Betty Benson v. City of San Jose

dissenting in part:

I would affirm as to the Fourth Amendment claim. Even taking the facts in the light most favorable to the Bensons, as we must, I don’t think we can say that a Fourth Amendment seizure occurred here. An officer may request a person’s identification and retain it for as long as necessary to run a background check without effectuating a seizure. See Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cnty., 542 U.S. 177, 185 , 124 S.Ct. 2451 , 159 L.Ed.2d 292 (2004); United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997). A seizure occurs only if the officer retains an individual’s identification for longer than necessary and initiates further inquiry before returning it. Chan-Jimenez, 125 F.3d at 1326 . Officer Pettis did not initiate further inquiry or investigation before returning Mr. Benson’s identification, so no Fourth Amendment seizure occurred. That remains true regardless of whether Pettis told Benson to stay where he was while Pettis conducted the background check.

MEMORANDUM *

John Benson (“Benson”) and Betty Benson appeal the district court’s grant of summary judgment to the City of San Jose and Officer Brian Pettis (“Pettis”) (collectively, “Appellees”) on their 42 U.S.C. § 1983 Fourth Amendment' unreasonable seizure and related federal claims. We have jurisdiction under 28 U.S.C. § 1291 , and affirm in part and reverse and remand in part.

1. The district court determined that Benson’s encounter with Pettis was consensual. However, viewing the facts in the light most favorable to the Bensons, we find that they have raised a triable issue as to whether an unlawful seizure occurred. AA 337. Benson stated in his declaration that Pettis retained Benson’s identification card, “told or asked [Benson] to stay where he was,” and “told [Benson] to get on the bus.” Pettis’s commands— this “show of official authority,” United *606 States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980)-transformed what may have begun as a consensual encounter into a seizure. 1 See Florida v. Royer, 460 U.S. 491, 501 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (seizure effected where officers retain a person's identification papers and-without…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 11 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BETTY BENSON, an individual, No. 12-15834

Plaintiff - Appellant, D.C. No. 5:09-cv-05772-HRL

v.

MEMORANDUM*

CITY OF SAN JOSE, a public entity; BRIAN PETTIS, Officer,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Howard R. Lloyd, Magistrate Judge, Presiding

Argued and Submitted April 8, 2014 San Francisco, California

Before: NOONAN, NGUYEN, and WATFORD, Circuit Judges.

John Benson (“Benson”) and Betty Benson appeal the district court’s grant

of summary judgment to the City of San Jose and Officer Brian Pettis (“Pettis”)

(collectively, “Appellees”) on their 42 U.S.C. § 1983 Fourth Amendment

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. unreasonable seizure and related federal claims. We have jurisdiction under

U.S.C. § 1291, and affirm in part and reverse and remand in part.

1. The district court determined…