UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KIRSTIN JOHNSON; F.M.; M.D.M.; No. 21-16547 M.P.M.; V.M.; T.M., D.C. No. 3:20- Plaintiffs-Appellants, cv-01569-SK

v. OPINION KIERSTIE BARR; SAMSON HUNG; MARINA CHACON; FLINT PAUL; CITY AND COUNTY OF SAN FRANCISCO,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Sallie Kim, Magistrate Judge, Presiding

Argued and Submitted January 24, 2023 San Francisco, California

Filed July 6, 2023

Before: Ronald M. Gould, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges. 2 JOHNSON V. BARR

Opinion by Judge Gould; Partial Concurrence and Partial Dissent by Judge Rawlinson

SUMMARY *

Civil Rights / Qualified Immunity

In an action brought by Kirstin Johnson and her five minor children alleging federal and state law claims arising out of Johnson’s arrest, the panel affirmed the district court’s grant of summary judgment to the defendants—individual police officers and the City and County of San Francisco— on Johnson’s federal claims based on qualified immunity; remanded to the district court Johnson’s state law claims for false arrest and negligence; affirmed the district court’s grant of summary judgment to the defendants on the remaining state law claims; and affirmed the district court’s denial of the motion to recuse. The panel first considered whether there was probable cause to arrest Johnson under the three statutes cited by defendants. The panel held that there was a jury question whether officers had probable cause to arrest Johnson. Some of the bases on which the defendants attempt to claim probable cause are not supported by the record. On the other hand, there were other facts, even when viewed in the light

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. JOHNSON V. BARR 3

most favorable to Johnson, that suggest defendants may have had probable cause to arrest Johnson. However, Johnson’s federal claims are still subject to qualified immunity. In applying the qualified immunity analysis to claims of unlawful arrest, there is a two-step inquiry: whether there was probable cause for the arrest, and whether reasonable officers could disagree as to the legality of the arrest. The panel held that although a reasonable jury could find that defendants lacked probable cause to arrest Johnson, the defendants were entitled to qualified immunity because, even construing all facts in Johnson’s favor, the law did not clearly establish that probable cause was lacking. Johnson did not sufficiently show how her arrest violated a clearly established right to be free from an unlawful arrest when the undisputed evidence (under the probable cause analysis) presented before the district court does not show that every reasonable officer would be on notice that the actions taken by the defendants were unconstitutional. The facts supported the defendants’ assertion that no clearly established law prevented the officers from believing Johnson was in violation of either California Penal Code § 647(f), prohibiting public intoxication, or California Penal Code § 273a, prohibiting child endangerment. The panel held that qualified immunity applied in the context of either of these statutes, and that determination is sufficient to resolve Johnson’s 42 U.S.C. § 1983 claims. However, because the panel concluded that there was a jury question as to whether defendants had probable cause to arrest Johnson, the panel vacated the district court’s grant of summary judgment on Johnson’s sta