Wednesday, July 18, 2007
Man Claiming He Was Strip-Searched Gets New Trial
By KENNETH OFGANG, Staff Writer
A man who claims that a San Francisco police officer looked inside his underwear during a search following his arrest for trespass at a public housing project is entitled to a new trial on his Fourth Amendment claims of unlawful arrest and unreasonable search, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Richard A. Paez, writing for the court, said U.S. District Judge William Alsup of the Northern District of California was in error in granting judgment to the city and the officers as a matter of law on Erris Edgerly’s claims under 42 U.S.C. Sec. 1983.
The court, however, upheld an award of attorney fees against Edgerly and his attorney for pursuing what Alsup said was a frivolous claim against a police sergeant who was the supervisor of the arresting officers but had no knowledge of the arrest or the search until after they had taken place.
Edgerly was arrested while in a gated area of the King/Garvey Housing Cooperative after he told police he was “just chilling” or that he was waiting for a resident. His statements as to what he was doing there were contradictory, but the discrepancies do not affect the legal outcome, Paez explained in a footnote to the opinion.
After being searched, with no contraband being found, he was released and cited for trespass, but no charges were ever filed.
Edgerly testified that Officer David Goff asked him to remove his shoes and socks, pull his pants down to his ankles, and bend over and cough. He also testified that Goff looked inside his boxer shorts before telling him that he could get dressed.
Goff and his partner, however, testified that Goff conducted only a routine clothing search.
Edgerly originally sued in San Francisco Superior Court, but the action was removed to federal court. There, Alsup granted summary judgment in favor of the supervisor, Sgt. Frederick Schiff, and in favor of the city on the claim that it followed a policy or practice that resulted in the violation of federally protected rights, but allowed the case to go to trial against the arresting officers.
At the close of the evidence, however, the judge ruled that the officers had probable cause for the arrest, that the search was reasonable, and that even if the arrest and/or search was unlawful, the officers acted in good faith and were entitled to qualified immunity.
The appellate panel, however, said that all of the dispositive rulings, except for the summary judgment in favor of Schiff, were erroneous.
The arrest was unlawful under any interpretation of the evidence, Paez said, because Edgerly’s mere presence inside the gate would not have caused a reasonable officer to believe a crime was being committed.
Edgerly could not have been violating Penal Code Sec. 602(l)—now Sec. 602(m)—as the city claimed, because the California Supreme Court has held that a mere transient presence does not constitute entering or occupying the premises, as the statute requires, Paez said.
Nor did the officers have probable cause to arrest him for loitering under Sec. 647(h), trespass in a dwelling under Sec. 602.5, or trespass upon enclosed lands under Sec. 602.8(a), the judge said.
Paez explained that the loitering statute requires proof the defendant was awaiting an opportunity to commit a crime, which there was no evidence of in this case; that Sec. 602.5 could not apply because Edgerly never entered a dwelling unit; and that the housing project was not a fenced area within the meaning of Sec. 602.8(a).
He also noted that violation of Sec. 602.8(a) is, for a first-time offender, an infraction. Since a defendant cannot be arrested for an infraction unless he refuses to identify himself, and since Edgerly did not so refuse and the officers had no reason to believe he had been convicted of violating the statute previously, they lacked cause to arrest him under that section, the judge said.
As for the legality of the search, Paez went on to say, it is established Ninth Circuit law that a strip search following arrest is unreasonable unless the alleged offense is a serious one or there is reasonable suspicion the accused is concealing contraband. Any visual inspection of the naked body, the judge added, is considered a strip search under Ninth Circuit case law and California statute, he added, even if there is no body-cavity search.
Those principles, he added, were so well-established at the time of Edgerly’s arrest that the officers are not entitled to qualified immunity.
In reinstating the claim against the city, the panel cited police testimony that because of concerns about trespassing and drug dealing, the officers were trained to enforce Sec. 602(l) at the city’s housing projects by arresting non-residents for merely standing around for a period of time, as little as five to 10 minutes. From that evidence, Paez said, a jury could reasonably find that the city had a policy of training officers to make trespass arrests at the projects without probable cause.
In upholding the summary judgment in favor of Schiff, the panel said the plaintiff failed to contradict his deposition testimony that while he was the officers’ supervisor in a general sense, he had nothing to do with the arrest or search of Edgerly. The court also held that since Edgerly and his attorney knew they had no evidence to the contrary, they should have dismissed the sergeant from the case after his deposition.
Their failure to do so, Paez said, supported an award of post-deposition attorney fees under 42 U.S.C. Sec. 1988, along with sanctions under Rule 11 for pursuing two frivolous motions for reconsideration, the judge wrote.
Senior Judges William C. Canby and John T. Noonan concurred in the opinion.
The case is Edgerly v. City and County of San Francisco, 05-15080.
Copyright 2007, Metropolitan News Company