F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W A N D A J O H

N S O N , individually and as personal representative of the Estate of Oscar J . Grant, I I I ; E S T A T E O F O S C A R J

. G R A N T I I I ; S O P H I N A M E S A , as Guardian ad L item of minor, T.G.; J A C K B R Y S O N , J R

. ; N I G E L B R

Y S O N ; M I C H A E L G R

E E R ; C A R

L O S R E Y E S ; F E R

N A N D O A N I C E T E , J R .; O S C A R J U L I U S G R

A N T , J R

. ; J O H N T U E C A L D W

E L L (now deceased), Plaintiffs-Appellees

,

v.

B A Y A R E A R A P I D T R A N S I T D I S T R I C T ; G A R

Y G E E , in his official capacity

as chief of police for B ART; D O R O T H Y D U G G E R , in her official capacity
as g eneral manag er for B ART; A N T H O N Y P I R O N E , individually and in his official capacity as a police officer for B ART; M A R Y S O L D O M E

N I C I , individually and in her official capacity as a police officer for B ART; D O E S 1-50, Defendants

, No. 11-16456

D .C. Nos. 3:09-cv-00901-EMC 3:09-cv-04014-EMC 3:09-cv-04835-EMC 3:10-cv-00005-EMCJ O H N S O N V

. B ART 2

and

J O H A N N E S M E H S E R

L E , individually and in his official capacity as a police officer for B ART, Defendant-Appellant

.

W A N D A J O H

N S O N , individually and as personal representative of the Estate of Oscar J . Grant, I I I ; E S T A T E O F O S C A R J

. G R A N T I I I ; S O P H I N A M E S A , as Guardian ad L item of minor, T.G.; J A C K B R Y S O N , J R

. ; N I G E L B R

Y S O N ; M I C H A E L G R

E E R ; F E R

N A N D O A N I C E T E , J R .; C A R

L O S R E Y E S ; O S C A R J U L I U S G R

A N T , J R

. ; J O H N T U E C A L D W

E L L (now deceased), Plaintiffs-Appellees

,

v.

B A Y A R E A R A P I D T R A N S I T D I S T R I C T ; G A R

Y G E E , in his official capacity

as chief of police for B ART; D O R O T H Y D U G G E R , in her official capacity
as g eneral manag er for B ART; J O H A N N E S M E H S E R

L E , individually and in his official capacity as a police officer for No. 11-16480

D .C. Nos. 3:09-cv-00901-EMC 3:09-cv-04014-EMC 3:09-cv-04835-EMC 3:10-cv-00005-EMCJ O H N S O N V

. B ART 3

B ART; M A R

Y S O L D O M E

N I C I , individually and in her official capacity as a police officer for B ART; D O E S 1-50, Defendants

,

and

A N T H O N Y P I R O N E , individually and in his official capacity as a police officer for B ART,

Defendant-Appellant

.

W A N D A J O H

N S O N , individually and as personal representative of the Estate of Oscar J . Grant, I I I ; E S T A T E O F O S C A R J

. G R A N T I I I ; S O P H I N A M E S A , as Guardian ad L item of minor, T.G.; J A C K B R Y S O N , J R

. ; N I G E L B R

Y S O N ; M I C H A E L G R

E E R ; F E R

N A N D O A N I C E T E , J R .; C A R

L O S R E Y E S ; O S C A R J U L I U S G R

A N T , J R

. ; J O H N T U E C A L D W

E L L (now deceased), Plaintiffs-Appellees

,

v.

B A Y A R E A R A P I D T R A N S I T D I S T R I C T ; G A R

Y G E E , in his official capacity

as chief of No. 11-16481

D .C. Nos. 3:09-cv-00901-EMC 3:09-cv-04014-EMC 3:09-cv-04835-EMC 3:10-cv-00005-EMC

OPI NI ONJ O H N S O N V

. B ART 4

police for B ART; D O R O T H Y D U G G E R , in her official capacity
as g eneral manag er for B ART; J O H A N N E S M E H S E R

L E , individually and in his official capacity as a police officer for B ART; A N T H O N

Y P I R O N E , individually and in his official capacity as a police officer for B ART; D O E S 1-50, Defendants

,

and

M A R Y S O L D O M E

N I C I , individually and in her official capacity as a police officer for B ART, Defendant-Appellant

.

A ppeal from the United States District Court for the Northern District of California Marily n H. Patel, Senior District J udg e, Presiding

Arg ued and Submitted December 3, 2012—San F r ancisco, California

F iled J uly 30, 2013

B efore: Michael Daly

Hawkins, A. W allace Tashima, and Mary H. Murg uia, Circuit J udg es.

Opinion by

J u dg e Murg uiaJ O H N S O N V

. B ART 5

SUMMARY *

Civil Rights

The panel affirmed in p art, v aca ted in part, and reversed in part the district court’s denial in part of qualified immunity
t o Ba y A rea Rapid Transit police officers, and dismissed a portion of one officer' s appeal, in two civil rig hts suits a rising from an encounter on a train platform that ended w ith the shooting and death of Oscar Grant I I I

.

Grant’s friends who were involved in the encounter, Nig el B ry son, J ack B ry son, J r., Carlos Rey es, Michael Gre e r , and F ernando Anicete, J r., broug ht suit a llegi n g t hat transit officers Mehserle, Pirone and Domenic i c o mmitted v arious violations of the United States Constitution and state law by detaining and a

rresting them and holding them handcuffed at t he B ART police headquarters overnig ht after shooting G r a n t

. Grant’s f a ther filed a separate complaint alle gi n g that the

o f f i cers violated his rig ht to a familial r elationship with h i s

son.

The p a nel first h eld that Mehserle w a s not entitled to qualif i ed immunity from Grant’s father’s F ourteenth Amendment claim for deprivation of a familial relationship. The panel d e clined Mehserle’s invitation to find, as a matter of law, that Grant and h is father lacked a sufficie n t ly strong father–son bond to s u p port the c laim. The panel f urther determined that g iven the factual dispute as to whether Mehserle’s actions were required b y a leg itima t e law

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.J O H N S O N V

. B ART 6

enforcement p urpose, the dist r i c t court could not have properly g r anted Mehserle qualified immunity

. T h e panel therefore affirmed the d istrict court’s judg ment as to the F ourteenth Amendment claim.

Citing Liberal v. Estrada

, 632 F .3d 1064 (9th Cir. 2011), the panel determined that it lacked jurisdiction to review the district court’s judg ment d eny ing Mehserle q ua l i f ied immunity from the plaintiffs’ California Civil Co d e § 52.1 claim, and dismissed that portion of Mehserle’s appeal.

Reversing the judg ment, the panel h eld that Mehserle was entitled to q

ualified immunity from Anicete’s unlawful arrest claim because there was no evidence that he play ed any part in the arrest.

The panel held that the district court relied improperly on Dubner v. City and County of San Fra n cisco
, 266 F .3d 959 (9th Cir. 2 001), in deny ing Mehserle qu a l i fied immunity a s to Anicete’s, Rey es’s and N ig el B ry son’s ex tended detention claims a t B ART police headquarters, and t h e r e f ore vacated the judg ment, with instructions that on remand, the district
court should determine whether ther e was any evidence that Mehserle was responsible for those ex tended detentions.

Affirming the district c ourt, the panel he l d that: (1) Mehserle was not entitled to qualified immunit y f r o m J ack B ry son’s unlawful a

rrest claim; (2) Pirone was not entitled to qualified immunity from Rey es’s, G reer’s and the B ry sons’ claim for unlawful detention g iven the questionable nature o f Pirone’s authority to detain the g roup for a misdemeanor that abated before his arrival; (3) Pirone w as not entit l ed to qualified immunity from Rey es’s and the B ry sons’ claim that he conducted a de facto arrest, w ithout the requisite probableJ O H N S O N V

. B ART 7

cause, by d

rawing h is Taser; (4) Piro n e w a s not entitled to qualified immunity fo r arresting Greer for his r efusal to accede to the unlawful detention.

F inally

, the panel held that to the ex tent the district court relied solely on Dubner to d eny D omenici immunity from
any of the plaintiffs’ claims, the judg ment was vacated a nd on remand the distr i c t court should r econsider its decision in accordance with the panel’s opinion. To the ex tent the district
court relied upon disputed facts to deny Domenici immunity

, the pan e l stated that it lacked jurisdiction to review that denial.

COUNSEL

Michael L

. Rains (arg

ued) and L ara Cullinan e

- S mith, Rains L u c i a S t e r n , P C
, P l e a s a n t H i l l

, C a l i f o r n i a , f o r Defendant–Appellant J ohannes Mehserle.

Donal d T. Ramsey (arg ued), L aw Offices of Donald T. Ramsey
, S an F rancisco, California; W illiam R. Rapoport, L aw Offices of W illiam R. Rapo p o r t , Redwood City

, California, for Defendant–Appellant Anthony Pirone.

Alison B erry W ilkinson (arg ued), B erry W ilk i n son L aw Group, I nc., San Rafael, California, f o r Defendant–Appellant Mary sol Domenici.

J ohn L . B urris (arg

ued) and Adanté D. Pointer, L aw Offices of J ohn L

. B u r r i s , Oakland, California; Dan Sieg el ( arg ued) and D ean Roy er, Sieg el & Yee, Oakland, California, for Plaintiffs–Appellees F ernando Anicete, J r., J ack B ry son, J r ., Nig el B ry son, and Carlos Rey e s.J O H N S O N V

. B ART 8

Panos L a g os, L aw O ffices of Panos L ag os, Oakland, California, for Plaintiff–Appellee Oscar J ulius Grant, J r.

OP INION

MURGUI A, Circuit J udg e:

I n the early

morning hours of J anuary 1, 2009, on a train platform in Oakland, an encounter between a g roup of y oung

m e n and several officers of the B ay Area Rapid Trans i t (“B ART”) police ended with the shooting and d eath of Oscar Grant I I I and the alleg edly unconstitutional detenti o n s o f Grant’s friends, Nig el B ry son, J ack B ry son, J r., Carlos Rey es, Michael G reer, and F e rnando Anicete, J r. A train f ull o f witnesses o bserved the encounter; sev e r a l made video recording s that were replay ed widely in the n ews media a nd made a vailable on the I nternet. J ohannes Mehserle, the B ART police officer w ho shot and killed Gran t , was convicted criminally for his role in the incident, whi c h also
g ave rise to several civil suits ag ainst Mehserle and the other officers involved in the morning ’ s events. Two of those suits are the source of the interlocutory appeals now before us.

The B ry sons, Rey es, Greer, and A nicete filed a complaint
ag ainst Mehserle, as well as a g a i n st Anthony Pirone—the officer w ho first detained the g roup—a n d Pirone’s partner, M a r y sol Domenici. 1 Among other thing s, their compla i n t alleg ed, under 42 U.S.C. § 1983, that the officers committed

v a r i o us violations of the United States Constitution tha t

1 T h e B ry so n s , et al., also su ed o th er of f icers an d ad v an ced o th er th eo ries o f liab ility , n o n e o f w h i ch are relev an t to th e m atter n o w b ef ore th e Co u rt, an d are th eref

o re n o t p art o f

o u r an aly sis.J O H N S O N V

. B ART 9

morning

. Grant’s f

a t h er, O scar G rant, J r., filed a separate complaint alleg ing Mehserle, Pirone, a nd Domenici v iolated his rig h t to a familial relationship w i t h h is son. 2 Mehserle, Pirone, and Domenici each m o ved for summary judg ment, arg uing that they

are entitled to qualified immunity —that is,
to be s h i e l d ed from c laims arising out of their policework—from a l l the plaintiffs’ claims. The district court denied the o fficers qualified immunity

, at least in part. The officers appealed those denials immediately

.

Ou r j u risdiction over these appeals is limited: we may review only the district c o u rt’ s l e ga l conclusion that an officer is not entitled to q ualified immunity

. J

o hnson v

. Jones
, 515 U .S. 3 04, 3 19–20 (1995); Eng v

. Cooley

, 552 F

. 3 d 1062, 1067 ( 9 t h C i r

. 2009); Kennedy v. City of Ridgefield

, 439 F .3d 1055, 1 0 6 0 (9th Cir. 2006). “Our jurisdiction

. . . does n ot ex tend to qualified immunity c laims involving disputed issues of material fact.” KRL v. Estates of Moore
, 512 F

. 3d 1184, 1188–89 (9th Cir. 20 0 8). F or the

reasons that follow, we AF F I RM in larg e p a r t the district court’s r uling

, VACATE it in small part, REVERSE it in smaller part, and remand for furt h e r p roceeding s consistent with this opinion.

I.

Resolving any disputed facts in the plaintiffs ’ favor (as

we must), S

c o tt v. H arris
, 550 U.S. 372, 378 (2007), the following events occurred over the span of 12 minutes, e arly on New Year’s Day , 2009.

2 Gran t’ s m o th er, d au g h ter, an d estate settled t h eir claim s arisin g o u t of th is in cid en t.J O H N S O N V

. B ART 10

1:59:21 A.M.

Keecha W illiams operated a n e a stbound B ART train,
carry ing New Year’s revelers out o f San F rancisco a nd across the B ay

. Shortly before W illiams’ s train pulled into Oakland’s F ruitvale Stati o n , a passeng er used the train’s
emerg ency interc o m t o report a fig ht in the train’s lead car. W illiams relay ed the passen ge r ’ s report to B ART dispatch, which instructed W illiams to stop the t ra i n at F ruitvale a nd wait for the police.

Officer P i r o n e was dispatched to the F ruitvale platform

w i th information that the troublemakers on W illiams’s train

were a g roup of black males, in the lead car , wearing dark clothing

. Dispatch also told Piro n e t h a t no weapons were used in the fig ht.

2:04:00 A.M.

Arriving on the platform, Pirone passed throug h a g roup of people loosely fitting the description of t h e a l leg ed combatants a

nd headed towards another g ro u p , also fitting that description, whose members were stand i n g and talking on the platform near the train’s lead car. Pirone approached the men and, as he said when later q uestioned, unholstered his Taser in an effort to intimidate them. T hree o f the men—the B ry sons and Rey es—beg an to w alk toward the stairs and the station ex it, behind Pirone. Pirone asked the men to stop, but they continued to walk toward the ex it. He then commanded them to “sit the [ ex pletive] d own,” and they did. I n the meantime, two other members of the g roup, Grant and Greer,
ste p p e d b ack a

board the train. Pirone radioed his partner, Officer Domenici, who jog g ed up to the platform, d re w h e rJ O H N S O N V

. B ART 11

own Tas e r , and assumed watch over Rey es a nd the B ry sons so Pirone could search for Grant and Greer.

2:06:33 A.M.

Pirone was pacin g t h e platform, y elling “g et the [ ex pletive] off my train,” when he spotted Grant throug h o ne of the train’s windows. He pointed his Taser at Grant throug h the g lass, prompting Grant to maneuver h is way out of the c ar and on to t h e platform. Pirone led Grant to the w a ll where Rey es a nd the B ry sons sat, a n d then returned to the train to search for Greer. Pirone located Greer shortly and demanded he g et off t h e t r a i n

. W hen Greer failed to comply with Pirone’s order, Pirone g rabbed him by the shirt and drag g ed h i m from the train, pushing him to the wall where the o t h e r

men were seated. Greer ex tended his arms to avoid striking the wall, and then turn to face Piro n e

. Pirone described Greer’s p osition as “ a combative stance,” pur p o rtedly justify ing his response: Pirone g rabbed G reer by the hair a nd swept h is leg s from under him, droppin g h i m to the station floor. Pirone moved to handcuff Greer.

2:08:06 A.M.

A l armed by Pirone’s treatment of Greer, J ack B r y so n stood and protested, e x chang ing p r ofanities with Domenici. Grant stood between Domenici and B ry son, ex tending a hand between them and imploring B ry son to remain calm. Pirone, claiming to have seen Grant touch Domenici, leapt from Greer’s side, punched G rant in the head, and slung him to the floor.J O H N S O N V

. B ART 12

2:08:36 A.M.

Other passeng ers, including the detainees’ frie nd, Anicete, stepped from the id l i n g train, protesting Pirone’s actions. Officer Mehser le and Officer J on W o ffinden (who is not a party to the a p p e a ls before us) sprinted on to the platform. Seeing Pirone and Domenici wi th their Tasers drawn, Mehserle removed his T a s e r from its holster on the left side o f his body

—the side opposite his g un. Pirone walked a way from the assembled g roup of officers a nd detainees, leaving the officers to keep watch without h aving said a ny thing to any o ne a

bout why he detained t h e g roup in the first place.

“W hat d o we have he re , ” P i rone asked Williams, as he arrived at the operator’s booth at the front of the train’s lead

car. “Some B S,” W illiams replied, referring to problems, like fig hting

, that o ccur on B ART trains on N e w Y e a r ’s Eve. Pirone did not inquire f

urther, a nd W illiams said nothing else. Pirone returned to the assembled o fficers and detained men.

2:09:53 A.M.

W a lking b ack towards the g roup, Pirone pointed a f ing er at the seated men, and g enerally at Grant, ordering Mehserle
to a r r e s t “ him and him” for “148” (California Penal Code § 148—misdemeanor r esistance, delay

, or obstruction of an officer in the conduct of his d u ties). Mehserle thoug ht Pirone
meant for him to arrest Grant and J a ck Bry son; Pirone actually meant for Mehserle to a rrest Grant and the a l r e a d y

han dcuffed Greer. Mehserle b eg a n to handcuff B ry son. B ry son arg ued with Mehserle, w h o threatened to u se his Taser if B ry son continued to resist.J O H N S O N V

. B ART 13

2:10:19 A.M.

B r y son c apitulated, kneeled, and put his hands behind his back. Mehserle handcuffed him. Mehserle then tur n ed to Grant, who w as seated to M e h s e rle’s left and facing Pirone. Mehserle g rabbed Grant, c ausing Grant to fall forward on to R e y e s , w ho was sitting o n the floor as Pirone ordere d previously

. Mehserle crouched b ehind Gran t , and Pirone knelt in front of Grant. Rey es implored Pirone and Mehserle
to g et Grant off of him, and the two officers rolled Grant, face down, on to the station floor, w ith G rant’s hands coming to rest underneath his body

.

2:10:53 A.M.

Pirone then knelt o n G rant ’ s n eck. Mehserle straddled G rant, try ing to p u ll his hands out from under his prostr a t e body

. Grant strug g led, complaining t h a t h e was unable to breathe. Despite his strug g ling

, Pirone w a s s atisfied that Grant was subdued. Mehserle, however, s t o o d

, unholstered his g un, a

nd direct ed P i rone to g et back. Puz z led b y Mehserle’s request, Pirone stood, a llowing o n loo k e r s w ho

were r ecording the scene to see Grant’s hands resting v isibly behind his back.

2:11:00 A.M.

Another officer, Emery Knudtson ( who also is not a party to these appeals), arrived on the platform. K nu dtson saw Anicete pacing and cursing at the other officers, so Knudtson tackled and handcuffed h i m , apply ing ex tra pressure to Anicete’s hip after Anicete complained of a preex isting injury there. As Anicete fell t o the floor, he and Knudtson both heard a poppin g sound. Knudtson thoug ht it was aJ O H N S O N V

. B ART 14

firecracker. I t w a s a c tually the sound of Mehserle shooting Grant in the back.

“You shot me,” Grant repea t e d f rantically

. “Oh, [ ex pletive]

, I shot him,” Mehserle e x claimed, r aising his hands to his head. Mehs e rle handcuffed the mortally wounded G rant and searched him. He t h e n removed the handcuffs a

nd tried to stanch the blood flowing from the h ole in Grant’s back.

Knudtson drag g ed Anicete to the w all, putting him with the other d etained men. Rey es stood and attempted to leave, b u t W offinden and K

nudtson handcuffed him. The other officers h erded passeng ers back on to the train, attempting to clear the platform.

2:12:41 A.M.

The train’s doors closed, and it pulled out of the F ruitvale Station.

* * *

An unknown officer handcuffed Nig e l B ry son, the last o f the g roup of men wh o remained free. Pirone had already handcuffed Greer, Mehserle handcuffed J ack Br y son, Knudtson handcuffed Anicete, and Knudtson and W offinden handcuffed Rey es. The B r y sons, Rey es, Greer, a n d Anicete

were then t a k en to B ART police headquarters by unknown officers, at the c ommand of police officials who a re not parties to these appeals or the underly ing laws u i t

. None o f the y oung men were charg ed with any c rime in connect i o n with the morning ’s events, thoug h all remained handcuffed inJ O H N S O N V

. B ART 15

h o l d i n g rooms at the station for several hours. Grant wa s taken to the hospital, where he died.

II.

A.

Pursuant to 42 U.S.C. § 1983, Rey es, the B ry sons, Greer, and Anicete sued Mehserle, Pirone, and D omenici for detaining them i n violation of the F ourth Amendment; additionally

, they claimed Meh s e rle, Pirone, and Domenici unlawfully arrested them, also i n violation of the F ourth Amendment. All f

ive men a lleg ed a v iolation o f C a l i fornia Civil Code § 52.1, the California state law analog to section 1983. F urther, Anicete and G reer a lleg ed that Pirone a nd Knudtson used unconstitutional l y ex cessive force ag ainst them.

Sepa r ately

, Oscar Grant, J r. broug ht a F ourteenth Amendment claim alleg ing that Mehser l e , Pirone, a nd Domenici deprived him of h is familia l r e l a tionship w ith his deceased son, “in violation o f the r i gh ts, privileg es, a nd immunit ies secured by the F irst, F ourth, and F ourteenth Amendments to the U nited States Constitutio n

. ” Mehserle, P irone, and Domenici f

iled motions for summary judg ment, each seeking qualified immunity from the claims made
ag ainst him or her.

B.

I n analy z ing the office rs’ motions, the district court created a three-part chronolog y of the morning ’s events, g ranting or deny ing the officers immunity from the plaintiffs’ claims depending on the p oint in time at which the cl aimsJ O H N S O N V

. B ART 16

arose. The district c ourt’s first time period beg an when Pirone detai n ed Rey es a nd the B ry sons, the second b eg an when Pirone o rdered Me h serle to arrest “him and him,” a nd the third encompassed the prolong ed detentions of Rey es, the B ry sons, a

nd Anicete, beg inning when Mehserle shot Grant.

The d istrict court denied Pirone q ualified immunity

—for all three time periods—from Rey es’s, the B ry sons’, Greer’s, and Anicete’s claims that Pirone both unlawfully seiz ed and unlawfully arrested the g roup. T he district cou r t g ranted Mehserle and Domenici qualified immunity from t h e same claims during the f

irs t time period, b ut denied both of them immunity from the tim e P irone ordered Mehserle to arrest “him a nd him,” onward—that is, for the second and third time periods. Moreover, and spe c i fi cally a s to J ack B ry son’s claim that Mehserle a

rrested him un l awfully

, the district court’s denial of qualified immun i ty was premised o n its finding that there remained a triable issue of fact as to whether Mehserle reasonably mistook Pirone’s command in arresting the wrong person. The district court also denied the officer s qualified immunity from the men’s claim under California Civil Code § 52.1. F inally

, the district court denied Mehserle immunity from O s c a r G r a n t, J r.’s F ourteenth Amendment claim.

C.

Mehserle a s k s u s to d etermine whether the district court erred in den y i n g him immunity f rom: ( 1) Oscar G rant, J r.’s F ourteenth Amend m en t claim for deprivation of a familial relationship; (2) any claim under California Ci v i l C o de § 52.1; (3) Anicete’s unlawful a rrest claim; (4) claims a

rising f r om the ex tended detentions of Anicete, Rey es, and N i ge l B ry son at B ART police headquarters; and (5) J a ck B ry son’sJ O H N S O N V

. B ART 17

u n l awful arrest claim. Pirone asks us to review the distr i ct

c o u r t’s decision to deny him immunity from: ( 1) the cla i m that h e detained Rey es and the B ry sons unlawfully ; (2) t h e claim that, at some point, Pirone’s detention of Rey es and the B ry sons became a de facto unlawful arrest; and (3) Gr ee r’s unlawful arrest claim. Domenici seeks review of the district court’s decision deny ing h e r i m munity from the portion o f Rey es’s and the B ry sons’ unlawful detention claims a rising
out of their ex tended d etention s a t B ART headquarters. B ecause this is a n a ppeal from the denial of summary judg ment, we adopt the view o f any disputed f a cts most f a v o r able to the plaintiffs—the one we have set fort h

, above—and then, p remised upon those facts, r eview de novo the d istrict court’s d enials of q ualified immunity

. Karl v. City of Mountlake Terrac e , 6 7 8 F .3d 1062, 1067–68 (9th Cir. 2012).

D.

W h en police officers are sued for their conduct in the line of duty

, courts must balance two competing needs: “ the need
to hold public officials accountable when they ex ercise power irresponsibly and the ne ed to shield officials from harassment, distraction, and liability when they perform their duties reasonably .” Pearson v. Callahan

, 555 U.S. 223, 231 (2009).

W e apply a two-part test to determine w h i c h way the b a lance tips in a g iven case. Id. at 232; Lacey v. M aric o p a Cnty.
, 693 F .3d 8 96, 915 (9th Cir. 2012) (en banc). W e may beg in with either part of the t e st, but ty pically

, taking the facts in the lig ht most favorable to the plaintiffs, we first ask whether those facts d emonstrate that the defendant p o l ice officers violated one or more of the plaintiffs’ constitutionalJ O H N S O N V

. B ART 18

r i gh ts. P earson , 555 U.S. a t 236; Maxwell v. Cnty. o f Sa n Diego
, 697 F

. 3d 941, 947 (9th Cir. 2012); Lacey
, 693 F

. 3d at 915. I f the answer to that question is “no,” we stop: without

a violation, there is no basis for the p laintiffs’ lawsuit to proceed. Id.

I f the a nswer to our first question is “y es,” then f o r t h e second step, we call o n a familiar character, the hy pothetical “reas o n able officer.” The reasonable o f ficer a voids committing acts that h ave been clearly established a s unconstitutional—for e x ample, h a ndcuffing a prisoner to a fence for a long period of time—as well as other, similar acts, like handcuffing a prisoner not to a fence, but instead to a hitching post. See Hope v

. Pelzer

, 536 U.S. 730, 739–43 (2002) (holding that a

n act—there, handcuffing a shirtless inmate to a hitching post in the sun for seven h o urs—may be clearly established as unconstitutional even if there is no case addressing it specifically

, as long as ex isting law provides “fair warning ” that the act is u nconstitut i o n al); Mattos v

. Agarano
, 661 F .3d 433, 442 (9th Cir. 2 0 1 1 )

. Nevertheless,

our reasonabl e officer sometimes makes mistakes— reasonable mistakes—of fact or law, and thereby commits an unconstitutional act. Thoug h we may ex cuse the reasonable

o f f i c er for such a mistake, Pearson
, 5 55 U.S. a t 231, i t

s o m et i mes proves n e c essary for a jury to determine first whether the mistake was, in f a c t, reasonable, S

antos v

. Gates
, 287 F .3d 846, 855 n.12 (9th Cir. 2002).

To complete the second step of the qua l ified immunity analy sis, we place our hy pothetical re a s o n a b le officer in the same situation as the defendant police officers, and then ask whether the reasonable officer a lso would h a v e committed the
act that the plaintiffs contend is un c o n s t i tutional. Lacey
, 693 F .3d at 915. I f the a

n swer is “y es,” the defendant officersJ O H N S O N V

. B ART 19

are entitled to qualified immunity

. Id. I f the answer is “no,” the plaintiffs’ claim ag ainst the defendant officers may proceed. Id.

III.

A.

Johannes Mehserle

1. Mehserle is not e n titled to im m unity f rom Oscar G rant, Jr.’s F ourteenth Am endm e nt claim

.

Parents have a F ourteent h A mendment rig ht to the companionship of a child, which a p olice officer violates by “act[ ing ] w ith a p urpose t o h ar m ” the child “ that [ is] unrelated to leg itimate law enforcement objectives.” P orter

v. Osborn

, 546 F

. 3d 1131, 1137 (9th Cir. 2008). Oscar Grant, J r. c laims Mehserle violated his rig ht to his child’s companionship by shooting and killing h i s child; Mehserle seeks qualified immunity from that claim. The district court denied Mehserle this immunity , and we affirm.

Mehserle first arg ues that w e should s crutiniz e the streng th of the relationship between Grant and his f ather, a nd deter m i ne that they lacked a deg ree of familiarity sufficient
to warrant a claim for loss of c ompanionship. I n a scant pa rag r aph supporting this a r g u ment, Mehserle c ites two cases. F irst, Mehserle cites the Seventh Circuit’s opinion in Russ v. W

atts , 4 1 4 F .3d 783 (7th Cir. 2005), wh ich he describes as h olding “that w h e r e a child had created a new life away from the parents, the parents were not entitled to a claim under the F ourteenth Amendment.” Second, Mehserle cites our opinion in Lee v. City of Los Angeles

, 250 F .3d 668,J O H N S O N V

. B ART 20

685 (9th Cir. 2001), for the truism that a F ourteenth Amendment c laim for loss of companionship is i n t ended to protect “those relationships, including fami ly relationships, that presuppose ‘ deep attachments and commitments t o the necessarily few other individuals with whom one share s n ot only a spe c ial community of thoug hts, ex periences, a nd beliefs but also distinctively personal aspects of one’s life.’” (internal citation omitted).

The u pshot o f Russ
, however, is n ot th at courts should determine, as a matter of law, that at some indeterminate point in time a child h a s c r e ated enoug h of a life away from home to strip his parents of their rig ht to his companionship. I t is instead that at some determinate point in time—when the child reaches the a g e o f majority

— h is parents’ F ourteenth Amendment r ig ht to his comp a n ionship is ex ting uished. Russ
, 414 F .3d at 791. B u t that is not the arg ument Mehserle makes as to Grant’s relationship w ith hi s father. See C h r i s t ian Legal Soc’y Chapter of Univ. of Cal. v. W u , 626 F

. 3 d 483, 487–88 (9th Cir. 2010) (reca l l ing previous admonis h m ents that we decline to address arg uments not made distinctly in an appellant’ s o pening brief). Moreover, in past cases, we have recog niz ed a parent’s r ig ht to a child’s companionship without reg ard to the child’s age

. See Strandberg v. City of Helena

, 791 F. 2 d 7 44, 748 & n.1 (9th C i r

. 1986) (recogniz ing

, at least in passing

, parents’ r ig ht t o the companionship and society of their d eceased 22-y ear-old son); see, e.g. , Lee
, 250 F .3d at 6 85–86 (holding that a mother successfully stated a violation of the F o urteenth A mendment by a l l eg ing that the L os Ang eles Police Department recklessly deprived her of the companionship of h e r mentally disabled adult son); Smith v. City of Fontana
, 818 F .2d 1411, 1419 (9th Cir. 1987) (des c r i b i ng Strandberg as recog niz ing

a Fo urteenth Amendment r ig ht of parents to t h eJ O H N S O N V

. B ART 21

companionship of a dult childr e n , because “the familial relationship, and not the more narrow custodial interest o f the parents, g ave rise to the due process action”), overruled on other grounds by Hodge rs-Durgin v

. de la Vina
, 199 F .3d 1037 ( 9th Cir. 1999) (en banc); see a lso Reynolds v

. Cnty. of San Diego
, 8 58 F

. Supp. 1064, 1070 (S.D. Cal. 1994) (“The
p a r e n t ’ s constitutionally -protected interest is not e x t i n g u i s h e d

a s a matter o f law when an a dult child leaves his p a r e n t s ’ home and marries.”). 3 W ith no a uth o r i ty to support it, we decline Mehserle’s invitation to find, a s a matter of law, that Grant and his father lacked a s u fficiently strong f ather–son bond to support the father’s F o urteenth Amendment claim. 4

Mehserle n e x t contends that “the facts overwhelming ly show th a t [he] was acting consistently within the leg itimate law enforcement objective of arresting Grant” at the time that

3 Sev eral o f ou r s ister circu its h av e h eld t h at a p aren t’ s pro tected in terest in th e co m

p an io n sh ip o f h is o r h er ch i ld

, at least as f ar as th e Co n s titu tio n is co n cern ed , en d s w

h en th e ch ild reach es th e ag e o f m aj o rity

. S ee, e.g

. , Ru ss , 4 1 4 F.3 d at 7 9 1 (o v erru lin g a p rio r d ecisio n “ in so f ar as it reco g n ized

a co n stitu tio n al rig h t to reco v er f

o r th e lo s s o f t

h e co m p an io n s h ip o f an ad u lt ch ild w

h en th at relatio n sh ip is term in ated as an in cid en tal resu lt o f
state actio n ”); McCu rd

y v. Do dd

, 3 5 2 F.3 d 82 0
, 8 3 0 (3 d Cir. 20 0 3 ) (“ [W ]e h o l d t h at th e f

u n dam en tal g u aran tees of t h e Du e P ro cess Clau se d o n o t

ex ten d to a paren t ’ s in terest in t h e co m pan io n sh ip o f h is in d ep en d en t ad u l t ch ild .”); Bu tera v. Dist. o

f Co l u m b ia
, 23 5 F.3 d 6 3 7
, 6 5 6 (D.C. Cir. 20 0 1) (“ [W ]e h o ld th at a p aren t d o es n o t h av e a co n s titu tio n ally

- p ro tected lib erty in terest in th e co m

p an io n sh i p o f a ch ild w h o is p ast m i n o rity an d in d ep en den t.”). S h o u l d Meh serle raise th is i s s u e p ro perly in th e d istrict

co u rt, an d b rief i t in a f

u tu re ap p eal, w e m ay h av e o ccasio n to co n s id er it.

4 T h at is n o t to say th at th e stren g th o f a p are n t ’s r elatio n sh ip w ith a ch ild h as n o b earin g o n th e p aren t’ s claim fo r l o s s o f t h e ch ild ’ s

co m pan io n sh i p

. It is in stead t o say th at th e clo sen ess o f a p a r en t’ s relatio n sh ip w ith a ch ild is a qu in te s sen tial q u estio n o f f act (an d o n th is

reco rd , a d isp u ted o n e).J O H N S O N V

. B ART 22

he shot Grant in t h e b a ck. W e construe the facts, overwhelming or otherwise, in Grant’s father’s favor and ask whether the d istrict court properly d enied Mehserle immunity

on t h e b a s is of those facts. As recounted above, before the district court was evidence t h a t : Grant strug g led with Mehserle and Pirone because they were preventing him from breathing ; G rant was adequately subdu e d b efore Mehserle shot him; Pirone was surprised by Mehserle’s command that he stand back (because Pirone thoug ht Grant w as adequately subdued); and Grant’s hands were behind h is back when Mehserle shot him. See Porter
, 546 F .3d at 1135, 1141–42 (remanding to the district court with instructions to consider,
among other thing s, that a secon d officer who witnessed a fatal officer-involved shooting was “shocked” by the five shots his colleag ue fired into the decedent’s car).

I n lig ht of these and other facts, which Mehserle disputes, the distri c t court concluded that “there is a g enuine issue o f material fact as to whether Mehserle’s actions were r equired by a leg itimate law enforcement p urpose

. . . .” W e do not disturb that conclusion, Johnson , 515 U.S. at 314, a nd ag r ee th a t g iven the factual d ispute before it, which must be resolved by a jury

, the district court could not have properly
g ranted Mehserle qualified immunity

. According ly

, a nd correctly , it did not. 5

5 W e n ote th at Oscar Gran t, J r.’ s Fo u r t e en th A m en d m en t claim m ak es ref e ren ce to “ rig h ts, p riv i leg es, an d im m u n ities secu red b y th e First, Fo u rth

, an d Fo u rteen t h Am e n d m en ts.” T h ere is, h o w ev er, n o arg u m en t

as to w h at F irst o r Fo u rth A m en d m en t rig h ts Oscar Gran t, J r. is attem p tin g to assert, e i t he r o n h is o w n b eh alf o r th at o f h is d eceased so n

— th o u g h Meh serle arg u es th at Oscar Gran t, J r. m ay n o t assert an y Fo u rth A m en d m en t r i g h ts v icario u sly o n h is so n ’ s b eh alf

. S ee Ald erma n v. Un ited S ta tes , 3 94 U.S. 1 6 5
, 1 7 4 (1 9 6 9) (“ Fo u rth A m en d m en t rig h ts are p erso n al rig h ts w

h ich

, lik e s o m e oth er co n s t i t u tio n al rig h ts, m ay n o t b eJ O H N S O N V

. B ART 23

2. We lack jurisdict i o n to hear an appeal asserting a right to f

e deral law qualif

ied im m unity f

rom a Calif ornia state law ( Civil Code § 52.1) violation.

Mehserle seeks qualified immunity f rom the California Civil Code § 5 2 .1 c laim ag ainst him ( based on the same conduct u n derlying the plaintiffs’ section 1983 c l a i ms), but the doctrine of qualified immunity does not shield defendants from state law claims. Cousins v. Lockyer

, 568 F .3d 1063, 1072 (9th Cir. 2009) ; see Richard H. F allon, J r., et al., Hart and W e chsler’s The F

ederal Courts and the Federal System 1006 (6th e d. 2009 ) ( “The immunity of state o fficials in actions based on state law is itself g overned by state law, for absent wholly arbitrary a c t i o n by the state, there is no distinctive federal interest.”). N evertheless, Mehserle urg es, because the plaintiffs’ section 52.1 claim reaches the same underly ing conduct as their section 1 9 8 3 claims, Mehserle should be equally

immune to both.

W e rejected a

n identical arg

ument in Liberal v. Estrada

, 6 32 F .3d 1 064 (9th Cir. 2011), in which we held that w e lacked jurisdiction to entertain a defendant’s interlocutory

v icario u sly asserted .”). Bu t se e Mo r ela n d v. La s Veg a s Metro

. Po l i ce Dep ’t
, 1 5 9 F.3 d 3 6 5
, 3 6 9 (9 t h Cir. 19 98 ) (“ In § 1 98 3 actio n s, h o w ev er, th e

su rv i v o rs o f an in d iv id u al k illed as a resu lt o f an o f f icer’ s ex cessiv e u s e

o f f o rce m ay assert a Fo u rth A m en d m en t claim o n th at in d iv i d u al’ s b eh alf if th e relev an t state’ s law au th o rizes a su rv iv al actio n .”); S

mith

, 8 1 8 F.2 d
at 1 4 1 6

– 17 (f

in d in g , u nd e r Calif

o rn ia law

, a Fo u rth A m en d m en t claim

u n d er sectio n 1 9 8 3 s u rv iv es th e d eath o f th e p lain tif f ). T h o u g h Meh serle

m ad e th e sam e arg u m en t in th e d istrict c o u r t , th e d istrict co u rt f ailed to ad d ress it in its o rd er. On rem an d, if Oscar Gran t, J r. in ten d s to p ro ceed

w ith an y t h eo ry o th er th an a d ep riv atio n o f f am i lial co m

pan io n s h ip u n der th e Fo u rteen t

h A m en dm en t, th e d istrict co u rt sh o u ld d eterm in e w

h eth er h e is en titled to assert su ch a claim u n der Calif

o rn ia’ s su rv i v al statu te.J O H N S O N V

. B ART 24

appeal that he was entitled to qualified i m m u nity from a section 52.1 claim. I

d

. a t 1076. W e cannot deviate from Liberal ’s holding

. Miller v. G ammie
, 335 F .3d 889, 899–900 (9th Cir. 2003) (en banc). N or are we inclined to: Mehserle could h ave appealed the d istrict c ourt’s decision to d eny him immunity under California state law, rather than u nd e r the federal law doctrine of qualified imm unity ; he did not. Liberal

, 632 F .3d at 1074–76. Absent appellate jurisdiction,

we d o not reach the district court’s ru ling deny ing Mehserle immunity from the plaintiffs’ section 52.1 claim.

3. Mehserle is entitled to qualif ie d im m unity f

rom a claim that he unlaw f

ully arrested Anicete.

Mehserle protests t h a t the district court neg lected to address Anicete’s claims ag ainst him e ntir e l y , even thoug h Mehserle soug ht immunity from those c laims. W e ag ree with Mehserle that the d istrict c ourt did not gi v e adequate consideration to Anicete’s claims a g ainst him, thoug h we do

so mindful of the enormity of the task the district court faced.

Th e parties presented the d istrict c ourt w ith a host o f claims ag ainst a g roup of officers a nd municipal entities, a

nd then made cross-motions for s u m mary judg ment that they supported in a disorderly

, muddled, and conf u s i ng manner. The district court attempted to impo se some level o f coherence on the c a se b y discus sing those claims that made

sense for a g iven plaintiff to bring ag ainst a particular officer. B ut by structuring its decision in that fashi on, the district
court analy

z ed claims that appeared nowhere in the p leading s, and omitted claims that did a ppear in the pleadings. F o r instance, the d istrict c o u rt asked whether Mehserle used

ex c e ssive force ag ainst the B ry sons (one of whom Mehserle handcuffed), Rey es (with whom Mehserle had no c ontact),J O H N S O N V

. B ART 25

and Greer (likewise), but the plaintiffs’ e x cessive force claim

was made only on beha lf of Greer and Anicete, and ag ainst Pirone (who threw Greer on the g round) and Knudtson (who tackled and handcuffed Anicete) only

. There was no need for the district c ourt to conduct a n ex c essive force analy sis as to Mehserle, thoug h we understand why it did: the plaintiffs, in opposing summary judg ment, arg ued that the o fficers’ u se o f Tasers in detaining all the plaintiffs constituted e x cessive force—a claim the plaintiffs never before raised.

Anicete d id, however, p lead unconstitutional seiz ure a nd unconstitutional arrest c laims ag ainst Meh s e r l e , a n d Mehserle moved f or summary judg ment on those claims. Nonetheless, the district c ourt did not discuss Anicete at all when addressing the initial seiz ures of Rey es, t h e B ry sons, a nd Greer (unsurprising ly

, since Anicete w as not y et de t a i n ed), and when discussing unconstitutional arrest, the district court only addressed Mehserle’s treatment of the two p eople he handcuffed—Grant and J ack B ry son.

W h at to do with A n i c et e’s c laims ag ainst Mehserle? There is only one point at which the district court’s o rder can be read to reach those claims: when the district c ourt denied all the officers (including Mehserle) qualified immunity for the detention of a ll of t h e plaintiffs ( including Anicete), beg inning at the point at which P irone ordered Mehserle to arrest “him and him” (the secon d an d third of the district court’s time periods). Anicete, however, was not detained o r

a r r e sted until after Pirone g ave h is order; Knudtson tack l e d and handcuffed A nicete just as Mehserle shot Grant. The plaintiffs would have u s stop with this observa t i o n a nd conclude that the district court intended, implicitly

, to leave Mehserle—and every ot h e r officer sued—responsible for Anicete’s arrest and detention.J O H N S O N V

. B ART 26

B u t we must g rant Mehserle qualified immunity from suit

over an act i n w h i ch he p lay ed no part. See H opkins v

. Bonvicino
, 5 73 F .3d 7 52, 769–70 (9th Cir. 2009) (g ranting an officer qualified immunity for his partner’s u n lawful entry o f

a house, which occurred whi l e t h e officer interviewed a witness on the front lawn). There is no evidence in the record that Me h serle play ed any part in Anicete’s arrest; consequently

, we hold th a t he is entitled to qualified immunity from a claim that he unlawfully arrested Anicete.

The district court’s order als o d e n ies Mehserle qualified immunity from claims arising from Anic e te’s ex tended detention at B ART police headquarters, and from t h e

ex tended detentions of R e y es and N ig el B ry son. Mehserle contends he is entitled to immunit y from those c laims, a s well; we turn now to that arg ument.

4. The district court f

ailed to consider w hether there was any evidence that Mehserle partic i p a ted in the extended detentions of Anicete, Reyes, or Nigel Bryson.

On the o rders of B ART p o lice Commanders W hite a nd Gibson (neither of whom is a defendant in this case), Rey es, both of the B ry sons, Greer, and Anicete were taken to B ART police headquarters a

n d detained

, in handcuffs, for h ours. Mehserle arg ues he had noth i n g to d o with the prolong ed detentions of Anicete, Rey es, or Nig el B ry son, a nd is therefore entitled to qualifi ed immunity from their c laims arising out of those detentions. The district court held that it did not matter whether Anicete, Rey es, and Nig el B ry son h ad
any evidence implicating Mehserle in their prolong ed detentions, and instead, that the bur d e n f ell to Mehserle to

ex c u lpate himself from their cl aims.J O H N S O N V

. B ART 27

I n reaching that conclusion, the district court a ppears to have misread our opinion in Dubner v. City a nd County of San Francisco
, 266 F .3d 9 59 ( 9th Cir. 2001). I n that c ase, Dubner, a photog r apher, s ued after b eing arrested without probable ca u s e during a demonstration outside San F rancisco’s Moscone Ce n t e r

. Z ieg ler, the officer listed a s having a rrested D ubner, had no recollection of arresting her
at all. Id. a t 964. No other officer recalled e ven having seen Dubner at the demonstration. Id. a t 965. Ultima t e ly

, the

success of Dubner’s claim for u nlawful arrest depended on her being able to show that she was arrested without probable
cause; however, on c e Dubner demonstrated that the police lacked a warrant to arrest her, the burden shifted to the police
to produce some e vidence they had probable cause for the
arrest. Id. W e held that b e c a u s e Dubner had made every

e f f o r t to ascertain the identity of the officers responsible f o r her arrest, and because the burde n fell to the p olice to demonstrate they h a d probable cause to a r rest Dubner, then the burden also fell to the police to come up with the identity of the officer who actually made the arrest—without it, there

w ould be no way to d emonstrate that the officer had t h e necessary probable cause. Id. at 965–66.

I n the case before us, the district court quot e d from D u bner —“‘[ i] f the defendant is unable or r efuses to come forward with any evidence that the arresting officers h ad probable cause and the plaintiff’s own testimo n y d o e s not establish it, the court shoul d presume the arrest was unlawful’”—and then c oncluded that Mehserle was r equired
to demonstrate h e h ad nothing to do with the prolong ed detentions of Anicete, Rey e s, and Nig el B ry son in order to escape liability for them. Dubner

, however, establishes only
t h a t w e will f

ind the police lack probable cause to make an arrest—and therefore that the arrest is u nlawful—if the policeJ O H N S O N V

. B ART 28

are unable to ide n t i fy who made the arrest, or why

. B ut the issue we mus t e valuate here is not whether Mehserle h ad probabl e c a u se to arrest Anicete, Rey es, or N ig el B ry son; it is whether Mehserle was at all responsible for their prolong ed detentions. The district cour t d id not rely on the record in try ing to resolve the q

uestion, and instead relied erroneously

on Dubn e r t o conclude that the absence of evidence implicating Mehsrele was, as a matter o f law, “ of no

ac c ount.” B ecause the district c ourt’s leg al error prevented it from making the factual finding s necessary to d ec ide whether Mehserle is entitled to immunity from claims a rising
out of A n icete’s, Rey es’s, and Nig e l B ry son’s prolong ed d etentions, we remand this issue to the district c ourt with instructions to review the record and determine whether there

are disputed issues of fact a s to Mehserle’s involvement with Anicete’s, Reyes’s, and Nig el B r y son’s detentions.

5. The district court properly denied Mehserle qualif ied im m unity f

rom Jack Bryson’s unlaw f ul arrest claim

.

Mehserle arrested J ack B r y son on Pirone’s order to arrest “him and him,” and arg ued before t h e district court that he mad e a reasonable mistake when h e arrested the wrong “him,” J ack B ry son. (Pirone testified that he meant for Mehserle to arrest G rant and G reer.) The district court denied Mehserle q

ualified immunity f

or the a rrest, concluding that whether Mehserle’s mistake was reasonable is a question for th e j u r y

. W e ag ree. S

ee, e.g. , W

ilkins v. City of O akland

, 350 F .3d 9 4 9
, 955–56 (9th Cir. 2003) (holding that the question of whether officers made a reasonable mistake when they shot their own undercover colleag ue must be submitted to a jury ).J O H N S O N V

. B ART 29

Mehserle arg ues that he is otherwise entitled to qualified immunity from J ack B ry son’s unlawful arrest c laim, because he h a d probable c a use to arrest B ry son independently o f Pirone’s order. See R osenbaum v. W ashoe Cnty.
, 66 3 F. 3 d 1071, 1076 (9th Cir. 2011) (noting that an officer is immune
to a claim of unlawful arrest if he had probable cause for the arrest, i.e.
, it was not actually u n lawful, or if “it is reasonably arguable that there was p r obable cause for arr est”). Specifically

, Mehserle posits, h e had probable cause to arrest J ack B ry son for violating California Penal Code § 148, which penaliz es interference w ith a law e nforcement officer in the perform a n ce of his duties, because Mehserle “ personally observed B ry son creat [ ing ] a disturbance, incit[ ing ] the crowd, and disreg a

rd[ ing ] Mehserle’s instruc t i o n s during a tense, escalating event on the platform to which Mehserle h ad been called for backup.”

B r y son’s a lleg ed c reation of a disturbance consisted of his cursing the o fficers, but “[ e ] ven thoug h the police may dislike being the object of abusive lang uag e,” s ection 148 does not allow them “to use the a

wesome power w hich they p ossess to punish individuals for conduct th a t is not only lawful, but which is p rotected b y the F irst Amendment.” I n re Muhammed C.
, 9 5 Cal. App. 4th 1325, 1330–31 (2002); see also D uran v

. City of

Douglas

, 904 F .2d 1372, 1377 (9th Cir. 1990) (opining that “making obsc ene g estures” and “y elling profanities in Spanish,” while “boorish, crass and, initially at least, unjustified,” is “ not illeg al”); cf. S w a rtz v. Insogna
, 704 F .3d 105, 109–11 (2d Cir. 2013) ( observing

, among other thing s, that police officers cannot arrest someone for the “disorderly conduct” o f g iving the officers the f i n ge r ). I f B ry son was ex horting people to c o mmit violence ag ainst the officers, it would be arg uable that Mehserle had pro b a ble

cause to a

rrest h im. S

ee ge n e rally Brandenberg v. Ohio

,J O H N S O N V

. B ART 30

395 U.S. 444, 447 (1969) (per curiam) (observing that states may criminal i z e s peech that is “directed to inciting o r produci n g imminent lawless action and is likely to incite o r produce such action”). B ut what B ry son may have said to the crowd is at least a disputed question of fact—the record reflects only what B ry son said to the officers

— a nd thus, like the question w het h e r Mehserle reasonably misunderstood Pirone’s command, must be left to a jury

. W e therefore af f i rm the district court’s ruling deny ing Mehserle qualified immunity from J ack B ry son’s unlawful arrest claim.

B.

Anthony P irone

1. P irone was properly denied q ualif ied im m unity f

or his initial detention of

Reyes, the Brysons, and G reer.

Pirone stopped Rey es, the B ry sons, and Greer t o investig ate a misdemeanor violation of California Penal Code § 242 ( i.e.
, a misdemeanor battery ) ; s u c h an investig atory stop requires a police o fficer t o h ave “reasonable suspicion supported by articulable facts that c riminal activity ‘may be afoot.’” United States v. B a s h e r , 629 F .3d 1161, 1165 (9th Cir. 2011) ( inter nal citations omitted). Pirone arg ued, a nd
arg u e s , t h at he had reasonable suspicion to stop the men based on a report that a g roup of b lack males, wearing similar cl o t h i n g , were fig hting in the train car outside of w h ich he spotted the g roup—and that the g roup attempted to evade Pirone as he approached. The district c o u r t held these facts

were insufficient to arouse suspicion in suppor t of Pirone’s investig atory stop, and theref o re denied him qualified immunity f

rom Rey e s’s, the B ry sons’, and Greer’s unlawful detention claims. W e ag ree wi t h t h e district court’sJ O H N S O N V

. B ART 31

conclusion that P irone is n ot entitled to qualified immunity from those c laims, but a

rrive at that conclusion by a different
route.

Determining whether a

n o fficer had r easonable suspicion
to conduct an investig at o r y stop can be a tricky proposition, particularly when one of the factors motivating the stop was,

as in this c ase, the r ace of the suspects. Race is of little value in d isting u ishing one suspect from others, particularly where
every one in the pool of possible suspects is of the same race. See United States v. Montero-Camargo
, 2 08 F .3d 1122, 1135 (9th Cir. 2000) (en banc) (observing that where most people who transverse a checkpoint are H i s p an ic, the fact that a particular person transv e rsing it is Hispanic is of little value in establishing reasonable suspicion); Morg a n v. W oessner , 997 F .2d 1244, 1254 (9th Cir. 1993) ( holdi n g t h a t a tip to look out for a black p erson, without more, does not g ive r ise
t o r e a s onable suspicion to stop any one). B ut race is a trait that, when combined with others

, can reaso n ably lead an officer to z ero in on a particular suspect. Montero-Camargo
, 208 F .3d a t 1134 nn.21 & 22. A r ev i e w ing c ourt must therefore consider all the factors on which an officer relied in combination, rather than separ a tely

, in determining whether the officer had reasonable suspicion to sto p a particular suspect. United S t a t e s v. Arvizu
, 534 U.S. 266, 273 ( 2 002); United S tates v. Sokolow

, 490 U.S. 1
, 8 (1989); United States

v. Cortez
, 4 49 U.S. 411, 417 (1981); see, e.g. , Terry v. Ohio

, 39 2 U.S. 1
, 22 ( 1968) (noting that the investig a ting officer “observed Terry

. . . g o throug h a series of acts, each of them perhaps innocent in itself, but which taken tog ether warranted further investig ation”); Pa i n e v. City o f Lompoc
, 160 F .3d 562, 566 (9t h C i r

. 1998) (finding that the p olice h ad

re a s onable suspicion to stop a suspected pug ilist a fter receiving a report of a fig ht, w itnessing a ring of apparentJ O H N S O N V

. B ART 32

spectators, and a fter an onlooker y elled, “Cops!,” observing the suspect leave with a second, bloodied person).

Here, many of the factors Pirone listed as his bas i s for suspecting the g roup of being the fig hters he was looking for
are, b y themselves, innocuous. Other than their race, Pirone cited the g roup’s attempt to elude him on the train p latform, but see F

l o r i d a v. R o yer , 460 U.S. 491, 497–98 (1983) (h olding that o ne does not arouse reasonable suspicion merely by attempting to walk away from the police), and the fact that its members were standing and talking near the train car from

w h i c h the fig ht was r eported. Whether combining the s e f actors creates sufficient suspicion to stop the g roup is a difficult question, but it is one we need not resolve, because Pirone’s stop was constitutionally un s o u n d in another respect: when Pirone arrived on the platform, it is undisputed that no crime w as afoot. Pirone was ins t ea d

, a s he conceded at arg ument, investig ating a completed m i s demeanor, and we held—prior to the events at issue here—that the Fo u r th Am e n d m ent constrains o fficers who conduct stops to investig ate c ompleted misdemeanors. United States v. Grigg
, 498 F .3d 1070, 1079–81 (9th Cir. 2007).

I n determining whether the F ourth Ame n d m ent permits

an officer to d etain a suspected misdemeanant, Grigg requires

us t o “ c o nsider the nature o f the misdemeanor o ffense in question, with particular attention to the p otential for ong oing

or repeated dang er ( e.g. , drunken and/or reckless d riving ), and any r isk of escalation ( e.g. , d isorderly conduct, assault, domestic violence).” I

d. at 1081; see also United S t a t es v

. Hensley

, 469 U .S. 221, 228 (1985) (“[ T] he e x ig ent circumstances which require a police officer to step in before

a crime is committed or c o m pleted a r e not necessarily a s pressing long afterw a r d s

. Public safety may be lessJ O H N S O N V

. B ART 33

threatened by a suspect in a past crime w ho now appears to be
g oing about his lawful business

. . . .”). Here, P i rone came upon a g roup of b lack men who were doing no t h i n g b ut talking when he arrived. There is an insufficient basis to

c o nclude, from any

thing Pirone witnessed, that there wa s a likelihood for “ong oing or repeated dang er,” or “escalation.” Pirone nevertheless pulled a weapon (his Taser) on the y oung men, admittedly for the purpose of “intimidation,” and using profanity , ordered them to be seated.

W o uld our hy

pothetical reasonable o fficer, g iven the law

we articulated in Grigg and his task of avoiding constitutional viola t i ons, have b ehaved a s Pirone did? W e think not. W h ether or not Pirone articu l a t ed facts sufficient to support his suspicion of Rey es, the B ry sons, and Greer, we conclude that g iven the questionable nature of Pirone’s auth o r i t y to detain the g roup for a misdemeanor t h a t a b a ted before his arrival, the d istrict court properly denied Pirone q u a l i f ied immunity —at this stag e o f the p roceeding s and on the record before it—from their claim of unlawful detention.

2. P irone is not entitled t o qualif ied im m unity f

or conducting a de f

acto arrest of Reyes and the Brysons.

The d istrict court found that Pir one, in pulling his Taser

on Rey es and the B ry s o n s to facilitate their detention, may have effectively pla c e d them u nder arrest without the requisite probable cause. The district court denied Pirone qualified immunity from Rey e s’s and t he B ry sons’ c laims that he unlawfully a

rrested them, allowing a jury to determine whe t h e r Pirone behaved reasonably in using a Taser to facilitate an investig atory stop. Pirone arg ues that the district
court erred, and that he is entitled to qualified immunity from the B r y sons’ and Rey es’s unlawful a r rest claims, becauseJ O H N S O N V

. B ART 34

brandishing his Taser did not transform an investig atory stop into a de facto arrest, or if it did, that P irone made a reasonable mistake in doing it.

Cou r t s “ex amine the ‘totality of the circumstances’ in deciding ‘whether an investig ative detention has ripened into

an arrest,’” focusing “on the perspective of the person seiz ed, rather than the subjective b e l iefs o f the law enforcement officers.” United States v. Charley

, 396 F .3d 1074, 1080 (9th Cir. 2005) (quoting Eberle v. City o f Anaheim

, 901 F .2d 814, 819 (9th Cir. 1990)). “The question is thus w h et h e r a reasonable innocent person in [ the same] circumstanc e s would not have felt free to leave after brief questioning

. ” Id. (internal quotation mark s o m itted). W hile this standard
sug g ests that “[ u] n d e r ordinary circumstances, drawing
weapons a

nd using handcuffs are not part o f a T e r r y stop,” United States v. Miles

, 247 F .3d 1009, 1012 (9th Cir. 2001),

w e h a ve recog niz ed some circumstances in which it is appropriate for an officer to use a level of force tha t w o uld ordinarily b ring to mind a r rest, i.e. : (1) “where the suspect is uncooperative or takes action at the scene th a t r a i s es a reasonable possibility of dang er o r f l ig ht;” (2) “where the police have information that the suspect is currently armed;” (3) “where the stop closely follows a violent crime;” and (4)

“ w h e r e the police have information that a crime that may involve violence is about to occur.” W ashington v. Lambert

, 98 F .3d 1 181, 1189 (9th Cir. 1996); see United States v

. Buffington

, 815 F .2d 1292, 1300 (9th Cir. 1987) (“The u se o f force during a stop does not convert the stop into an arrest if it occurs u n d er circumstances justify ing fears for personal safety .”).

Th e d istrict court a

pplied this standard and determined that Pirone threatened Rey es and the B ry sons with his TaserJ O H N S O N V

. B ART 35

even thoug h “there appeared to be no o bjective indication o f violent activity or of any cri minal a ctivity for that matter,” and Pirone’s limited knowledg e of the fig ht aboard the train included that no weapons were used. The court the r e f ore f ound that a jury “could conclude that a reasonable p er s o n would not b elieve that he was at liberty to leave.” Pirone contends that “from the perspective o f a reasonable o fficer on the scene,” brandishing a T aser w as appropriate: Pirone was outnumbered, responding to a violent crime, had no way o f knowing w hether the men w ere armed ( he knew only that no weapons were used in the fig ht), and was surr o u n d e d b y intox icated B ART patro n s. Moreover, Pirone arg ues, the stop lasted only a few minutes, and when he attempted to make the stop, Grant and Greer fled on to the train. And at n o time did Pirone strike or handcuff Rey es or the B ry sons.

W e note that the specific q uantum o f force involved in using a Taser was not clearly establishe d at the time that Pirone merely threatened its use, see B r yan v. MacPherson

, 630 F .3d 805, 824–26 (9th Cir. 2 0 10), a fact that sug g ests the

a pplication o f qualified immunity —if the claim at is s u e turned on the a mount of force Pirone a p p lied to stop Rey e s

a n d the B r

y sons. B ut that is not the claim at issu e

. 6 Reg ardless of the injury a weapon is capable o f inflicting

, we beg in from the presumption that n o w eapons are used at all in conducting an investig a tory stop. M iles

, 247 F .3d at 1012. After all, a reasonable person is unlikely to feel free to leave after answering a f

e w questions, Charley

, 396 F .3d at 1080, if the prelude to the o fficer’s query involves the display of a weapon for the ex plicit purp o se of intimidating that reasonable person. Althoug h the level of force resulting from

6 T h e d istrict co u rt g ran ted P iro n e q u alif ied im m u n ity f ro m an ex cessiv e f o rce claim

related to h is d i sp lay

o f th e T aser.J O H N S O N V

. B ART 36

a Taser’s application had y et to be established at the time o f these events, it w as already estab l i s h e d that using a Taser constit utes some level of force, Bryan
, 6 30 F .3d a t 8 33, a nd it w a s c er t a inly bey ond cavil that a Taser is a weapon. See U n i ted States v. W

allace

, 800 F .2d 1509, 1512–13 ( 9th C i r. 1986) (affirming the distric t court’s finding that, a s a matter of law, “an e lectronic tas e r or stun g un” is a “dang erous weapon” f

or the p urpose of committing the crime of boarding

a plane with a concealed dang erous w eapon). Of course, we allow that in ex traordinary c i r cumstances, an officer may “d ra w [ ] weapons,” M

iles

, 247 F .3d at 1012, b u t we ag r ee with the district court’s assessment that the evidence does not d e m o n strate indisputably that Pirone found himself in those circumstances.

Despite Pirone’s arg ument a bout the conditions on the platform when he arrived, Pirone testified he pulled his Taser on the y oung men for the purpose of “intimidation,” and not because he feared for his safety or the safety o f any o n e else

on the platform. 7 A d esire to cow suspects i n t o c ompliance is not one of the previously enumerated reasons for which we countenance the use of weapons during a n investig atory stop. Moreover, Pirone testified that h e drew his Taser before he

7 Mo reo v er, w

h ile w e reco g n ize v id eo reco rd in g s m ay o f f er an im p erf ect

a c c o u n t o f an ev en t f

o r a n u m b er of reaso n s , e.g

. , b ecau se o f act s

o ccu rrin g o u tsid e th e cam era’ s f ield of v i sio n , w e n o te th at v id eo f ro m th e p latf o rm secu rity cam era d o es n o t ap p ear to su p p o rt P iro n e’ s co n ten tio n th at th e Fru itv ale p latf

o rm w as cro w d ed w ith i n to x icated p assen g ers w h en h e arriv ed

. S

ee Terry
, 3 9 2 U.S. at 20 (f ram in g th e relev an t i n q u i r y a s

“ w h eth er t h e o f f icer’ s actio n w as j u stif

i ed a t its in cep tio n , an d w h eth er i t

w as reaso n ab ly related in s co pe to th e circu m s t a n ces w h ich j u stif

ied th e in terf eren ce i n th e f

irst p lace” (em

p h asis ad d ed )). In stead

, it ap p ears th at

n o oth er p assen g ers step ped o f f th e t rain u n til af

ter P iro n e th rew Greer to th e f lo o r, lo n g af

ter h e p u lled h is T aser.J O H N S O N V

. B ART 37

“ m a d e c ontact” with the g r oup, bely ing an arg ument that h e did so to p revent Rey es or the B ry sons, or any one else, from taking flig ht—a flig ht which w ould have been futile, since the
t rain o n to which they mig ht have fled could not leave t h e Fr uitvale Station until B ART released it. And not kn o w i n g whether a suspect is a r m ed is n ot the same as h aving reason to believe the suspect is actually armed.

W e are therefore left w ith the q u estion whether it was reasonable, o n the facts with w hich he was presented, for Pi r o n e t o use, o r threaten to use, any weapon at a ll in conducting an investig atory stop

— o r whether Pirone effectively a

rrested Rey es and the Br y s o ns. 8 That question
must be resolved b y a jury

. According ly

, we affirm the district court’s decision to d eny Pirone qualified imm u nity from Rey es’s and the B ry sons’ c l a ims that by drawing his Taser, Pirone arrested them unlawfully

.

8 T h e cases cited b y Piro n e are n o t t o th e co n tr a r y ; all in v o lv e circu m s tan ces u

n der w h ich a su sp ect w as u n co o p erativ e o r l i k ely arm ed

. S ee, e.g

. , A l l e n v

. City o

f L.A.
, 6 6 F.3 d 1 0 52
, 10 5 5

– 5 7 (9 th Cir. 19 9 5) (f in d in g n o u

n law f u l arrest w

h en a su sp ect w as o rd ered f ro m a car at g u n p o in t, h an d cu f

f ed

, an d h eld fo r n o m o re t h an 2 4 m in

u tes—w h en th e p o lice j u st co m

p leted a hi g h

- sp eed p u rsu it o f th e car); Un i t ed S ta tes v. Alva rez , 8 99 F.2 d 8 3 3
, 8 3 6

– 3 9 (9 th Cir. 1 9 9 0 ) (f i n d in g n o u n law f

u l arrest

w h en a su sp ect w as rem o v ed f ro m h i s car at g u n

p o i n t

— w h en th e p olice

w ere t ip ped of

f t h at th e su sp ect w as arm ed w ith ex p lo siv es an d ab o u t to

ro b a b an k ); Un i ted S ta tes v. Green e , 7 8 3 F.2 d 13 6 4
, 1 36 6

– 6 8 (9 th Cir. 1 9 8 6 ) (f in d in g n o u n law f

u l arrest w

h en tw o s u sp ects w ere tak en f ro m th eir

car at g u n p o in t—w h en th e p o l i c e w ere t o ld th e m en , su sp ected o f b an k

ro b b ery , h ad a p isto l).J O H N S O N V

. B ART 38

3. P irone is not entitled to qualif ied im m un i ty f

rom G reer’s unlaw f

ul arrest claim

.

L astly

, Pirone arg ues the district court incorrectly denied him qualified immunity for arresting Greer, whom he pulled from the idling train, t h rew to the g round, and handcuffed. Pirone c ontends he h ad pro b able c ause to arrest Greer for impeding him in the perform ance of his duties—a violation of California Penal Code § 148—because by returning to the train, Gre e r e v aded Pirone’s attempt to detain and question the entire g r oup of y oung men. The district court found that because Pirone lacked both “probable cause to believe that plaintiffs had c ommitted any underly ing criminal violation,” and “reasona

b l e s u s p icion to detain plaintiffs for investig atory purposes,” Pirone a lso lacked probable cause to arrest Greer for violating

section 148.

A suspect cannot b e arrested for violati ng section 148 because he e v aded a

n officer’s attempt to arrest him

u n l a w fully

. See, e .g. , B lankenhorn v. City of Orange
, 485 F .3d 463, 472 (9th Cir. 2007) (“Althoug h Bl a n kenhorn

was a lso arrested

. . . under Cal i f o r n ia Penal Code section 148(a), any such resistance (and corresponding probable cause) arose out of the ini t i a l arrest for trespassing

. I f there

was no probable cause to arrest B lankenhorn for trespassing in the f irst place, it makes no d i f ference for the present purposes if he resisted arrest.”); Arpin v. Santa Clara Valley Transp. Agency
, 261 F .3d 912, 920 (9th Cir. 2001) (“Officers Stone a nd B arnes arrived a f

ter the alleg ed battery o ccurred. The officers could therefore n ot lawfully arrest Arpin f or the battery

. I f the officers c o u ld n ot lawfully arrest Arpin for the battery

, t he o fficers could also not lawfully arrest Arpin for resisting arrest.”). Here, the d i s t rict court found that Pirone had no lawful basis for stopping Rey es, the B ry sons, Gre er,J O H N S O N V

. B ART 39

a n d Grant, and therefore had n o lawful basis to pursue a n d
arrest Greer for not acceding to t h e investig atory stop. A reasonable officer, it continued, would have known as much after Blankenhorn

. B ecause we ag ree with the district court that Pirone had no lawful basis to detain the g roup initially

, we also ag r ee with the district court that he is not entitled to qualified immunity for arresting G reer over Greer’s refusal to accede to the unlawful detention.

C.

Marysol Dom enici

Domenici r aises only one issue on appeal: she contends that she is e ntitled to qualified immunity for Rey e s’s, Greer’s, Anicete’s, and the B ry sons’ prolong ed detentions a t B ART headquarters, because like Mehserle, there is no evidence of her involvement in those detentions. Un l ike Mehserle, however, the district court did make a factual finding
reg arding D omenici’s involvement in the e xt e n d e d d etentions of the B ry sons and Rey es, pointing to her a ppearance in
ey ewitness video of the incident

, after Mehserle shot Grant, and therefore observing that the “[ e ] v i d ence sug g ests that nonetheless D omenici continu ed to participate in [ the] detentions u

p until the time that Mehserle s h o t G r ant and thereafter ” ( e m p h asis a dded). The district court reached no conclusions about Domenici’s immunity from claims a rising
out of Greer’s and Anicete’s e x tended detention s , rely ing improperly o n Dubner ( as it did with M e h serle). To the

ex tent the district court relied solely o n Dubner t o d e n y Domenici immunity f

r o m any o f the plaintiffs’ claims, we

rem a n d to the district court to determine whether the facts support g ranting Domenici immunity from those claims.J O H N S O N V

. B ART 40

To the ex tent the district court relied upon disputed facts
to deny Domenici immu n i t y , we lack jurisdiction to r eview that denial. Johnson

, 515 U.S. a t 3 1 9 –20. I n Johnson

, the seminal case on this point, the Supreme Court affirmed the Seventh Circuit’s decisio n n o t to review a district court’s d e nial of qualified immunity to three out of five police officers who alleg edly beat the plaintiff, J ones. The officers
arg ued f or q ualified immuni ty , because “whatever evidence J ones mig ht have about the other two o fficers, he c ould point
to no evidence that these three had beaten him o r had been present whi l e others did so.” Id. at 307. I n response, J ones pointed to h is deposition testimony

, in which he claimed that unknown officers used e x cessive force when arresting him and later at the police station. I d. He then pointed to portions of the depositions of the three protesting officers, in which all three admitted they were present both a t J ones’s arrest and at t he police station afterwards. I d. at 307–08. The distr i ct court denied the officers summary judg ment on the question of their immunity

, finding that J ones had presented sufficient evidence of the three officers’ involvement to proceed to trial. Id. at 308. The Seventh Circuit affi rmed, and the Supreme Court affirmed the Seventh Circuit, holding that “a defendant, entitled to invoke a qualified immunity defense, ma y not appeal a district court’s s ummary judg ment order insofar a s that order d e t e rmines whether or n ot the pretrial record sets f o r t h a ‘g enuine’ issue of fact for trial.” Id. at 319–20; s e e also W ilkins

, 350 F

. 3d at 952 (“On an interlocutory appeal o f

a denial of qualified immunity

, th i s c ourt

. . . may [ not]

. . . conduct an inquiry into the sufficiency of evidence to support

a finding ” that police officers did, in fact, violate a plaintiff’s constitutional rig ht).

Domenici nevertheless urg es us to review the issue h ere, because the district court n ever ga v e h er the opportunity atJ O H N S O N V

. B ART 41

summary judg ment to address her presence in the ey ewitness video. F ederal Rule of Civil Procedure 56(e) or (f), Domenici
arg ues, requires the district court to permit her to respond to what she characteriz es as the district court’s sua sponte denial of her motion for summary j u d g ment. B ut the a bility to appeal a n

y denial of summary judg ment is the narrow

ex c e ption, not the ru l e. Mohawk Indus., Inc. v. Carpenter
, 558 U .S. 100, 1 06–07 (2009). Even if the district court made

a mistake in deny ing Domenici qualified immunity solely on the basis o f her presence o n the platform at the conclusion o f a witness’s video, it is a mistake that can be sorted out later: either Domenici wi l l prevail a t trial, or she may appeal following a trial in which she is found liable for the plaintiffs’

ex tended detentions. I f the record then is similarly devoid o f evidence of h er involvement

, the matter will be resolved easily in her favor. See Johnson

, 515 U .S. at 316–17 (noting that the courts of a

ppeals can resolve, a fter trial, the f actual issues that are off-limits during interlocutory appeals o f denials of q

ualified immunity ). W e recog niz e that the entire point of the doctrine of qualified immunity is to spare officers the burden of unnecessary litig ation, bu t we will not lig htly

ex p and the b asis on which any officer may appeal a denial o f qualified immunity just because of the possibility the district
court erred in this case. See id. at 3 15 (“W e of course decide appealabilit y for categ ories of orders rather than individual orders.”).

IV.

W e conclude b y r eturning to b asic principles. “The resolution of immunity ques t i o n s,” like those presented b y these appeals, “inherently requires a balance betwe en the evils inevitable in any a v a i l able alternative.” H arlow v

. Fitzgerald

, 457 U.S. 8 00, 813 (1982). On one hand, culpableJ O H N S O N V

. B ART 42

officials should n ot receive blanket immunity f rom liability ;

o n the other, officials w ho make reasonable mistakes whi l e try ing to do their jobs should n ot bear the c o s t s o f litig ation—nor should the tax p ay ers underwriting the officials’ defense. Id. at 8 1 4

. Our society vests law enforcement officers with the authority to carry and use weapons a

nd tactics that may injure, s o m e t imes fatally

, people they suspect of committing crimes. Officers are g iven

a deg ree of responsibility conc o m i t ant with that g rave authority

, with the ex pectation that they will e x e r c i se it discern i n gl y

. B ecause o f that e x pectation, the doctrine o f qual i f i ed immunity d ictates that c o urts will not substitute their j u d gment for the officers’ own in evaluating the officers’ reactions to novel and dang erous situations. But

none of that means w e abandon o ur ex pectation that the police will discharg e their d u ties professionally a nd responsibly

.

B e aring that ex pectation in mind, we are p r e sented with the plaintiffs’ account of facts in which one officer, Pirone,

r esponded to a c all reg arding a misdemeanor scrape o n a train—which concluded b efore h e a rrived—by p u l ling a weapon on a g r oup o f men who were standing around talking

. Pirone soug ht to intimidate the g r oup, which he assumed may have b een respons ible for the f ig ht. Pirone then soug ht out two of the m e n w h o walked a way from him by p a cing the platform a

nd screaming profanit i e s i n h is search for them. The men were all handcuffed a nd h eld overnig ht—but never charg ed with a crime—after another o fficer, Mehserle, shot and kille d o n e among them. I t is possible that a jury will conclude, a fter weig hing all the facts, that the o ff i cers committed no constitutional wrong s. B ut our task a t this stag e in the litig ation is not to attempt to weig h the facts a nd resolve the issues definitiv e l y i n favor of one party o rJ O H N S O N V

. B ART 43

another. I t is instead to construe the facts in the manner most favorable to the plaintiffs, who have a rig ht to th e i r day in court, a n d t h en ask if our solicitude of the judg ment of law enforcement in this case req u i r e s us to shield the officers from further p articipation in t h i s lawsuit. (Even thoug h “an action for damag es may offer the o nly realistic aven u e for vin d i c a t ion of constitutional g uarantees.” Id. at 814.) Construing the facts in the plaintiffs’ favor, we ag ree larg ely with the district court t h a t t h e officers should stand trial for the c onstitu t i onal violations of which they are accused. According ly

, we hold:

• Mehserle is not entitled to qualified immunity from Oscar Grant, J r.’s F ourteenth Amendment claim, and A F F I RM the district court’s judg ment;

• W e lack jurisdiction to review the distr ict court’s judg ment deny ing Mehserle qualified immunity from the plaintiffs’ Californ i a Civil Code § 52.1 claim, a nd DI SMI SS that portion of Mehserle’s appeal;

• Mehserle is entitled to qualified immunity from F ernando Anicete, J r.’s u n lawful arre st claim, and REVERSE the district court’s judg ment;

• B e cause the district court relied improperly on Dubner in deny ing Mehserle qualified immunity as to their ex tended detention cla i m s , its judg ment is VACATED, and on remand, the d istrict court shall determine whether there is

a n y evidence that Mehserle is r esponsible for t h e

ex tended detentions of F ernando Anicete, J r., Carlos Rey es, or Nig el B ry son;J O H N S O N V

. B ART 44

• Mehserle is not entitled to qualified immunity from J ack B r y s o n , J r.’s unlawful a

r rest claim, and AF F I RM the district court’s judg ment;

• Pirone is not entitled to qualified immunity from Rey es’s, the B ry sons’, and G r eer’s claim for unlawful d etention, and AF F I RM the district court’s judg ment;

• Pirone is not entitled to qualified immunity from Rey es’s and the B ry sons’ claim for unlawful arrest, and A F F I RM the district court’s judg ment;

• Pirone is n ot entitled to qualified immunity from Michael G re e r ’s unlawful arrest c laim, and AF F I RM the district court’s judg ment; and

• To the ex tent the district court relied o n D u bner to deny Domenici immunity

, its judg ment is VACATED, and it shall reconsider its decision on remand in accordance with this opinion; bey ond that, w e l a c k jurisdiction to review Domenici’s appeal.

• Each party

shall bear its own costs on appeal.

AF F IRMED IN P ART, REVERSED IN P ART, VACATED IN P ART, DISMISSED IN P ART, AND REMANDED.