Disappointing Ninth Circuit Decision

Police authorities in countries and societies all over the world have the power to safeguard the life, liberty, and pursuit of happiness of their citizens and the same awesome power to deprive them of any or all of the above. What essentially separates the police in democracies from their counterparts in totalitarian societies is not their potential for abuse of power but their liability for the abuse of that power.

If I had entered a pharmacy in the Philippines during its martial law years and a police officer had assumed from my appearance that I might be passing counterfeit currency, he could arrest me even without any evidence that the currency was counterfeit or that I knew it was so, place me in handcuffs behind my back, parade me before the customers of the store and haul me off in a police car to a precinct where I would be handcuffed to a bar in a cell. Under the Marcos Dictatorship, I would have absolutely no recourse against that officer, if I were ever released.

But if that same incident happened in San Francisco on February 17, 2003 - not in Manila 30 years before - I would have recourse. I could sue the officer for arresting me without probable cause and I could be awarded damages for his abuse of power. This threat of a potential lawsuit for the police abuse of power is what protects law-abiding citizens in democracies. No such threat hangs over the heads of police officers in dictatorships so they can abuse their power with impunity.

This is precisely why every citizen should be alarmed by the recent March 9, 2009 decision of the Ninth Circuit Court of Appeals (Rodis v. City and County of San Francisco et al) which ruled that I have no right to sue police officers for arresting me on suspicion of counterfeiting after I used what turned out to be a genuine $100 bill.

One of the officers I sued, Sgt. Jeff Barry, had known me for years not just because our sons were classmates in third grade at St. Stephen Elementary School in 1998 but because we had a heated argument in our last meeting about a City College policy of not allowing campus police officers to carry their firearms. “You’re endangering the life of my brother in law!” he accused me then. At the end of that school year, my wife and I took our kids out of that parochial school.

Sgt. Barry was the first officer to respond to the 911 call of the Walgreens manager on February 17, 2003. When he saw that I was the suspect, he stopped at the entrance and waited for the other officers to arrive. It was “payback” time. He then directed officer Michelle Liddicoet to arrest me and to make sure that his name did not appear on the police report.

When this case was first presented to the Ninth Circuit several years ago, it ruled in a 2-1 decision on August 28, 2007, that the fact that a drugstore manager was suspicious of the bill that I used to make a purchase on February 17, 2003 wasn't enough for San Francisco police officers to arrest me, handcuff me, parade me in cuffs before the store’s customers, and hold me at a police station for almost two hours. Even if it had been counterfeit, the court majority said, innocently passing a counterfeit bill is not a crime, and the police had no evidence that I thought the bill was a fake.

"No reasonable or prudent officer could have concluded that Rodis intentionally and knowingly used a counterfeit bill," Judge Dorothy Nelson wrote in the majority opinion.

Judge Nelson added: "What is more, several facts known to the officers at the time of the arrest significantly decreased the probability that Rodis violated § 472. Viz., Rodis had other $100 bills in his possession that were genuine, one of which he used to complete the transaction; the counterfeit detector pen indicated the bill was genuine; and the officers knew Rodis was both a San Francisco attorney and a locally-elected public official with strong ties to the community in which the store was located. Specifically, Barry had known Rodis for several years. He knew Rodis was a member of the Community College Board, and he had interacted with Rodis personally, encountering him at activities associated with the elementary school that both Barry’s and Rodis’s children attended. Also, Rodis informed Liddicoet prior to his arrest that he was a public figure, and that he lived and worked within two blocks of the store."

San Francisco Deputy City Attorney Scott Weiner appealed the Ninth Circuit’s ruling and asked the entire Ninth Circuit court of 27 judges (en banc) to review the decision of the 3-judge panel that handed down the published opinion. The Ninth Circuit agreed to review the decision but affirmed it. Weiner then filed a writ of certiorari (request for review) to the US Supreme Court.
Early this year, the US Supreme Court granted Weiner certiorari and directed the Ninth Circuit to review its decision in light of its rulings in two cases where the police had probable cause to arrest the suspects who later sued the police for unlawful arrest.

Even though I was disappointed with the Supreme Court’s ruling, I was confident that the Ninth Circuit would uphold its previous ruling because, in my case, the police had absolutely no probable cause to believe that I knew the bill was counterfeit, particularly since it was genuine.

So I was greatly surprised and disappointed to learn of the new decision from a San Francisco reporter who called me up at noon on March 9 to ask for my reaction to the Ninth Circuit Court’s unanimous decision reversing its previous ruling.

According to Judge Dorothy Nelson, who was joined in the 3-0 opinion by Judges Consuelo Callahan and Cormac Carney, "Although the arrest was unfortunate, we cannot say that the officers' belief that (the bill) was fake was plainly incompetent... The arrest, therefore, was not clearly established as unlawful."

Judge Callahan, the dissenting judge in the first decision, somehow managed to convince the two other judges that her dissent should be the court’s opinion this time around. In the past decision, the majority judges had concluded that viewing the facts in the “totality of circumstances”, there was just no probable cause to believe that I knew the bill was counterfeit - which was a necessary element of the specific intent crime of passing a counterfeit bill.

This time around, the focus of the court was on the subjective belief of the police officers that they thought the bill was counterfeit and their mistaken belief was not “plainly incompetent”.

When asked by the Chronicle reporter to comment on the Ninth Circuit’s new decision, Scott Weiner explained that “officers have to make arrest decisions with very limited time and limited information. Even if the person ends up being innocent, the officers are not liable. The system would collapse if it were any other way."

The image of a cataclysmic collapse of the entire system if police officers were required to employ common sense was highly effective in persuading the Court to just give police authorities full immunity from having to conform to constitutional restrictions. It worked effectively for George W. Bush.

When the same San Francisco Chronicle reporter asked me for my reaction to the new decision, I expressed my deep disappointment. "This ruling gives the police the unfettered license to arrest anyone for the flimsiest of reasons without having to use common sense."

The lines are blurring. I will appeal the Ninth Circuit’s new decision all the way to the US Supreme Court if necessary.