Johnson v. Bay Area Rapid Transit Dist.

724 F.3d 1159

Wanda JOHNSON, individually and as personal representative of the Estate of Oscar J. Grant, III; Estate of Oscar J. Grant III; Sophina Mesa, as Guardian ad Litem of minor, T.G.; Jack Bryson, Jr.; Nigel Bryson; Michael Greer; Carlos Reyes; Fernando Anicete, Jr.; Oscar Julius Grant, Jr.; Johntue Caldwell (now deceased), Plaintiffs–Appellees,

v.BAY AREA RAPID TRANSIT DISTRICT; Gary Gee, in his official capacity as chief of police for Bart; Dorothy Dugger, in her official capacity as general manager for Bart; Anthony Pirone, individually and in his official capacity as a police officer for Bart; Marysol Domenici, individually and in her official capacity as a police officer for Bart; Does 1–50, Defendants,andJohannes Mehserle, individually and in his official capacity as a police officer for Bart, Defendant–Appellant.

Wanda Johnson, individually and as personal representative of the Estate of Oscar J. Grant, III; Estate of Oscar J. Grant III; Sophina Mesa, as Guardian ad Litem of minor, T.G.; Jack Bryson, Jr.; Nigel Bryson; Michael Greer; Fernando Anicete, Jr.; Carlos Reyes; Oscar Julius Grant, Jr.; Johntue Caldwell (now deceased), Plaintiffs–Appellees,

v.Bay Area Rapid Transit District; Gary Gee, in his official capacity as chief of police for Bart; Dorothy Dugger, in her official capacity as general manager for Bart; Johannes Mehserle, individually and in his official capacity as a police officer for Bart; Marysol Domenici, individually and in her official capacity as a police officer for Bart; Does 1–50, Defendants,andAnthony Pirone, individually and in his official capacity as a police officer for Bart, Defendant–Appellant.

Wanda Johnson, individually and as personal representative of the Estate of Oscar J. Grant, III; Estate of Oscar J. Grant III; Sophina Mesa, as Guardian ad Litem of minor, T.G.; Jack Bryson, Jr.; Nigel Bryson; Michael Greer; Fernando Anicete, Jr.; Carlos Reyes; Oscar Julius Grant, Jr.; Johntue Caldwell (now deceased), Plaintiffs–Appellees,

v.Bay Area Rapid Transit District; Gary Gee, in his official capacity as chief of police for Bart; Dorothy Dugger, in her official capacity as general manager for Bart; Johannes Mehserle, individually and in his official capacity as a police officer for Bart; Anthony Pirone, individually and in his official capacity as a police officer for Bart; Does 1–50, Defendants,andMarysol Domenici, individually and in her official capacity as a police officer for Bart, Defendant–Appellant.

Nos. 11–16456, 11–16480, 11–16481.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 3, 2012.

Filed July 30, 2013.

Michael L. Rains (argued) and Lara Cullinane–Smith, Rains Lucia Stern, PC, Pleasant Hill, CA, for Defendant–Appellant Johannes Mehserle.

Donald T. Ramsey (argued), Law Offices of Donald T. Ramsey, San Francisco, CA; William R. Rapoport, Law Offices of William R. Rapoport, Redwood City, CA, for Defendant–Appellant Anthony Pirone.

Alison Berry Wilkinson (argued), Berry Wilkinson Law Group, Inc., San Rafael, CA, for Defendant–Appellant Marysol Domenici.

John L. Burris (argued) and Adanté D. Pointer, Law Offices of John L. Burris, Oakland, CA; Elizabeth H. Eto Oakland, CA (on the brief); Dan Siegel (argued) and Dean Royer, Siegel & Yee, Oakland, CA, for Plaintiffs–Appellees Fernando Anicete, Jr., Jack Bryson, Jr., Nigel Bryson, and Carlos Reyes.

Panos Lagos, Law Offices of Panos Lagos, Oakland, CA, for Plaintiff–Appellee Oscar Julius Grant, Jr.

Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, Senior District Judge, Presiding. D.C. Nos. 3:09–cv–00901–EMC, 3:09–cv–04014–EMC, 3:09–cv–04835–EMC, 3:10–cv–00005–EMC.

Before: MICHAEL DALY HAWKINS, A. WALLACE TASHIMA, and MARY H. MURGUIA, Circuit Judges.

OPINION

MURGUIA, Circuit Judge:

In the early morning hours of January 1, 2009, on a train platform in Oakland, an encounter between a group of young men and several officers of the Bay Area Rapid Transit (“BART”) police ended with the shooting and death of Oscar Grant III and the allegedly unconstitutional detentions of Grant's friends, Nigel Bryson, Jack Bryson, Jr., Carlos Reyes, Michael Greer, and Fernando Anicete, Jr. A train full of witnesses observed the encounter; several made video recordings that were replayed widely in the news media and made available on the Internet. Johannes Mehserle, the BART police officer who shot and killed Grant, was convicted criminally for his role in the incident, which also gave rise to several civil suits against Mehserle and the other officers involved in the morning's events. Two of those suits are the source of the interlocutory appeals now before us.

The Brysons, Reyes, Greer, and Anicete filed a complaint against Mehserle, as well as against Anthony Pirone—the officer who first detained the group—and Pirone's partner, Marysol Domenici.¹ Among other things, their complaint alleged, under 42 U.S.C. § 1983, that the officers committed various violations of the United States Constitution that morning. Grant's father, Oscar Grant, Jr., filed a separate complaint alleging Mehserle, Pirone, and Domenici violated his right to a familial relationship with his son. ² Mehserle, Pirone, and Domenici each moved for summary judgment, arguing that they are entitled to qualified immunity—that is, to be shielded from claims arising out of their policework—from all the plaintiffs' claims. The district court denied the officers qualified immunity, at least in part. The officers appealed those denials immediately.

Our jurisdiction over these appeals is limited: we may review only the district court's legal conclusion that an officer is not entitled to qualified immunity. Johnson v. Jones, 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir.2009); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1060 (9th Cir.2006). “Our jurisdiction ... does not extend to qualified immunity claims involving disputed issues of material fact.” KRL v. Estate of Moore, 512 F.3d 1184, 1188–89 (9th Cir.2008). For the reasons that follow, we AFFIRM in large part the district court's ruling, VACATE it in small part, REVERSE it in smaller part, and remand for further proceedings consistent with this opinion.

I.

Resolving any disputed facts in the plaintiffs' favor (as we must), Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the following events occurred over the span of 12 minutes, early on New Year's Day, 2009.

1:59:21 A.M.

Keecha Williams operated an eastbound BART train, carrying New Year's revelers out of San Francisco and across the Bay. Shortly before Williams's train pulled into Oakland's Fruitvale Station, a passenger used the train's emergency intercom to report a fight in the train's lead car. Williams relayed the passenger's report to BART dispatch, which instructed Williams to stop the train at Fruitvale and wait for the police.

Officer Pirone was dispatched to the Fruitvale platform with information that the troublemakers on Williams's train were a group of black males, in the lead car, wearing dark clothing. Dispatch also told Pirone that no weapons were used in the fight.

2:04:00 A.M.

Arriving on the platform, Pirone passed through a group of people loosely fitting the description of the alleged combatants and headed towards another group, also fitting that description, whose members were standing and talking on the platform near the train's lead car. Pirone approached the men and, as he said when later questioned, unholstered his Taser in an effort to intimidate them. Three of the men—the Brysons and Reyes—began to walk toward the stairs and the station exit, behind Pirone. Pirone asked the men to stop, but they continued to walk toward the exit. He then commanded them to “sit the [expletive] down,” and they did. In the meantime, two other members of the group, Grant and Greer, stepped back aboard the train. Pirone radioed his partner, Officer Domenici, who jogged up to the platform, drew her own Taser, and assumed watch over Reyes and the Brysons so Pirone could search for Grant and Greer.

2:06:33 A.M.

Pirone was pacing the platform, yelling “get the [expletive] off my train,” when he spotted Grant through one of the train's windows. He pointed his Taser at Grant through the glass, prompting Grant to maneuver his way out of the car and on to the platform. Pirone led Grant to the wall where Reyes and the Brysons sat, and then returned to the train to search for Greer. Pirone located Greer shortly and demanded he get off the train. When Greer failed to comply with Pirone's order, Pirone grabbed him by the shirt and dragged him from the train, pushing him to the wall where the other men were seated. Greer extended his arms to avoid striking the wall, and then turn to face Pirone. Pirone described Greer's position as “a combative stance,” purportedly justifying his response: Pirone grabbed Greer by the hair and swept his legs from under him, dropping him to the station floor. Pirone moved to handcuff Greer.

2:08:06 A.M.

Alarmed by Pirone's treatment of Greer, Jack Bryson stood and protested, exchanging profanities with Domenici. Grant stood between Domenici and Bryson, extending a hand between them and imploring Bryson to remain calm. Pirone, claiming to have seen Grant touch Domenici, leapt from Greer's side, punched Grant in the head, and slung him to the floor.

2:08:36 A.M.

Other passengers, including the detainees' friend, Anicete, stepped from the idling train, protesting Pirone's actions. Officer Mehserle and Officer Jon Woffinden (who is not a party to the appeals before us) sprinted on to the platform. Seeing Pirone and Domenici with their Tasers drawn, Mehserle removed his Taser from its holster on the left side of his body—the side opposite his gun. Pirone walked away from the assembled group of officers and detainees, leaving the officers to keep watch without having said anything...