Rodis v. City and County of San Francisco ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODEL E. RODIS, 
Plaintiff-Appellee,
v.
CITY AND COUNTY OF SAN
FRANCISCO, a municipality;
LIDDICOET, Officer, San Francisco No. 05-15522
Police Officer; BARRY, Sergeant,
San Francisco Police Sergeant;  D.C. No.
CV-04-00314-MMC
ALEX FAGAN, San Francisco Police
Chief, OPINION
Defendants-Appellants,
and
SAN FRANCISCO POLICE
DEPARTMENT,
Defendant.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
April 20, 2007—San Francisco, California
Filed August 28, 2007
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Cormac J. Carney,* District Judge.
*The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
10669
10670 RODIS v. CITY AND COUNTY OF S.F.
Opinion by Judge D.W. Nelson;
Dissent by Judge Callahan
10672 RODIS v. CITY AND COUNTY OF S.F.
COUNSEL
Scott D. Wiener of San Francisco, California, briefed and
argued for the defendants-appellants.
Lawrence W. Fasano, Jr. of San Francisco, California, briefed
and argued for the plaintiff-appellee.
OPINION
D.W. NELSON, Circuit Judge:
Rodel E. Rodis brought suit against the City and County of
San Francisco, the San Francisco Police Department, the
police chief, and two police officers under 42 U.S.C. § 1983alleging a violation of his Fourth Amendment rights during a
February 17, 2003 arrest. The district court dismissed the suit
against the City and the police chief, but it rejected an asser-
tion of qualified immunity by two of the officers
(“Defendants”). Defendants brought an interlocutory appeal,
RODIS v. CITY AND COUNTY OF S.F. 10673
and we affirm, finding the Defendants not entitled to qualified
immunity.
I. FACTUAL & PROCEDURAL BACKGROUND
Rodis is an attorney and an elected public official who sits
on the Community College Board of the San Francisco City
College. On February 17, 2003, Rodis entered a drugstore
near his office to purchase a few items. He tendered to the
cashier a $100 bill, and she examined it for authenticity.
Because it was an old bill (a 1985 series), and because it
appeared to have a texture different than bills with which the
cashier was familiar, she asked the store manager for assis-
tance. The manager came to the counter and examined the
bill. Suspecting that it might be counterfeit, the manager took
the bill to an office in the back of the store to compare it to
other $100 bills from the store’s safe.
While the manager was examining the bill, Rodis pulled
another $100 bill from his wallet and paid the cashier. After
determining that the second bill was authentic, the cashier
gave Rodis his change, receipt, and items. Rodis then waited
for the manager to return with his bill. After comparing
Rodis’s bill with similar bills, the manager returned to the
front of the store and tested the bill with a counterfeit detector
pen, which indicated it was authentic. Nevertheless, the man-
ager remained suspicious because of the bill’s appearance and
texture. The manager told Rodis he thought the bill might be
fake and he was going to call the police so that they could set-
tle the issue. Rodis was frustrated with the delay but remained
in the store willingly until the officers arrived.
Sergeant Jeff Barry and officer Barbara Dullea arrived first
on the scene. Officers Michelle Liddicoet and James Nguyen
arrived soon thereafter. The drugstore’s employees conveyed
to the officers their suspicions regarding the bill. The manager
told Nguyen he had compared the bill to another and was
uncertain about the bill’s authenticity. The officers also exam-
10674 RODIS v. CITY AND COUNTY OF S.F.
ined the bill themselves. They concluded it was probably
counterfeit, but because they were not certain, the officers
decided it would be necessary to call the United States Secret
Service to get an expert opinion. Before doing so, however,
they arrested Rodis for violating 18 U.S.C. § 472,1 which
criminalizes the possession and/or use of counterfeit currency,
because the officers believed it would be easiest to continue
the investigation from the police station. Notably, no effort
was made to investigate whether Rodis intended to use an
ersatz bill or whether he believed the bill to be counterfeit.
Furthermore, the officers never asked to see the other $100
bill Rodis had used to complete the purchase, nor did they ask
to see the bills the manager stated he had compared with the
bill in question.
Liddicoet and Nguyen handcuffed and transported Rodis in
the back of a squad car to the police station. Once they
arrived, the officers restrained Rodis in a holding area while
Nguyen called the Secret Service. Unable to speak with an
agent right away, Nguyen left a message requesting assis-
tance, and after twenty to thirty minutes, a Secret Service
agent returned the call. Nguyen and the agent discussed the
details of the bill in question for five to ten minutes, during
which the agent confirmed that the bill was in fact genuine.
The officers released Rodis from custody, and Nguyen drove
him back to the drugstore.
On October 1, 2003, Rodis filed suit against the City and
County of San Francisco, then Chief of Police Alex Fagan,
1
Section 472 states:
Whoever, with intent to defraud, passes, utters, publishes, or
sells, or attempts to pass, utter, publish, or sell, or with like intent
brings into the United States or keeps in possession or conceals
any falsely made, forged, counterfeited, or altered obligation or
other security of the United States, shall be fined under this title
or imprisoned not more than 20 years, or both.
18 U.S.C. § 472.
RODIS v. CITY AND COUNTY OF S.F. 10675
Sergeant Barry, and Officer Liddicoet. The complaint alleged
false arrest and excessive force in violation of Rodis’s Fourth
Amendment rights, conspiracy to violate Rodis’s rights,
injunctive relief, and several state law claims, including false
arrest and intentional and negligent infliction of emotional
distress.
On February 11, 2005, the defendants moved for summary
judgment, and on March 22, 2005, the district court granted
the motion as to Rodis’s conspiracy, municipal liability, and
injunctive relief claims. The district court denied the motion
in all other respects, holding that because the officers lacked
evidence regarding Rodis’s intent to defraud, probable cause
was lacking and the arrest was unlawful. The court also found
Barry and Liddicoet not entitled to qualified immunity
because the illegality of the arrest was clearly established at
the time.
II. DISCUSSION
A. Jurisdiction & Standard of Review
Normally, a district court’s interlocutory order denying a
motion for summary judgment is not immediately appealable.
Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th Cir. 2006).
There is an exception, however, when a defendant’s motion
for summary judgment on the basis of qualified immunity is
denied. Gausvik v. Perez, 345 F.3d 813, 816 (9th Cir. 2003);
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Under this
exception, we have jurisdiction pursuant to 28 U.S.C. § 1291,
Behrens v. Pelletier, 516 U.S. 299, 301 (1996), and we review
the qualified immunity determination de novo. Osolinski v.
Kane, 92 F.3d 934, 936 (9th Cir. 1996).
B. Defendants are Not Entitled to Qualified Immunity
Qualified immunity serves as a defense to § 1983 claims
against government officers “insofar as their conduct does not
10676 RODIS v. CITY AND COUNTY OF S.F.
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To
determine whether qualified immunity applies, we engage in
a two-part inquiry:
[W]e first must ask whether a constitutional right
would have been violated on the facts alleged. If no
constitutional right would have been violated were
the allegations established, there is no necessity for
further inquiries concerning qualified immunity. If a
constitutional violation is established, we consider
whether that right was clearly established such that
it would be clear to a reasonable officer that his con-
duct was unlawful in the situation he confronted.
This inquiry is wholly objective . . . .
Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir. 2006) (inter-
nal citations and quotation marks omitted); see also Saucier
v. Katz, 533 U.S. 194, 202 (2001).
Defendants argue they are entitled to qualified immunity
because (1) they did not violate Rodis’s constitutional rights,
and (2) even if they did not have probable cause to arrest him,
at the time of the arrest the law was not clearly established
such that a reasonable officer should have known the arrest
violated the Fourth Amendment. However, arresting Rodis
without any evidence he intended to use the bill to defraud the
store or that he knew (or believed) the bill was fake was a vio-
lation of his Fourth Amendment rights. Further, it was clearly
established at the time of the arrest that Defendants’ conduct
was unlawful. Thus, both arguments Defendants put forth are
without merit.
1. Defendants did not have probable cause to arrest
Rodis.
[1] Defendants concede they arrested Rodis without evi-
dence he used the bill with the intention to defraud or that he
RODIS v. CITY AND COUNTY OF S.F. 10677
believed the bill to be fake. They also concede the arrest
required probable cause as it was more than merely an investi-
gatory stop. To be entitled to qualified immunity, therefore,
Defendants must show probable cause existed absent any evi-
dence of Rodis’s intent or knowledge. This they cannot do.
Defendants’ argument can be summarized in the following
manner. First, they cite our decision in United States v.
Thornton, 710 F.2d 513, 515 (9th Cir. 1983), for the premise
that probable cause does not require specific evidence of
every element of an offense. Second, they posit that only
where “specific intent” is an element of the offense, is evi-
dence of intent required for probable cause, citing our holding
in Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486(9th Cir. 1996). Third, Defendants contend that 18 U.S.C.
§ 472 is not a specific intent crime, and, therefore, evidence
regarding Rodis’s intent or knowledge was not required to
establish probable cause.
By focusing on the distinction between specific and general
intent, Defendants lose sight of the principal inquiry: whether
they had probable cause to effectuate an arrest. Probable
cause cannot be determined by applying “precise defini-
tion[s]” or rigid classifications of conduct, as Defendants sug-
gest, “because it deals with probabilities and depends on the
totality of the circumstances.” Maryland v. Pringle, 540 U.S.
366, 371 (2003). Indeed, “probable cause is a fluid concept—
turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set
of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983).
Thus, the specific circumstances surrounding the arrest are an
indispensable part of the analysis: “[W]e examine the events
leading up to the arrest, and then decide ‘whether these histor-
ical facts, viewed from the standpoint of an objectively rea-
sonable police officer, amount to’ probable cause.” Pringle,
540 U.S. at 371 (quoting Ornelas v. United States, 517 U.S.
690, 696 (1996)).
10678 RODIS v. CITY AND COUNTY OF S.F.
[2] A review of the record reveals that the circumstances
surrounding Rodis’s arrest fell far short of creating a “fair
probability” he had committed any crime, much less the crime
in question. See United States v. Rodriquez, 464 F.3d 1072,
1078 (9th Cir. 2006) (“Probable cause exists when there is a
fair probability or substantial chance of criminal activity.”).
Rodis was arrested on suspicion of violating 18 U.S.C. § 472.
It was clear well before Rodis’s arrest that “[t]o support a
conviction for possession of counterfeit currency with intent
to defraud under . . . § 472, the government must prove three
elements: (1) possession of counterfeit money; (2) knowledge,
at the time of possession, that the money is counterfeit; and
(3) possession with intent to defraud.” United States v. Rodri-
guez, 761 F.2d 1339, 1340 (9th Cir. 1985); see also Albillo-
Figueroa v. I.N.S., 221 F.3d 1070, 1073 (9th Cir. 2000) (recit-
ing same three required elements); United States v. McCall,
592 F.2d 1066, 1068 (9th Cir. 1979) (per curiam) (same).
Therefore, to violate § 472, the defendant must not only pos-
sess or pass counterfeit money, but he must know the money
is counterfeit and he must intend to use the money to defraud
another.
Notwithstanding the statute’s three requirements, Defen-
dants assert they had probable cause to arrest Rodis based
solely on evidence suggesting the bill might have been fake.
Specifically, they point to the manager’s suspicion that the
bill was counterfeit, the fact Rodis used the bill to pay for
small items, and the officers’ own “diligent” and “indepen-
dent” examination of the bill. Although it is not clear whether
this evidence was enough to create the fair probability the bill
was fake, even if we assume it was,2 this evidence speaks to
2
Our dissenting colleague argues that probable cause existed because
“officers are allowed to make reasonable mistakes” and the officers here
made a mistake in assuming the bill was counterfeit. Dissent at 10686. Of
course, this is irrelevant, for even if the bill was fake, at least some evi-
dence of Rodis’s alleged intent to defraud would have been required to
establish probable cause.
RODIS v. CITY AND COUNTY OF S.F. 10679
only one of the three elements of the offense; indeed, these
facts have no bearing on the crime’s two mens rea compo-
nents (i.e., knowledge and intent to defraud), which are indis-
pensable in the probable cause calculus. See Gasho, 39 F.3d
1420, 1429 (9th Cir. 1994) (opining, in the context of a proba-
ble cause inquiry, “[i]t is fundamental that a person is not
criminally responsible unless criminal intent accompanies the
wrongful act”); Morissette v. United States, 342 U.S. 246, 251
(1952) (noting that a crime is the “concurrence of an evil-
meaning mind with an evil-doing hand”).
[3] Defendants are correct that not every element required
for a conviction is necessarily required to establish probable
cause. See Thornton, 710 F.2d at 515. However, this rule must
be applied with an eye to the core probable cause require-
ment; namely, that “under the totality of the circumstances, a
prudent person would have concluded that there was a fair
probability that the suspect had committed a crime.” Hart v.
Parks, 450 F.3d 1059, 1066-67 (9th Cir. 2006).3 The record
shows, and Defendants concede, they had no evidence what-
soever demonstrating that Rodis intended to use the bill to
defraud the store, nor was there any reason to believe Rodis
believed the bill was fake. Of course, the dearth of evidence
regarding the mens rea elements is not surprising given that
(1) the officers did not even attempt to investigate Rodis’s
state of mind before arresting him, and (2) the bill was in fact
genuine.
[4] What is more, several facts known to the officers at the
time of the arrest significantly decreased the probability that
Rodis violated § 472. Viz., Rodis had other $100 bills in his
3
The dissent protests our citation to legal authority identifying what is
required for a conviction under § 472 in determining what is required to
establish probable cause. Dissent at 10687-88. But surely, identifying the
elements of a crime, and evaluating which, if any, are present in a given
situation are necessary to determine whether there is a “fair probability”
that the crime has been committed.
10680 RODIS v. CITY AND COUNTY OF S.F.
possession that were genuine, one of which he used to com-
plete the transaction; the counterfeit detector pen indicated the
bill was genuine; and the officers knew Rodis was both a San
Francisco attorney and a locally-elected public official with
strong ties to the community in which the store was located.
Specifically, Barry had known Rodis for several years. He
knew Rodis was a member of the Community College Board,
and he had interacted with Rodis personally, encountering
him at activities associated with the elementary school that
both Barry’s and Rodis’s children attended. Also, Rodis
informed Liddicoet prior to his arrest that he was a public fig-
ure, and that he lived and worked within two blocks of the
store. Liddicoet told him she knew who he was and that he
“should be ashamed” of himself.
[5] Thus, the officers’ knowledge regarding Rodis’s iden-
tity and background discounted any probability that Rodis
might have intentionally passed a fake bill. Defendants argue
that this information is irrelevant because police officers do
not provide favored treatment based on a person’s identity.
Rodis was not entitled to special treatment, however, nor did
he request it. Instead, Rodis’s strong ties to the local commu-
nity should have been incorporated into the probable cause
determination because all the facts known to the officers were
relevant. See United States v. Lopez, 482 F.3d 1067, 1072 (9th
Cir. 2007) (reiterating that probable cause requires analysis of
“the totality of the circumstances”).
[6] In any event, even without knowledge of Rodis’s iden-
tity and local ties, based on the totality of the other relevant
facts, no reasonable or prudent officer could have concluded
that Rodis intentionally and knowingly used a counterfeit bill,
especially when “[t]he key element of section 472 is its mens
rea, the specific intent to defraud.” United States v. DeFilip-
pis, 637 F.2d 1370, 1373 (9th Cir. 1981). Without at least
some evidence regarding the knowledge or intent elements of
the crime, probable cause is necessarily lacking. To hold oth-
erwise would render any individual vulnerable to arrest who
RODIS v. CITY AND COUNTY OF S.F. 10681
unknowingly, through the normal stream of commerce, comes
to possess or use a counterfeit bill, even if other circum-
stances suggest that a crime has not been committed. This is
not and cannot be the law. See United States v. Lorenzo, 570
F.2d 294, 299 (9th Cir. 1978) (“The mere passing of a coun-
terfeit bill is not a criminal offense . . . .”).4
4
Defendants’ reliance on Easyriders is also misplaced. In that case, we
opined, “when specific intent is a required element of the offense, the
arresting officer must have probable cause for that element in order to rea-
sonably believe that a crime has occurred.” 92 F.3d at 1499 (quoting
Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)). Erroneously,
Defendants cite Easyriders for the proposition that only where an offense
is a specific intent crime is evidence of intent required to establish proba-
ble cause. Thus, Defendants blatantly misconstrue our holding by confus-
ing a sufficient condition (i.e., if the underlying offense is a specific intent
crime, evidence of intent must be present prior to an arrest) with a neces-
sary one (i.e., if evidence of intent is required prior to an arrest, the under-
lying offense must be a specific intent crime). Furthermore, Defendants’
interpretation runs contrary to the fact-specific nature of a probable cause
inquiry. Probable cause does not always require a showing of every ele-
ment of the crime because it “is a fluid concept—turning on the assess-
ment of probabilities in particular factual contexts . . . .” Illinois v. Gates,
462 U.S. 213, 238 (1983). Consequently, it is patently unreasonable to say
that evidence of a defendant’s intent or knowledge is never required to
establish probable cause for a general intent crime, as Defendants would
have us hold.
In any event, Defendants are also incorrect that passing counterfeit cur-
rency is a general intent crime. Generally, “[t]o act with the ‘intent to
defraud’ means to act willfully, and with the specific intent to deceive or
cheat for the purpose of either causing some financial loss to another, or
bringing about some financial gain to oneself.” United States v. Cloud,
872 F.2d 846, 852 n.6 (9th Cir. 1989) (emphasis added). Section 472
expressly requires an “intent to defraud.” 18 U.S.C. § 472. Thus, under
Easyriders, proof of Rodis’s specific intent to deceive or cheat was
required to arrest him. See also DeFilippis, 637 F.2d at 1373 (stating that
§ 472 requires the specific intent to defraud).
10682 RODIS v. CITY AND COUNTY OF S.F.
2. At the time of Rodis’s arrest, it was clearly
established that evidence of intent was required to
establish probable cause.
Defendants contend that, even if they did not have probable
cause to arrest Rodis for the offense, the law was not clearly
established at the time such that a reasonable officer would
have known the arrest was unlawful. They are incorrect.
[7] Requiring the law to be clearly established “is not to say
that an official action is protected by qualified immunity
unless the very action in question has previously been held
unlawful, but it is to say that in light of pre-existing law the
July 5, 2007 unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (citation omitted)
(emphasis added). This means that the right may be clearly
established even when “[t]he reasoning, though not the hold-
ing” of a prior court of appeals decision puts the officer on
notice. Hope v. Pelzer, 536 U.S. 730, 743 (2002). Thus, “offi-
cials can still be on notice that their conduct violates estab-
lished law even in novel factual circumstances” and the facts
need not be “materially similar” to the plaintiff’s situation. Id.
at 741. If the law were otherwise, “officers would escape
responsibility for the most egregious forms of conduct simply
because there was no case on all fours prohibiting that partic-
ular manifestation of unconstitutional conduct.” Deorle v.
Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001).
[8] As heretofore explained, it was well established at the
time of Rodis’s arrest that “probable cause is a fluid concept
—turning on the assessment of probabilities in particular fac-
tual contexts—not readily, or even usefully, reduced to a neat
set of legal rules.” Gates, 462 U.S. at 232. Based on the total-
ity of the circumstances, no prudent officer reasonably could
have concluded there was a fair probability that Rodis vio-
lated § 472 or any other offense. “Mere suspicion, common
rumor, or even strong reason to suspect are not enough” to
establish probable cause, Easyriders, 92 F.3d at 1498, and the
RODIS v. CITY AND COUNTY OF S.F. 10683
evidence in this case fell short of creating even a strong rea-
son to suspect. Therefore, the officers were on notice that
something more was required.
The only Ninth Circuit authority to which Defendants’
point for support is United States v. Bates, 352 F.2d 399 (9th
Cir. 1965) (per curiam), and United States v. Ford, 461 F.2d
534 (9th Cir. 1972) (per curiam).5 These cases do not stand
for the proposition Defendants claim—that probable cause to
arrest for a violation of § 472 can exist with nothing more
than a reason to believe the bill might be fake. In fact, the
opinion in Ford, which consists of only two paragraphs, is so
lacking in factual background, that what the panel deemed
sufficient for probable cause is unknown. The opinion in
Bates also fails to provide a factual context sufficient to give
the decision meaning. The opinion acknowledges that a third
party, a tow truck operator at the scene of the arrest, “filled
in chinks of circumstances to give probable cause,” and that
“the circumstances pointing to Bates as a participant in coun-
terfeit transactions . . . certainly pointed an accusing finger at
him—enough for probable cause.” 352 F.2d at 400. However,
there is no explanation of what any of those circumstances
were.
5
Our dissenting colleague cites three out-of-circuit cases and United
States v. Blum, 432 F.2d 250 (9th Cir. 1970), contending that evidence of
intent is unnecessary to establish probable cause. Dissent at 10688-89. Her
contention, however, lacks merit. First, the out-of-circuit cases, even if
applicable to the circumstances in this case, are not binding on this panel.
Second, Blum is easily distinguishable, in that numerous facts—such as
the suspect fleeing the scene and the fact the suspect lived outside the state
—could have been enough to create a “fair probability” he passed counter-
feit bills. In any event, Blum is an old case, and since it was decided
(nearly forty years ago), we have made clear that (1) “[t]he key element
of section 472 is . . . the specific intent to defraud,” DeFilippis, 637 F.2d
at 1373, and (2) “when specific intent is a required element of the offense,
the arresting officer must have probable cause for that element in order to
reasonably believe that a crime has occurred.” Easyriders, 92 F.3d at
1499.
10684 RODIS v. CITY AND COUNTY OF S.F.
Thus, in both Ford and Bates we are left to our own
devices to determine what the relevant facts could have been
in establishing probable cause. Consequently, neither case
supports a finding of probable cause in the instant case.
III. CONCLUSION
[9] Probable cause requires “information sufficient to war-
rant a prudent person in believing that the accused had com-
mitted or was committing an offense.” Allen v. City of
Portland, 73 F.3d 232, 237 (9th Cir. 1996). Given all of the
circumstances surrounding Rodis’s arrest, no prudent person
could have concluded reasonably that there was a fair proba-
bility Rodis had committed a crime. Consequently, Defen-
dants are not entitled to qualified immunity.
AFFIRMED.
CALLAHAN, Circuit Judge, dissenting:
I respectfully dissent.
What happened to Mr. Rodis was unfortunate, and certainly
could have been handled in a different manner. Arresting him
due to a failure to recognize an older series 100 dollar bill,
however, was not an intentional violation of Mr. Rodis’s con-
stitutional rights, nor was the law that probable cause for
arresting someone on suspicion of violating 18 U.S.C. § 472requires proof of the suspect’s subjective intent clearly estab-
lished. Therefore, the officers are entitled to qualified immu-
nity. In fact, prior case law established that in order to have
probable cause to arrest someone for a suspected violation of
18 U.S.C. § 472, an officer simply had to have evidence that
1) someone attempted to pass a false note, and 2) the identity
of the person suspected of passing the note. See United States
RODIS v. CITY AND COUNTY OF S.F. 10685
v. Everett, 719 F.2d 1119, 1120 (11th Cir. 1983) (collecting
cases).
I. The officers did not violate Mr. Rodis’s constitutional
rights.
Our analysis should begin with the basic principles of qual-
ified immunity. “Qualified immunity is ‘an entitlement not to
stand trial or face the other burdens of litigation.” Saucier v.
Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell, 472 U.S.
511, 526 (1985)). “The privilege is ‘an immunity from suit
rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permit-
ted to go to trial.’ ” Id. at 200-01 (quoting Mitchell v. Forsyth,
472 U.S. at 526). “[I]t is fundamental that in a defense of
qualified immunity in order to have the public official
relieved from time-consuming pre-trial procedures and trial
itself, it is important to resolve this issue at an early stage of
the litigation.” Cunningham v. City of Wenatchee, 345 F.3d
802, 808 (9th Cir. 2003).
“A court required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken in the light
most favorable to the party asserting the injury, do the facts
show the officer’s conduct violated a constitutional right?”
Saucier, 533 U.S. at 201. The reason for this initial inquiry is
to state principles that “will become the basis for holding that
a right is clearly established” to advance the interpretation of
the law. Id. “If no constitutional right would have been vio-
lated were the allegations established, there is no necessity for
further inquiries concerning qualified immunity.”1 Id.
1
The majority’s opinion appears to begin its analysis by deciding that
the right to avoid arrest if there is no evidence of specific intent is clearly
established without first finding a constitutional violation. (Maj. Op. at
10678.) The Supreme Court specifically rejected this approach in Saucier
v. Katz, 533 U.S. at 200.
10686 RODIS v. CITY AND COUNTY OF S.F.
A. Officers are allowed to make reasonable mistakes of
fact without violating constitutional rights.
Mr. Rodis contends that the officers violated his Fourth
Amendment rights by arresting him without probable cause to
believe that he possessed the intent to defraud, one of the ele-
ments of a violation of 18 U.S.C. § 472. “Officers can have
reasonable, but mistaken, beliefs as to the facts establishing
the existence of probable cause or exigent circumstances, for
example, and in those situations courts will not hold that they
have violated the Constitution.” Saucier, 533 U.S. at 205.
“Section 1983 imposes liability for violations of rights pro-
tected by the Constitution, not for violations of duties of care
arising out of tort law.” Baker v. McCollan, 443 U.S. 137, 146
(1979).
In this case, the officers made a simple mistake — they
mistook a genuine 1985 series 100 dollar bill for a fake
because the clerk who received the bill from Mr. Rodis, the
manager who examined the bill, and the officers who
responded to the scene had never seen a pre-1991 100 dollar
bill before.2 The bill Mr. Rodis presented lacked the security
thread, watermarks, microprinting, and other anti-
counterfeiting features of current 100 dollar bills.3 The fact
that there is another branch of government, the Department of
the Treasury, that has agents specifically trained and tasked
with detecting counterfeit bills shows that the average street-
level officer is not held to have infallible counterfeit detection
skills. The fact that a clerk, and the manager both continued
to think that the bill was counterfeit indicates that the officers’
2
The district court noted that Officer Liddicoet testified that the bill
looked real to her. However, a review of the record shows that Liddicoet
testified that the bill did not look real.
3
The Treasury introduced security thread and microprinting in $50 and
$100 bills in 1990 to deter counterfeiting. See Federal Reserve Bank of
San Francisco, http://www.frbsf.org/federalreserve/money/funfacts.html
(last accessed August 9, 2007). The Treasury also redesigned and added
new security features to the $100 bill in 1996. Id.RODIS v. CITY AND COUNTY OF S.F. 10687
mistake was objectively reasonable. That we have a different
view of the evidence should not change our analysis. See
Hunter v. Bryant, 502 U.S. 224, 226-27 (1991) (reversing the
Ninth Circuit’s refusal to grant qualified immunity because
officials are entitled to an accommodation for reasonable error
as a matter of law). Although qualified immunity does not
protect “the plainly incompetent,” in this case the failure of
the officers to recognize an outdated bill lacking modern
security features was not plainly incompetent, but rather an
unfortunate mistake that any reasonable officer could have
made. Malley v. Briggs, 475 U.S. 335, 341 (1986).
B. The majority improperly uses the standards for
conviction in creating a new standard for probable
cause to arrest under 18 U.S.C. § 472.
Assuming the mistake of fact does not completely dispose
of Mr. Rodis’s claim, the majority opinion improperly
imposes the government’s burden of proof at trial on the prob-
able cause inquiry. “Probable cause must be evaluated from
the viewpoint of prudent and cautious police officers on the
scene at the time of arrest.” Long v. United States, 422 F.2d
1024, 1026 (9th Cir. 1970). “The issue is whether police offi-
cers, acting together, in particular circumstances, all condi-
tioned by their observations and information and guided by
their total police experience, reasonably could have believed
that a crime had been committed by the person to be arrest-
ed.” Id. Our court has acknowledged time and time again that
“[p]robable cause exists when there is a fair probability or
substantial chance of criminal activity.” United States v.
Rodriquez, 464 F.3d 1072, 1078 (9th Cir. 2006) (quoting
United States v. Soriano, 361 F.3d 494, 505 (9th Cir. 2004).
The Supreme Court has long held that “[p]robable cause does
not require the same type of specific evidence of each element
of the offense as would be needed to support a conviction.”
Adams v. Williams, 407 U.S. 143, 149 (1972); see also Dra-
per v. United States, 358 U.S. 307, 311-12 (1959).
10688 RODIS v. CITY AND COUNTY OF S.F.
Yet the majority does precisely that by stating that “[i]t was
clear well before Rodis’s arrest that ‘[t]o support a conviction
for possession of counterfeit currency with intent to defraud
under . . . § 472, the government must prove three elements:
(1) possession of counterfeit money; (2) knowledge, at the
time of possession, that the money is counterfeit; and (3) pos-
session with intent to defraud.’ ” (emphasis added) (Maj. Op.
at 10678) (quoting United States v. Rodriquez, 761 F.2d 1339,
1340 (9th Cir. 1985)). The majority cites over and over cases
concerning what must be proven at trial to sustain a convic-
tion under 18 U.S.C. § 472, not cases specifically stating what
is required for probable cause to believe that a person has
attempted to pass a counterfeit note with intent to defraud.
(Maj. Op. at 10678, 10679-80.) The government’s burden at
trial is not the same as the standard for probable cause. Con-
flating the two and imposing a new requirement that officers
must have conclusive evidence of specific intent in order to
have probable cause to arrest violates the basic principles of
qualified immunity in arrest cases.
C. Under existing law, the officers had probable cause to
arrest Mr. Rodis on suspicion that he violated 18
U.S.C. § 472; therefore they did not violate his
constitutional rights.
So what was the proper inquiry for analyzing whether the
officers had probable cause to arrest Mr. Rodis? In Everett,
719 F.2d at 1120, the Eleventh Circuit held that, “[t]he pass-
ing of a counterfeit note coupled with an identification of the
person who passed the note furnishes probable cause to arrest
the individual identified as passing the note.” “Generally,
probable cause to arrest for the offense of passing a counter-
feit note is established by circumstances showing the passing
of a counterfeit note coupled with an identification of the indi-
vidual who passed the note.” United States v. Hernandez, 825
F.2d 846, 849 (5th Cir. 1987). In United States v. Blum, 432
F.2d 250, 251-53 (9th Cir. 1970), we upheld a finding of
probable cause based on a merchant’s report that he received
RODIS v. CITY AND COUNTY OF S.F. 10689
bills he believed were counterfeit, and the officer’s examina-
tion of the bills. The arrest in that case was based solely on
the report of the service station owner, his description of the
suspect and the suspect’s car, and the officer’s examination of
the bill and determination that it was a counterfeit bill. Id. at
251-52. A bulletin was broadcast on the radio, and an officer
arrested the defendant without a warrant a short time later. Id.
at 252. After discussing the probable cause standard at length,
this court affirmed the denial of a motion to suppress, stating
“we conclude that on the basis of the facts and circumstances
known to the police officers involved, or as to which they had
reasonably trustworthy information, that probable cause
existed for Blum’s arrest.” Id. at 253.
Nothing in our case law undermines the premise of Blum,
or the Fifth and Eleventh Circuit’s determination that proba-
ble cause that a person violated 18 U.S.C. § 472 is satisfied
upon the attempted passing of an apparently counterfeit note
and the identification of the person who tried to pass the note.
See also United States v. Allison, 616 F.2d 779, 782 (5th Cir.
1980) (concluding that officer’s lack of firsthand knowledge
concerning defendant’s intent to defraud does not eliminate
probable cause created by reliable information that possessor
attempted to pass bill as genuine); United States v. McCoy,
517 F.2d 41, 43 n.1 (7th Cir. 1975) (“[T]he record clearly
shows that the arresting officer had knowledge of facts —
namely, that McCoy had attempted to acquire merchandise in
exchange for a counterfeit bill — which established probable
cause to believe that appellant had violated § 943.38 of the
Wisconsin Criminal Code (Forgery).”). Because “[i]ntent and
knowledge may be inferred from [a suspect’s] overall
actions,” the officers had probable cause to arrest him, and did
not have to have probable cause of Mr. Rodis’s specific intent
to defraud. United States v. Lorenzo, 570 F.2d 294, 299 (9th
Cir. 1978). An attempt to pass a counterfeit bill, even if the
bill is recognized and rejected, is sufficient to sustain the
intent element for the purposes of a conviction. See id. at 295-
96, 299 (noting waitress rejected counterfeit bill, but sustain-
10690 RODIS v. CITY AND COUNTY OF S.F.
ing conviction); see also United States v. McCall, 592 F.2d
1066, 1068 (9th Cir. 1979) (affirming conviction where the
defendant told inconsistent stories about the source of the
counterfeit bills, even though the manager detected the coun-
terfeit bill and called police immediately). Even the case cited
by the majority, United States v. DeFilippis, 637 F.2d 1370,
1373 (9th Cir. 1981), declined to impose any additional ele-
ments, or to raise the burden of proof to sustain a conviction
under 18 U.S.C. § 472. Based on well-established principles
concerning probable cause, and case law specifically holding
that officers have probable cause to arrest someone on suspi-
cion of having violated 18 U.S.C. § 472 if there is evidence
of the passing of an allegedly counterfeit note and the identifi-
cation of a suspect, I would conclude that the officers did not
violate Mr. Rodis’s constitutional right to be free from arrest
absent probable cause.
Applying the majority’s newly announced standard will
also result in absurd results. If a suspect simply says that he
does not know if the bill is real or fake, or if he carries around
a real bill and offers to substitute it for the counterfeit one,
officers may not arrest him to investigate the probable unlaw-
ful conduct. In the case of a clever criminal who is skilled at
lying, officers would be powerless to arrest the suspect even
when he attempts to pass a clearly counterfeit bill, if the sus-
pect verbally disavows knowledge or intent and pays with a
legitimate bill. A criminal could test the counterfeit detection
skills of clerks, bartenders, and other consumers at will with-
out fear of arrest.
Imposing a requirement that asks officers to read criminals’
minds to discern their subjective knowledge and intent is not
practical or grounded in reality. Intent to defraud is often
established through evidence concerning knowledge such as
additional counterfeit bills, reproduction equipment, plates,
ledgers, and other evidence that officers would no longer be
able to gather incident to arrest or through a search warrant.
For example, if the bill in this case happened to be counter-
RODIS v. CITY AND COUNTY OF S.F. 10691
feit, further investigation would have established that Mr.
Rodis genuinely lacked the specific intent to defraud, making
him a victim of counterfeiting. Detectives, or more likely
Secret Service agents, would then investigate to determine the
origin of the bill, and hopefully arrest the counterfeiters.
In this particular case, however, the officers made the rea-
sonable mistake of failing to recognize a genuine pre-1991
100 dollar bill. The majority uses this mistake to impose a
new, higher standard for probable cause based on the ele-
ments necessary to sustain a conviction, instead of concentrat-
ing on whether it is more probable than not that a crime
occurred under these circumstances. (Maj. Op. at 10678,
10679-80.) I would follow our prior decision in Blum, as well
as the rulings in other circuits establishing the standard for
probable cause for violations of 18 U.S.C. § 472 and conclude
that the officers did not violate Mr. Rodis’s Fourth Amend-
ment rights because they had sufficient probable cause for the
arrest.
D. There is no constitutional requirement that an officer
fully investigate a suspect’s defenses, including his
lack of the required mental state, before arrest.
As an additional justification for concluding that the offi-
cers did not have probable cause, the majority faults the offi-
cers’ investigation under the circumstances, arguing that
certain facts reduced the probability that Rodis had the spe-
cific intent necessary to secure a conviction. (Maj. Op. at
10679-80.) This argument concerning inadequate investiga-
tion of the intent element is foreclosed by Baker v. McCollan,
where the Supreme Court granted qualified immunity after the
arrest and detention of a suspect in a case involving mistaken
identity. “[I]nnocence of the charge . . . is largely irrelevant
to [a] claim of deprivation of liberty without due process of
law.” Baker, 443 U.S. at 145. “The Constitution does not
guarantee that only the guilty will be arrested.” Id. An arrest-
ing officer is not “required by the Constitution to investigate
10692 RODIS v. CITY AND COUNTY OF S.F.
independently every claim of innocence, whether the claim is
based on mistaken identity or a defense such as lack of requi-
site intent.” (emphasis added) Id. at 145-46. “Nor is the offi-
cial charged . . . to perform an error-free investigation of such
a claim.” Id. at 146. “The ultimate determination of such
claims of innocence is placed in the hands of the judge and
jury.” Id.Consistent with Baker, the officers were allowed to arrest
Mr. Rodis because they had objective evidence that Mr. Rodis
attempted to pass the note, and Mr. Rodis did not contest the
clerk and the manager’s statements that he attempted to pay
for goods with the suspicious note even though the clerk, the
manager, and the officers were mistaken and the note turned
out to be genuine. After further investigation, the officers dis-
covered their mistake and released Mr. Rodis. The officers
were not constitutionally required to conduct an exhaustive
investigation into Mr. Rodis’s state of mind before making an
arrest. See id. at 145-46; see also Marks v. Carmody, 234 F.3d
1006, 1009-10 (7th Cir. 2000) (concluding officers acted rea-
sonably in arresting even though suspect presented evidence
tending to show that he lacked the intent to defraud); United
States v. Bertram, 719 F.2d 735, 737-38 (5th Cir. 1983)
(rejecting defendant’s argument that officers lacked probable
cause to arrest because the counterfeit Krugerrands had the
word “copy” on them, making it impossible for him to
defraud anyone). Nor was the officers’ mistake of fact a viola-
tion of Mr. Rodis’s constitutional rights. Therefore, I would
hold that the officers were entitled to qualified immunity
because they did not violate Mr. Rodis’s Fourth Amendment
rights.
RODIS v. CITY AND COUNTY OF S.F. 10693
II. The majority’s opinion announces a new principle
that officers must have specific evidence of intent to
defraud in order to have probable cause to arrest;
therefore, the law was not clearly established and the
officers were entitled to qualified immunity.
This is precisely a case where “an official could not reason-
ably be expected to anticipate subsequent legal develop-
ments.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As
noted above, the case law in this and other circuits, prior to
today’s holding, uniformly stated that the standard for proba-
ble cause to arrest on suspicion of violating 18 U.S.C. § 472required only 1) an attempt to pass an allegedly counterfeit
note, and 2) an identification of the person who attempted to
pass the note. See Blum, 432 F.2d at 251-53; Everett, 719 F.2d
at 1120; United States v. Shepard, 455 F.2d 1081, 1083 (10th
Cir. 1972); see also United States v. Ford, 461 F.2d 534 (9th
Cir. 1972) (per curiam) (noting attempt to pass counterfeit
money, a description of the suspect by a storekeeper, and the
key exhibit falling out of the suspect’s pocket as supporting
probable cause); Bates v. United States, 352 F.2d 399, 399-
400 (9th Cir. 1965) (per curiam) (discussing identification of
suspect). Our own cases involving other statutes that require
intent to defraud do not require officers to accept a suspect’s
version of events or to determine whether he actually had that
intent. See United States v. Mayo, 394 F.3d 1271, 1276 (9th
Cir. 2005) (affirming a finding of probable cause to arrest for
“placing a stolen registration sticker on a license plate, with
intent to defraud” where there was “no dispute that Mayo
admitted that he was driving the car that day, was in the pro-
cess of buying it, and had been in possession of it for the last
month”); United States v. Thomas, 835 F.2d 219, 222 (9th
Cir. 1987) (discussing act and identity).4 The Eleventh Circuit
recently reiterated in a § 1983 false arrest case that “even for
4
The majority cites two cases, Easyriders Freedom F.I.G.H.T. v. Hanni-
gan, 92 F.3d 1486, 1499 (9th Cir. 1996) and Gasho v. United States, 39
F.3d 1420, 1429 (9th Cir. 1994) where the specific intent required was a
form of specialized knowledge. For intent to defraud cases, the specific
intent is usually inferred from the act itself.
10694 RODIS v. CITY AND COUNTY OF S.F.
a criminal statute that requires proof of an intent to defraud
for a conviction, an arresting officer does not need evidence
of the intent for probable cause to arrest to exist.” Jordan v.
Mosley, 487 F.3d 1350, 1356 (11th Cir. 2007).
In essence, the specific intent to defraud is inferred from
the attempted passing of the bill. It is the rare case that a per-
son intending to defraud will admit it. The case law discussed
above concerning the lack of a duty to investigate a suspect’s
proffered defense of a lack of intent exists precisely because
almost every suspect — innocent or not, will profess a lack
of intent. The majority’s additional requirement that the offi-
cer have some conclusive level of evidence of intent to
defraud is inconsistent with these precedents.
The majority cites to no case specifically requiring that
officers have explicit evidence of a suspect’s subjective intent
to defraud before they have probable cause to arrest on suspi-
cion of violating 18 U.S.C. § 472. This lack of precedent to
support the majority’s approach is telling, and I cannot find
that an officer must have conclusive evidence of intent to
defraud before arresting a suspect was clearly established. In
my view, the case law allowing officers to infer the intent to
defraud from the attempted passing of the counterfeit note is
sufficient to establish probable cause was the clearly estab-
lished law prior to this decision. We cannot expect the offi-
cers to anticipate the majority’s ruling that they should have
had explicit and conclusive evidence of the suspect’s subjec-
tive intent to defraud prior to arrest, because it is found
nowhere else in any federal court’s jurisprudence concerning
probable cause to arrest under 18 U.S.C. § 472. Therefore, I
cannot join in the majority’s conclusion that such a require-
ment was clearly established prior to today, and I would grant
the officers qualified immunity.
What happened to Mr. Rodis was an unfortunate mistake.
We cannot allow bad facts to make bad law. Simple and rea-
sonable mistakes of fact are not constitutional violations,
RODIS v. CITY AND COUNTY OF S.F. 10695
however, nor should a mistake subject the officers to a lawsuit
under 42 U.S.C. § 1983. The case law simply does not sup-
port the majority’s view that probable cause to arrest under 18
U.S.C. § 472 requires specific and conclusive evidence of a
suspect’s subjective intent to defraud. The majority’s error is
compounded by the fact that it fails to recognize that it is
adding a wholly new requirement to the probable cause
inquiry that has no support anywhere in federal statutory or
case law, and therefore cannot be clearly established. I would
vacate the district court’s order and remand with instructions
to grant the officers qualified immunity from suit and grant
their motion for summary judgment.