Castillo

dissenting:

Qualified immunity is a court-created rule that protects the police from liability for violating the constitutional rights of other persons. It is a rule said not to protect “the plainly incompetent.” Morse v. Frederick, — U.S. -, 127 S.Ct. 2618, 2640 , 168 L.Ed.2d 290 (2007).

In our case Alexis Castillo, an employee of Air Train at San Francisco airport, was arrested by county police who believed he was committing the felony of carrying a box cutter or straight razor in a section of the airport off-limits to weapons.

What did the arresting officers know: that Castillo had a “full security clearance,” that the FBI agent in charge of security at the airport would not have arrested him; that it was common practice to confiscate contraband detected by screening, not treat the possessor of the contraband as a felon engaged in his employment; and that Castillo had explained that he had no knowledge of the scissors wrapped within an unopened plastic covering of a brand-new shirt. It stretches my notion of competent police work to believe that on such facts a competent police officer would have thought it reasonable to arrest Castillo.

I respectfully dissent.

MEMORANDUM *

Appellant Alexis Castillo (“Castillo”) brought this action under 42 U.S.C. § 1983 against the City and County of San Francisco, the County of San Mateo, and several individual defendants (“appellees”), alleging false arrest in violation of the Fourth Amendment and California state law. The district court granted summary judgment to the appellees. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

To determine whether the officers had probable cause to arrest, we consider “whether at that moment the facts and circumstances within [the officers’] knowledge ... were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing a criminal offense.” Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964). A police officer’s “subjective reason for making [an] arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 , 125 S.Ct. 588 , 160 L.Ed.2d 537 (2004); see also id. (“[A]n arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”)

We conclude that the police officers had…