Edgerly’s unlawful arrest claims. 

8628 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
b. Qualified Immunity for the Arrest

[6] We must also determine, however, whether the Officers

are entitled to qualified immunity for the arrest. As the

Supreme Court explained in Saucier v. Katz, 533 U.S. 194

(2001), police officers are entitled to qualified immunity from

§ 1983 claims unless (1) their alleged conduct violated a constitutional right, and (2) that right was clearly established. Id.

at 201-02. In determining whether a right was clearly established, we do not consider the right as a “general proposition.”

Id. at 201. Rather, “[t]he relevant, dispositive inquiry . . . is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

[7] Here, the Officers violated Edgerly’s constitutional

rights under the Fourth Amendment by arresting him without

probable cause. The qualified immunity analysis therefore

distills down to a single particularized inquiry: whether “a

reasonable officer could have believed that probable cause

existed [for the] arrest” under the circumstances. Hunter v.

Bryant, 502 U.S. 224, 228 (1991). If so, the arresting officers

are entitled to qualified immunity. Conversely, if a “reasonable officer could [not] have believed [the arrest] to be lawful,

in light of clearly established law and the information the

[arresting] officers possessed,” then the arresting officers are

not entitled to immunity. Id. at 227 (final alteration in original). 

[8] We conclude that the Officers are not entitled to qualified immunity. At the time of the arrest, it was clear under

established California law that Edgerly’s brief and otherwise

unremarkable presence within the Cooperative’s gated, outside area did not violate any criminal statute. See id. at 227-

28. 

First, as we explained above with regard to then-section

602(l), it was clearly established well before Edgerly’s arrest

that a person committed a trespass under that section only if

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8629
he or she had the specific intent to permanently dispossess the

lawful owner of the property. Given Edgerly’s unremarkable

presence on Cooperative property for a matter of minutes, no

reasonable officer could have believed that probable cause

existed to arrest Edgerly under section 602(l). 

Similarly, no reasonable officer could have believed that

probable cause existed to arrest Edgerly under section 647(h),

in light of its express specific intent requirement. As we

explained above, a person violates section 647(h) only if he

or she lingers on private property for the purpose of committing a crime. Here, Edgerly was simply standing at the Cooperative’s playground area for about five minutes, and the

Officers had no additional information that Edgerly specifically intended to commit a crime at that time. 

Nor could a reasonable officer have believed that probable

cause existed to arrest Edgerly under the applicable version of

section 602.5, since none of the facts known to the Officers

suggested that Edgerly had entered or was about to enter any

of the Cooperative’s dwelling units. As we explained above,

and the California courts had emphasized prior to Edgerly’s

arrest, the section applied by its express terms only to actual

places of habitation—dwelling houses or apartments—not

playground areas. 

Finally, even assuming a reasonable officer could have

believed that Edgerly had violated section 602.8(a), a reasonable officer could not have believed that probable cause

existed to arrest Edgerly for the violation. As we explained

in Bingham v. City of Manhattan Beach, “in evaluating a custodial arrest . . . federal courts must determine the reasonableness of the arrest in reference to state law governing the

arrest.” 341 F.3d at 950 (alteration omitted). Thus, because

California law “prohibits arresting someone solely for being

an unlicensed driver,” we concluded in Bingham that

“[a]rresting Bingham solely on that basis clearly is not an

action that a reasonable officer could have believed lawful.”

8630 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
Id. (alteration and internal quotation marks omitted). Here,

too, no reasonable officer could have believed that it was lawful to place Edgerly under custodial arrest solely on the basis

of section 602.8(a). As we explained above, California law

prohibits custodial arrests for a first offense under the circumstances of the instant case. 

[9] In sum, we conclude that the Officers lacked probable

cause to arrest Edgerly for any offense and, because no reasonable officer could have believed otherwise, that they are

not entitled to qualified immunity for the arrest. We therefore

reverse and remand for the district court to enter judgment in

favor of Edgerly on the issues of probable cause and qualified

immunity for the arrest, and for further proceedings on the

issue of damages. 

2. Section 1983 Unlawful Search Claim

We also 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 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 reasonable conclusion as to the

constitutionality of the search, we remand for further proceedings.16

16Notably, Edgerly does not argue that the search was unconstitutional

because it followed in a “continuous and unbroken sequence” from the

unlawful arrest. Lucero v. Donovan, 354 F.2d 16, 20 (9th Cir. 1965) (“If

the arrest [was] unlawful, then liability could follow, as to [the arresting

officer], for the arrest and the events which followed in legally unbroken

sequence.”); see also Heck v. Humphrey, 512 U.S. 477, 484 (1994) (holdEDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8631
a. Reasonableness of the Search

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.” Way v. County of Ventura, 445 F.3d 1157, 1160 (9th

Cir. 2006). State law is also relevant in analyzing the reasonableness of a search under the Fourth Amendment. See Reed

v. Hoy, 909 F.2d 324, 330 n.5 (9th Cir. 1989); see also

Bingham, 341 F.3d at 950. 

[10] We have held that “arrestees charged with minor

offenses may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual

arrestee is carrying or concealing contraband.” Fuller v. M.G.

Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991) (citing Giles v.

Ackerman, 746 F.2d 614 (9th Cir. 1984), overruled in part on

other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d

1037 (9th Cir. 1999)). Similarly, California Penal Code section 4030(f) prohibits strip searches of persons arrested for

minor offenses “except those involving, weapons, controlled

substances or violence,” unless the officer has a “reasonable

suspicion based on specific and articulable facts to believe

such person is concealing a weapon or contraband.”

17

ing that common law tort rules provide the appropriate starting point for

assessing § 1983 damages, and that damages for false arrest tort claims

“cover the time of detention up until issuance of process or arraignment”

(citation omitted)); United States v. Jenkins, 876 F.2d 1085, 1089 (2d Cir.

1989) (“[B]ecause Jenkins’ arrest . . . was illegal, no valid inventory

search could have been based on that arrest.”). Because Edgerly did not

raise this argument, we deem it waived and therefore do not address it. If

the district court deems it appropriate on remand, however, it may allow

Edgerly to raise this issue. 

17We recently held, however, addressing section 4030, that not all drug

offenses provide reasonable suspicion for a strip search. See Way, 445

F.3d at 1160-62. We have also held that not all felony offenses provide the

requisite suspicion. See Kennedy v. Los Angeles Police Dep’t, 901 F.2d

702, 711 (9th Cir. 1990), implied overruling on other grounds recognized

by Act Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir. 1993). 

8632 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
[11] We have also held that visually inspecting a person’s

naked body, even without a “visual examination of body cavities,” constitutes a strip search.18 See Giles, 746 F.2d at 615,

618. Additionally, California’s reasonable definition of a

“strip search” informs our Fourth Amendment analysis in the

instant case. See Reed, 909 F.2d at 330 n.5; see also Bingham,

341 F.3d at 950. California Penal Code section 4030(c)

expressly defines a strip search 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 underclothing,

breasts, buttocks, or genitalia of such person.” 

[12] Viewing the evidence in 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. Further, Edgerly’s testimony

that Goff looked inside his boxer shorts permits a reasonable

inference that Goff visually inspected his buttocks or genitalia.19

Therefore, if the jury credits Edgerly’s testimony, the Officers’ search was a strip search that required reasonable suspicion. 

18Although we have not expressly decided whether requiring an arrestee

to expose only his or her undergarments constitutes a strip search, we have

held in the border search context that such a search “tend[s] toward [a]

strip search in that if conducted in public it can be said to result in embarrassment 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

feasible to enunciate a clear and simple standard for each possible degree

of intrusiveness,” such a search requires “suspicion . . . founded on facts

specifically relating to the person to be searched, and [that] the search [be]

no more intrusive than necessary to obtain the truth respecting the suspicious circumstances.” Id.

19In their motion for judgment as a matter of law, the Officers and City

conceded that, crediting “Edgerly’s version of the search, and, giving a

most liberal interpretation of that search, . . . a visual search was conducted of his genitalia.” 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8633
[13] The Officers, however, did not testify that they had

reasonable suspicion for the search. Rather, they testified that

they arrested Edgerly only for trespass, a minor offense not

involving contraband, weapons, or violence. Also, Officer

Coneferey 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. 

[14] Accordingly, a reasonable jury could find that the

Officers strip searched Edgerly; and, if the Officers did strip

search Edgerly, they violated his Fourth Amendment rights,

because they did not have reasonable suspicion for the search.20

b. Qualified Immunity for the Search

Because the facts alleged by Edgerly show that the Officers’ conduct violated his constitutional rights, see Katz, 533

U.S. at 201, the qualified immunity analysis again turns on a

single particularized inquiry: whether a reasonable officer

could have believed, in light of clearly established law, that

the search was constitutional. See id. at 201-02; see also Way,

445 F.3d at 1159-60. 

[15] We conclude that the Officers are not entitled to qualified immunity for their alleged conduct of strip searching

Edgerly either by requiring him to reveal his undergarments

or by visually inspecting his genitalia or buttocks. As we

explained above, it is clearly established in the Ninth Circuit

that post-booking strip searches without reasonable suspicion

are unconstitutional. See Fuller, 950 F.2d at 1446. Moreover,

California law expressly defines a strip search to include the

20In determining the reasonableness of the search under the Fourth

Amendment, a jury could also consider the fact that, if the Officers strip

searched Edgerly, they violated California law regardless of whether they

had reasonable suspicion for the search, because it was not authorized by

Sergeant Schiff. See Cal. Penal Code § 4030(f) (“No strip search . . . may

be conducted without the prior written authorization of the supervising

officer on duty.”). 

8634 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
exposure of undergarments or visual inspection of buttocks or

genitalia, see Cal. Penal Code § 4030(c), and provides that it

is a criminal offense to knowingly and willfully perform such

searches on misdemeanor arrestees such as Edgerly without

reasonable suspicion. See id. § 4030(f), (n). In light of this

clearly established law, no reasonable officer could have

believed the police station search, as described by Edgerly at

trial, to be lawful. See Way, 445 F.3d at 1159-60; see also

Katz, 533 U.S. at 201-02. 

3. State Law Claims

[16] Because the analysis for Edgerly’s state law false

arrest claim is the same as for his § 1983 unlawful arrest

claim, we reverse and remand for the district court to enter

judgment in favor of Edgerly and to address the issue of damages in further proceedings. See Gillan v. City of San Marino,

55 Cal. Rptr. 3d 158, 167-68 (Cal. Ct. App. 2007) (holding

that a police officer who unlawfully arrests an individual

without probable cause is liable for false arrest, and that California Government Code sections 820.2 and 821.6 do not provide immunity from such claims); cf. Cal. Penal Code

§ 847(b)(1) (providing that officers are entitled to immunity

from false arrest claims where they had “reasonable cause to

believe the arrest was lawful”); Blankenhorn, 485 F.3d at 475

(holding that the arresting officers were entitled to immunity

from appellant’s state law false arrest claim because the officers had probable cause for the arrest). 

Also, 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 section. If so, Edgerly’s state law unlawful search claim would

depend on the same disputed factual issues as his § 1983

unlawful search claim, and turn on the jury’s resolution of

these issues on remand. We therefore reverse and remand for

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8635
the district court to clarify the legal basis of this claim and to

proceed accordingly.21

Edgerly’s claims for negligence and negligent and intentional infliction of emotional distress, however, raise substantial legal and factual questions beyond the lawfulness of

Edgerly’s arrest and search, such as whether Edgerly suffered

severe emotional distress and what duties the Officers owed

to Edgerly. Because the district court mistakenly concluded

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 summary 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 conclude that the district court erred in determining that Edgerly

could not maintain his § 1983 Monell claims against the City.

We therefore reverse the grant of summary judgment to the

City on these claims and remand for further proceedings. 

21As we explained above with regard to Edgerly’s § 1983 unlawful

search claim, the district court may, if it deems it appropriate, allow

Edgerly to raise the issue of whether he is entitled to damages for the

search simply because it was the result of his unlawful arrest. See supra

note 16; cf. Asgari v. City of Los Angeles, 937 P.2d 273, 281 (Cal. 1997)

(“[A] police officer’s liability for false arrest does not include damages

caused by incarceration following the arrestee’s arraignment on formal

charges.”). 

8636 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
The Supreme Court has held that, “when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts [a constitutional] injury [then]

the government as an entity is responsible under section

1983.” Monell, 436 U.S. at 694. A municipality is liable under

Monell only if a municipal policy or custom was the “moving

force” behind the constitutional violation. City of Canton v.

Harris, 489 U.S. 378, 388-89 (1989). 

Here, discovery revealed facts that, taken in the light most

favorable to Edgerly, establish municipal liability under

Monell for the Officers’ actions. First, with regard to Edgerly’s arrest, Sergeant Schiff testified at his deposition that

occupying a property for five to ten minutes would be sufficient to constitute a violation of section 602(l). In explaining

his basis for this erroneous belief, Schiff testified that his initial training with the City specifically covered section 602(l)

and that he received periodic updates regarding enforcement

of the section. Schiff also testified that: 

We have had upwards of six captains in the eight

years that I’ve been [in the district.] Each [of the

captains] has received numerous complaints [from

the Cooperative’s management and management at

two other low income housing projects in the area]

about the trespassing, the drug dealing, and requests

to abate it, and those requests generally wind up in

the lap of Officer[s] Goff and Conefrey. 

In his deposition, Officer Goff confirmed that, during his

tenure at the station, supervising officers had instructed him

about the requirements for enforcing section 602(l) at the

Cooperative and two other public housing projects in the area.

He believed that these instructions applied only at the housing

projects. Officer Goff also testified that “this particular problem, . . . outsiders hanging out, selling drugs in these particuEDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8637
lar properties,” had “been discussed for 17 years with

numerous supervisors.” 

Taking these facts in the light most favorable to Edgerly,

a jury could reasonably find that: (1) the City had a policy of

training its police officers to make arrests under section 602(l)

in situations where probable cause did not exist; (2) policymakers in the police department had implemented a policy of

making such unconstitutional arrests at the Cooperative; and

(3) these city policies were the moving force behind the Officers’ violation of Edgerly’s constitutional rights, since police

captains and supervisors directed Officers Goff and Conefrey

in particular to make such arrests. Thus, the district court

erred by dismissing Edgerly’s § 1983 Monell claim for unlawful arrest. 

[17] For similar reasons, we conclude that the district court

erroneously dismissed Edgerly’s § 1983 Monell claim premised on the Officers’ allegedly unconstitutional search. In his

deposition, Schiff testified that he followed “department policy” in requiring officers to request authorization only for full

body cavity searches and not for searches that constituted

strip searches under California Penal Code section 4030(c).

Further, the Officers testified at their depositions that requiring an arrestee to remove his pants to reveal his underclothing

does not constitute a strip search or require supervisor

approval, and that they had conducted hundreds of such

searches. Taking these facts in the light most favorable to

Edgerly, a reasonable jury could find that: (1) the City had

implemented a policy of permitting unreasonable searches;

(2) the Officers were aware of this policy; and (3) the policy

was the moving force behind the Officers’ violation of Edgerly’s constitutional rights. 

We therefore reverse the district court’s dismissal of Edgerly’s § 1983 Monell claims against the City, and remand for

further proceedings. 

8638 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
2. State Law Claims

[18] We also conclude 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. Code

§ 815.2). The City is therefore liable to the same extent 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.

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, however, 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 violation.” Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir.

2003). 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

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8639
others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.

2000). 

Taking the facts in the light most favorable to Edgerly, Sergeant Schiff was a police supervisor, responsible for the dayto-day operations at the station when he was on duty, who

provided only informal training to officers—as Schiff testified

at his deposition, when officers asked him questions, he

would try to answer them. Schiff also testified, incorrectly,

that section 602(l) can involve a very brief trespass, and that

he had been involved in making such, likely unconstitutional,

arrests with other officers. Schiff further testified that, contrary to the requirements of section 4030, he requires officers

to request authorization from him only for full body cavity

searches, not for strip searches. 

These facts, however, do not establish supervisorial liability for Schiff. No reasonable trier of fact could find that Schiff

had any personal involvement in the incident, since 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 connection existed between Schiff and the Officers’ unconstitutional actions. Schiff was not responsible for

station policy; he was required to enforce the rules and regulations set forth by his supervising captain and other higherranking officers. Cf. Redman v. County of San Diego, 942

F.2d 1435, 1446-48 (9th Cir. 1991) (holding, where petitioner

alleged that he was sexually assaulted in prison due to a deficient inmate assignment policy, that a reasonable jury could

find supervisorial liability based on evidence 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. Lightner, 143 F.3d

1210, 1213 (9th Cir. 1998) (holding that, to establish supervi8640 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
sorial liability for failure to train, a plaintiff must show that

the failure “amounted to deliberate indifference”). 

[19] 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 requires proof

of causation and, as discussed, the facts do not establish a sufficient causal connection between Schiff and the Officers’

actions. We therefore affirm the district court’s grant of summary judgment to Schiff. 

D. Attorneys’ Fees

We review an award of attorneys’ fees pursuant to 42

U.S.C. § 1988 for an abuse of discretion. LSO, Ltd. v. Stroh,

205 F.3d 1146, 1160 (9th Cir. 2000). A district court may

award attorneys’ fees to a prevailing defendant “only where

the action brought is found to be unreasonable, frivolous,

meritless, or vexatious.”

22 Patton v. County of Kings, 857 F.2d

1379, 1381 (9th Cir. 1988). 

Prior to Schiff’s deposition on May 4, 2004, his attorney

sent three letters to Edgerly’s attorney requesting that he dismiss Schiff because the Officers’ depositions established that

Schiff was not liable for the arrest or search. Edgerly’s attorney declined to do so. After the district court ordered summary 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 completing discovery, since it was possible that Schiff’s deposition would reveal that he had a more significant role in

22Edgerly does not challenge the amount of the fee award. 

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8641
training or supervising the Officers than the Officers’ depositions had disclosed. The court found, however, that it was

unreasonable for Edgerly not to dismiss Schiff after his deposition confirmed that there was no basis for supervisorial liability. 

[20] We conclude that the district court did not abuse its

discretion in awarding reasonable post-discovery attorneys’

fees to Schiff.23

E. Sanctions

We also review a district court’s imposition of sanctions for

an abuse of discretion. Patelco Credit Union v. Sahni, 262

F.3d 897, 912-13 (9th Cir. 2001). “A district court abuses its

discretion in imposing sanctions when it bases its decision on

an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. at 913. A motion for reconsideration 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.24 Thus, the court

awarded sanctions in the amount of attorneys’ fees that Schiff

incurred in responding to the motions. 

23Edgerly 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, provides 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. 

24The district court also found in the alternative that the award of sanctions 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. 

8642 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO
[21] We conclude that the district court did not abuse its

discretion in imposing these sanctions. The court did not commit any legal error and its finding that Edgerly and Haynes’

two motions for reconsideration did not raise any new issues

was not clearly erroneous.25

III. Conclusion

In sum, we conclude that the Officers unlawfully arrested

Edgerly without probable cause, and that they are not entitled

to qualified immunity for this violation of his Fourth Amendment rights. We therefore reverse and remand for the district

court to enter judgment as a matter of law for Edgerly on his

§ 1983 unlawful arrest claim against the Officers and state

law false arrest claims against the Officers and the City, and

for further proceedings on the issue of damages. 

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 § 4030(f), and

that the Officers are not entitled to qualified immunity for the

search. We therefore reverse and remand for further proceedings Edgerly’s § 1983 unlawful search claim against the Officers and state law unlawful search claims against the Officers

and the City. 

We also reverse and remand for the district court to address

in the first instance Edgerly’s state law negligence, negligent

infliction of emotional distress, and intentional infliction of

emotional distress claims against the Officers and the City,

and negligent training and supervision claim against the City.

Likewise, we reverse and remand for further proceedings

Edgerly’s § 1983 Monell claims against the City. 

25For the reasons discussed supra note 23, the district court did not

abuse its discretion in granting the motion without allowing oral argument.

EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO 8643
We affirm, however, the district court’s dismissal of all

claims against Schiff, grant of attorneys’ fees to Schiff, and

imposition of sanctions against Edgerly and his attorney,

Gregory Haynes. 

AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings consistent with this

opinion. 

In Appeal No. 05-15080, Edgerly shall recover his costs of

appeal. 

In Appeal No. 05-15382, the Appellees shall recover their

costs of appeal. 

8644 EDGERLY v. CITY AND COUNTY OF SAN FRANCISCO