                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 11 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

BETTY BENSON, an individual,                     No. 12-15834

              Plaintiff - Appellant,             D.C. No. 5:09-cv-05772-HRL

  v.
                                                 MEMORANDUM*
CITY OF SAN JOSE, a public entity;
BRIAN PETTIS, Officer,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                  Howard R. Lloyd, Magistrate Judge, Presiding

                        Argued and Submitted April 8, 2014
                            San Francisco, California

Before: NOONAN, NGUYEN, and WATFORD, Circuit Judges.

       John Benson (“Benson”) and Betty Benson appeal the district court’s grant

of summary judgment to the City of San Jose and Officer Brian Pettis (“Pettis”)

(collectively, “Appellees”) on their 42 U.S.C. § 1983 Fourth Amendment




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
unreasonable seizure and related federal claims. We have jurisdiction under 28

U.S.C. § 1291, and affirm in part and reverse and remand in part.

1.    The district court determined that Benson’s encounter with Pettis was

consensual. However, viewing the facts in the light most favorable to the Bensons,

we find that they have raised a triable issue as to whether an unlawful seizure

occurred. AA 337. Benson stated in his declaration that Pettis retained Benson’s

identification card, “told or asked [Benson] to stay where he was,” and “told

[Benson] to get on the bus.” Pettis’s commands—this “show of official authority,”

United States v. Mendenhall, 446 U.S. 544, 554 (1980)—transformed what may

have begun as a consensual encounter into a seizure.1 See Florida v. Royer, 460

U.S. 491, 501 (1983) (seizure effected where officers retain a person’s

identification papers and—without informing the individual that he is free to

leave—ask questions or make demands); Chan-Jimenez, 125 F.3d at 1326 (same);

United States v. Jordan, 958 F.2d 1085, 1087 (D.C. Cir. 1992) (same).



      1
          The dissent would hold that Benson was not “seized” because Pettis did
not initiate further inquiry before returning Benson’s identification. “[A] seizure
occurs when a law enforcement officer, by means of physical force or show of
authority, in some way restrains the liberty of a citizen.” United States v.
Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997). Viewing the totality of the
circumstances, a reasonable trier of fact could find that Pettis’s conduct could have
conveyed to a reasonable person that he was not free to leave, even if Pettis did not
initiate any further inquiry prior to returning the identification. See id.

                                          2
2.    The district court, finding no seizure, did not address whether Pettis had

reasonable suspicion. On Benson’s facts, which we must credit, there is a genuine

factual dispute as to whether Pettis had a reasonable suspicion “that criminal

activity [was] afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). Benson testified that

he was standing close to the bus stop facing the road, and not—as Pettis

alleges—facing Guadalupe Elementary School, with his “arms [] over the top of

the [school’s] fence,” watching schoolchildren play. Benson’s testimony

contradicts Pettis’s alleged reason for the contact: “that [Benson] was staring at the

children for a various number of reasons that seemed abnormal”—that, in other

words, Benson “was a sex offender, or looking to do a kidnapping [sic].”

      Appellees’ invocation of California’s anti-loitering provision, Cal. Penal

Code § 653b(a), also fails. On this record, Pettis never once stated that he

approached Benson because he suspected that Benson was loitering. Terry

demands that Pettis had reasonable suspicion “at the time [he] seized” Benson. Id.

Ex post facto justifications by counsel are not an adequate proxy.

3.    The district court dismissed Benson’s Equal Protection claim. Bingham v.

City of Manhattan Beach, 341 F.3d 939 (9th Cir. 2003), overruled on other

grounds by Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 956 n.14 (9th

Cir. 2010), controls, and we affirm. As in Bingham, Benson failed to produce

                                          3
“some tangible evidence in the record that tends to support his conclusion” that the

seizure was racially motivated—evidence, for instance, that Pettis or the San Jose

Police Department had a practice, or engaged in a pattern, of seizing African-

Americans or that Pettis made a race-related remark during the encounter. Id. at

954 (Reinhardt, J., concurring).

4.    On Benson’s facts, Pettis is not entitled to qualified immunity, because it

was clearly established in 2011 that Pettis’s retention of Benson’s identification

papers combined with Pettis’s command (or request) that Benson stay put

constituted a seizure. See Royer, 460 U.S. at 501. It was also clearly established

that, on Benson’s facts, Pettis lacked reasonable suspicion for the seizure. Terry,

392 U.S. at 27.

5.    The Supreme Court has stated that:

      when a subordinate’s decision is subject to review by the municipality’s
      authorized policymakers, they have retained the authority to measure the
      official’s conduct for conformance with their policies. If the authorized
      policymakers approve a subordinate’s decision and the basis for it, their
      ratification would be chargeable to the municipality because their
      decision is final.

St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

      Because a jury could find that Chief Davis’s conclusion that “Pettis had

acted reasonably and within Police Department policy and procedure,” constituted



                                          4
official approval of Pettis’s decision and the basis for it, we remand on the question

of municipal liability.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Each party shall bear its own costs.




                                          5
                                                                               FILED
Benson v. City of San Jose, No. 12-15834                                        JUL 11 2014

                                                                           MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting in part:                                  U.S. COURT OF APPEALS



         I would affirm as to the Fourth Amendment claim. Even taking the facts in

the light most favorable to the Bensons, as we must, I don’t think we can say that a

Fourth Amendment seizure occurred here. An officer may request a person’s

identification and retain it for as long as necessary to run a background check

without effectuating a seizure. See Hiibel v. Sixth Judicial Dist. Court of Nevada,

Humboldt Cnty., 542 U.S. 177, 185 (2004); United States v. Chan-Jimenez, 125

F.3d 1324, 1326 (9th Cir. 1997). A seizure occurs only if the officer retains an

individual’s identification for longer than necessary and initiates further inquiry

before returning it. Chan-Jimenez, 125 F.3d at 1326. Officer Pettis did not initiate

further inquiry or investigation before returning Mr. Benson’s identification, so no

Fourth Amendment seizure occurred. That remains true regardless of whether

Pettis told Benson to stay where he was while Pettis conducted the background

check.
