James Lyall v. City of Los Angeles , 807 F.3d 1178 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES DUFF LYALL, individually No. 13-56122
and as class representatives; JAVIER
CORTEZ, individually and as class D.C. No.
representatives; MAGNOLIA 2:09-cv-07353-
BECERRA, individually and as class MAN
representatives; SASHA COSTANZA-
CHOCK, individually and as class
representatives; JOSEPH HOLLIDAY, OPINION
individually and as class
representatives; BENJAMIN WOOD,
individually and as class
representatives; ELIZABETH LOPEZ,
individually and as class
representatives; JESSICA RODRIGUEZ,
individually and as class
representatives,
Plaintiffs-Appellants,
v.
CITY OF LOS ANGELES, a public
entity; DAVID ROSS, (#33632),
individually and in his official
capacity; JOHNNY CERVANTES,
(#27374), individually and in his
official capacity; NICHOLAS CHO,
(#39259), individually and in his
official capacity,
Defendants-Appellees.
2 LYALL V. CITY OF LOS ANGELES
Appeal from the United States District Court
for the Central District of California
Margaret A. Nagle, Magistrate Judge, Presiding
Argued and Submitted
June 5, 2015—Pasadena, California
Filed December 4, 2015
Before: Jay S. Bybee and Carlos T. Bea, Circuit Judges,
and Elizabeth E. Foote,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Civil Rights
The panel affirmed the district’s judgment entered
following a jury verdict, affirmed the district court’s
summary judgment in favor of defendants on the basis of
Heck v. Humphrey, 512 U.S. 477 (1994), and reversed the
district court’s summary judgment in favor of defendants
with respect to a warrantless-entry claim, in an action brought
pursuant to 42 U.S.C. § 1983.
*
The Honorable Elizabeth E. Foote, District Judge for the U.S. District
Court for the Western District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LYALL V. CITY OF LOS ANGELES 3
Plaintiffs alleged that police officers violated their First
and Fourteenth Amendment rights when they entered, without
a warrant, a warehouse where plaintiffs were attending a
musical event and subsequently searched and detained them.
Affirming the district court, the panel held that the majority
of the plaintiffs, who were merely attending the event, lacked
standing to challenge the warrantless entry because they had
no grounds upon which to claim a reasonable expectation of
privacy in the warehouse. The panel further held that event
organizer Javiar Cortez was subject to the Heck bar regarding
his unreasonable seizure claim because he had not challenged
the validity of his California Penal Code § 415 disturbing the
peace conviction, arising from the encounter with the officers.
The panel rejected all of the plaintiffs’ claims of error
regarding the jury instructions given at trial.
The panel reversed the district court’s grant of summary
judgment with respect to Cortez’s and plaintiff Elizabeth
Lopez’s warrantless-entry claims. The panel held that Cortez
and Lopez, who were organizers of the event and thus were
in possession of the warehouse on the night of the event, had
standing to challenge the officers’ entry into the warehouse.
The panel accordingly remanded their warrantless-entry
claims for trial.
COUNSEL
Donald W. Cook (argued), Los Angeles, California, for
Plaintiffs-Appellants.
Lisa S. Berger (argued), Deputy City Attorney, Michael N.
Feuer, City Attorney, Amy Jo Field, Supervising City
Attorney, Los Angeles, California, for Defendants-Appellees.
4 LYALL V. CITY OF LOS ANGELES
OPINION
BYBEE, Circuit Judge:
The eight plaintiffs in this case were all present at a
musical event and fundraiser held in a downtown Los
Angeles warehouse on November 16, 2008. During the
event, several officers of the Los Angeles Police Department
(LAPD), who were looking for suspects who had stolen beer
from a nearby convenience store, entered the warehouse
without a warrant, rounded up the attendees, searched them
for weapons, and required them to participate in a field show-
up with a witness to the beer theft. A number of
attendees—including two of the plaintiffs here—were
arrested for resisting the officers.
The plaintiffs brought suit under 42 U.S.C. § 1983,
alleging that the officers’ warrantless entry into the
warehouse and their subsequent searching and detention of
everyone inside violated the attendees’ First and Fourth
Amendment rights. The district court granted summary
judgment to the defendants with respect to the warrantless-
entry claims, holding that no plaintiff had standing to
challenge the warrantless entry. It also granted summary
judgment to the defendants with respect to the unreasonable-
seizure claim of plaintiff Javier Cortez, which the district
court held was barred by Heck v. Humphrey, 512 U.S. 477
(1994). The remainder of the claims went to a jury, which
found for the defendants on all counts.
We affirm the judgment below in most respects: We
agree that the majority of the plaintiffs lack standing to
challenge the warrantless entry, we conclude that the district
court’s holding that Cortez is subject to the Heck bar was
LYALL V. CITY OF LOS ANGELES 5
correct, and we reject all of the plaintiffs’ claims of error
regarding the jury instructions given at trial. But we reverse
the district court’s grant of summary judgment with respect
to Cortez’s and plaintiff Elizabeth Lopez’s warrantless-entry
claims. Cortez and Lopez, who were organizers of the event
and thus were in possession of the warehouse on the night of
November 16, have standing to challenge the officers’ entry
into the warehouse. We accordingly remand their
warrantless-entry claims for trial.
I
A. The Events of November 16, 2008
In November 2008, a group of activists, including
plaintiffs Javier Cortez and Elizabeth Lopez, organized a
“musical and artistic event” designed to raise money for the
upcoming Los Angeles Anarchist Book Fair. Ulises Ramirez,
another of the organizers, received permission from his friend
Josh Haglund to hold the event in a warehouse in downtown
Los Angeles that Haglund was subletting and using as an
artistic work space.1 The event was scheduled for the night
of November 16 and was to feature several musical
performers, along with artists working on screen prints and
drawings. The organizers publicized the event broadly
through MySpace and various email lists, and approximately
100 people attended.
1
Haglund was the sole sublessee listed on the sublease agreement. He
later testified, however, that various friends helped him pay the rent at
times. Haglund gave several of these friends keys to the warehouse,
including plaintiff Joseph Holliday, who paid Haglund for the right to use
the warehouse to construct sets for a student film.
6 LYALL V. CITY OF LOS ANGELES
On the night of the event, a group of unknown persons
allegedly stole bottles of beer from a convenience store about
a mile from the warehouse. Police dispatch put out a call
describing the suspects as “six male Hispanic juveniles”
wearing “‘rocker type’ clothing” and giving the license plate
number of the pickup truck the suspects were driving. Two
LAPD officers, Johnny Cervantes and Nicholas Cho,
responded to the dispatch call and, after searching the area,
located the suspects’ truck parked around the corner from the
warehouse. The two officers determined that there appeared
to be some kind of party going on at the warehouse, which
was unusual given the time of day (Sunday night), and they
observed people wearing what they deemed to be “rocker
type” clothing going inside. On this basis, Officers Cho and
Cervantes decided to investigate the warehouse.
Cortez was standing near the half-open door of the
warehouse as the officers approached. The officers told
Cortez that they were conducting a theft investigation and
needed to speak to whomever was in charge of the event.
Cortez told the officers that the event was a “private party”
and that they could not come in unless they had a search
warrant. He then began backing toward the warehouse.
The officers observed that Cortez—who is Hispanic and
who was wearing dark clothing—matched the general
description of the theft suspects and ordered him to stop.
Cortez did not comply with this order; instead, he turned and
ran into the warehouse. He then attempted to close the door,
but Officer Cervantes struggled with him and was able to
push the door open. The two officers entered the warehouse,
seeking to subdue Cortez.
LYALL V. CITY OF LOS ANGELES 7
Once inside the warehouse, the officers observed Cortez
“walking towards a large group.” They ordered Cortez
several more times to stop, but he did not do so. The officers
then grabbed Cortez and began struggling with him. The
crowd around Cortez shouted at the officers to let him go and
moved toward the officers in what the officers described as an
“aggressive manner.” The officers dragged Cortez toward the
door, with the crowd continuing to protest. As the officers
reached the door, they were struck in the back of the head by
a thin, light wooden partition that had been erected near the
front door. (It is not known whether someone intentionally
pushed over the partition or whether it simply fell by
accident.) The impact startled the officers, but they were not
injured. The two made it out of the warehouse, at which
point Officer Cho handcuffed Cortez and took him into
custody while Officer Cervantes called for backup.
Several officers responded to the call for backup,
including Sergeant David Ross, who took charge at the scene.
When the backup officers arrived, the crowd went back inside
the warehouse, and James Lyall, one of the attendees, closed
the door with the help of another man. The police began
speaking to the attendees through the door, telling them to
open it and come out. Lyall, an attorney, responded that the
officers needed a warrant to come in. After a few minutes of
back-and-forth between Lyall and the officers, Lyall broke
off the conversation and moved away from the door. At that
point, a group of attendees decided they wanted to obey the
officers’ orders and come out of the warehouse. After this
group went out the door, Sasha Costanza-Chock, another
attendee at the event, tried to close the door behind them, but
the police pushed it open and ordered everyone out.
8 LYALL V. CITY OF LOS ANGELES
As the police began to clear out the warehouse, plaintiff
Joseph Holliday, who was not participating in the event but
was present at the warehouse that evening to work on sets for
a student film, decided to go up on the roof of the warehouse
with his assistant “rather than get pulled out the front and get
arrested.” Once the two reached the roof, they jumped across
to the roof of a neighboring warehouse. A police helicopter
located Holliday and his companion and ordered them off the
roof. Holliday stayed briefly on the roof to place a cell-phone
call to his mother but eventually complied with the order and
came down. Holliday and his assistant were arrested for
resisting a peace officer; they were later released without
being formally charged with any offense.
Meanwhile, Sergeant Ross lined the rest of the event
attendees against a chain-link fence. The police then
conducted pat-down searches of all of the attendees for
weapons. They also conducted a “field ‘show-up’” with a
witness from the convenience store in an attempt to identify
suspects in the theft. The witness identified one person in the
lineup, Eduardo Ramirez, and the police put Ramirez under
arrest. Several other attendees, including Cortez, were
arrested for resisting a peace officer in violation of California
Penal Code § 148. After about 45 minutes, the police
permitted the attendees in the line-up to leave the area.
Sergeant Ross then padlocked the warehouse door shut in
order to secure the building.
Two days after the event, on November 18, 2008, Cortez
pleaded guilty to an infraction2 violation of California Penal
2
In California, a minor offense can be prosecuted as an “infraction”
rather than as a misdemeanor. Cal. Penal Code § 17(d)(1). Infractions are
not punishable by imprisonment and are not tried to juries. Id. § 19.6.
 LYALL V. CITY OF LOS ANGELES 9
Code § 415 (disturbing the peace) based on his encounter
with the officers. Cortez was entitled to appeal the judgment
of conviction under California law, Cal. Penal Code
§ 1466(b)(1), but did not do so. He later attempted to
expunge the conviction but was unable to do so because
expungement is not available for infractions. See id.
§ 1203.4(b).
B. Procedural Background
Two groups of plaintiffs represented by the same attorney
ultimately filed materially identical lawsuits against the City
of Los Angeles, the LAPD, Chief of Police William Bratton,
and six officers present at the scene, including Officers Ross,
Cho, and Cervantes. The plaintiffs in the first lawsuit, which
commenced in October 2009, were Lyall, Cortez, Costanza-
Chock, Holliday, and three additional attendees at the event:
D’Angelo Jones, Magnolia Becerra, and Benjamin Wood.
The plaintiffs in the second lawsuit, which commenced in
September 2010, were Lopez and Jessica Rodriguez, an
attendee.3 The complaint in each case stated three claims:
(1) a § 1983 claim for violation of the plaintiffs’ First
Amendment rights of free speech and association; (2) a
§ 1983 claim for violation of the Fourth Amendment, based
on the officers’ warrantless entry into the warehouse, their
arrest of several of the plaintiffs, the pat-down searches of the
plaintiffs, and the plaintiffs’ detention in the field show-up;
3
The plaintiffs sued as representatives of a class consisting of all of the
100 attendees at the event, but the district court denied their motion for
class certification on the grounds that their class definition was inadequate
and that the class members’ warrantless-entry claims presented
individualized questions of law not susceptible to a “blanket
determination.” Plaintiffs have not appealed that decision.
10 LYALL V. CITY OF LOS ANGELES
and (3) a claim under the Bane Act, a California statute that
provides a cause of action for persons deprived of federal or
state constitutional rights by “threat, intimidation, or
coercion.” Cal. Civ. Code § 52.1(b).
After discovery, the defendants moved for partial
summary judgment in the Lyall case, arguing (among other
things) that Cortez’s unreasonable-seizure claim was barred
by Heck v. Humphrey, 512 U.S. 477 (1994), because it
challenged the validity of his § 415 conviction, which had not
been vacated or overturned, and that the plaintiffs’ Fourth
Amendment claims relating to the warrantless entry into the
warehouse failed as a matter of law because none of the
plaintiffs had a reasonable expectation of privacy in the
warehouse.4 The plaintiffs cross-moved for summary
judgment on their Fourth Amendment claims.
The district court granted summary judgment to the
defendants on the plaintiffs’ warrantless-entry claims, holding
that none of the plaintiffs had a reasonable expectation of
privacy in the warehouse. The court determined that most of
the plaintiffs were simply attendees at an open, widely
publicized event and that they had no “possessory interest, or
any other connection to the warehouse that might reasonably
confer an expectation of privacy.” It then rejected Cortez’s
argument that his status as an organizer of the event entitled
him to Fourth Amendment standing, explaining that “mere
4
The defendants also sought summary judgment on all claims against
Police Chief Bratton and two of the named officers, on the ground that
there was insufficient evidence for the plaintiffs to proceed against those
three defendants. The court granted summary judgment with respect to
Bratton and the two officers, and the plaintiffs do not appeal that
determination.
LYALL V. CITY OF LOS ANGELES 11
permission to use a space” for a public event did not create a
reasonable expectation of privacy. Finally, the court
determined that Holliday, despite his payments to Haglund
for access to the warehouse, was not a “co-tenant” there, and
it held that even if Holliday were a co-tenant, he could assert,
at most, a “limited possessory interest” in the warehouse that
“would not have conferred a reasonable expectation of
privacy in the space on the night in question.”
The court also granted summary judgment to the
defendants with respect to Cortez’s unreasonable-seizure
claim, holding that that claim was barred by Heck because it
challenged the validity of his § 415 conviction, which had not
been vacated, expunged, or otherwise disturbed. The court
deemed it irrelevant that Cortez was unable to seek habeas
relief due to the brevity of his time in custody, because
California law gave Cortez a right of direct appeal from his
infraction conviction and he had not pursued such an appeal.
The court denied the plaintiffs’ cross-motion for summary
judgment, holding that the claims remaining in the case
involved genuine issues of material fact that would need to go
to the jury.5
Lyall and Lopez were consolidated for trial, which
occurred in May 2013. The jury returned a verdict for the
defendants on all counts. It found that the plaintiffs had not
5
The district court later considered cross-motions for summary
judgment in the Lopez case. Applying the reasoning of its Lyall summary-
judgment order, the district court held that Lopez and Rodriguez did not
have standing to challenge the warrantless entry. It accordingly granted
summary judgment to the defendants on the warrantless-entry claims
while sending the rest of the plaintiffs’ claims to trial.
12 LYALL V. CITY OF LOS ANGELES
proven by a preponderance of the evidence (1) that any
plaintiff had been unreasonably searched or detained, (2) that
Holliday had been arrested without probable cause, (3) that
any plaintiff’s First Amendment rights had been violated, or
(4) that any defendant had intentionally interfered with any
plaintiff’s civil rights by threats, intimidation, or coercion in
violation of the Bane Act. The plaintiffs timely appealed the
judgment,6 and we have jurisdiction under 28 U.S.C. § 1291.
II
The plaintiffs’ first claim on appeal is that the district
court erred in granting summary judgment to the defendants
on the plaintiffs’ warrantless-entry claims. We review the
district court’s grant of summary judgment de novo and “will
uphold [the] summary judgment if there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Kohler v. Bed Bath & Beyond of Cal.,
LLC, 780 F.3d 1260, 1263 (9th Cir. 2015) (quoting Fed. R.
Civ. P. 56(a)) (internal quotation marks omitted).
We note at the outset that the district court analyzed the
plaintiffs’ challenges to the warrantless entry solely under the
reasonable-expectation-of-privacy test derived from the
Supreme Court’s decision in Katz v. United States, 389 U.S.
347 (1967). After the district court ruled on the defendants’
summary-judgment motions, however, the Supreme Court
decided United States v. Jones, in which it considered the
question whether the placement of a GPS device on a
suspect’s car to track the suspect’s movements on public
6
One plaintiff, D’Angelo Jones, elected not to appeal and is no longer
a party to this case.
LYALL V. CITY OF LOS ANGELES 13
streets was a “search” subject to the Fourth Amendment’s
warrant requirement. 132 S. Ct. 945 (2012).
The government in Jones argued that no search had
occurred because a person has no reasonable expectation of
privacy in the movement of his car over public streets, but the
Court declined even to consider that argument. Id. at 950.
The Court instead cited to the Fourth Amendment’s
protection of “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures,” and held that physically trespassing
to place a GPS device on one of the suspect’s “effects”—i.e.,
his car—was a search requiring a warrant. Id. at 949. The
Supreme Court held that the reasonable-expectation-of-
privacy test from Katz is not the exclusive metric by which
courts should determine whether a Fourth Amendment
“search” has occurred. See id. at 950 (stating that a person’s
“Fourth Amendment rights do not rise or fall with the Katz
formulation”). Rather, “the Katz reasonable-expectation-of-
privacy test has been added to, not substituted for, the
common-law trespassory test.” Id. at 952; see Soldal v. Cook
Cnty., 506 U.S. 56, 62–64 (1992) (“[O]ur cases unmistakably
hold that the [Fourth] Amendment protects property as well
as privacy. . . . [T]he message of . . . cases [like Katz] is that
property rights are not the sole measure of Fourth
Amendment violations.”).
Jones simply reaffirmed that when the government
“physically occupie[s] private property for the purpose of
obtaining information,” a Fourth Amendment search occurs,
regardless whether the intrusion violated any reasonable
expectation of privacy. 132 S. Ct. at 949; see also, e.g.,
Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per
curiam) (applying Jones and holding that the attachment of a
14 LYALL V. CITY OF LOS ANGELES
GPS tracking device to a person’s body was a search);
Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013) (applying
Jones and holding that the use of police dogs to investigate
the curtilage of a home was a search). Only where the search
did not involve a physical trespass do courts need to consult
Katz’s reasonable-expectation-of-privacy test. See Jones,
132 S. Ct. at 953.
But even if a trespassory search occurred, that does not
end our inquiry. Jones did not change the fundamental tenet
that “Fourth Amendment rights are personal rights which,
like some other constitutional rights, may not be vicariously
asserted.” Alderman v. United States, 394 U.S. 165, 174
(1969). “In order to qualify as a ‘person aggrieved by an
unlawful search and seizure’ one must have been a victim of
a search or seizure, one against whom the search was
directed, as distinguished from one who claims prejudice only
through the use of evidence gathered as a consequence of a
search or seizure directed at someone else.” Id. at 173
(quoting Jones v. United States, 362 U.S. 257, 261 (1960)).
In other words, when police trespass on property to carry out
a search, a defendant has standing to raise the Fourth
Amendment only if it was his person, house, paper, or effect
searched. The Court in Jones did not discuss standing for a
simple reason: There, no one disputed that Jones lawfully
possessed the car that the officers trespassed on during their
search. Jones, 132 S. Ct. at 949 n.2. After Jones, even when
officers carry out a common-law trespassory search, the
question remains: Whose Fourth Amendment rights were
violated?7
7
In addition to challenging the warrantless entry under the Fourth
Amendment, the plaintiffs allege that the entry violated their rights under
Article I, Section 13 of the California Constitution, which contains
LYALL V. CITY OF LOS ANGELES 15
The Fourth Amendment shields not only actual owners,
but also anyone with sufficient possessory rights over the
property searched. Our own cases have thoroughly discussed
what types of possessory rights create standing under the
Fourth Amendment. See, e.g., United States v. Thomas,
447 F.3d 1191, 1197–99 (9th Cir. 2006); United States v.
Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000).8 To be
shielded by the Fourth Amendment, a person needs “some
joint control and supervision of the place searched,” not
merely permission to be there. See United States v. Lockett,
919 F.2d 585, 588 (9th Cir. 1990) (citation and internal
quotation marks omitted); see also Rakas v. Illinois, 439 U.S.
128, 143 (1978) (holding that Fourth Amendment standing
cannot be conferred merely because a person is “legitimately
on the premises” (brackets omitted)); United States v. Johns,
language virtually identical to that of the Fourth Amendment. Cal. Const.
art. I, § 13. But the plaintiffs have failed to cite any authority for the
proposition that Article I, Section 13 provides greater protection against
searches and seizures than the Fourth Amendment. We have held that it
does not. Sanchez v. Cnty. of San Diego, 464 F.3d 916, 928–29 (9th Cir.
2006) (“[T]he right to be free from unreasonable searches under [Article
I, Section 13] parallels the Fourth Amendment inquiry.”). We will
therefore analyze the lawfulness of the warrantless entry solely under the
Fourth Amendment.
8
In these cases, we essentially conflated the trespassory-search and
reasonable-expectation-of-privacy tests for Fourth Amendment standing.
That is, we required a sufficient possessory interest in property in order for
the defendant to have a reasonable expectation of privacy in the property.
See Thomas, 447 F.3d at 1198–99; Cormier, 220 F.3d at 1108. In light of
Jones, we recognize that the two tests for Fourth Amendment standing are
separate and that a person may have Fourth Amendment standing to
challenge a search based on his possessory interest in property
independent of any reasonable expectation of privacy in the property.
Nevertheless, we believe these cases are useful for determining the types
of possessory interests that grant a person standing to challenge a search.
16 LYALL V. CITY OF LOS ANGELES
851 F.2d 1131, 1136 (9th Cir. 1988) (person had standing
because he had joint “control” over storage unit). For
example, where a defendant not only has the right to possess
a location, but also the right to exclude others, he likely has
Fourth Amendment standing to challenge searches there. See
Rakas, 439 U.S. at 149 (holding that a defendant with
permission to ride in a car did not have standing to challenge
a search, and distinguishing a case where a defendant “not
only had permission to use the [location searched] . . . but . . .
had complete dominion and control over the [location] and
could exclude others from it”).
For purposes of our analysis, we divide the plaintiffs into
three groups: (1) the five plaintiffs who were merely
attending the event, (2) Joseph Holliday, who paid Haglund
for the right to work on film sets in the warehouse, and
(3) Cortez and Lopez, who organized the event and received
permission from Haglund to use the warehouse.
A. Event Attendees (Lyall, Costanza-Chock, Becerra, Wood,
and Rodriguez)
The officers’ warrantless entry into the warehouse did not
infringe any protected Fourth Amendment interest of the
plaintiffs who were merely attending the event, whether
considered under either the Jones trespass test or Katz’s
reasonable-expectation-of-privacy test.
These five plaintiffs have not asserted any ownership
interests in the places searched, so they must rely on Katz’s
LYALL V. CITY OF LOS ANGELES 17
reasonable expectation of privacy framework.9 And they
have no grounds on which to claim a reasonable expectation
of privacy in the warehouse. They happened to be inside the
warehouse when the police entered, but that fact, without
more, is insufficient to confer Fourth Amendment standing.
See Rakas, 439 U.S. at 135, 141–43 (holding that the mere
fact that a person is “legitimately on premises where a search
occurs” is not enough to show that the search infringed the
person’s expectation of privacy); United States v. Armenta,
69 F.3d 304, 309 (9th Cir. 1995) (evidence suggesting, at
most, that defendant was legitimately on the premises
9
Although courts of appeals do not appear to have taken up the
ownership question since Jones, the Court there instructed that we should
apply the common-law trespass theory as it has always existed—which
requires a sufficient possessory interest in the property beyond mere
permission to remain on the property searched. The district courts that
have addressed this question post-Jones take the same view that a
sufficient ownership interest is required to confer standing. See, e.g.,
United States v. Houseal, No. 3:11CR-143-H, 2014 WL 626765, at *6
(W.D. Ky. Feb. 18, 2014) (“[A] defendant who does not have either a
lawful ownership interest, or a possessory interest in [property] at the time
of the search does not possess a legitimate expectation of privacy that the
Fourth Amendment will protect.”); United States v. Figueroa-Cruz, 914
F. Supp. 2d 1250, 1261–62 (N.D. Ala. 2012) (“Under the reasonable
expectation of privacy test ownership, and presumably a legal bailment[,]
while perhaps factors to be considered, are not dispositive. . . . In Jones
however, the attachment of the GPS device only becomes a search within
the meaning of the Fourth Amendment precisely because of an actual
property interest.” (brackets omitted)); United States v. Luna-Santillanes,
No. 11-20492, 2012 WL 1019601, at *7 (E.D. Mich. Mar. 26, 2012)
(defendants lacked standing to challenge placement of GPS devices on
vehicles because they had not presented any evidence “showing either an
ownership or contractual interest in any of these vehicles or exclusivity of
use”); United States v. Hanna, No. 11-20678-CR, 2012 WL 279435, at *3
(S.D. Fla. Jan. 30, 2012) (“Under . . . Jones, an essential component of the
Fourth Amendment claim requires that one’s own personal ‘effects’ have
been trespassed . . . .”).
18 LYALL V. CITY OF LOS ANGELES
searched was “insufficient to demonstrate a legitimate
expectation of privacy”).
B. Joseph Holliday
Joseph Holliday’s claim to a protected Fourth
Amendment interest in the warehouse is stronger than that of
a mere attendee at the November 16 event. Holliday was
making regular payments to Haglund, the subtenant of the
warehouse, so Holliday could use the warehouse to construct
film sets. Holliday argues that this arrangement made him a
“co-tenant” of the warehouse with a reasonable expectation
of privacy and a property interest therein.
We hold that Holliday had neither sufficient possessory
rights, nor a reasonable expectation of privacy, in the
warehouse. First, Holliday has insufficient possessory rights
to raise Fourth Amendment concerns. He was not in
possession of the warehouse on the night of November 16; he
had moved his film sets out of the way to allow the space to
be used for the event, and he was there solely as an attendee.
Haglund referred to Holliday as simply one of several
“friends of mine who have helped pay the rent” and to whom
he had given keys. He told Holliday at the outset of their
relationship that others would be given access to the
warehouse and that Holliday would need to “make room” for
them as circumstances warranted. And most importantly,
Holliday did not have the right to exclude others from any
portion of the warehouse. Tellingly, Holliday stated in his
deposition that he did not feel that his permission was
required before the November 16 event could be held.
Nothing about Holliday’s arrangement with Haglund
“indicates joint control and supervision” of the warehouse.
LYALL V. CITY OF LOS ANGELES 19
For the same reasons, we likewise hold that Holliday
cannot prevail under a reasonable-expectation-of-privacy
theory. Any expectation of privacy Holliday had in the space
was inextricably tied to his ownership or possessory rights
over the areas searched. See, e.g., United States v. Nohara,
3 F.3d 1239, 1242 (9th Cir. 1993). And as explained above,
he did not possess such rights when the officers conducted
their search.
C. Event Organizers (Cortez and Lopez)
We part ways with the district court with respect to Cortez
and Lopez—the two plaintiffs who were present at the
November 16 event not as attendees but as organizers.
Cortez and Lopez have standing to challenge the officers’
warrantless entry under Jones, and the district court therefore
erred in granting summary judgment to the defendants on
their warrantless-entry claims.
Unlike the attendees at the event, Cortez, Lopez, and the
other organizers of the event were not “mere visitors,” as the
defendants claim; they had received permission from
Haglund to use the warehouse on November 16 and were in
charge of the property that night. The organizers had
possession of the warehouse, the right to control it, and the
right to bring an action in trespass against intruders.10 See
Smith v. Cap Concrete Inc., 184 Cal. Rptr. 308, 310 (Ct. App.
1982) (“The cause of action for trespass is designed to protect
possessory—not necessarily ownership—interests in land
from unlawful interference. The proper plaintiff in an action
10
Haglund did not charge the organizers money for their use of the
space, but that is an irrelevant fortuity. It does not diminish the
organizers’ right to exclude others from the warehouse.
20 LYALL V. CITY OF LOS ANGELES
for trespass to real property is the person in actual possession
. . . .” (citations omitted)). After Cortez impeded Officers
Cho and Cervantes at the warehouse door and objected to
their presence, the officers’ entry into the warehouse was
trespassory, thereby implicating Jones. See Thomas,
447 F.3d at 1199 (holding that an unauthorized driver of a
rental car may have standing to challenge a search of the
vehicle if he has permission to use the car from the authorized
driver); see also Jones, 362 U.S. at 259, 265–67 (holding
Jones had standing to challenge a search of his friend’s
apartment when the friend gave him use of the apartment and
a key).
The defendants argue that, even if Cortez and Lopez (or
any other plaintiff) can show that they had a protected Fourth
Amendment interest in the warehouse, we can affirm the
grant of summary judgment on the ground that the entry was
justified by exigent circumstances. We disagree. In a § 1983
case, the question whether exigent circumstances existed is
generally one for the jury. See, e.g., Fisher v. City of San
Jose, 558 F.3d 1069, 1071 (9th Cir. 2009) (en banc); Hancock
v. Dodson, 958 F.2d 1367, 1375 (6th Cir. 1992) (“In a civil
[§ 1983] action, the determination of whether exigent
circumstances exist is properly resolved by the jury.”). We
can affirm the judgment, therefore, only if “the underlying
facts are essentially undisputed, and . . . a finder of fact could
reach but one conclusion as to the existence of exigent
circumstances.” Hancock, 958 F.2d at 1375.
In this case, a trier of fact could easily conclude that no
exigent circumstances existed to justify the warrantless entry.
We have held that “while the commission of a misdemeanor
offense,” such as the petty theft that Officers Cho and
Cervantes were investigating, “is not to be taken lightly, it
LYALL V. CITY OF LOS ANGELES 21
militates against a finding of exigent circumstances where the
offense . . . is not inherently dangerous.” United States v.
Struckman, 603 F.3d 731, 745 (9th Cir. 2010). A jury could
thus decide that the officers’ search for the suspects in the
beer theft—who police were not even sure were in the
warehouse—did not justify a warrantless entry. Similarly, a
jury could conclude that Cortez’s behavior toward the officers
did not justify entering the warehouse without a warrant to
apprehend him. Any crime Cortez had committed was minor,
and there was little chance that he would flee or destroy
evidence.
We therefore cannot hold as a matter of law that exigent
circumstances justified the officers’ warrantless entry. The
question of exigent circumstances should be put to the trier of
fact on remand.
* * *
Because Cortez’s and Lopez’s possessory interest in the
warehouse on the night of November 16 gave them standing
to challenge the warrantless entry under Jones, the district
court’s grant of summary judgment to the defendants on
Cortez’s and Lopez’s warrantless-entry claims was error,
regardless whether they had a reasonable expectation of
privacy in the warehouse—a question we do not decide. See
Jardines, 133 S. Ct. at 1417 (“One virtue of the Fourth
Amendment’s property-rights baseline is that it keeps easy
cases easy. That the officers . . . physically intrud[ed] on [a
person’s] property to gather evidence is enough to establish
that a search occurred.”). We accordingly reverse the grant
of summary judgment as to Cortez and Lopez and remand
their warrantless-entry claims for further proceedings. We
22 LYALL V. CITY OF LOS ANGELES
affirm the grant of summary judgment as to the other
plaintiffs’ warrantless-entry claims.
III
We next consider Cortez’s argument that the district court
erred in concluding that Heck v. Humphrey bars him from
challenging his unreasonable seizure by the police under
§ 1983. We agree with the district court that the Heck bar
applies.
In Heck, the Supreme Court considered the question
whether a state prisoner could challenge his conviction by
bringing a § 1983 suit based on allegedly unconstitutional
acts committed by state actors during his arrest and
prosecution. Heck, 512 U.S. at 478–79. The Court concluded
that such a claim was not cognizable under § 1983 because
tort lawsuits generally “are not appropriate vehicles for
challenging the validity of outstanding criminal judgments.”
Id. at 486. The Court therefore held that “in order to recover
damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Id. at 486–87
(footnote omitted).11
11
Whether the Heck bar applies may also turn on whether a plaintiff’s
§ 1983 claim undermines the prior conviction in question. Because the
parties have not argued this issue on appeal, we do not reach it.
LYALL V. CITY OF LOS ANGELES 23
Four years later, in Spencer v. Kemna, 523 U.S. 1 (1998),
five Justices of the Court suggested that Heck’s scope might
be narrower than Heck itself indicated. In Spencer, an inmate
was released on parole but then had his parole revoked.
When he returned to prison, the inmate first challenged the
parole revocation in the state courts and then, when that
challenge was unsuccessful, filed a federal habeas petition.
Before the federal district court could rule on the petition, the
inmate completed his term of imprisonment and was released
again. Id. at 5–6. The district court thus dismissed the
habeas petition as moot.
The Court held that the habeas petition was indeed moot
and had to be dismissed. In his opinion for the majority,
Justice Scalia rejected the inmate’s argument that his habeas
petition should not be considered moot because he needed to
obtain habeas relief as a prerequisite to pursuing a § 1983
action. The majority described this as “a great non sequitur,
unless one believes (as we do not) that a § 1983 action for
damages must always and everywhere be available.” Id. at
17.
Justice Souter, however, wrote a concurrence joined by
three other Justices, in which he argued that the petitioner
was not, in fact, barred by Heck from suing about his parole
revocation under § 1983. He explained that Heck had not
made favorable termination of criminal proceedings “an
element of any § 1983 action alleging unconstitutional
conviction”; rather, Heck’s rule applied only to prisoners “in
custody” to whom habeas was available, because the Court
had adopted the Heck rule in order to prevent a conflict
between the habeas statute and § 1983. Id. at 19–20 (Souter,
J., concurring). Thus, Justice Souter concluded, “a former
prisoner, no longer ‘in custody,’ may bring a § 1983 action
24 LYALL V. CITY OF LOS ANGELES
establishing the unconstitutionality of a conviction or
confinement without being bound to satisfy a
favorable-termination requirement that it would be
impossible as a matter of law for him to satisfy,” because
after a prisoner is released, “the habeas statute and its
exhaustion requirement have nothing to do with his right to
any relief.” Id. at 21.
Justice Stevens dissented in Spencer, arguing that the
petitioner’s habeas petition was not moot. In a footnote,
however, he agreed with Justice Souter’s view of Heck,
stating that “it is perfectly clear, as Justice Souter explains,
that [the petitioner] may bring an action under 42 U.S.C.
§ 1983.” Id. at 25 n.8 (Stevens, J., dissenting). In total,
therefore, five Justices on the Spencer Court took the position
that the Heck bar does not necessarily apply to a person who
is unable to challenge his conviction by way of federal
habeas.
We have looked to the separate Spencer opinions for
guidance as to whether Heck’s favorable-termination
requirement applies in all § 1983 cases and have concluded
that, at least sometimes, it does not. Two cases, Nonnette v.
Small, 316 F.3d 872 (9th Cir. 2002), and Guerrero v. Gates,
442 F.3d 697 (9th Cir. 2006), define the rough boundaries of
the Heck bar, as we have construed it post-Spencer. In
Nonnette, a state prisoner, after first exhausting his prison
administrative remedies, brought a § 1983 suit against prison
officials, alleging that they wrongly revoked some of his
good-time credits and placed him in administrative
segregation without giving him adequate process. The
district court held that his § 1983 action was barred by Heck.
By the time we heard his appeal, however, the inmate had
been released. We held that because any habeas corpus
LYALL V. CITY OF LOS ANGELES 25
petition filed by the now-former inmate would be dismissed
as moot, he was not barred by Heck from bringing a § 1983
suit. Nonnette, 316 F.3d at 877. We stated that this holding
“affects only former prisoners challenging loss of good-time
credits, revocation of parole or similar matters; the status of
prisoners challenging their underlying convictions or
sentences does not change upon release, because they
continue to be able to petition for a writ of habeas corpus.”
Id. at 878 n.7.
In Guerrero, decided four years later, we distinguished
Nonnette and concluded that an ex-inmate’s § 1983 suit was
barred by Heck. The plaintiff in Guerrero alleged that
various LAPD officials had conspired to subject him to
excessive force, wrongful arrest, and malicious prosecution.
Guerrero, 442 F.3d at 702. He did not file suit until
approximately a year after his release from prison. Id.
Examining our previous decisions, we determined that
“timely pursuit of available habeas relief” is an important
prerequisite for a § 1983 plaintiff seeking to escape the Heck
bar. Id. at 705. Thus, we explained, the plaintiff in Nonnette
deserved relief from the Heck bar because he “immediately
pursued relief after the incident giving rise to [his] claims and
could not seek habeas relief only because of the shortness of
his prison sentence.” Id. Guerrero, by contrast, never
challenged his convictions prior to filing his § 1983 suit,
despite having years in custody in which to do so. We held
that this “self-imposed” failure to seek habeas relief was not
a ground for allowing Guerrero to escape the Heck bar.
26 LYALL V. CITY OF LOS ANGELES
Cortez’s case is more akin to Guerrero than to Nonnette.12
Cortez does not come within the narrow exception recognized
in Spencer and Nonnette. Nonnette’s relief from Heck
“‘affects only former prisoners challenging loss of good-time
credits, revocation of parole or similar matters,’ not
challenges to an underlying conviction.” Id. (quoting
Nonnette, 316 F.3d at 878 n.7). We are not an alternative
forum for challenging his conviction. We therefore affirm
the district court’s grant of summary judgment to the
defendants with respect to Cortez’s unreasonable-seizure
claim.
IV
Finally, we turn to the plaintiffs’ four claims of error
relating to the jury instructions given at trial. None of these
claims has merit.
A. Plaintiffs’ Requested Instructions on the Lawfulness of
their Search and Seizure and of the Officers’ Orders
After the close of the evidence, the plaintiffs requested
that the district court instruct the jury that the officers’ search
12
We acknowledge that Cortez’s inability to obtain federal habeas relief
is no fault of his own: He was in custody for only two days after his arrest
and was not sentenced to any prison time as a result of his infraction
conviction. The brevity of Cortez’s time in custody made federal habeas
effectively unavailable to him. But Cortez failed to exercise his right,
under California law, to a direct appeal from his conviction. See Cal.
Penal Code § 1466(b)(1). Cortez’s success in his § 1983 suit would imply
that his conviction in California was wrongly obtained. Yet his conviction
has never been invalidated. Indeed, Cortez has never sought to invalidate
it through direct appeal or post-conviction relief. He is thus barred by
Heck.
LYALL V. CITY OF LOS ANGELES 27
of the plaintiffs for weapons and the plaintiffs’ detention
during the field show-up were unlawful. In pertinent part, the
proposed instruction read:
I instruct you that each plaintiff was seized
and subjected to a search within the meaning
of the Fourth Amendment. I further instruct
you that the detention and search of each
plaintiff was in violation of the Fourth
Amendment.
The plaintiffs’ request for this instruction was the equivalent
of a motion for judgment as a matter of law, given that the
instruction would have compelled the jury to decide for the
plaintiffs on the ultimate issue in the case (i.e., whether the
officers’ conduct was reasonable). Cf. Jack Cole Co. v.
Hudson, 409 F.2d 188, 191 (5th Cir. 1969) (defendants’
midtrial “request in chambers that the jury be instructed to
find for them” was the equivalent of a motion for a directed
verdict). We therefore review the district court’s refusal to
give the instruction under the standard that applies to the
denial of a motion for judgment as a matter of law: We will
not reverse the district court unless “the evidence permit[ted]
a reasonable jury to reach only one conclusion.” Quiksilver,
Inc. v. Kymsta Corp., 466 F.3d 749, 755 (9th Cir. 2006)
(quoting Lawson v. Umatilla Cnty., 139 F.3d 690, 692 (9th
Cir. 1998)) (internal quotation marks omitted); see also id.
(“If reasonable minds could differ as to the import of the
evidence, . . . judgment as a matter of law should not be
granted.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250–51 (1986) (internal quotation marks omitted)).
Based on the evidence presented at trial, a reasonable jury
could find that the officers acted permissibly when they
28 LYALL V. CITY OF LOS ANGELES
searched the plaintiffs and detained them for the field show-
up. The theft suspects’ car had been seen in close proximity
to the warehouse, suggesting that the suspects might have
taken refuge inside. Cortez matched the theft suspects’
description and behaved suspiciously toward the officers
when they questioned him. The officers testified that the
crowd reacted angrily when they attempted to subdue Cortez
and that they believed they were in danger—a belief that was
exacerbated when the wooden partition, which they thought
someone had pushed, fell on top of them. It was reasonable
for the jury to conclude, in light of this testimony, that the
officers had sufficient fear for their own safety to justify
searching the plaintiffs for weapons, see Terry v. Ohio,
392 U.S. 1, 27 (1968), and sufficient reason to believe that
suspects in the theft were among the attendees to warrant
holding the field show-up. The district court thus properly
refused to instruct the jury to find that the searches and
seizures of the plaintiffs were unreasonable as a matter of
law.13
13
The plaintiffs argue that, even if the evidence supported a finding that
the officers had the reasonable suspicion for seizing and frisking the
plaintiffs required by Terry, the length of the field show-up (30–45
minutes) transformed their detention from a Terry stop into an arrest
requiring a more demanding showing of probable cause. We disagree.
There is “no bright line rule for determining when an investigatory [Terry]
stop crosses the line and becomes an arrest”; rather, “whether an arrest has
occurred depends on all the surrounding circumstances, and each case
must be decided on its own facts.” Allen v. City of L.A., 66 F.3d 1052,
1056 (9th Cir. 1995) (quoting United States v. Parr, 843 F.2d 1228, 1231
(9th Cir. 1988)) (internal quotation marks omitted). The Supreme Court
has indicated, moreover, that “[i]f the purpose underlying a Terry
stop—investigating possible criminal activity—is to be served, the police
must under certain circumstances be able to detain the individual for
longer than the brief time period involved in Terry,” and that one such
circumstance is that “‘[i]f it is known that an offense has occurred in the
LYALL V. CITY OF LOS ANGELES 29
The plaintiffs separately challenge the district court’s
refusal to give a special instruction stating that “the officers’
orders that the officers be allowed to enter and search the
premises, and that the plaintiffs had to submit to detentions
and searches, were unlawful as a matter of law.” Given that
the lawfulness of the searches and seizures themselves was a
question for the jury, it follows that the lawfulness of the
officers’ orders regarding the searches and seizures was also
a jury question. The district court did not err by refusing to
give this instruction.
B. Plaintiffs’ Requested Instruction on “Individualized
Suspicion”
At trial, the plaintiffs contended that the searches and
seizures that occurred after they were ordered out of the
warehouse were unlawful because the police did not have
reasonable suspicion that any particular member of the crowd
was armed or was a suspect in the crime. The plaintiffs
requested that the district court instruct the jury that:
Defendants were obligated to have
individualized suspicion as to each plaintiff
whom you find was detained or searched or
arrested. Put differently, for each plaintiff
you find was detained and/or searched and/or
area, the suspect may be viewed by witnesses to the crime.’” Michigan
v. Summers, 452 U.S. 692, 700 n.12 (1981) (quoting 3 Wayne LaFave,
Search and Seizure § 9.2 (1978)); see also United States v. Sharpe,
470 U.S. 675, 685 (1985) (“[O]ur cases impose no rigid time limitation on
Terry stops.”). The jury thus was permitted to conclude that the detaining
of the plaintiffs for the field show-up was within the permissible scope of
the Terry encounter and hence lawful on a showing of reasonable
suspicion, rather than probable cause.
30 LYALL V. CITY OF LOS ANGELES
arrested, defendants must present at least
some evidence that that plaintiff was observed
or reported to have had involvement in the
purported criminal activity at issue.
The district court rejected the plaintiffs’ instruction,
opting instead to instruct the jury that:
In order to prove the seizure in this case
was unreasonable, plaintiffs must prove by a
preponderance of the evidence that the officer
or officers lacked reasonable suspicion to
detain him or her or that the length and scope
of the detention was excessive.
....
The touchstone of the Fourth Amendment
is reasonableness. The Fourth Amendment
imposes no irreducible requirement of
individualized suspicion. Such suspicion is
not needed, for example, in cases involving an
exigency that justifies immediate action on
the police’s part.
We review de novo whether the district court’s instruction
misstated the law. Dream Games of Ariz., Inc. v. PC Onsite,
561 F.3d 983, 988 (9th Cir. 2009).
It did not. The plaintiffs are, of course, correct that “[a]
search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing.” City of
Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). But
although “some quantum of individualized suspicion is
LYALL V. CITY OF LOS ANGELES 31
usually a prerequisite to a constitutional search or seizure . . .
the Fourth Amendment imposes no irreducible requirement
of such suspicion.” United States v. Martinez-Fuerte,
428 U.S. 543, 560–61 (1976). Thus, the fact that the officers’
reasonable suspicion of wrongdoing is not particularized to
each member of a group of individuals present at the same
location does not automatically mean that a search of the
people in the group is unlawful. Rather, the trier of fact must
decide whether the search was reasonable in light of the
circumstances.
Other courts have acknowledged that police officers can
have reasonable suspicion to search, or even probable cause
to arrest, a group or crowd of people without individualized
suspicion as to each person in the group. For example, in
Carr v. District of Columbia, 587 F.3d 401 (D.C. Cir. 2009),
a group of persons arrested in a protest march sued under
§ 1983, alleging that they were arrested without probable
cause. They argued that the government was required to
prove that the police possessed probable cause to believe that
each individual person arrested was engaged in the crime of
rioting. Id. at 406. But the D.C. Circuit rejected that
argument, stating that it would impose “an impossible
burden” on police and holding that “[p]olice witnesses must
only be able to form a reasonable belief that the entire crowd
is acting as a unit and therefore all members of the crowd
violated the law.” Id. at 408.
We therefore agree with the district court that the
defendants in this case were not required to have
individualized suspicion with respect to each plaintiff in order
to have reasonable suspicion to search and detain them. To
be sure, the fact that the officers did not see specific plaintiffs
with weapons or engaging in violent behavior, and that many
32 LYALL V. CITY OF LOS ANGELES
of the plaintiffs did not match the police call’s description of
the suspects as “male Hispanic juveniles,” bore on the
question whether the searches and seizures were reasonable.
Standing alone, however, the officers’ lack of individualized
suspicion did not make the searches and seizures unlawful.
Ybarra v. Illinois, 444 U.S. 85 (1979), is not to the
contrary. In Ybarra, the police received a tip from an
informant that “Greg,” a bartender at a certain tavern,
possessed heroin and would have some for sale at the tavern
on a particular date. On the basis of the tip, the police
obtained a warrant to search the tavern and Greg’s person for
heroin and other contraband. Id. at 87–88. When the police
arrived at the tavern to execute the warrant, they announced
upon entering that they would be conducting a “cursory
search for weapons” of each of the nine to thirteen customers
in the tavern. One of the officers frisked Ybarra, a patron in
the tavern, and felt a cigarette pack in Ybarra’s pocket during
the frisk; a few minutes later, he frisked Ybarra again, took
the pack out of his pocket, and found six packets of heroin
inside. Ybarra was subsequently indicted for, and convicted
of, possession of heroin. Id. at 88–89.
The Supreme Court held that the search violated Ybarra’s
Fourth Amendment rights. The Court explained the police
lacked probable cause to believe that Ybarra was committing
any crime: “Ybarra made no gestures indicative of criminal
conduct, made no movements that might suggest an attempt
to conceal contraband, and said nothing of a suspicious nature
to the police officers.” Id. at 91. Indeed, the only thing the
police officers knew about Ybarra was that he was “present,
along with several other customers, in a public tavern at a
time when the police had reason to believe that the bartender
would have heroin for sale.” Id. The Court deemed this fact
LYALL V. CITY OF LOS ANGELES 33
insufficient to give the police probable cause to believe that
Ybarra was committing a crime. The Court went on to hold
that the initial search could not be upheld as a reasonable
Terry frisk, because Ybarra had done nothing to indicate to
the police that he was armed and dangerous. Id. at 93–94.
Ybarra stands for the proposition that, if a person is
simply present in the vicinity of potential criminal activity,
without doing anything else to indicate that he is engaging in
criminal activity or that he is armed and dangerous, the police
do not have probable cause to search him or reasonable
suspicion sufficient to detain him and frisk him for weapons.
Ybarra does not, however, imply that the police can never
possess reasonable suspicion or probable cause unless it is
individualized. If a group or crowd of people is behaving as
a unit and it is not possible (as it was in Ybarra) for the police
to tell who is armed and dangerous or engaging in criminal
acts and who is not, the police can have reasonable suspicion
as to the members of the group. Thus, the district court’s
instruction did not conflict with Ybarra.
C. The Court’s Instruction on the Elements of the Bane Act
Finally, the plaintiffs contend that the district court’s
instruction on the elements of their claim under the Bane Act
misstated California law in several respects. Specifically, the
plaintiffs argue that the district court’s Bane Act instruction
erroneously required them to prove (1) that the defendants
interfered with their rights “by threatening or committing
violent acts,” (2) that the plaintiffs believed that if they
exercised their right to be free from unreasonable detention
and search, “then defendants would commit violence against”
them; and (3) that “the [police] threats, intimidation, or
coercion were independent from the acts inherent in the
34 LYALL V. CITY OF LOS ANGELES
detention and search.” The plaintiffs claim that the Bane Act
does not, in fact, require proof of any of these things.
We can easily dispose of the plaintiffs’ arguments about
the first two aspects of the district court’s Bane Act
instruction. The language concerning “violent acts” and the
plaintiffs’ fear of violence closely tracks that of California’s
model Bane Act instruction, CACI Instruction No. 3066,14
which at least one California appellate court has approved as
a correct statement of law. See Austin B. v. Escondido Union
Sch. Dist., 57 Cal. Rptr. 3d 454, 471 (Ct. App. 2007) (quoting
an earlier version of the same instruction). The district court
did not err by including these elements in its instruction.
The plaintiffs’ third objection to the district court’s Bane
Act instruction—i.e., that it wrongly required them to show
threats, intimidation, or coercion independent from the acts
inherent in their detention and search—likewise lacks merit.
Numerous California decisions make clear that a plaintiff in
a search-and-seizure case must allege threats or coercion
beyond the coercion inherent in a detention or search in order
to recover under the Bane Act. See, e.g., Allen v. City of
Sacramento, 183 Cal. Rptr. 3d 654, 678 (Ct. App. 2015)
(“[A] wrongful arrest or detention, without more, does not
satisfy both elements of [the Bane Act].”); Quezada v. City of
L.A., 166 Cal. Rptr. 3d 479, 491 (Ct. App. 2014) (“The
coercion inherent in detention is insufficient to show a Bane
Act violation.”); Shoyoye v. Cnty. of L.A., 137 Cal. Rptr. 3d
839, 849 (Ct. App. 2012) (“The [Bane Act] requires a
showing of coercion independent from the coercion inherent
in the wrongful detention itself.”).
14
See Judicial Council of Cal., 2 Civil Jury Instructions 240 (2011).
LYALL V. CITY OF LOS ANGELES 35
The plaintiffs cite two search-and-seizure cases in which,
they argue, California courts held that a plaintiff can state a
Bane Act claim without a showing of independent threats,
coercion, or intimidation, but neither citation supports their
position. In Venegas v. County of Los Angeles, 87 P.3d 1,
13–14 (Cal. 2004), the California Supreme Court decided
only that a plaintiff need not allege that a defendant acted
with “discriminatory animus” in order to state a Bane Act
claim; the court did not otherwise address what elements the
Bane Act requires a plaintiff to prove. See Allen, 183 Cal.
Rptr. 3d at 676 (“[T]he only issue the Supreme Court
considered [in Venegas] was whether [the Bane Act] required
a showing that the defendants acted with discriminatory
animus.”). And in Bender v. County of Los Angeles, 159 Cal.
Rptr. 3d 204 (Ct. App. 2013), an unlawful-arrest and
excessive-force case, the Court of Appeal expressly declined
to rule on whether the Bane Act required coercion beyond the
coercion inherent in any arrest; it held only that “[w]here, as
here, an arrest is unlawful and excessive force is applied in
making the arrest, there has been coercion ‘independent from
the coercion inherent in the wrongful detention itself’—a
violation of the Bane Act.” Id. at 213 (quoting Shoyoye,
137 Cal. Rptr. 3d at 839). In short, Venegas and Bender do
not speak to the issue the plaintiffs raise, and they cast no
doubt on the correctness of the district court’s instruction.
V
For the foregoing reasons, we reverse the district court’s
grant of summary judgment with respect to Javier Cortez’s
and Elizabeth Lopez’s warrantless-entry claims, and we
36 LYALL V. CITY OF LOS ANGELES
remand those claims for trial. We otherwise affirm. The
parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.