Gaston
Yong Ho Choi v. Gaston
Opinion
Concurring Opinion
Noonan, J.
concurring:
I concur in the per curiam opinion of the court but think a fuller statement of the facts and of some issues may be helpful.
FACTS
On July 13, 1996, in Fullerton, California, at about 8:59 p.m., a man driving a BMW was stopped by CHP Officer Donald Burt. The man shot Burt. Taking Burt’s service revolver and using Burt’s CHP vehicle, ’he drove off. Christopher Marshall, a reserve police officer for the City of Anaheim, heard a police broadcast reporting that there had been an assault with a deadly weapon on a CHP officer and that the officer’s weapon was missing and his vehicle stolen. Further police radio broadcasts gave the number of the stolen CHP vehicle as P-38 and described the shooting as' “attempted murder.” At 9:10 p.m. police radio identified the suspected gunman as a “MV” (Male Vietnamese), “Phu Nguyen, 5’10", Black [hair] Brown [eyes], 18 years old, wearing a white T-shirt and black pants.” At about 9:30 p.m. an abandoned CHP vehicle was reported at Mills Ford in Anaheim.
At 9:40 p.m. the police radio reported that the suspect was known to police and that police units were at his residence and at his girlfriend’s home.
Officer Marshall, together with…
Lead Opinion
Per Curiam Opinion; Concurrence by Judge Noonan
OPINION
This is an appeal from summary judgment. We affirm in part and reverse in part.
Choi sued defendants for various violations of his constitutional and statutory rights arising from defendants’ actions in detaining and arresting him during their search for a suspect in the shooting of an officer of the California Highway Patrol (CHP).
Violation of the Fourth Amendment. Summary judgment for the Anaheim officers who detained Choi was inappropriate. The district court erred in holding that “reasonable minds could not differ as to the validity and reasonableness of Plaintiffs stop, detention and arrest.”
Choi contends the Anaheim officers did not have reasonable suspicion or probable cause but rather detained and arrested him “because he was Asian.” The officers, in contrast, assert their conduct was justified because “Choi’s physical appearance and clothing fit the description of the suspect.”
Sufficient evidence is offered on both sides to create a jury question as to the reasonableness of the officers’ conduct.
When the officers first apprehended Choi they were presented with the following facts: (1) Choi was next to a…