Qualified Immunity for Cops in False Arrest for 647(f)

In today’s world, there are two realities that usually do not overlap, but can.

First, if one listens to or watches the news, it is not uncommon for one to hear about someone being awarded seemingly outrageously high amounts of money for police misconduct, often involving excessive force.

Second, it is well recognized that police contact with anyone supervising small children or caring for an extremely old person must be handled with careful respect for the child or the elderly person.

Most people appreciate these two realities, but police certainly bristle at those who seek to manipulate law enforcement by invoking the youth of a nearby child or elderly adult to resist arrest or obstruct officers.  The suspect may tell police officers that their forcefulness will traumatize the child or upset an older person.  Police understand that in our litigious and often opportunistic society, such warnings of trauma also signal that the suspect may want to sue them later.

The following case (Kristin Johnson v. Kierstie Barr, et al.) exemplifies this delicate balance and how a criminal suspect’s thirst for money involving police misconduct is handled by a court when qualified immunity applies.

Ms. Johnson, her five young children and the children’s father went to Dolores Park in San Francisco to relax in 2019.  They came from “up north,” Ms. Johnson explained to police, “for an adventure.” 

At about 9:00 p.m., police approached her and asked her if she had consumed any alcohol or drugs because police stated they could smell alcohol.  She was standing outside the family’s parked van talking to some other adults while four of her children played nearby.

At that point, a man approached the police and stated there was an intoxicated man with a child nearby.  Ms. Johnson then explained that the father of her children was supervising one of her children and was nearby playing basketball with the child.  Police then asked for Ms. Johnson’s driver’s license and Ms. Johnson stated “Yeah, I’ve been drinking a bit.” 

When asked more questions about her drinking, Ms. Johnson answered, “It’s not that I don’t know, but like, I really don’t feel that like – if I answer any of your questions right now, I don’t feel like you have my heart at interest, so I don’t feel really like as though I should answer any of your questions, because I don’t feel like you are looking at me with eyes of love . . . so I feel like its hard for me to answer your questions.”

At this point, officers decided to arrest Ms. Johnson and the father of her children.  Ms. Johnson then became hysterical when an officer picked up one of her children nearby, saying “Oh, oh, that’s my baby, that’s my baby, Oh, please please please give me my child.”

Ms. Johnson was then arrested, along with her husband for public intoxication (Penal Code § 647(f)), five counts of felony child endangerment (Penal Code § 273a(a)), as well as obstructing, delaying or resisting a police officer (Penal Code § 148(a)(1)). 

Meanwhile, Ms. Johnson’s children were placed in the custody of Family and Children Services and then transferred to the custody of Mendocino Family and Child Services, who transported them to Ukiah, California to live with the children’s grandparents.

Ms. Johnson and her husband then posted bail the next day, retrieved their van and drove up to Ukiah to retrieve their children.

The District Attorney of San Francisco County later declined to prosecute Ms. Johnson and the father of her children.

Ms. Johnson and the father of her children then filed suit in San Francisco Superior Court in 2019, alleging federal civil rights violations under 28 U.S.C. § 1983 for unlawful search, seizure and arrest under the Fourth Amendment, interference with and retaliation against the free exercise of expression under the First Amendment, and deprivation of due process under the Fourteenth Amendment.  They also alleged claims for false arrest and false imprisonment, intentional infliction of emotional distress, Bane Act violations, trespass to chattels and negligence.

The case was then removed (transferred) to federal court.

Once in federal court, Ms. Johnson and the father of her children filed a motion to recuse or disqualify the judge first assigned based on comments he made in court, alleging he was racist and prejudiced against them.

Defendants filed a motion for summary judgement based on the police officer’s qualified immunity, which was granted and the case was dismissed.

Ms. Johnson and her husband then appealed this ruling to the Ninth Circuit Court of Appeals, which affirmed the trial court.  The Ninth Circuit explained that the “reasonable officer” standard for qualified immunity applied for purposes of evaluating probable cause to arrest.  Here, the court reviewed the facts recited above and found it significant that when Ms. Johnson was asked where she was going when she left the park, she had no definite plans, vaguely explaining “we’ll probably get a hotel room somewhere.” 

We offer this summary as a bit of a cautionary tale to those who are eager to sue the police if an arrest takes place and the criminal case is later declined for filing.  In such cases, it may be best to simply move on rather than sue the police because there is a relatively low standard for finding the reasonable officer standard applies and qualified immunity bars the complaint.