Wednesday, October 29, 2025
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Uncooperative Arrestee Was Properly Denied Access to Phone, Ninth Circuit Holds
By a MetNews Staff Writer
Summary judgment was properly granted in favor of Santa Clara County, various subdivisions of it, and 24 correctional officers in a suit by a man who was detained for a mental evaluation and was denied access to a cellphone for 10 hours after he requested to be allowed to make a call, in alleged violation of a California, the Ninth U.S. Circuit Court of Appeals declared yesterday.
Its memorandum opinion was signed by Circuit Judge Danielle J. Forrest and Senior Circuit Judges Carlos T. Bea and Richard A. Paez. They found that the arrestee’s uncooperative conduct justified the denial of phone access.
The opinion also upholds the summary judgment’s rejection of other contentions by the appellant in claiming violations of his civil rights, noting that videotaped evidence refuted the allegations, such as lack of access to a bathroom.
Delayed Request
Plaintiff/appellant Michael Devin Floyd was arrested by San Jose Police Department officers on the night of Aug. 18, 2021, and brought to the Santa Clara County Main Jail where he was booked at 11:45 p.m., then transferred to the claiming nearby Elmwood Correctional Facility at 3:38 a.m. on Aug. 19. He made a request to make a call a few minutes before the transfer.
The prisoner was not able to use a phone for at least 10 hours after he made his request. Access to a phone was denied because, once having arrived at Elmwood, he declined to “dress out”—change into jail garb—for about 10 hours, delaying his being brought to a cell.
Floyd claimed a violation of California Penal Code §851.5(a)(1) which provides:
“Immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls….”
District Court’s View
Summary judgment in favor of the defendants, based on qualified immunity, was granted by District Court Judge Charles R. Breyer of the Northern District of California on Oct. 10, 2024.
The defendants argued that because Floyd did not request access to a phone within three hours of his arrest—first seeking access to a phone no earlier than 3:08 a.m.—his right under the statute lapsed. Breyer observed that “[s]everal district courts have interpreted” §851.5 “to apply only ‘within three hours of being arrested.”
However, he noted, “in an unpublished order that predates most of these district court decisions, the Ninth Circuit rejected this argument,” citing the 2007 opinion in Maley v. County of Orange. The judge continued:
“The Court need not decide whether the Ninth Circuit’s order (which relies on a California Supreme Court decision interpreting a previous version of Penal Code section 851.5—a version that does not have the three-hour language) or the district courts’ orders (which do not squarely address the issue) are more persuasive. The legal uncertainty around the scope of Penal Code § 851.5 in this context means that Defendants are entitled to qualified immunity.”
He added:
“Defendants’ conduct—which is mostly marked by their consistent efforts to move Floyd to his cell, where he would be able to make a phone call—does not so clearly violate Penal Code section 851.5 as to defeat qualified immunity.”
Ninth Circuit Decision
The Ninth Circuit judges said that the delayed access to a phone “was caused by Floyd’s refusal to ‘dress out,’ not the defendant officers,” adding:
“The officers’ conduct at Elmwood did not clearly violate their statutory obligation to provide Floyd with a phone call ‘as soon as practicable.’…Floyd has failed to show that he ‘suffered a deprivation of a constitutional or statutory right’ and therefore cannot overcome the officers’ defense of qualified immunity.”
The case is Floyd v. Santa Clara Department of Correction, 24-6866.
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