Gary Blankenhorn v. City of Orange Andy Romero Dung Nguyen Garrett Ross Tamara South Gray, Sergeant Montano, Officer Kayano, Officer Roman, Officer

concurring in part and dissenting in part:

I am fully in accord with the majority opinion and join it, except in one respect: I disagree with the majority’s holding that there was probable cause to arrest Blank-enhorn. I concur rather than dissent on the false arrest issue, however, because I believe that the arresting officers are qual-ifiedly immune from liability for arresting Blankenhorn pursuant to California Penal Code § 602(j). My remarks are styled a dissent only because my conclusion with respect to probable cause requires me to conclude that, on the subsequent question of Blankenhorn’s state law claim for false arrest, the arresting officers were not acting within the scope of their authority under California law and thus do not enjoy statutory immunity for their actions.

A. Probable Cause to Arrest

I cannot agree with the majority’s conclusion that the officers had probable cause to arrest Blankenhorn for trespassing under both section 602(n) and section 602(j) of the California Penal Code. In my view, there was probable cause under neither section.

First, the parties agree that there was no request to leave sufficient to trigger section 602(n). They do not suggest…

In July 2001, police officers from the City of Orange (“City”) found Gary Blank-enhorn (“Blankenhorn”) at a shopping mall where, six months before, he had been evicted and permanently banned from entering again. The officers arrested Blank-enhorn on suspicion of trespass, and he was later charged with disturbing the peace, trespass, and three counts of resisting arrest. The prosecutor also added a gang-related enhancement charge. After Blankenhorn had spent three months in jail, all charges were dropped and he was released.

Blankenhorn then brought this civil rights suit against Defendants under 42 U.S.C. § 1983 for unlawful arrest, excessive force, and malicious prosecution; and under California state law for false imprisonment, negligence, assault and battery, and intentional infliction of emotional distress. Blankenhorn alleges that the police officers did not have probable cause to arrest him and that they used unreasonable force during the arrest by gang-tackling him, punching him, and using hobble restraints. He also seeks damages from the City and Chief Andy Romero (“Romero”) on theories of municipal and supervi-sorial liability.

The district court granted Defendants’…

485 F.3d 463 Gary BLANKENHORN, Plaintiff-Appellant, v. CITY OF ORANGE; Andy Romero; Dung Nguyen; Garrett Ross; Tamara South; Gray, Sergeant; Montano, Officer; Kayano, Officer; Roman, Officer, Defendants-Appellees. No. 04-55938. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 2006. Filed May 8, 2007. 1 Paul L. Hoffman and Michael S. Morrison, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA, for the appellant. 2 M. Lois Boback, Woodruff, Spradlin & Smart, Orange, California; and David A. De Berry, City Attorney, City of Orange, Orange, CA, for the appellees. 3 Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-02-01160-GLT. 4 Before: M. MARGARET McKEOWN and MARSHA S. BERZON, Circuit Judges, and SAMUEL P. KING, * District Judge. 5 KING, District Judge. 6 In July 2001, police officers from the City of Orange ("City") found Gary Blankenhorn ("Blankenhorn") at a shopping mall where, six months before, he had been evicted and permanently banned from entering again. The officers arrested Blankenhorn on suspicion of trespass, and he was later charged with…