FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WANDA JOHNSON, individually

and as personal representative of

the Estate of Oscar J. Grant, III;

ESTATE OF OSCAR J. GRANT III;

SOPHINA MESA, as Guardian ad

Litem of minor, T.G.; JACK

BRYSON, JR.; NIGEL BRYSON;

MICHAEL GREER; CARLOS

REYES; FERNANDO ANICETE, JR.;

OSCAR JULIUS GRANT, JR.;

JOHNTUE CALDWELL (now

deceased),

Plaintiffs-Appellees,

v.

BAY AREA RAPID TRANSIT

DISTRICT; GARY GEE, in his

official capacity as chief of

police for BART; DOROTHY

DUGGER, in her official capacity

as general manager for BART;

ANTHONY PIRONE, individually

and in his official capacity as a

police officer for BART;

MARYSOL DOMENICI,

individually and in her official

capacity as a police officer for

BART; DOES 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-EMC
2 JOHNSON V. BART

and

JOHANNES MEHSERLE,

individually and in his official

capacity as a police officer for

BART,

Defendant-Appellant.

WANDA JOHNSON, individually

and as personal representative of

the Estate of Oscar J. Grant, III;

ESTATE OF OSCAR J. GRANT III;

SOPHINA MESA, as Guardian ad

Litem of minor, T.G.; JACK

BRYSON, JR.; NIGEL BRYSON;

MICHAEL GREER; FERNANDO

ANICETE, JR.; CARLOS REYES;

OSCAR JULIUS GRANT, JR.;

JOHNTUE CALDWELL (now

deceased),

Plaintiffs-Appellees,

v.

BAY AREA RAPID TRANSIT

DISTRICT; GARY GEE, in his

official capacity as chief of

police for BART; DOROTHY

DUGGER, in her official capacity

as general manager for BART;

JOHANNES MEHSERLE,

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-EMC
JOHNSON V. BART 3

BART; MARYSOL DOMENICI,

individually and in her official

capacity as a police officer for

BART; DOES 1-50,

Defendants,

and

ANTHONY PIRONE, individually

and in his official capacity as a

police officer for BART,

Defendant-Appellant.

WANDA JOHNSON, individually

and as personal representative of

the Estate of Oscar J. Grant, III;

ESTATE OF OSCAR J. GRANT III;

SOPHINA MESA, as Guardian ad

Litem of minor, T.G.; JACK

BRYSON, JR.; NIGEL BRYSON;

MICHAEL GREER; FERNANDO

ANICETE, JR.; CARLOS REYES;

OSCAR JULIUS GRANT, JR.;

JOHNTUE CALDWELL (now

deceased),

Plaintiffs-Appellees,

v.

BAY AREA RAPID TRANSIT

DISTRICT; GARY GEE, 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

OPINION
4 JOHNSON V. BART

police for BART; DOROTHY

DUGGER, in her official capacity

as general manager for BART;

JOHANNES MEHSERLE,

individually and in his official

capacity as a police officer for

BART; ANTHONY PIRONE,

individually and in his official

capacity as a police officer for

BART; DOES 1-50,

Defendants,

and

MARYSOL DOMENICI,

individually and in her official

capacity as a police officer for

BART,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, Senior District Judge, Presiding

Argued and Submitted

December 3, 2012—San Francisco, California

Filed July 30, 2013

Before: Michael Daly Hawkins, A. Wallace Tashima, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
JOHNSON V. BART 5

SUMMARY*

Civil Rights

The panel affirmed in part, vacated in part, and reversed

in part the district court’s denial in part of qualified immunity

to Bay Area Rapid Transit police officers, and dismissed a

portion of one officer's appeal, in two civil rights suits arising

from an encounter on a train platform that ended with the

shooting and death of Oscar Grant III.

Grant’s friends who were involved in the encounter, Nigel

Bryson, Jack Bryson, Jr., Carlos Reyes, Michael Greer, and

Fernando Anicete, Jr., brought suit alleging that transit

officers Mehserle, Pirone and Domenici committed various

violations of the United States Constitution and state law by

detaining and arresting them and holding them handcuffed at

the BART police headquarters overnight after shooting Grant. 

Grant’s father filed a separate complaint alleging that the

officers violated his right to a familial relationship with his

son.

The panel first held that Mehserle was not entitled to

qualified immunity from Grant’s father’s Fourteenth

Amendment claim for deprivation of a familial relationship.

The panel declined Mehserle’s invitation to find, as a matter

of law, that Grant and his father lacked a sufficiently strong

father–son bond to support the claim. The panel further

determined that given the factual dispute as to whether

Mehserle’s actions were required by a legitimate law

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
6 JOHNSON V. BART

enforcement purpose, the district court could not have

properly granted Mehserle qualified immunity. The panel

therefore affirmed the district court’s judgment as to the

Fourteenth 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 judgment denying Mehserle qualified

immunity from the plaintiffs’ California Civil Code § 52.1

claim, and dismissed that portion of Mehserle’s appeal.

Reversing the judgment, the panel held that Mehserle was

entitled to qualified immunity from Anicete’s unlawful arrest

claim because there was no evidence that he played any part

in the arrest. 

The panel held that the district court relied improperly on

Dubner v. City and County of San Francisco, 266 F.3d 959

(9th Cir. 2001), in denying Mehserle qualified immunity as

to Anicete’s, Reyes’s and Nigel Bryson’s extended detention

claims at BART police headquarters, and therefore vacated

the judgment, with instructions that on remand, the district

court should determine whether there was any evidence that

Mehserle was responsible for those extended detentions. 

Affirming the district court, the panel held that: (1)

Mehserle was not entitled to qualified immunity from Jack

Bryson’s unlawful arrest claim; (2) Pirone was not entitled to

qualified immunity from Reyes’s, Greer’s and the Brysons’

claim for unlawful detention given the questionable nature of

Pirone’s authority to detain the group for a misdemeanor that

abated before his arrival; (3) Pirone was not entitled to

qualified immunity from Reyes’s and the Brysons’ claim that

he conducted a de facto arrest, without the requisite probable
JOHNSON V. BART 7

cause, by drawing his Taser; (4) Pirone was not entitled to

qualified immunity for arresting Greer for his refusal to

accede to the unlawful detention. 

Finally, the panel held that to the extent the district court

relied solely on Dubner to deny Domenici immunity from

any of the plaintiffs’ claims, the judgment was vacated and on

remand the district court should reconsider its decision in

accordance with the panel’s opinion. To the extent the district

court relied upon disputed facts to deny Domenici immunity,

the panel stated that it lacked jurisdiction to review that

denial.

COUNSEL

Michael L. Rains (argued) and Lara Cullinane-Smith, Rains

Lucia Stern, PC, Pleasant Hill, California, for

Defendant–Appellant Johannes Mehserle.

Donald T. Ramsey (argued), Law Offices of Donald T.

Ramsey, San Francisco, California; William R. Rapoport,

Law Offices of William R. Rapoport, Redwood City,

California, for Defendant–Appellant Anthony Pirone.

Alison Berry Wilkinson (argued), Berry Wilkinson Law

Group, Inc., San Rafael, California, for Defendant–Appellant

Marysol Domenici.

John L. Burris (argued) and Adanté D. Pointer, Law Offices

of John L. Burris, Oakland, California; Dan Siegel (argued)

and Dean Royer, Siegel & Yee, Oakland, California, for

Plaintiffs–Appellees Fernando Anicete, Jr., Jack Bryson, Jr.,

Nigel Bryson, and Carlos Reyes.
8 JOHNSON V. BART

Panos Lagos, Law Offices of Panos Lagos, Oakland,

California, for Plaintiff–Appellee Oscar Julius Grant, Jr.

OPINION

MURGUIA, Circuit Judge:

In the early morning hours of January 1, 2009, on a train

platform in Oakland, an encounter between a group of young

men and several officers of the Bay Area Rapid Transit

(“BART”) police ended with the shooting and death of Oscar

Grant III and the allegedly unconstitutional detentions of

Grant’s friends, Nigel Bryson, Jack Bryson, Jr., Carlos Reyes,

Michael Greer, and Fernando Anicete, Jr. A train full of

witnesses observed the encounter; several made video

recordings that were replayed widely in the news media and

made available on the Internet. Johannes Mehserle, the

BART police officer who shot and killed Grant, was

convicted criminally for his role in the incident, which also

gave rise to several civil suits against 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 Brysons, Reyes, Greer, and Anicete filed a complaint

against Mehserle, as well as against Anthony Pirone—the

officer who first detained the group—and Pirone’s partner,

Marysol Domenici.1 Among other things, their complaint

alleged, under 42 U.S.C. § 1983, that the officers committed

various violations of the United States Constitution that

1 The Brysons, et al., also sued other officers and advanced other

theories of liability, none of which are relevant to the matter now before

the Court, and are therefore not part of our analysis.
JOHNSON V. BART 9

morning. Grant’s father, Oscar Grant, Jr., filed a separate

complaint alleging Mehserle, Pirone, and Domenici violated

his right to a familial relationship with his son.2 Mehserle,

Pirone, and Domenici each moved for summary judgment,

arguing that they are entitled to qualified immunity—that is,

to be shielded from claims arising out of their

policework—from allthe plaintiffs’ claims. The district court

denied the officers qualified immunity, at least in part. The

officers appealed those denials immediately.

Our jurisdiction over these appeals is limited: we may

review only the district court’s legal conclusion that an

officer is not entitled to qualified immunity. Johnson v.

Jones, 515 U.S. 304, 319–20 (1995); Eng v. Cooley,

552 F.3d 1062, 1067 (9th Cir. 2009); Kennedy v. City of

Ridgefield, 439 F.3d 1055, 1060 (9th Cir. 2006). “Our

jurisdiction . . . does not extend to qualified immunity claims

involving disputed issues of material fact.” KRL v. Estates of

Moore, 512 F.3d 1184, 1188–89 (9th Cir. 2008). For the

reasons that follow, we AFFIRM in large part the district

court’s ruling, VACATE it in small part, REVERSE it in

smaller part, and remand for further proceedings consistent

with this opinion.

I.

Resolving any disputed facts in the plaintiffs’ favor (as

we must), Scott v. Harris, 550 U.S. 372, 378 (2007), the

following events occurred over the span of 12 minutes, early

on New Year’s Day, 2009.

2 Grant’s mother, daughter, and estate settled their claims arising out of

this incident.
10 JOHNSON V. BART

1:59:21 A.M.

Keecha Williams operated an eastbound BART train,

carrying New Year’s revelers out of San Francisco and across

the Bay. Shortly before Williams’s train pulled into

Oakland’s Fruitvale Station, a passenger used the train’s

emergency intercom to report a fight in the train’s lead car. 

Williams relayed the passenger’s report to BART dispatch,

which instructed Williams to stop the train at Fruitvale and

wait for the police.

Officer Pirone was dispatched to the Fruitvale platform

with information that the troublemakers on Williams’s train

were a group of black males, in the lead car, wearing dark

clothing. Dispatch also told Pirone that no weapons were

used in the fight.

2:04:00 A.M.

Arriving on the platform, Pirone passed through a group

of people loosely fitting the description of the alleged

combatants and headed towards another group, also fitting

that description, whose members were standing and talking

on the platform near the train’s lead car. Pirone approached

the men and, as he said when later questioned, unholstered his

Taser in an effort to intimidate them. Three of the men—the

Brysons and Reyes—began to walk toward the stairs and the

station exit, behind Pirone. Pirone asked the men to stop, but

they continued to walk toward the exit. He then commanded

them to “sit the [expletive] down,” and they did. In the

meantime, two other members of the group, Grant and Greer,

stepped back aboard the train. Pirone radioed his partner,

Officer Domenici, who jogged up to the platform, drew her
JOHNSON V. BART 11

own Taser, and assumed watch over Reyes and the Brysons

so Pirone could search for Grant and Greer.

2:06:33 A.M.

Pirone was pacing the platform, yelling “get the

[expletive] off my train,” when he spotted Grant through one

of the train’s windows. He pointed his Taser at Grant through

the glass, prompting Grant to maneuver his way out of the car

and on to the platform. Pirone led Grant to the wall where

Reyes and the Brysons sat, and then returned to the train to

search for Greer. Pirone located Greer shortly and demanded

he get off the train. When Greer failed to comply with

Pirone’s order, Pirone grabbed him by the shirt and dragged

him from the train, pushing him to the wall where the other

men were seated. Greer extended his arms to avoid striking

the wall, and then turn to face Pirone. Pirone described

Greer’s position as “a combative stance,” purportedly

justifying his response: Pirone grabbed Greer by the hair and

swept his legs from under him, dropping him to the station

floor. Pirone moved to handcuff Greer.

2:08:06 A.M.

Alarmed by Pirone’s treatment of Greer, Jack Bryson

stood and protested, exchanging profanities with Domenici. 

Grant stood between Domenici and Bryson, extending a hand

between them and imploring Bryson to remain calm. Pirone,

claiming to have seen Grant touch Domenici, leapt from

Greer’s side, punched Grant in the head, and slung him to the

floor.
12 JOHNSON V. BART

2:08:36 A.M.

Other passengers, including the detainees’ friend,

Anicete, stepped from the idling train, protesting Pirone’s

actions. Officer Mehserle and Officer Jon Woffinden (who

is not a party to the appeals before us) sprinted on to the

platform. Seeing Pirone and Domenici with their Tasers

drawn, Mehserle removed his Taser from its holster on the

left side of his body—the side opposite his gun. Pirone

walked away from the assembled group of officers and

detainees, leaving the officers to keep watch without having

said anything to anyone about why he detained the group in

the first place.

“What do we have here,” Pirone asked Williams, as he

arrived at the operator’s booth at the front of the train’s lead

car. “Some BS,” Williams replied, referring to problems, like

fighting, that occur on BART trains on New Year’s Eve. 

Pirone did not inquire further, and Williams said nothing else. 

Pirone returned to the assembled officers and detained men.

2:09:53 A.M.

Walking back towards the group, Pirone pointed a finger

at the seated men, and generally at Grant, ordering Mehserle

to arrest “him and him” for “148” (California Penal Code

§ 148—misdemeanor resistance, delay, or obstruction of an

officer in the conduct of his duties). Mehserle thought Pirone

meant for him to arrest Grant and Jack Bryson; Pirone

actually meant for Mehserle to arrest Grant and the alreadyhandcuffed Greer. Mehserle began to handcuff Bryson. 

Bryson argued with Mehserle, who threatened to use his

Taser if Bryson continued to resist.
JOHNSON V. BART 13

2:10:19 A.M.

Bryson capitulated, kneeled, and put his hands behind his

back. Mehserle handcuffed him. Mehserle then turned to

Grant, who was seated to Mehserle’s left and facing Pirone. 

Mehserle grabbed Grant, causing Grant to fall forward on to

Reyes, who was sitting on the floor as Pirone ordered

previously. Mehserle crouched behind Grant, and Pirone

knelt in front of Grant. Reyes implored Pirone and Mehserle

to get Grant off of him, and the two officers rolled Grant, face

down, on to the station floor, with Grant’s hands coming to

rest underneath his body.

2:10:53 A.M.

Pirone then knelt on Grant’s neck. Mehserle straddled

Grant, trying to pull his hands out from under his prostrate

body. Grant struggled, complaining that he was unable to

breathe. Despite his struggling, Pirone was satisfied that

Grant was subdued. Mehserle, however, stood, unholstered

his gun, and directed Pirone to get back. Puzzled by

Mehserle’s request, Pirone stood, allowing onlookers who

were recording the scene to see Grant’s hands resting visibly

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. Knudtson saw

Anicete pacing and cursing at the other officers, so Knudtson

tackled and handcuffed him, applying extra pressure to

Anicete’s hip after Anicete complained of a preexisting injury

there. As Anicete fell to the floor, he and Knudtson both

heard a popping sound. Knudtson thought it was a
14 JOHNSON V. BART

firecracker. It was actually the sound of Mehserle shooting

Grant in the back.

“You shot me,” Grant repeated frantically. “Oh,

[expletive], I shot him,” Mehserle exclaimed, raising his

hands to his head. Mehserle handcuffed the mortally

wounded Grant and searched him. He then removed the

handcuffs and tried to stanch the blood flowing from the hole

in Grant’s back.

Knudtson dragged Anicete to the wall, putting him with

the other detained men. Reyes stood and attempted to leave,

but Woffinden and Knudtson handcuffed him. The other

officers herded passengers 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 Fruitvale

Station.

* * *

An unknown officer handcuffed Nigel Bryson, the last of

the group of men who remained free. Pirone had already

handcuffed Greer, Mehserle handcuffed Jack Bryson,

Knudtson handcuffed Anicete, and Knudtson and Woffinden

handcuffed Reyes. The Brysons, Reyes, Greer, and Anicete

were then taken to BART police headquarters by unknown

officers, at the command of police officials who are not

parties to these appeals or the underlying lawsuit. None of

the young men were charged with any crime in connection

with the morning’s events, though all remained handcuffed in
JOHNSON V. BART 15

holding rooms at the station for several hours. Grant was

taken to the hospital, where he died.

II.

A.

Pursuant to 42 U.S.C. § 1983, Reyes, the Brysons, Greer,

and Anicete sued Mehserle, Pirone, and Domenici for

detaining them in violation of the Fourth Amendment;

additionally, they claimed Mehserle, Pirone, and Domenici

unlawfully arrested them, also in violation of the Fourth

Amendment. All five men alleged a violation of California

Civil Code § 52.1, the California state law analog to section

1983. Further, Anicete and Greer alleged that Pirone and

Knudtson used unconstitutionally excessive force against

them.

Separately, Oscar Grant, Jr. brought a Fourteenth

Amendment claim alleging that Mehserle, Pirone, and

Domenici deprived him of his familial relationship with his

deceased son, “in violation of the rights, privileges, and

immunities secured by the First, Fourth, and Fourteenth

Amendments to the United States Constitution.” Mehserle,

Pirone, and Domenici filed motions for summary judgment,

each seeking qualified immunity from the claims made

against him or her.

B.

In analyzing the officers’ motions, the district court

created a three-part chronology of the morning’s events,

granting or denying the officers immunity from the plaintiffs’

claims depending on the point in time at which the claims
16 JOHNSON V. BART

arose. The district court’s first time period began when

Pirone detained Reyes and the Brysons, the second began

when Pirone ordered Mehserle to arrest “him and him,” and

the third encompassed the prolonged detentions of Reyes, the

Brysons, and Anicete, beginning when Mehserle shot Grant.

The district court denied Pirone qualified immunity—for

all three time periods—from Reyes’s, the Brysons’, Greer’s,

and Anicete’s claims that Pirone both unlawfully seized and

unlawfully arrested the group. The district court granted

Mehserle and Domenici qualified immunity from the same

claims during the first time period, but denied both of them

immunity from the time Pirone ordered Mehserle to arrest

“him and him,” onward—that is, for the second and third time

periods. Moreover, and specifically as to Jack Bryson’s

claim that Mehserle arrested him unlawfully, the district

court’s denial of qualified immunity was premised on 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

officers qualified immunity from the men’s claim under

California Civil Code § 52.1. Finally, the district court

denied Mehserle immunity from OscarGrant, Jr.’s Fourteenth

Amendment claim.

C.

Mehserle asks us to determine whether the district court

erred in denying him immunity from: (1) Oscar Grant, Jr.’s

Fourteenth Amendment claim for deprivation of a familial

relationship; (2) any claim under California Civil Code

§ 52.1; (3) Anicete’s unlawful arrest claim; (4) claims arising

from the extended detentions of Anicete, Reyes, and Nigel

Bryson at BART police headquarters; and (5) Jack Bryson’s
JOHNSON V. BART 17

unlawful arrest claim. Pirone asks us to review the district

court’s decision to deny him immunity from: (1) the claim

that he detained Reyes and the Brysons unlawfully; (2) the

claim that, at some point, Pirone’s detention of Reyes and the

Brysons became a de facto unlawful arrest; and (3) Greer’s

unlawful arrest claim. Domenici seeks review of the district

court’s decision denying her immunity from the portion of

Reyes’s and the Brysons’ unlawful detention claims arising

out of their extended detentions at BART headquarters. 

Because this is an appeal from the denial of summary

judgment, we adopt the view of any disputed facts most

favorable to the plaintiffs—the one we have set forth,

above—and then, premised upon those facts, review de novo

the district court’s denials of qualified immunity. Karl v. City

of Mountlake Terrace, 678 F.3d 1062, 1067–68 (9th Cir.

2012).

D.

When 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 exercise power

irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231

(2009).

We apply a two-part test to determine which way the

balance tips in a given case. Id. at 232; Lacey v. Maricopa

Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc). We may

begin with either part of the test, but typically, taking the

facts in the light most favorable to the plaintiffs, we first ask

whether those facts demonstrate that the defendant police

officers violated one or more of the plaintiffs’ constitutional
18 JOHNSON V. BART

rights. Pearson, 555 U.S. at 236; Maxwell v. Cnty. of San

Diego, 697 F.3d 941, 947 (9th Cir. 2012); Lacey, 693 F.3d at

915. If the answer to that question is “no,” we stop: without

a violation, there is no basis for the plaintiffs’ lawsuit to

proceed. Id.

If the answer to our first question is “yes,” then for the

second step, we call on a familiar character, the hypothetical

“reasonable officer.” The reasonable officer avoids

committing acts that have been clearly established as

unconstitutional—for example, handcuffing 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 an act—there, handcuffing a shirtless

inmate to a hitching post in the sun for seven hours—may be

clearly established as unconstitutional even if there is no case

addressing it specifically, as long as existing law provides

“fair warning” that the act is unconstitutional); Mattos v.

Agarano, 661 F.3d 433, 442 (9th Cir. 2011). Nevertheless,

our reasonable officer sometimes makes mistakes—

reasonable mistakes—of fact or law, and thereby commits an

unconstitutional act. Though we may excuse the reasonable

officer for such a mistake, Pearson, 555 U.S. at 231, it

sometimes proves necessary for a jury to determine first

whether the mistake was, in fact, reasonable, Santos v. Gates,

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

To complete the second step of the qualified immunity

analysis, we place our hypothetical reasonable officer in the

same situation as the defendant police officers, and then ask

whether the reasonable officer also would have committed the

act that the plaintiffs contend is unconstitutional. Lacey,

693 F.3d at 915. If the answer is “yes,” the defendant officers
JOHNSON V. BART 19

are entitled to qualified immunity. Id. If the answer is “no,”

the plaintiffs’ claim against the defendant officers may

proceed. Id.

III.

A.

Johannes Mehserle

1. Mehserle is not entitled to immunity from Oscar

Grant, Jr.’s Fourteenth Amendment claim.

Parents have a Fourteenth Amendment right to the

companionship of a child, which a police officer violates by

“act[ing] with a purpose to harm” the child “that [is]

unrelated to legitimate law enforcement objectives.” Porter

v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Oscar Grant,

Jr. claims Mehserle violated his right to his child’s

companionship by shooting and killing his child; Mehserle

seeks qualified immunity from that claim. The district court

denied Mehserle this immunity, and we affirm.

Mehserle first argues that we should scrutinize the

strength of the relationship between Grant and his father, and

determine that they lacked a degree of familiarity sufficient

to warrant a claim for loss of companionship. In a scant

paragraph supporting this argument, Mehserle cites two

cases. First, Mehserle cites the Seventh Circuit’s opinion in

Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), which he

describes as holding “that where a child had created a new

life away from the parents, the parents were not entitled to a

claim under the Fourteenth Amendment.” Second, Mehserle

cites our opinion in Lee v. City of Los Angeles, 250 F.3d 668,
20 JOHNSON V. BART

685 (9th Cir. 2001), for the truism that a Fourteenth

Amendment claim for loss of companionship is intended to

protect “those relationships, including family relationships,

that presuppose ‘deep attachments and commitments to the

necessarily few other individuals with whom one shares not

only a special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one’s life.’” 

(internal citation omitted).

The upshot of Russ, however, is not that courts should

determine, as a matter of law, that at some indeterminate

point in time a child has created enough of a life away from

home to strip his parents of their right to his companionship. 

It is instead that at some determinate point in time—when the

child reaches the age of majority—his parents’ Fourteenth

Amendment right to his companionship is extinguished. 

Russ, 414 F.3d at 791. But that is not the argument Mehserle

makes as to Grant’s relationship with his father. See

Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu,

626 F.3d 483, 487–88 (9th Cir. 2010) (recalling previous

admonishments that we decline to address arguments not

made distinctly in an appellant’s opening brief). Moreover,

in past cases, we have recognized a parent’s right to a child’s

companionship without regard to the child’s age. See

Strandberg v. City of Helena, 791 F.2d 744, 748 & n.1 (9th

Cir. 1986) (recognizing, at least in passing, parents’ right to

the companionship and society of their deceased 22-year-old

son); see, e.g., Lee, 250 F.3d at 685–86 (holding that a mother

successfully stated a violation of the Fourteenth Amendment

by alleging that the Los Angeles Police Department

recklessly deprived her of the companionship of her mentally

disabled adult son); Smith v. City of Fontana, 818 F.2d 1411,

1419 (9th Cir. 1987) (describing Strandberg as recognizing

a Fourteenth Amendment right of parents to the
JOHNSON V. BART 21

companionship of adult children, because “the familial

relationship, and not the more narrow custodial interest of the

parents, gave rise to the due process action”), overruled on

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

1037 (9th Cir. 1999) (en banc); see also Reynolds v. Cnty. of

San Diego, 858 F. Supp. 1064, 1070 (S.D. Cal. 1994) (“The

parent’s constitutionally-protected interest is not extinguished

as a matter of law when an adult child leaves his parents’

home and marries.”).3 With no authority to support it, we

decline Mehserle’s invitation to find, as a matter of law, that

Grant and his father lacked a sufficiently strong father–son

bond to support the father’s Fourteenth Amendment claim.4

Mehserle next contends that “the facts overwhelmingly

show that [he] was acting consistently within the legitimate

law enforcement objective of arresting Grant” at the time that

3 Several of our sister circuits have held that a parent’s protected interest

in the companionship of his or her child, at least as far as the Constitution

is concerned, ends when the child reaches the age of majority. See, e.g.,

Russ, 414 F.3d at 791 (overruling a prior decision “insofar as it recognized

a constitutional right to recover for the loss of the companionship of an

adult child when that relationship is terminated as an incidental result of

state action”); McCurdy v. Dodd, 352 F.3d 820, 830 (3dCir. 2003) (“[W]e

hold that the fundamental guarantees of the Due Process Clause do not

extend to a parent’s interest in the companionship of his independent adult

child.”); Butera v. Dist. of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001)

(“[W]e hold that a parent does not have a constitutionally-protected liberty

interest in the companionship of a child who is past minority and

independent.”). Should Mehserle raise this issue properly in the district

court, and brief it in a future appeal, we may have occasion to consider it.

4 That is not to say that the strength of a parent’s relationship with a

child has no bearing on the parent’s claim for loss of the child’s

companionship. It is instead to say that the closeness of a parent’s

relationship with a child is a quintessential question of fact (and on this

record, a disputed one).
22 JOHNSON V. BART

he shot Grant in the back. We construe the facts,

overwhelming or otherwise, in Grant’s father’s favor and ask

whether the district court properlydenied Mehserle immunity

on the basis of those facts. As recounted above, before the

district court was evidence that: Grant struggled with

Mehserle and Pirone because they were preventing him from

breathing; Grant was adequately subdued before Mehserle

shot him; Pirone was surprised by Mehserle’s command that

he stand back (because Pirone thought Grant was adequately

subdued); and Grant’s hands were behind his 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 things, that a second officer who witnessed a

fatal officer-involved shooting was “shocked” by the five

shots his colleague fired into the decedent’s car).

In light of these and other facts, which Mehserle disputes,

the district court concluded that “there is a genuine issue of

material fact as to whether Mehserle’s actions were required

by a legitimate law enforcement purpose . . . .” We do not

disturb that conclusion, Johnson, 515 U.S. at 314, and agree

that given the factual dispute before it, which must be

resolved by a jury, the district court could not have properly

granted Mehserle qualified immunity. Accordingly, and

correctly, it did not.5

5 We note that Oscar Grant, Jr.’s Fourteenth Amendment claim makes

reference to “rights, privileges, and immunities secured by the First,

Fourth, and Fourteenth Amendments.” There is, however, no argument

as to what First or Fourth Amendment rights Oscar Grant, Jr. is attempting

to assert, either on his own behalf or that of his deceased son—though

Mehserle argues that Oscar Grant, Jr. may not assert any Fourth

Amendment rights vicariously on his son’s behalf. See Alderman v.

United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights are

personal rights which, like some other constitutional rights, may not be
JOHNSON V. BART 23

2. We lack jurisdiction to hear an appeal asserting a

right to federal law qualified immunity from a

California state law (Civil Code § 52.1) violation.

Mehserle seeks qualified immunity from the California

Civil Code § 52.1 claim against him (based on the same

conduct underlying the plaintiffs’ section 1983 claims), 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. Fallon, Jr., et al., Hart

and Wechsler’s The Federal Courts and the Federal System

1006 (6th ed. 2009) (“The immunity of state officials in

actions based on state law is itself governed by state law, for

absent wholly arbitrary action by the state, there is no

distinctive federal interest.”). Nevertheless, Mehserle urges,

because the plaintiffs’ section 52.1 claim reaches the same

underlying conduct as their section 1983 claims, Mehserle

should be equally immune to both.

We rejected an identical argument in Liberal v. Estrada,

632 F.3d 1064 (9th Cir. 2011), in which we held that we

lacked jurisdiction to entertain a defendant’s interlocutory

vicariously asserted.”). But see Moreland v. Las Vegas Metro. Police

Dep’t, 159 F.3d 365, 369 (9thCir. 1998) (“In § 1983 actions, however, the

survivors of an individual killed as a result of an officer’s excessive use

of force may assert a Fourth Amendment claim on that individual’s behalf

if the relevant state’s law authorizes a survival action.”); Smith, 818 F.2d

at 1416–17 (finding, under California law, a Fourth Amendment claim

under section 1983 survives the death of the plaintiff). Though Mehserle

made the same argument in the district court, the district court failed to

address it in its order. On remand, if Oscar Grant, Jr. intends to proceed

with any theory other than a deprivation of familial companionship under

the Fourteenth Amendment, the district court should determine whether

he is entitled to assert such a claim under California’s survival statute.
24 JOHNSON V. BART

appeal that he was entitled to qualified immunity from a

section 52.1 claim. Id. at 1076. We cannot deviate from

Liberal’s holding. Miller v. Gammie, 335 F.3d 889, 899–900

(9th Cir. 2003) (en banc). Nor are we inclined to: Mehserle

could have appealed the district court’s decision to deny him

immunity under California state law, rather than under the

federal law doctrine of qualified immunity; he did not. 

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

we do not reach the district court’s ruling denying Mehserle

immunity from the plaintiffs’ section 52.1 claim.

3. Mehserle is entitled to qualified immunity from a

claim that he unlawfully arrested Anicete.

Mehserle protests that the district court neglected to

address Anicete’s claims against him entirely, even though

Mehserle sought immunity from those claims. We agree with

Mehserle that the district court did not give adequate

consideration to Anicete’s claims against him, though we do

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

The parties presented the district court with a host of

claims against a group of officers and municipal entities, and

then made cross-motions for summary judgment that they

supported in a disorderly, muddled, and confusing manner. 

The district court attempted to impose some level of

coherence on the case by discussing those claims that made

sense for a given plaintiff to bring against a particular officer. 

But by structuring its decision in that fashion, the district

court analyzed claims that appeared nowhere in the pleadings,

and omitted claims that did appear in the pleadings. For

instance, the district court asked whether Mehserle used

excessive force against the Brysons (one of whom Mehserle

handcuffed), Reyes (with whom Mehserle had no contact),
JOHNSON V. BART 25

and Greer (likewise), but the plaintiffs’ excessive force claim

was made only on behalf of Greer and Anicete, and against

Pirone (who threw Greer on the ground) and Knudtson (who

tackled and handcuffed Anicete) only. There was no need for

the district court to conduct an excessive force analysis as to

Mehserle, though we understand why it did: the plaintiffs, in

opposing summary judgment, argued that the officers’ use of

Tasers in detaining all the plaintiffs constituted excessive

force—a claim the plaintiffs never before raised.

Anicete did, however, plead unconstitutional seizure and

unconstitutional arrest claims against Mehserle, andMehserle

moved for summary judgment on those claims. Nonetheless,

the district court did not discuss Anicete at all when

addressing the initial seizures of Reyes, the Brysons, and

Greer (unsurprisingly, since Anicete was not yet detained),

and when discussing unconstitutional arrest, the district court

only addressed Mehserle’s treatment of the two people he

handcuffed—Grant and Jack Bryson.

What to do with Anicete’s claims against Mehserle?

There is only one point at which the district court’s order can

be read to reach those claims: when the district court denied

all the officers (including Mehserle) qualified immunity for

the detention of all of the plaintiffs (including Anicete),

beginning at the point at which Pirone ordered Mehserle to

arrest “him and him” (the second and third of the district

court’s time periods). Anicete, however, was not detained or

arrested until after Pirone gave his order; Knudtson tackled

and handcuffed Anicete just as Mehserle shot Grant. The

plaintiffs would have us stop with this observation and

conclude that the district court intended, implicitly, to leave

Mehserle—and every other officer sued—responsible for

Anicete’s arrest and detention.
26 JOHNSON V. BART

But we must grant Mehserle qualified immunity from suit

over an act in which he played no part. See Hopkins v.

Bonvicino, 573 F.3d 752, 769–70 (9th Cir. 2009) (granting an

officer qualified immunity for his partner’s unlawful entry of

a house, which occurred while the officer interviewed a

witness on the front lawn). There is no evidence in the record

that Mehserle played any part in Anicete’s arrest;

consequently, we hold that he is entitled to qualified

immunity from a claim that he unlawfully arrested Anicete.

The district court’s order also denies Mehserle qualified

immunity from claims arising from Anicete’s extended

detention at BART police headquarters, and from the

extended detentions of Reyes and Nigel Bryson. Mehserle

contends he is entitled to immunity from those claims, as

well; we turn now to that argument.

4. The district court failed to consider whether there was

any evidence that Mehserle participated in the

extended detentions of Anicete, Reyes, or Nigel

Bryson.

On the orders of BART police Commanders White and

Gibson (neither of whom is a defendant in this case), Reyes,

both of the Brysons, Greer, and Anicete were taken to BART

police headquarters and detained, in handcuffs, for hours. 

Mehserle argues he had nothing to do with the prolonged

detentions of Anicete, Reyes, or Nigel Bryson, and is

therefore entitled to qualified immunity from their claims

arising out of those detentions. The district court held that it

did not matter whether Anicete, Reyes, and Nigel Bryson had

any evidence implicating Mehserle in their prolonged

detentions, and instead, that the burden fell to Mehserle to

exculpate himself from their claims.
JOHNSON V. BART 27

In reaching that conclusion, the district court appears to

have misread our opinion in Dubner v. City and County of

San Francisco, 266 F.3d 959 (9th Cir. 2001). In that case,

Dubner, a photographer, sued after being arrested without

probable cause during a demonstration outside San

Francisco’s Moscone Center. Ziegler, the officer listed as

having arrested Dubner, had no recollection of arresting her

at all. Id. at 964. No other officer recalled even having seen

Dubner at the demonstration. Id. at 965. Ultimately, the

success of Dubner’s claim for unlawful arrest depended on

her being able to show that she was arrested without probable

cause; however, once Dubner demonstrated that the police

lacked a warrant to arrest her, the burden shifted to the police

to produce some evidence they had probable cause for the

arrest. Id. We held that because Dubner had made every

effort to ascertain the identity of the officers responsible for

her arrest, and because the burden fell to the police to

demonstrate they had probable cause to arrest 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

would be no way to demonstrate that the officer had the

necessary probable cause. Id. at 965–66.

In the case before us, the district court quoted from

Dubner—“‘[i]f the defendant is unable or refuses to come

forward with any evidence that the arresting officers had

probable cause and the plaintiff’s own testimony does not

establish it, the court should presume the arrest was

unlawful’”—and then concluded that Mehserle was required

to demonstrate he had nothing to do with the prolonged

detentions of Anicete, Reyes, and Nigel Bryson in order to

escape liability for them. Dubner, however, establishes only

that we will find the police lack probable cause to make an

arrest—and therefore that the arrest is unlawful—if the police
28 JOHNSON V. BART

are unable to identify who made the arrest, or why. But the

issue we must evaluate here is not whether Mehserle had

probable cause to arrest Anicete, Reyes, or Nigel Bryson; it

is whether Mehserle was at all responsible for their prolonged

detentions. The district court did not rely on the record in

trying to resolve the question, and instead relied erroneously

on Dubner to conclude that the absence of evidence

implicating Mehsrele was, as a matter of law, “of no

account.” Because the district court’s legal error prevented

it from making the factual findings necessary to decide

whether Mehserle is entitled to immunity from claims arising

out of Anicete’s, Reyes’s, and Nigel Bryson’s prolonged

detentions, we remand this issue to the district court with

instructions to review the record and determine whether there

are disputed issues of fact as to Mehserle’s involvement with

Anicete’s, Reyes’s, and Nigel Bryson’s detentions.

5. The district court properly denied Mehserle qualified

immunity from Jack Bryson’s unlawful arrest claim.

Mehserle arrested Jack Bryson on Pirone’s order to arrest

“him and him,” and argued before the district court that he

made a reasonable mistake when he arrested the wrong

“him,” Jack Bryson. (Pirone testified that he meant for

Mehserle to arrest Grant and Greer.) The district court denied

Mehserle qualified immunity for the arrest, concluding that

whether Mehserle’s mistake was reasonable is a question for

the jury. We agree. See, e.g., Wilkins v. City of Oakland,

350 F.3d 949, 955–56 (9th Cir. 2003) (holding that the

question of whether officers made a reasonable mistake when

they shot their own undercover colleague must be submitted

to a jury).
JOHNSON V. BART 29

Mehserle argues that he is otherwise entitled to qualified

immunity from Jack Bryson’s unlawful arrest claim, because

he had probable cause to arrest Bryson independently of

Pirone’s order. See Rosenbaum v. Washoe Cnty., 663 F.3d

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 unlawful, or if “it is reasonably

arguable that there was probable cause for arrest”). 

Specifically, Mehserle posits, he had probable cause to arrest

Jack Bryson for violatingCalifornia Penal Code § 148, which

penalizes interference with a law enforcement officer in the

performance of his duties, because Mehserle “personally

observed Bryson creat[ing] a disturbance, incit[ing] the

crowd, and disregard[ing] Mehserle’s instructions during a

tense, escalating event on the platform to which Mehserle had

been called for backup.”

Bryson’s alleged creation of a disturbance consisted of his

cursing the officers, but “[e]ven though the police may dislike

being the object of abusive language,” section 148 does not

allow them “to use the awesome power which they possess to

punish individuals for conduct that is not only lawful, but

which is protected by the First Amendment.” In re

Muhammed C., 95 Cal. App. 4th 1325, 1330–31 (2002); see

also Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir.

1990) (opining that “making obscene gestures” and “yelling

profanities in Spanish,” while “boorish, crass and, initially at

least, unjustified,” is “not illegal”); cf. Swartz v. Insogna,

704 F.3d 105, 109–11 (2d Cir. 2013) (observing, among other

things, that police officers cannot arrest someone for the

“disorderly conduct” of giving the officers the finger). If

Bryson was exhorting people to commit violence against the

officers, it would be arguable that Mehserle had probable

cause to arrest him. See generally Brandenberg v. Ohio,
30 JOHNSON V. BART

395 U.S. 444, 447 (1969) (per curiam) (observing that states

may criminalize speech that is “directed to inciting or

producing imminent lawless action and is likely to incite or

produce such action”). But what Bryson may have said to the

crowd is at least a disputed question of fact—the record

reflects only what Bryson said to the officers—and thus, like

the question whether Mehserle reasonably misunderstood

Pirone’s command, must be left to a jury. We therefore

affirm the district court’s ruling denying Mehserle qualified

immunity from Jack Bryson’s unlawful arrest claim.

B.

Anthony Pirone

1. Pirone was properly denied qualified immunity for his

initial detention of Reyes, the Brysons, and Greer.

Pirone stopped Reyes, the Brysons, and Greer to

investigate amisdemeanor violation of California Penal Code

§ 242 (i.e., a misdemeanor battery); such an investigatory

stop requires a police officer to have “reasonable suspicion

supported by articulable facts that criminal activity ‘may be

afoot.’” United States v. Basher, 629 F.3d 1161, 1165 (9th

Cir. 2011) (internal citations omitted). Pirone argued, and

argues, that he had reasonable suspicion to stop the men

based on a report that a group of black males, wearing similar

clothing, were fighting in the train car outside of which he

spotted the group—and that the group attempted to evade

Pirone as he approached. The district court held these facts

were insufficient to arouse suspicion in support of Pirone’s

investigatory stop, and therefore denied him qualified

immunity from Reyes’s, the Brysons’, and Greer’s unlawful

detention claims. We agree with the district court’s
JOHNSON V. BART 31

conclusion that Pirone is not entitled to qualified immunity

from those claims, but arrive at that conclusion by a different

route.

Determining whether an officer had reasonable suspicion

to conduct an investigatory stop can be a tricky proposition,

particularly when one of the factors motivating the stop was,

as in this case, the race of the suspects. Race is of little value

in distinguishing one suspect from others, particularly where

everyone in the pool of possible suspects is of the same race. 

See United States v. Montero-Camargo, 208 F.3d 1122, 1135

(9th Cir. 2000) (en banc) (observing that where most people

who transverse a checkpoint are Hispanic, the fact that a

particular person transversing it is Hispanic is of little value

in establishing reasonable suspicion); Morgan v. Woessner,

997 F.2d 1244, 1254 (9th Cir. 1993) (holding that a tip to

look out for a black person, without more, does not give rise

to reasonable suspicion to stop anyone). But race is a trait

that, when combined with others, can reasonably lead an

officer to zero in on a particular suspect. Montero-Camargo,

208 F.3d at 1134 nn.21 & 22. A reviewing court must

therefore consider all the factors on which an officer relied in

combination, rather than separately, in determining whether

the officer had reasonable suspicion to stop a particular

suspect. United States v. Arvizu, 534 U.S. 266, 273 (2002);

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

v. Cortez, 449 U.S. 411, 417 (1981); see, e.g., Terry v. Ohio,

392 U.S. 1, 22 (1968) (noting that the investigating officer

“observed Terry . . . go through a series of acts, each of them

perhaps innocent in itself, but which taken together warranted

further investigation”); Paine v. City of Lompoc, 160 F.3d

562, 566 (9th Cir. 1998) (finding that the police had

reasonable suspicion to stop a suspected pugilist after

receiving a report of a fight, witnessing a ring of apparent
32 JOHNSON V. BART

spectators, and after an onlooker yelled, “Cops!,” observing

the suspect leave with a second, bloodied person).

Here, many of the factors Pirone listed as his basis for

suspecting the group of being the fighters he was looking for

are, by themselves, innocuous. Other than their race, Pirone

cited the group’s attempt to elude him on the train platform,

but see Florida v. Royer, 460 U.S. 491, 497–98 (1983)

(holding that one 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

which the fight was reported. Whether combining these

factors creates sufficient suspicion to stop the group is a

difficult question, but it is one we need not resolve, because

Pirone’s stop was constitutionally unsound in another respect: 

when Pirone arrived on the platform, it is undisputed that no

crime was afoot. Pirone was instead, as he conceded at

argument, investigating a completed misdemeanor, and we

held—prior to the events at issue here—that the Fourth

Amendment constrains officers who conduct stops to

investigate completed misdemeanors. United States v. Grigg,

498 F.3d 1070, 1079–81 (9th Cir. 2007).

In determining whether the Fourth Amendment permits

an officer to detain a suspected misdemeanant, Grigg requires

us to “consider the nature of the misdemeanor offense in

question, with particular attention to the potential for ongoing

or repeated danger (e.g., drunken and/or reckless driving),

and any risk of escalation (e.g., disorderly conduct, assault,

domestic violence).” Id. at 1081; see also United States v.

Hensley, 469 U.S. 221, 228 (1985) (“[T]he exigent

circumstances which require a police officer to step in before

a crime is committed or completed are not necessarily as

pressing long afterwards. Public safety may be less
JOHNSON V. BART 33

threatened by a suspect in a past crime who now appears to be

going about his lawful business . . . .”). Here, Pirone came

upon a group of black men who were doing nothing but

talking when he arrived. There is an insufficient basis to

conclude, from anything Pirone witnessed, that there was a

likelihood for “ongoing or repeated danger,” or “escalation.” 

Pirone nevertheless pulled a weapon (his Taser) on the young

men, admittedly for the purpose of “intimidation,” and using

profanity, ordered them to be seated.

Would our hypothetical reasonable officer, given the law

we articulated in Grigg and his task of avoiding constitutional

violations, have behaved as Pirone did? We think not. 

Whether or not Pirone articulated facts sufficient to support

his suspicion of Reyes, the Brysons, and Greer, we conclude

that given the questionable nature of Pirone’s authority to

detain the group for a misdemeanor that abated before his

arrival, the district court properly denied Pirone qualified

immunity—at this stage of the proceedings and on the record

before it—from their claim of unlawful detention.

2. Pirone is not entitled to qualified immunity for

conducting a de facto arrest of Reyes and the Brysons.

The district court found that Pirone, in pulling his Taser

on Reyes and the Brysons to facilitate their detention, may

have effectively placed them under arrest without the

requisite probable cause. The district court denied Pirone

qualified immunity from Reyes’s and the Brysons’ claims

that he unlawfully arrested them, allowing a jury to determine

whether Pirone behaved reasonably in using a Taser to

facilitate an investigatory stop. Pirone argues that the district

court erred, and that he is entitled to qualified immunity from

the Brysons’ and Reyes’s unlawful arrest claims, because
34 JOHNSON V. BART

brandishing his Taser did not transform an investigatory stop

into a de facto arrest, or if it did, that Pirone made a

reasonable mistake in doing it.

Courts “examine the ‘totality of the circumstances’ in

deciding ‘whether an investigative detention has ripened into

an arrest,’” focusing “on the perspective of the person seized,

rather than the subjective beliefs of the law enforcement

officers.” United States v. Charley, 396 F.3d 1074, 1080 (9th

Cir. 2005) (quoting Eberle v. City of Anaheim, 901 F.2d 814,

819 (9th Cir. 1990)). “The question is thus whether a

reasonable innocent person in [the same] circumstances

would not have felt free to leave after brief questioning.” Id.

(internal quotation marks omitted). While this standard

suggests that “[u]nder ordinary circumstances, drawing

weapons and using handcuffs are not part of a Terry stop,”

United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001),

we have recognized some circumstances in which it is

appropriate for an officer to use a level of force that would

ordinarily bring to mind arrest, i.e.: (1) “where the suspect is

uncooperative or takes action at the scene that raises a

reasonable possibility of danger or flight;” (2) “where the

police have information that the suspect is currently armed;”

(3) “where the stop closely follows a violent crime;” and (4)

“where the police have information that a crime that may

involve violence is about to occur.” Washington v. Lambert,

98 F.3d 1181, 1189 (9th Cir. 1996); see United States v.

Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (“The use of

force during a stop does not convert the stop into an arrest if

it occurs under circumstances justifying fears for personal

safety.”).

The district court applied this standard and determined

that Pirone threatened Reyes and the Brysons with his Taser
JOHNSON V. BART 35

even though “there appeared to be no objective indication of

violent activity or of any criminal activity for that matter,”

and Pirone’s limited knowledge of the fight aboard the train

included that no weapons were used. The court therefore

found that a jury “could conclude that a reasonable person

would not believe that he was at liberty to leave.” Pirone

contends that “from the perspective of a reasonable officer on

the scene,” brandishing a Taser was appropriate: Pirone was

outnumbered, responding to a violent crime, had no way of

knowing whether the men were armed (he knew only that no

weapons were used in the fight), and was surrounded by

intoxicated BART patrons. Moreover, Pirone argues, 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 no time did

Pirone strike or handcuff Reyes or the Brysons.

We note that the specific quantum of force involved in

using a Taser was not clearly established at the time that

Pirone merely threatened its use, see Bryan v. MacPherson,

630 F.3d 805, 824–26 (9th Cir. 2010), a fact that suggests the

application of qualified immunity—if the claim at issue

turned on the amount of force Pirone applied to stop Reyes

and the Brysons. But that is not the claim at issue.

6

Regardless of the injury a weapon is capable of inflicting, we

begin from the presumption that no weapons are used at all in

conducting an investigatory stop. Miles, 247 F.3d at 1012. 

After all, a reasonable person is unlikely to feel free to leave

after answering a few questions, Charley, 396 F.3d at 1080,

if the prelude to the officer’s query involves the display of a

weapon for the explicit purpose of intimidating that

reasonable person. Although the level of force resulting from

6 The district court granted Pirone qualified immunity from an excessive

force claim related to his display of the Taser.
36 JOHNSON V. BART

a Taser’s application had yet to be established at the time of

these events, it was already established that using a Taser

constitutes some level of force, Bryan, 630 F.3d at 833, and

it was certainly beyond cavil that a Taser is a weapon. See

United States v. Wallace, 800 F.2d 1509, 1512–13 (9th Cir.

1986) (affirming the district court’s finding that, as a matter

of law, “an electronic taser or stun gun” is a “dangerous

weapon” for the purpose of committing the crime of boarding

a plane with a concealed dangerous weapon). Of course, we

allow that in extraordinary circumstances, an officer may

“draw[] weapons,” Miles, 247 F.3d at 1012, but we agree

with the district court’s assessment that the evidence does not

demonstrate indisputably that Pirone found himself in those

circumstances.

Despite Pirone’s argument about the conditions on the

platform when he arrived, Pirone testified he pulled his Taser

on the young men for the purpose of “intimidation,” and not

because he feared for his safety or the safety of anyone else

on the platform.7 A desire to cow suspects into compliance

is not one of the previously enumerated reasons for which we

countenance the use of weapons during an investigatory stop. 

Moreover, Pirone testified that he drew his Taser before he

7 Moreover, while we recognize video recordings may offer an imperfect

account of an event for a number of reasons, e.g., because of acts

occurring outside the camera’s field of vision, we note that video from the

platform security camera does not appear to support Pirone’s contention

that the Fruitvale platformwas crowded with intoxicated passengers when

he arrived. See Terry, 392 U.S. at 20 (framing the relevant inquiry as

“whether the officer’s action was justified at its inception, and whether it

was reasonably related in scope to the circumstances which justified the

interference in the first place” (emphasis added)). Instead, it appears that

no other passengers stepped off the train until after Pirone threw Greer to

the floor, long after he pulled his Taser.
JOHNSON V. BART 37

“made contact” with the group, belying an argument that he

did so to prevent Reyes or the Brysons, or anyone else, from

taking flight—a flight which would have been futile, since the

train on to which they might have fled could not leave the

Fruitvale Station until BART released it. And not knowing

whether a suspect is armed is not the same as having reason

to believe the suspect is actually armed.

We are therefore left with the question whether it was

reasonable, on the facts with which he was presented, for

Pirone to use, or threaten to use, any weapon at all in

conducting an investigatory stop—or whether Pirone

effectively arrested Reyes and the Brysons.8 That question

must be resolved by a jury. Accordingly, we affirm the

district court’s decision to deny Pirone qualified immunity

from Reyes’s and the Brysons’ claims that by drawing his

Taser, Pirone arrested them unlawfully.

8 The cases cited by Pirone are not to the contrary; all involve

circumstances under which a suspect was uncooperative or likely armed. 

See, e.g., Allen v. City of L.A., 66 F.3d 1052, 1055–57 (9th Cir. 1995)

(finding no unlawful arrest when a suspect was ordered from a car at

gunpoint, handcuffed, and held for no more than 24 minutes—when the

police just completed a high-speed pursuit of the car); United States v.

Alvarez, 899 F.2d 833, 836–39 (9th Cir. 1990) (finding no unlawful arrest

when a suspect was removed from his car at gunpoint—when the police

were tipped off that the suspect was armed with explosives and about to

rob a bank); United States v. Greene, 783 F.2d 1364, 1366–68 (9th Cir.

1986) (finding no unlawful arrest when two suspects were taken fromtheir

car at gunpoint—when the police were told the men, suspected of bank

robbery, had a pistol).
38 JOHNSON V. BART

3. Pirone is not entitled to qualified immunity from

Greer’s unlawful arrest claim.

Lastly, Pirone argues the district court incorrectly denied

him qualified immunity for arresting Greer, whom he pulled

from the idling train, threw to the ground, and handcuffed. 

Pirone contends he had probable cause to arrest Greer for

impeding him in the performance of his duties—a violation

of California Penal Code § 148—because by returning to the

train, Greer evaded Pirone’s attempt to detain and question

the entire group of young men. The district court found that

because Pirone lacked both “probable cause to believe that

plaintiffs had committed any underlying criminal violation,”

and “reasonable suspicion to detain plaintiffs for

investigatory purposes,” Pirone also lacked probable cause to

arrest Greer for violating section 148.

A suspect cannot be arrested for violating section 148

because he evaded an officer’s attempt to arrest him

unlawfully. See, e.g., Blankenhorn v. City of Orange,

485 F.3d 463, 472 (9th Cir. 2007) (“Although Blankenhorn

was also arrested . . . under California Penal Code section

148(a), any such resistance (and corresponding probable

cause) arose out of the initial arrest for trespassing. If there

was no probable cause to arrest Blankenhorn for trespassing

in the first place, it makes no difference 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 and Barnes arrived after the alleged battery occurred. 

The officers could therefore not lawfully arrest Arpin for the

battery. If the officers could not lawfully arrest Arpin for the

battery, the officers could also not lawfully arrest Arpin for

resisting arrest.”). Here, the district court found that Pirone

had no lawful basis for stopping Reyes, the Brysons, Greer,
JOHNSON V. BART 39

and Grant, and therefore had no lawful basis to pursue and

arrest Greer for not acceding to the investigatory stop. A

reasonable officer, it continued, would have known as much

after Blankenhorn. Because we agree with the district court

that Pirone had no lawful basis to detain the group initially,

we also agree with the district court that he is not entitled to

qualified immunity for arresting Greer over Greer’s refusal to

accede to the unlawful detention.

C.

Marysol Domenici

Domenici raises only one issue on appeal: she contends

that she is entitled to qualified immunity for Reyes’s, Greer’s,

Anicete’s, and the Brysons’ prolonged detentions at BART

headquarters, because like Mehserle, there is no evidence of

her involvement in those detentions. Unlike Mehserle,

however, the district court did make a factual finding

regardingDomenici’s involvement in the extended detentions

of the Brysons and Reyes, pointing to her appearance in

eyewitness video of the incident, after Mehserle shot Grant,

and therefore observing that the “[e]vidence suggests that

nonetheless Domenici continued to participate in [the]

detentions up until the time that Mehserle shot Grant and

thereafter” (emphasis added). The district court reached no

conclusions about Domenici’s immunity from claims arising

out of Greer’s and Anicete’s extended detentions, relying

improperly on Dubner (as it did with Mehserle). To the

extent the district court relied solely on Dubner to deny

Domenici immunity from any of the plaintiffs’ claims, we

remand to the district court to determine whether the facts

support granting Domenici immunity from those claims.
40 JOHNSON V. BART

To the extent the district court relied upon disputed facts

to deny Domenici immunity, we lack jurisdiction to review

that denial. Johnson, 515 U.S. at 319–20. In Johnson, the

seminal case on this point, the Supreme Court affirmed the

Seventh Circuit’s decision not to review a district court’s

denial of qualified immunity to three out of five police

officers who allegedly beat the plaintiff, Jones. The officers

argued for qualified immunity, because “whatever evidence

Jones might have about the other two officers, he could point

to no evidence that these three had beaten him or had been

present while others did so.” Id. at 307. In response, Jones

pointed to his deposition testimony, in which he claimed that

unknown officers used excessive force when arresting him

and later at the police station. Id. He then pointed to portions

of the depositions of the three protesting officers, in which all

three admitted they were present both at Jones’s arrest and at

the police station afterwards. Id. at 307–08. The district

court denied the officers summary judgment on the question

of their immunity, finding that Jones had presented sufficient

evidence of the three officers’ involvement to proceed to trial. 

Id. at 308. The Seventh Circuit affirmed, and the Supreme

Court affirmed the Seventh Circuit, holding that “a defendant,

entitled to invoke a qualified immunity defense, may not

appeal a district court’s summary judgment order insofar as

that order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Id. at 319–20; see

also Wilkins, 350 F.3d at 952 (“On an interlocutory appeal of

a denial of qualified immunity, this court . . . 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 right).

Domenici nevertheless urges us to review the issue here,

because the district court never gave her the opportunity at
JOHNSON V. BART 41

summary judgment to address her presence in the eyewitness

video. Federal Rule of Civil Procedure 56(e) or (f), Domenici

argues, requires the district court to permit her to respond to

what she characterizes as the district court’s sua sponte denial

of her motion for summary judgment. But the ability to

appeal any denial of summary judgment is the narrow

exception, not the rule. Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 106–07 (2009). Even if the district court made

a mistake in denying Domenici qualified immunity solely on

the basis of her presence on the platform at the conclusion of

a witness’s video, it is a mistake that can be sorted out later: 

either Domenici will prevail at trial, or she may appeal

following a trial in which she is found liable for the plaintiffs’

extended detentions. If the record then is similarly devoid of

evidence of her involvement, the matter will be resolved

easily in her favor. See Johnson, 515 U.S. at 316–17 (noting

that the courts of appeals can resolve, after trial, the factual

issues that are off-limits during interlocutory appeals of

denials of qualified immunity). We recognize that the entire

point of the doctrine of qualified immunity is to spare officers

the burden of unnecessary litigation, but we will not lightly

expand the basis on which any officer may appeal a denial of

qualified immunity just because of the possibility the district

court erred in this case. See id. at 315 (“We of course decide

appealability for categories of orders rather than individual

orders.”).

IV.

We conclude by returning to basic principles. “The

resolution of immunity questions,” like those presented by

these appeals, “inherently requires a balance between the

evils inevitable in any available alternative.” Harlow v.

Fitzgerald, 457 U.S. 800, 813 (1982). On one hand, culpable
42 JOHNSON V. BART

officials should not receive blanket immunity from liability;

on the other, officials who make reasonable mistakes while

trying to do their jobs should not bear the costs of

litigation—nor should the taxpayers underwriting the

officials’ defense. Id. at 814. Our society vests law

enforcement officers with the authority to carry and use

weapons and tactics that may injure, sometimes fatally,

people they suspect of committing crimes. Officers are given

a degree of responsibility concomitant with that grave

authority, with the expectation that they will exercise it

discerningly. Because of that expectation, the doctrine of

qualified immunity dictates that courts will not substitute

their judgment for the officers’ own in evaluating the

officers’ reactions to novel and dangerous situations. But

none of that means we abandon our expectation that the

police will discharge their duties professionally and

responsibly.

Bearing that expectation in mind, we are presented with

the plaintiffs’ account of facts in which one officer, Pirone,

responded to a call regarding a misdemeanor scrape on a

train—which concluded before he arrived—by pulling a

weapon on a group of men who were standing around talking. 

Pirone sought to intimidate the group, which he assumed may

have been responsible for the fight. Pirone then sought out

two of the men who walked away from him by pacing the

platform and screaming profanities in his search for them. 

The men were all handcuffed and held overnight—but never

charged with a crime—after another officer, Mehserle, shot

and killed one among them. It is possible that a jury will

conclude, after weighing all the facts, that the officers

committed no constitutional wrongs. But our task at this

stage in the litigation is not to attempt to weigh the facts and

resolve the issues definitively in favor of one party or
JOHNSON V. BART 43

another. It is instead to construe the facts in the manner most

favorable to the plaintiffs, who have a right to their day in

court, and then ask if our solicitude of the judgment of law

enforcement in this case requires us to shield the officers

from further participation in this lawsuit. (Even though “an

action for damages may offer the only realistic avenue for

vindication of constitutional guarantees.” Id. at 814.) 

Construing the facts in the plaintiffs’ favor, we agree largely

with the district court that the officers should stand trial for

the constitutional violations of which they are accused. 

Accordingly, we hold:

• Mehserle is not entitled to qualified immunity from Oscar

Grant, Jr.’s Fourteenth Amendment claim, and AFFIRM

the district court’s judgment;

• We lack jurisdiction to review the district court’s

judgment denying Mehserle qualified immunity from the

plaintiffs’ California Civil Code § 52.1 claim, and

DISMISS that portion of Mehserle’s appeal;

• Mehserle is entitled to qualified immunity from Fernando

Anicete, Jr.’s unlawful arrest claim, and REVERSE the

district court’s judgment;

• Because the district court relied improperly on Dubner in

denying Mehserle qualified immunity as to their extended

detention claims, its judgment is VACATED, and on

remand, the district court shall determine whether there is

any evidence that Mehserle is responsible for the

extended detentions of Fernando Anicete, Jr., Carlos

Reyes, or Nigel Bryson;
44 JOHNSON V. BART

• Mehserle is not entitled to qualified immunity from Jack

Bryson, Jr.’s unlawful arrest claim, and AFFIRM the

district court’s judgment;

• Pirone is not entitled to qualified immunity from Reyes’s,

the Brysons’, and Greer’s claim for unlawful detention,

and AFFIRM the district court’s judgment;

• Pirone is not entitled to qualified immunity from Reyes’s

and the Brysons’ claim for unlawful arrest, and AFFIRM

the district court’s judgment;

• Pirone is not entitled to qualified immunity from Michael

Greer’s unlawful arrest claim, and AFFIRM the district

court’s judgment; and

• To the extent the district court relied on Dubner to deny

Domenici immunity, its judgment is VACATED, and it

shall reconsider its decision on remand in accordance

with this opinion; beyond that, we lack jurisdiction to

review Domenici’s appeal.

• Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART,

VACATED IN PART, DISMISSED IN PART, AND

REMANDED.