Metropolitan News-Enterprise


Tuesday, May 13, 2014


Page 1


Court Revives Suit by Woman Held at Gunpoint After Mistaken Stop




A woman who was stopped by San Francisco police, and had several guns pointed at her after an electronic device mistakenly identified her license plate as belonging to a stolen car, may sue for violation of her Fourth Amendment rights, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reversing a district judge’s summary judgment ruling for the defendants, the panel said that triable issues as to whether it was reasonable to stop Denise Green’s vehicle without visually confirming the electronic reading, whether the circumstances in which she was detained transformed the stop into a false arrest, and whether excessive force was used.

Without resolving those issues, the court added, it cannot be said that the city is free from municipal liability under 42 U.S.C §1983 and Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), or that the individual defendants aren’t liable under state law, as held by the district judge.

Green, a 47-year-old African American with no criminal record, was stopped on the night of March 30, 2009 while driving a 1992 Lexus. The officer who stopped her, Sgt. Ja Han Kim, would later testify that he did so because right before she passed him, he heard on the radio that officers were looking for a vehicle with license plate number 5SOW750.

License Plate Reader

The officer who reported the number on the radio, Albert Esparza, subsequently explained that his cruiser was equipped with an “automatic license plate reader,” or ALPR, that uses mounted cameras to capture the license plate numbers of passing vehicles, which are then compared to a database of wanted numbers.

In Green’s case, the device mistakenly read her plate number as 5SOW350, which belonged to a stolen GMC truck. Because Esparza and his partner had a suspect in custody, he radioed the information about the ALPR hit and did not pursue the vehicle himself.

Kim said he believed Green to represent a risk, justifying a “felony” stop, which typically involves drawing guns, handcuffing the suspect, and calling in multiple officers.

Esparza said he was unable to visually read Green’s license plate, or the ALPR photo, in the late night darkness. The plaintiff’s lawyers presented undisputed evidence that false “hits” occasionally occur when ALPRs are used and that officers in San Francisco and other jurisdictions are trained to verify their hits, by visually confirming the plate number and by verifying with the ALPR system that the vehicle has actually been reported stolen or is wanted.

San Francisco did not, however, have a policy at the time that specified whether the camera car operator or the officer making the stop is responsible for the verification.

Attempt at Verification

Kim acknowledged that, even though he was stopped behind Green’s vehicle at a red light before initiating the stop, he made no attempt to perform the verification, assuming that the camera car had done so. Green was eventually stopped, had several weapons including a shotgun pointed at her, was handcuffed, and was ordered to her knees.

She said she was held for 18-20 minutes, including at least 10 minutes in handcuffs, before police realized the error and let her go. The city contends she was held for no more than 10 minutes.

District Judge Richard Seeborg of the Northern District of California ruled the officers made a “good faith, reasonable mistake” and that “no reasonable jury” would conclude that officers “lacked reasonable suspicion to conduct an investigatory stop.”

Panel’s Reasoning

But District Judge William K. Sessions III of the District of Vermont, sitting by designation, said a reasonable jury might conclude that it was unreasonable to suspect Green of wrongdoing without verifying by sight that her license plate matched that of the stolen truck; that the “highly intrusive” methods used by police turned the stop into a “de facto arrest without probable cause,” and that the force used was excessive, even if the police reasonably believed she had stolen the vehicle or its plates, because “there was no indication at the scene that Green posed an immediate threat to the safety of the officers or others,” and in fact complied with all of the officers’ instructions.

Sessions went on to say it was error to grant summary judgment to Kim on qualified immunity grounds. It “remains an open question,” the judge said, as to whether Kim violated the plaintiff’s Fourth Amendment rights, and if he did, he could be found liable under Ninth Circuit precedent at the time of the incident.

The judge further concluded that if the trier of fact finds the plaintiff to have been unreasonably detained, it may award damages on her state law claims, which include deprivation of civil rights under color of law, in violation of the Bane Act; intentional infliction of emotional distress, assault, and negligence.

Judges Stephen Reinhardt and Sidney R. Thomas concurred in the opinion.

The case is Green v. City and County of San Francisco, 11-17982.


Copyright 2014, Metropolitan News Company