FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIRSTIN JOHNSON; F.M.; M.D.M.; 

M.P.M.; V.M.; T.M., 

Plaintiffs-Appellants, 

 v. 

KIERSTIE BARR; SAMSON HUNG; 

MARINA CHACON; FLINT PAUL; 

CITY AND COUNTY OF SAN 

FRANCISCO, 

Defendants-Appellees.

No. 21-16547 

D.C. No. 3:20-

cv-01569-SK 

OPINION

Appeal from the United States District Court

for the Northern District of California

Sallie Kim, Magistrate Judge, Presiding

Argued and Submitted January 24, 2023

San Francisco, California

Filed July 6, 2023

Before: Ronald M. Gould, Johnnie B. Rawlinson, and 

Daniel A. Bress, Circuit Judges.
2 JOHNSON V. BARR

Opinion by Judge Gould; 

Partial Concurrence and Partial Dissent by

Judge Rawlinson 

SUMMARY*

Civil Rights / Qualified Immunity

In an action brought by Kirstin Johnson and her five 

minor children alleging federal and state law claims arising 

out of Johnson’s arrest, the panel affirmed the district court’s 

grant of summary judgment to the defendants—individual 

police officers and the City and County of San Francisco—

on Johnson’s federal claims based on qualified immunity; 

remanded to the district court Johnson’s state law claims for 

false arrest and negligence; affirmed the district court’s grant 

of summary judgment to the defendants on the remaining 

state law claims; and affirmed the district court’s denial of 

the motion to recuse. 

The panel first considered whether there was probable 

cause to arrest Johnson under the three statutes cited by 

defendants. The panel held that there was a jury question 

whether officers had probable cause to arrest Johnson. Some 

of the bases on which the defendants attempt to claim 

probable cause are not supported by the record. On the other 

hand, there were other facts, even when viewed in the light 

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

been prepared by court staff for the convenience of the reader.
JOHNSON V. BARR 3

most favorable to Johnson, that suggest defendants may have 

had probable cause to arrest Johnson.

However, Johnson’s federal claims are still subject to 

qualified immunity. In applying the qualified immunity 

analysis to claims of unlawful arrest, there is a two-step 

inquiry: whether there was probable cause for the arrest, and 

whether reasonable officers could disagree as to the legality 

of the arrest. The panel held that although a reasonable jury 

could find that defendants lacked probable cause to arrest 

Johnson, the defendants were entitled to qualified immunity 

because, even construing all facts in Johnson’s favor, the law 

did not clearly establish that probable cause was 

lacking. Johnson did not sufficiently show how her arrest 

violated a clearly established right to be free from an 

unlawful arrest when the undisputed evidence (under the 

probable cause analysis) presented before the district court 

does not show that every reasonable officer would be on 

notice that the actions taken by the defendants were 

unconstitutional. The facts supported the defendants’ 

assertion that no clearly established law prevented the 

officers from believing Johnson was in violation of either 

California Penal Code § 647(f), prohibiting public 

intoxication, or California Penal Code § 273a, prohibiting 

child endangerment. The panel held that qualified immunity 

applied in the context of either of these statutes, and that 

determination is sufficient to resolve Johnson’s 42 U.S.C. § 

1983 claims.

However, because the panel concluded that there was a 

jury question as to whether defendants had probable cause to 

arrest Johnson, the panel vacated the district court’s grant of 

summary judgment on Johnson’s state law false arrest and 

negligence claims, which were premised on a finding that 

probable cause existed as a matter of law. The panel 
4 JOHNSON V. BARR

remanded the vacated state law claims to the district court 

for further proceedings. On remand, because there is no 

longer any federal claim in this case, the district court may 

determine, under its discretion, whether to retain 

supplemental jurisdiction over the remaining state law 

claims or to remand the case to state court.

Finally, the panel considered the motion to disqualify or 

recuse Magistrate Judge Kim. To prevail, the party filing the 

motion must show extrajudicial bias or prejudice. In 

granting a confidentiality designation for all parts of 

bodycam footage showing Johnson’s children, Judge Kim 

wrote that Johnson’s actions were “disturbing.” Johnson 

filed a motion to recuse or disqualify Judge Kim, and Judge 

Donato denied the motion. The panel affirmed the district 

court and held that Judge Donato did not abuse his discretion 

in denying the recusal motion.

Concurring in part and dissenting in part, Judge 

Rawlinson concurred with the holding that the officers in 

this case were entitled to qualified immunity on Johnson’s 

federal claims. She dissented with the treatment of the state 

law claims. Rather than vacating the district court’s grant of 

summary judgment on some state law claims, she would 

vacate the district court’s grant of summary judgment on the 

state law claims in its entirety. She would then remand for 

the district court to decide, in the first instance, whether to 

continue to exercise supplemental jurisdiction over the state 

law claims.
JOHNSON V. BARR 5 

COUNSEL

Ben Rosenfeld (argued), Law Office of Dennis 

Cunningham, San Francisco, California; Gerald B. 

Singleton, Singleton Schreiber LLC, San Diego, California; 

for Plaintiffs-Appellants. 

Kaitlyn M. Murphy (argued), Renee E. Rosenblit, and 

Rebecca Bers, Deputy City Attorney; Meredith B. Osborn, 

Chief Trial Deputy; David Chiu, City Attorney; Office of the 

San Francisco City Attorney; San Francisco, California; for 

Defendants-Appellees.

OPINION

GOULD, Circuit Judge: 

Plaintiff-Appellant Kirstin Johnson (“Johnson”), on 

behalf of herself and her five minor children, appeals the 

district court’s grant of summary judgment in favor of the 

individual defendant police officers and the City and County 

of San Francisco (“Defendants”). This case arises out of the 

arrest of Johnson in San Francisco on January 31, 2019. The 

district court granted summary judgment in favor of 

Defendants on Johnson’s federal 42 U.S.C. § 1983 claims 

and state law claims, concluding that officers had probable 

cause to arrest Johnson. Alternatively, the district court held 

that Defendants were entitled to qualified immunity on 

Johnson’s § 1983 claims. We have jurisdiction under 28 

U.S.C. § 1291 to review final decisions of the district court. 

We review de novo the grant of summary judgment, Animal 

Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 

988 (9th Cir. 2016) (en banc), and review pursuant to 
6 JOHNSON V. BARR

Federal Rule of Civil Procedure 56(c), under which the 

contested evidence is viewed in the light most favorable to 

the nonmoving party, in this case Johnson. As part of the 

summary judgment review, we also review the district 

court’s qualified immunity determination de novo. Hughes 

v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022). We affirm 

the district court’s grant of summary judgment to the 

Defendants on Johnson’s federal claims based on qualified 

immunity. Because we hold that the question of whether 

police officers had probable cause is properly a question for 

the jury, we remand to the district court Johnson’s state law 

claims for false arrest and negligence. We affirm the district 

court’s grant of summary judgment to the Defendants on the 

remaining state law claims. We also affirm the district 

court’s denial of the motion to recuse.

I. Background

Johnson was arrested on January 31, 2019, after an 

encounter with several members of the San Francisco Police 

Department, including the named individual defendants. 

Johnson brought several federal claims under 42 U.S.C. § 

1983 stemming from her alleged unlawful and unreasonable 

arrest and subsequent separation from her children. Johnson 

also brought state law claims based on her alleged unlawful 

arrest.

In any case involving probable cause or the invocation 

of qualified immunity as a defense, we must carefully 

consider the facts that led to the action in question. In this

case, we draw not just on the factual allegations in the 

amended complaint, but also the body camera footage 

(“bodycam footage”) submitted by both parties to determine 

if there is a “genuine dispute as to any material fact” as 

required under Federal Rule of Civil Procedure 56. We have 
JOHNSON V. BARR 7

carefully reviewed the bodycam footage submitted in the 

excerpts of record. The summary below is not intended to 

be a comprehensive retelling of every event that occurred, 

but should assist a reader in evaluating the claims asserted 

and their disposition.

A. Johnson’s Arrest

On January 31, 2019, at around 9:00 pm, Lieutenant

Marina Chacon and Officer Kierstie Barr approached 

Johnson, her four children, and another woman as Johnson 

and the other woman talked near Johnson’s van, parked on a 

street adjoining Dolores Park in San Francisco, California. 

Officer Barr initiated the conversation with Johnson by 

introducing herself and stating that she was “just coming 

over here to check on [Johnson and her kids].” Officer Barr 

asked Johnson if she was doing alright, and Johnson smiled 

and said “yes.” Officer Barr later asked to speak with 

Johnson privately. Officer Barr then explained that someone 

had called in because of a concern about Johnson’s partner, 

and asked if Johnson knew where he was. Johnson stated 

that “he went for a walk, I’m not sure.” 

Officer Barr asked if Johnson had consumed any drugs 

or alcohol, reassuring Johnson that she “was not in any 

trouble, not in any trouble at all.” Johnson responded, “I’m 

good.” Officer Barr explained that she was asking because 

Officer Barr could “smell something,” presumably on 

Johnson’s breath or body. At that point, an unidentified man 

arrived to alert Officer Barr to an intoxicated man with a 

child nearby. When one of the officers mentioned that 

Johnson had previously said that her husband had gone for a 

walk, Johnson added, “He went on a walk, but I didn’t know 

where he was, though whenever you said that I saw him up 

there playing basketball with our son.” During this time, 
8 JOHNSON V. BARR

Johnson explained that they do not “live around here” and 

that they live “up north.”

One of the officers then asked Johnson, “Do you have 

any ID on you?” to which Johnson responded “absolutely” 

and produced the document after a short search. Johnson 

explained that they had come to San Francisco “on this 

adventure, but then [her] husband started drinking.” Officer 

Barr asked what else had happened and said that Johnson 

“had been drinking clearly,” to which Johnson responded 

“Yeah, I’ve been drinking a little bit.” Officer Barr asked 

how much Johnson had been drinking, but Johnson did not 

answer the question. Lieutenant Chacon then asked Johnson 

where they were headed, and Johnson responded that they 

“were going to get a hotel room.” 

Johnson asked to speak with Officer Barr about “what 

[Johnson] should do and what is going on.” Officer Barr 

asked Johnson to wait, and eventually said to Lieutenant

Chacon that Johnson was “811,” which refers to an

intoxicated individual. When backup officers arrived, 

Lieutenant Chacon left to brief the other officers, including 

Sergeant Flint Paul, and told the other officers that the dad 

is “811” and that the “mom is also 811.”

In response to more questions from Officer Barr, 

Johnson stated that she had a “mixed drink earlier” but did 

not elaborate. When Officer Barr asked Johnson when she 

started drinking, Johnson replied, “It’s not that I don’t know, 

but like, I really don’t feel that like—if I answer any of your 

questions right now, I don’t feel like you have my heart at 

interest, so I don’t really feel like as though I should answer 

any of your questions, because I don’t feel like you are 

looking at me with eyes of love. . . . I feel like [Lieutenant

Chacon] looks at me a little bit more like a mother, and so I 
JOHNSON V. BARR 9

feel like it’s hard for me to answer your questions –” At that 

point, Officer Barr got a request to assist in the arrest of 

Johnson’s husband and left, at which point Johnson became

visibly animated at the fact that her husband was being 

arrested.

Johnson stated to Lieutenant Chacon, who remained 

with Johnson, “Listen, my husband is a doctor, he’s an 

emergency room [trails off]. He doesn’t drink, we don’t do 

this stuff ever.” Shortly thereafter, Johnson became 

animated when she saw that someone she did not know was

holding her infant. Johnson exclaimed, while speaking with

Lieutenant Chacon, “Oh, oh, that’s my baby, that’s my baby.

Oh, please please please ask this man to give me my child, 

please ask this man to give me my child . . . por favor.” At 

the same time that Johnson was making these statements,

Officer Hung was speaking with another officer and an 

apparent civilian about not being able to hold a baby 

correctly. Officer Hung handed the baby to a civilian for 

about a minute. Lieutenant Chacon told Johnson, “Your 

husband was up there. [Johnson: “playing basketball”] He’s 

intoxicated with your infant. [Johnson: “I know, I know, 

I’ve been trying to control him, but I’m a person and I cannot 

control another person. I have asked repeatedly that he listen 

to me, he is not listening to me . . . throughout the night.”]” 

Lieutenant Chacon repeatedly told Johnson that she needed

to calm down because her kids were watching. 

During Johnson and Lieutenant Chacon’s conversation, 

one of Johnson’s children came toward the pair crying, 

leading Johnson to state to Lieutenant Chacon, “Please stop, 

please do not let these people—you don’t understand how 

much you will hurt my children, keep them away from my 

kids please.” Lieutenant Chacon responded, “They’re not 

taking your children.” Sergeant Paul came to consult with 
10 JOHNSON V. BARR

Lieutenant Chacon, and Sergeant Paul stated, “obviously 

they’re going to go to [Child Protective Services],” to which 

Chacon agreed. They also agreed on the need to go to the 

station.

Another officer now on the scene, Officer Roman, asked 

for Johnson’s ID. Johnson responded that she gave the ID to 

another officer, to which Officer Roman said, “That’s ok.” 

Johnson continued to express concern for her infant who was 

now being held by Officer Hung.

The officers at the scene began to arrange Johnson’s van 

to transport the children to the police precinct. Lieutenant

Chacon asked Johnson if she had car seats in the van, to 

which Johnson responded “yes,” explaining that she had 

enough seats for the children. Johnson further explained that 

most of the car seats were in the back of the van and that 

“[they] move them around because it’s kind of like a 

playhouse.” Johnson asked if she “could see the rest of the 

kids.” Officer Roman said that her kids are fine and 

mentioned that Officer Hung had her infant. Johnson 

responded, “I know, I would like to see my baby” and got

visibly emotional.

Sergeant Paul told Johnson that they were all going back 

to the station where it was safer and off the street, to which 

Johnson replied at varying points, “Yes sir” and “I 

understand.” Sergeant Paul asked for Johnson’s permission 

to allow police officers to drive her children back to the 

station in their van, to which Johnson responded “Okay.” 

Sergeant Paul then mentioned that they would be separating 

Johnson from her children and would have Johnson ride with 

her husband in a police car. Johnson responded that she was 

not sure if one of her children would be comfortable riding 

back “without Mommy,” to which Sergeant Paul responded 
JOHNSON V. BARR 11

that he required Johnson’s assistance in making things “go 

as smooth as possible.” Johnson began to comfort her 

children as requested by Sergeant Paul. Johnson then 

warned the officers that her infant would not like being 

placed in a car seat, to which Sergeant Paul responded, 

“Well, most of us are parents, we have dealt with squirrely 

kids before. Thank you very much.”

The officers began asking questions regarding the 

arrangement of the car seats. During Johnson’s explanation, 

Johnson’s children can be heard crying. Johnson asked to 

nurse her child, a request denied by Officer Barr, who stated, 

“You told me you were intoxicated . . . I’m not going to let 

you be able to nurse your child.” Johnson responded, “First 

off, I never said I was intoxicated. . . .”

Sergeant Paul and an animal care and control officer 

spoke with Johnson as Sergeant Paul noted that Johnson had 

“handed her dog off to a person walking down the street.” 

Johnson began to explain that “was part of the reason we 

came to San Francisco, we had . . .” but Sergeant Paul cut 

Johnson off and asked if she would like to “surrender [her]

dog to Animal Care and Control.” Sergeant Paul left 

Johnson to speak with the animal care and control officer. 

Johnson approached the van again, as one of her children 

appeared to be crying. Johnson again requested to nurse her 

child, stating that “My infant is crying, he needs to nurse.” 

After a request from Officer Ospital to step back, Johnson 

stepped to the back of her van, followed by Officer Ospital. 

Johnson said that she was “grabbing some coconut water.” 

Officer Ospital replied, “OK, just do me a favor and get back 

on the sidewalk though, OK? Your kids are going to be taken 

care of.” Johnson asked how her children were being taken 

care of “if you aren’t even letting me touch my child.”
12 JOHNSON V. BARR

At that point, the animal care and control officer asked if

Johnson had an ID and requested to see it. Johnson 

responded by stating “I absolutely do” but then asked if it 

was “necessary” to provide her ID. The animal control 

officer responded by stating, “Yes, it is” and Johnson asked

Sergeant Paul if she “would go to jail if I don’t give it to this 

gentleman?” Sergeant Paul responded, “You need to give it 

to him,” and Johnson reiterated her question to Paul and 

stated that she “would gladly give it to [Sergeant Paul].” 

After further discussion, Sergeant Paul stated, “I would like 

have your ID.” After Johnson continued to speak, Sergeant

Paul told Johnson, “Why don’t you go ahead and put the lid 

back on there,” referring to her coconut water. In response, 

Johnson took a swig of her coconut water. Sergeant Paul 

reached for her coconut water, leading Johnson to jerk back. 

Sergeant Paul said, “Ma’am, your kids are watching. . . 

[unclear dialogue] All you have to do is calm down.” 

Sergeant Paul then arrested Johnson, while Johnson 

continued to protest loudly that she “was not doing anything 

wrong.”

B. Subsequent Events

The police officers took Johnson and her children to the 

local police station in separate vehicles, with the children in 

Johnson’s van accompanied by at least one of the officers. 

At the station, Johnson was booked on one misdemeanor 

count of public intoxication in violation of California Penal 

Code § 647(f) and five counts (for each of her children) of

felony child endangerment under California Penal Code § 

273a(a). Also, in the police report, Johnson’s actions were 

classified as resisting, delaying, or obstructing a peace 

officer under California Penal Code § 148(a)(1), and 

although Johnson was not booked under that charge, the 

Defendants point to this statute as an alternative source of 
JOHNSON V. BARR 13

probable cause. Meanwhile, Johnson’s children were placed

in the custody of Family and Children Services. As Johnson 

was visiting San Francisco from Mendocino County, her

children were eventually placed in the custody of the 

Mendocino County Family and Children Services and 

transported to Ukiah, California, a town north of San 

Francisco.

Johnson and her husband each paid $20,000 in nonrefundable bail bonds and were released the next day. The 

two retrieved their van from South San Francisco, picked up 

the husband’s parents in Santa Cruz as a condition of the 

children’s release, and subsequently drove up to Ukiah to 

retrieve their children, who were released into their custody 

soon after. The District Attorney declined to prosecute 

Johnson and her husband and dropped all charges.

C. Procedural History

Johnson and her husband initially filed suit in San 

Francisco Superior Court on October 25, 2019. In their 

complaint, Johnson and her husband brought the following 

federal claims under 42 U.S.C. § 1983: unlawful and 

unreasonable arrest under the Fourth Amendment, 

interference with and retaliation against free exercise of 

expression under the First Amendment, unlawful and 

unreasonable search and seizure under the Fourth 

Amendment, and deprivation of due process under the 

Fourteenth Amendment. Johnson and her husband also

alleged state law claims of false arrest and imprisonment, 

intentional and negligent infliction of emotional distress, 

Bane Act violations, trespass to chattels, and negligence. 

The case was removed to the Northern District of California 

by the Defendants, and the parties stipulated to dismiss all 

claims by Johnson’s husband and claims against some 
14 JOHNSON V. BARR

Defendants. During discovery, Johnson filed a motion to 

recuse or disqualify Magistrate Judge Kim based on 

statements Judge Kim made during proceedings related to a 

motion to keep the bodycam footage confidential. Judge 

Donato, to whom the motion was referred, denied the 

motion.

Defendants moved for summary judgment on May 28, 

2021. After briefing and a hearing, Judge Kim granted 

summary judgment on August 24, 2021 to Defendants on the 

basis of a finding of probable cause, and alternatively, on the 

basis of qualified immunity. This timely appeal followed.

II. Standards of Review

We review de novo the grant of summary judgment. 

Animal Legal Def. Fund, 836 F.3d at 988. Pursuant to 

Federal Rule of Civil Procedure 56(c), we “view the 

evidence in the light most favorable to the nonmoving party, 

determine whether there are any genuine issues of material 

fact, and decide whether the district court correctly applied 

the relevant substantive law.” Id. On summary judgment, 

we also review the district court’s qualified immunity 

determination de novo. Hughes, 31 F.4th at 1218. We can 

also affirm on any ground supported by the record even if 

not explicitly relied upon by the district court. CFPB v. 

Gordon, 819 F.3d 1179, 1187 (9th Cir. 2016).

Under our precedent in Act Up!/Portland v. Bagley, the 

threshold “determination of whether the facts alleged could 

support a reasonable belief in the existence of probable cause 

. . . is [] a question of law to be determined by the court.” 

988 F.2d 868, 873 (9th Cir. 1993); see also Peng v. Mei Chin 

Penghu, 335 F.3d 970, 979–80 (9th Cir. 2003). We look to 

state law (in this case California state law) to determine 
JOHNSON V. BARR 15

“[w]hether an officer is authorized to make an arrest.” 

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).

The denial of a motion to disqualify the assigned judge 

is reviewed for abuse of discretion. Thomassen v. United 

States, 835 F.2d 727, 732 (9th Cir. 1987).

III. Discussion

Three main questions arise in this dispute: (1) whether 

there was probable cause to arrest Johnson under either of 

the three statutes cited by Defendants; (2) whether the 

Defendants were entitled to qualified immunity as to the 

federal claims; and (3) whether the district court erred in 

denying Johnson’s motion to recuse or disqualify Judge 

Kim. We affirm the district court’s grant of summary 

judgment on the federal claims on the grounds of qualified 

immunity, remand some of the state law claims, and affirm 

the district court’s denial of the motion to recuse Judge Kim.

A. Probable Cause

In evaluating the record, we note that there is a 

substantial question whether the facts, when evaluated in the 

light most favorable to Johnson, would permit a grant of 

summary judgment in favor of Defendants on the issue of 

whether there was probable cause to arrest Johnson. We 

have previously stated that we must “examine whether the 

facts and circumstances within the officer’s knowledge are 

sufficient to warrant a prudent person to believe a suspect 

has committed, is committing, or is about to commit a 

crime.” United States v. Willy, 40 F.4th 1074, 1080 (9th Cir. 

2022) (quoting United States v. Valencia, 24 F.3d 1106, 

1108 (9th Cir. 1994)). 

Here, whether officers had probable cause to arrest 

Johnson presents a jury question. On the one hand, there are 
16 JOHNSON V. BARR

some facts that suggested the absence of probable cause, 

because they supported “mere suspicion, common rumor, or 

even strong reason to suspect,” but did not necessarily rise

to the legal standard for probable cause. Harper v. City of 

Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008) (quoting 

McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)).

Some of the bases on which the Defendants attempt to claim 

probable cause are not supported by the record. For 

example, although the Defendants contend that Johnson had 

no plans for where to stay for the night, Johnson did express 

that they were going to obtain a hotel room. Other 

explanations, such as Johnson’s children being up late that 

night (the incident occurred around 9:00 pm) and one of her 

children wearing short sleeves on a night when the 

temperature was in the 50s, are by themselves not sufficient 

to meet the legal standard for probable cause for an arrest for 

child endangerment or public intoxication. Additionally, 

although Johnson was understandably upset at times while 

interacting with the police officers, it is not apparent from 

the videos, when viewing the evidence in the light most 

favorable to Johnson as required under FRCP 56(c), that 

Johnson is intoxicated, and she generally responded to the 

officers’ requests in a coherent way.

On the other hand, there were other facts, even when 

viewed in the light most favorable to Johnson, that suggest 

Defendants may have had probable cause to arrest Johnson. 

First, for example, at least one officer reported the smell of 

alcohol on Johnson’s breath, as evidenced in both the 

bodycam footage and the Defendants’ documentation after 

the arrest. Second, as another example, Johnson herself 

admitted to having a drink at some indeterminate time 

earlier. Third, the family van used to transport Johnson’s 

children was in disarray: there were unsealed bottles of 
JOHNSON V. BARR 17

alcohol in the van, potentially within reach of the children, 

and the car seats were not installed. Although Johnson is 

correct that we view the facts in the light most favorable to 

the nonmoving party, Johnson cannot dispute certain facts, 

such as her prior admission to having a drink and the 

presence of alcohol containers in the van.

We hold that on the record at summary judgment, “the 

evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986).

However, under the Supreme Court’s precedent, 

Johnson’s federal claims are still subject to qualified 

immunity.

B. Qualified Immunity

The two steps in the qualified immunity analysis are (1) 

“whether the facts that a plaintiff has alleged . . . or shown . 

. . make out a violation of a constitutional right” and (2) 

“whether the right at issue was ‘clearly established’ at the 

time of defendant’s alleged misconduct.” Pearson v. 

Callahan, 555 U.S. 223, 232 (2009) (internal citations 

omitted). The rationale of the Pearson Court in changing the 

rigid two-step procedure adopted in Saucier v. Katz, 533 

U.S. 194 (2001), guides our analysis in this case: “[T]he 

rigid Saucier procedure . . . sometimes results in a substantial 

expenditure of scarce judicial resources on difficult 

questions that have no effect on the outcome of the case.” 

555 U.S. at 236-37. The Supreme Court has also made clear 

that we must not “define clearly established law at a high 

level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 

(2018) (quoting City & Cnty. of San Francisco, Calif. v. 

Sheehan, 575 U.S. 600, 613 (2015)). We hold that 

regardless of whether there was a violation of Johnson’s 
18 JOHNSON V. BARR

constitutional rights, Johnson did not show that the right at 

issue was clearly established at the time of the case.

We have recognized that “[i]n the context of a § 1983 

action, a Fourth Amendment violation occurs when a person 

is arrested ‘without probable cause or other justification.’” 

Vanegas v. City of Pasadena, 46 F.4th 1159, 1164 (9th Cir. 

2022) (quoting Lacey v. Maricopa Cnty., 693 F.3d 896, 918 

(9th Cir. 2012) (en banc)). We also have stated that “[w]here 

the officers’ entitlement to qualified immunity depends on 

the resolution of disputed issues of fact in their favor, and 

against the non-moving party, summary judgment is not 

appropriate.” Wilkins v. City of Oakland, 350 F.3d 949, 956 

(9th Cir. 2003). In applying the qualified immunity analysis 

to claims of unlawful arrest, we have summarized the twostep qualified immunity inquiry as “(1) whether there was 

probable cause for the arrest; and (2) whether it is reasonably 

arguable that there was probable cause for arrest—that is, 

whether reasonable officers could disagree as to the legality 

of the arrest such that the arresting officer is entitled to 

qualified immunity.” Rosenbaum v. Washoe Cnty., 663 F.3d 

1071, 1076 (9th Cir. 2011) (emphasis in original).

We hold here that although a reasonable jury could find 

that Defendants lacked probable cause to arrest Johnson, the 

Defendants are entitled to qualified immunity because, even 

construing all facts in Johnson’s favor, the law did not 

clearly establish that probable cause was lacking. This 

reasonable officer standard for qualified immunity differs 

from the prudent person standard guiding our probable cause 

for arrest analysis. See Willy, 40 F.4th at 1080. Although 

officers might seem to lack probable cause under the prudent 

person standard, especially when we evaluate their actions 

post hoc, a reasonable officer on the ground might perceive 

the situation differently. An officer would not be on notice 
JOHNSON V. BARR 19

that his or her action was unreasonable unless “all reasonable 

officers would agree that there was no probable cause in this 

instance.” Rosenbaum, 663 F.3d at 1078. In so holding, we 

do not put aside our responsibility to determine unlawful and 

unconstitutional behavior, but rather recognize the purposes 

for which qualified immunity exists and Johnson’s failure to 

meet the burden required to defeat qualified immunity under 

Supreme Court and circuit precedent. See Pearson, 555 U.S.

at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640 

n.2 (1987)) (citing the need to protect government officials 

from the burdens associated with discovery and trial for 

behavior that is not clearly unconstitutional).

Here, Johnson did not sufficiently show how her arrest 

violated a clearly established right to be free from an 

unlawful arrest when the undisputed evidence (under the 

probable cause analysis) presented before the district court 

does not show that every reasonable officer would be on 

notice that these actions were unconstitutional.

The broader availability of bodycam footage allows for 

prompt and accurate resolutions of motions for summary 

judgment. Footage that has been properly introduced into 

the record can eliminate ambiguities that might otherwise 

have precluded a grant of summary judgment. In other 

cases, the footage could show sufficient evidence of police 

misconduct that could prevent a grant of summary judgment 

in favor of the Defendants. In this case, the bodycam footage 

verifies Johnson’s claim that she did not admit to being 

drunk, but the bodycam footage also makes clear that 

Johnson did tell a police officer that she had had a mixed 

drink earlier in the day and that was reinforced by the 

contemporaneous observation by a police officer that 

Johnson smelled like alcohol. Additionally, the existence of 

unsealed alcohol containers in the car, which Johnson 
20 JOHNSON V. BARR

similarly does not dispute (focusing instead on the location 

of the bottles), weighs heavily against Johnson. These facts, 

in addition to the other facts indicated above in the previous 

section on probable cause, support the Defendants’ assertion 

that no clearly established law prevented the officers from 

believing Johnson was in violation of either California Penal 

Code § 647(f) prohibiting public intoxication or California 

Penal Code § 273a prohibiting child endangerment. 

Johnson did not adequately identify cases that indicated 

that the Defendants’ actions in arresting Johnson were

clearly prohibited. As the Supreme Court has stressed, “An 

officer ‘cannot be said to have violated a clearly established 

right unless the right’s contours were sufficiently definite 

that any reasonable official in the defendant’s shoes would 

have understood that he was violating it.’” Kisela, 138 S. Ct. 

at 1153 (quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79 

(2014)). 

The cases that Johnson cites, namely Rosenbaum v. 

Washoe County, 663 F.3d 1071 (9th Cir. 2011), are 

inapposite and relying upon them would violate the Supreme 

Court’s mandate that rights should not be defined at a high 

level of generality. In Rosenbaum, we held that a reasonable 

officer could not have found the plaintiff’s actions to be 

outlawed under an unambiguous statute that did not 

criminalize the acts in question, and therefore reliance on the 

reasonable officer standard was inappropriate. 663 F.3d at 

1078-79. However, the actions and other facts identified by 

the Defendants in support of their probable cause analysis 

arguably could support probable cause, and a plain reading 

of the public intoxication and child endangerment statutes 

does not demonstrate that a reasonable officer should have 

known that Johnson’s actions were clearly not prohibited. 

The other cases Johnson cites involve fact patterns related to 
JOHNSON V. BARR 21

a child’s removal from a home, which is a situation not 

present here. See, e.g., Rogers v. Cnty. of San Joaquin, 487 

F.3d 1288, 1295 (9th Cir. 2007). We hold that in the absence 

of any other cases that would place Defendants on notice that 

their actions were unreasonable or other arguments such as 

those advanced by the plaintiffs in Rosenbaum regarding the

inapplicability of statutes in question to Johnson’s specific 

circumstance, qualified immunity must apply to the 

Defendants for their federal claims.

Because we hold that qualified immunity applies in the 

context of either the child endangerment or public 

intoxication statutes, that determination is sufficient to 

resolve Johnson’s § 1983 claims. It is not necessary to 

analyze the resisting, delaying, or obstructing a peace officer 

statute under California Penal Code § 148(a)(1).

However, because we conclude there is a jury question 

as to whether Defendants had probable cause to arrest 

Johnson, we vacate the district court’s grant of summary 

judgment on Johnson’s state law false arrest and negligence 

claims, which were premised on a finding that probable 

cause existed as a matter of law.1 See Johnson v. Bay Area 

Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013) 

1 We affirm the district court’s grant of summary judgment on Johnson’s 

intentional infliction of emotional distress, Bane Act, and trespass to 

chattels claims. Defendants argue those claims can be rejected on 

alternative grounds unrelated to probable cause. We conclude those 

alternative grounds are supported in the record. The trespass to chattels 

claims fails because of Johnson’s failure to comply with the California 

Government Claims Act, Cal. Gov’t Code §§ 900 et seq, or alternatively, 

under the community caretaker doctrine. The Bane Act claim fails 

because Johnson did not show that officers had the requisite specific 

intent. The IIED claim fails because the officers’ conduct was not 

extreme or outrageous.
22 JOHNSON V. BARR

(“[T]he doctrine of qualified immunity does not shield 

defendants from state law claims.”). We remand the vacated

state law claims to the district court for proceedings 

consistent with this ruling.2 

C. The Motion to Disqualify or Recuse Magistrate 

Judge Kim

To prevail on a motion to disqualify a judge, the party 

filing the motion must show extrajudicial bias or prejudice.

3

We review the district court’s decision for abuse of 

discretion. Thomassen v. United States, 835 F.2d 727, 732 

(9th Cir. 1987). 

The Defendants, in the course of discovery, produced 

videos of the incident and proposed to designate the videos 

as confidential, while Johnson contended that the bodycam 

footage should be freely available to the public. Judge Kim 

granted a confidentiality designation for all parts of the 

footage showing the children. Judge Kim acknowledged 

that while she had not reviewed all bodycam footage, she 

was open to potentially revising the confidentiality 

designations in the future. Judge Kim wrote, “The minor 

Plaintiffs may suffer embarrassment or harm if these images 

are shown in the public, as images once made public cannot 

2 Although the partial concurrence and partial dissent disagrees with our 

treatment of the state law claims, we note that the district court had 

already exercised its discretion to exercise supplemental jurisdiction 

over the state law claims under 28 U.S.C. § 1367(c) (stating that the 

“district courts may decline to exercise supplemental jurisdiction”) 

(emphasis added). The state law claims are therefore properly before us, 

and we can review the merits of these claims.

3 The language of one of the applicable statutes, 28 U.S.C. § 455(a), 

covers both actual bias and the appearance of bias or prejudice. See 

Liteky v. United States, 510 U.S. 540, 548 (1994).
JOHNSON V. BARR 23

be recalled, and the failure of the minor Plaintiffs’ parents to 

protect them from this harm is disturbing.” Johnson

challenged the portrayal of her actions as “disturbing,” and 

filed another motion to recuse or disqualify Judge Kim. That 

latter motion was randomly reassigned to Judge Donato, 

who denied the motion, viewing Judge Kim’s statement as 

appropriate in context because of Judge Kim’s responsibility 

to safeguard the well-being of minor children. See Robidoux 

v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (detailing 

the “special duty” of a district court “to safeguard the 

interests of litigants who are minors”).

We affirm the district court and hold that Judge Donato 

did not abuse his discretion in denying the recusal motion. 

There is no proper basis to require recusal.

IV. Conclusion

We affirm the district court’s grant of summary 

judgment to the Defendants on Johnson’s federal claims on 

the basis of qualified immunity. We also affirm the district 

court’s grant of summary judgment on some of Johnson’s 

state law claims (the Bane Act, trespass to chattels, and 

intentional infliction of emotional distress claims). Because 

we hold that the question of whether the Defendants had 

probable cause is properly one for a jury, we vacate the 

district court’s grant of summary judgment on Johnson’s 

state law claims of negligence and false arrest and 

imprisonment. On remand, as there is no longer any federal 

claim in this case, the district court may determine, using its 

sound discretion, whether to retain supplemental jurisdiction 

over the remaining state law claims or to remand this case to 

state court. 28 U.S.C. § 1367(c); see Arroyo v. Rosas, 19 

F.4th 1202, 1210 (9th Cir. 2021) (quoting the statute and 

applying the abuse of discretion standard to evaluate the 
24 JOHNSON V. BARR

district court’s decision to decline to exercise supplemental 

jurisdiction). We also affirm the district court’s denial of the 

recusal motion. Each party shall bear its own costs.

AFFIRMED in part, VACATED in part, and 

REMANDED for proceedings consistent with this 

opinion.

Rawlinson, Circuit Judge, concurring in part and dissenting 

in part: 

I join my esteemed colleagues in concluding that the 

officers in this case were entitled to qualified immunity. 

However, I disagree with my colleagues’ treatment of the 

state law claims. Rather than vacating the district court’s 

grant of summary judgment on some state law claims and 

affirming the grant of summary judgment on other state law 

claims, I would vacate the district court’s grant of summary 

judgment on the state law claims in its entirety. I would then

remand for the district court to decide, in the first instance, 

whether to continue to exercise supplemental jurisdiction 

over the state law claims.

This approach has strong support in our precedent. In 

Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1258 

(9th Cir. 2016), the plaintiff alleged claims for wrongful 

discharge under state law and “a variety of other state law 

claims.” She also alleged “that her First Amendment rights 

were infringed, [and] that she was retaliated against for 

exercising such rights.” Id. The claims were initially filed 

in Washington state court. See id. Following removal to 

federal court and discovery, the federal district court granted 

summary judgment in favor of the defendants on the state 
JOHNSON V. BARR 25

law claims. See id. On appeal to this court, the plaintiff 

“contend[ed] that the district court improperly granted 

summary judgment on her claim under Washington law for 

wrongful discharge against public policy.” Id. at 1265. 

Because an intervening decision of the Washington Supreme 

Court had overruled the decision upon which the federal 

district court relied in granting summary judgment on the 

wrongful discharge claim, we vacated that ruling. See id. 

We remanded to the district court for consideration of the 

wrongful discharge claim in light of the intervening decision 

from the Washington Supreme Court. See id. However, 

because “we affirm[ed] the district court’s grant of summary 

judgment with respect to [the plaintiff’s] claim under federal 

law,” we concluded that “the district court should first

consider whether to continue to exercise its supplemental 

jurisdiction” over the state law claim. Id. (citation omitted) 

(emphasis added); see also Acri v. Varian Assocs., Inc., 114 

F.3d 999, 1001 (9th Cir. 1997) (en banc) (“[W]e emphasize 

that actually exercising discretion and deciding whether to 

decline, or to retain, supplemental jurisdiction over state law 

claims . . . is a responsibility that district courts are dutybound to take seriously. . . .”) (citation omitted) (emphases

added).

The majority’s decision remands the state law claims to 

the district court without “first” allowing the district court to 

consider whether to continue to exercise its supplemental 

jurisdiction over the state law claims. Coomes, 816 F.3d at 

1265. Because the majority’s approach usurps the 

discretionary authority of the district court to decide 

“whether to continue to exercise its supplemental 
26 JOHNSON V. BARR

jurisdiction,” id., I respectfully dissent from that portion of 

the majority opinion.1

1

The majority concludes that the state law claims are properly before us 

because “the district court had already exercised its discretion to exercise 

supplemental jurisdiction over the state law claims.” Majority Opinion, 

p. 22 n.2. But the district court has not had the opportunity to exercise its 

discretion to determine “whether . . . to retain supplemental jurisdiction 

over state law claims” following remand. Acri, 114 F.3d at 1001 

(citation and punctuation omitted) (emphasis added); see also Coomes, 

816 F.3d at 1265 (“[T]he district court should first consider whether to 

continue to exercise its supplemental jurisdiction” over the state law 

claim.) (citation omitted) (emphasis added).