Chapter 5: Arrests

[1] USSC: Gerstein v. Pugh (1975)
420 US 103, 120, fn.2 ["It is not the function of the police to
arrest, as it were, at large and to use an interrogating process
at police headquarters in order to determine whom they should
charge."]; Henry v. US (1959) 361 US 98, 101
["Arrest on mere suspicion collides violently with the basic human
right of liberty."]; Brown v. Illinois (1975)
422 US 590, 605 [the officers admitted they made the arrest "for
investigation" "in the hope that something might turn up."];
Papachristou v. City of Jacksonville
(1972) 405 U.S. 156, 169 ["Arresting a person on suspicion, like
arresting a person for investigation, is foreign to our system"].
CAL: P v. Gonzalez (1998) 64 CA4 432, 439
["Arrests made without probable cause in the hope that something
might turn up are unlawful."].

[2] USSC: Virginia v.
Moore (2008) 553 US 164, 173 ["Arrest ensures that a
suspect appears to answer charges and does not continue a crime"];
Terry v. Ohio (1968) 392 US 1, 16 [arrests
are "seizures of the person which… eventuate in a trip to
the station house and prosecution for crime"]. CAL: Pen.
Code§ 834 ["An arrest is taking a person into custody, in a
case and in the manner authorized by law."]; P v.
Harris (1967) 256 CA2 455, 459 [an arrest is the
"apprehending or detaining of the person in order to be
forthcoming to answer an alleged or suspected crime."].

[3] USSC: California v.
Hodari (1991) 499 US 621, 626 ["An arrest requires
either physical force or, where that is absent,
submission to the assertion of authority."]. CAL:
Pen. Code§ 835 ["An arrest is made by an actual restraint of
the person, or by submission to the custody of an officer."].
NOTE: An arrest begins with "the initial taking of the
person," and it technically ends when the arrest "is
accomplished"; i.e., when arrestee submits. See Floro
v. Lawton (1960) 187 CA2 657, 669.

[4] USSC:
Berkemer v. McCarty (1984) 468 US 430, 439, fn.29.

[5] USSC: Ashcroft v.
al-Kidd (2011) 563 US 731, 739 [pretext arrest did not
violate Fourth Amendment because there was probable cause];
Whren v. US (1996) 517 US 806, 812-13 ["[We
have] never held, outside the context of inventory search or
administrative inspection, that an officer's motive invalidates
objectively justifiable behavior under the Fourth Amendment"];
US v. Robinson (1973) 414 US 218, 221, fn.1.
CAL: P v. Valenzuela (1999) 74 CA4 1202,
1208-9; P v. Woods (1999) 21 C4 668; P v.
Rodriguez (1997) 53 CA4 1250, 1266; P v.
Boissard (1992) 5 CA4 972, 983-84. 9th CIR:
US v. Hudson (9C 1996) 100 F3 1409, 1414-16.

[6] USSC: US v. Watson (1976) 423
US 411, 449 ["Unlike probable cause to search, probable cause to
arrest, once formed, will continue to exist for the indefinite
future, at least if no intervening exculpatory facts come to
light."]. OTHER: US v. Haldorson (7C 2019) 941 F3
284, 292 ["It is the rare case where 'staleness' will be relevant
to the legality of a warrantless arrest. When there is a
reasonable belief that someone has committed a crime, time by
itself does not make the existence of any fact any less
probable."].

[7] CAL: P v. Moore (1970) 13 CA3
424, 435 ["If a known professional burglar walks down the street
furtively carrying a small safe with physical indications that it
has lately been ripped out of a wall, no one would deny a peace
officer's right to make an arrest although he has no information
concerning the particular burglary which produced the safe."];
P v. Gorak (1987) 196 CA3 1032, 1040 [because an officer
had probable cause to believe that an air compressor in the
suspect's possession had been stolen, the arrest was lawful even
though officer was not aware of any thefts of such things];
P v. Vasquez (1983) 138 CA3 995, 1001;
P v. Stokes (1990) 224 CA3 715, 721. OTHER:
US v. Pontoo (1C 2011) 666 F3 20, 29 ["The law does not
require officers to determine whether a reported crime actually
took place before stopping individuals who may be fleeing from the
scene."].

[8] USSC:
Nieves v. Bartlett (2019) __ US __ [139 S.Ct. 1715, 1727]
[Court takes note of situations in which "officers have probable
cause" to make arrests, but typically exercise their discretion
not to do so."]. OTHER: US v. Haldorson (7C 2019)
941 F3 284, 292 ["Certainly, good police practice often requires
postponing an arrest, even after probable cause has been
established, in order to place the suspect under surveillance or
otherwise develop further evidence necessary to prove guilt to a
jury."]; US v. Pelletier (8C 2012) 700 F3 1109, 1117 ["The
fact that police may deprive someone of their liberty does not
mean that they should."]; US v. Wagner (7C 2006) 467 F3
1085, 1090 ["It is within the discretion of law enforcement to
decide whether delaying the arrest of the suspect will help
ensnare co-conspirators, give the law enforcement greater
understanding of the nature of the criminal enterprise, or allow
the suspect enough rope to hang himself."].

[9] CAL: P v. Craig (1907) 152 C
42, 47 ["It seems to be generally held that an arrest for a
misdemeanor without a warrant cannot be justified if made after
the occasion has passed, though committed in the presence of the
arresting officer."].

[10] USSC:
Tennessee v. Gamer (1985) 471 US 1, 14 ["in earlier times
the gulf between the felonies and the minor offenses was broad and
deep [but] today the distinction is minor and often arbitrary"].
OTHER: US v. Jones (6C 2020) 953 F3 433, 438.

[11] USSC US v Hensley (1985)
469 US 221, 228 [the "proper" test "balances the nature and
quality of the intrusion on personal security against the
importance of the governmental interests alleged to justify the
intrusion"]; Whren v. US (1996) 517 US 806, 817 ["It is of
course true that in principle every Fourth Amendment case, since
it turns upon a 'reasonableness' determination, involves a
balancing of all relevant factors. With rare exceptions not
applicable here, however, the result of that balancing is not in
doubt where the search or seizure is based upon probable cause."].
CAL: P v. Bloom (2010) 185 CA4 1496, 1502 [there
"should not be an appreciable lapse in time such that the person
arrested would not necessarily be familiar with the circumstances
justifying the arrest"]. OTHER: US v. Jones (6C
2020) 953 F3 433, 438 [court rejected that argument that officers
may not detain a suspect to investigate a completed misdemeanor;
instead, the legality of the detention depends on, in addition to
the existence of reasonable suspicion, the seriousness of the
crime, the delay between its commission and the detention, the
reason for the delay, and whether there was an "ongoing risk of
the individual to the public safety"]. NOTE: In
Green v. DMV (1977) 68 CA3 536, 541,
P v. Hampton (1985) 164 CA3 27, 30,
P v. Craig (1907) 152 C 42, 47, and
Jackson v. Superior Court (1950) 98 CA2 183, 185, the
courts arguably addressed this issue by saying (respectively) "the
arrest must be effected in fresh pursuit of the offender or within
a reasonable time after the offense is committed," "such an arrest
must be made at the time of the offense or within a reasonable
time thereafter," the stale misdemeanor rule "seems" to be a rule,
and "the officer must act promptly in making the arrest, and as
soon as possible under the circumstances, and before he transacts
other business." But in all four cases the rulings were
perfunctory and, as the court in Jones (supra) it is
ordinarily not a good idea to promulgate legal rules "by means of
a simple sentence."

[12] CAL: Pen. Code§ 840 [felony
arrest "may be made on any day and at any time of the day or
night"].

[13] CAL: P v. Valencia (2017) 3
C5 347, 351, fn.2 ["Wobblers are a special class of crimes
involving conduct that varies widely in its level of seriousness,
and may therefore be chargeable or punishable as either a felony
or a misdemeanor."]; P v. Stanfill (1999) 76
CA4 1137, 1144 ["a 'wobbler,' an offense that confers discretion
as to felony or misdemeanor punishment, becomes a misdemeanor only
after the judgment and hence retains its felony character for
purposes of the limitations period"]; Pen. Code§ 17(b).

[14] CAL: Pen. Code§ 840.

[15] CAL: Pen. Code§ 836(a)(1),

[16] CAL: Pen. Code§ 840(2).

[17] CAL: Pen. Code§§ 846(d),
840(1).

[18] CAL: Pen. Code§§ 846(c),
840(1).

[19] CAL: Pen. Code§ 840(4).

[20] CAL: Pen. Code§ 837.

[21] CAL: Pen. Code§ 840.

[22] USSC:
Devenpeck v. Alford (2004) 543 US 146, 155 ["While it is
assuredly good police practice to inform a person of the reason
for his arrest at the time he is taken into custody, we have never
held that to be constitutionally required."].

[23] CAL: Pen. Code§ 841 [person
making the arrest must inform the arrestee "of the intention to
arrest him"].

[24] CAL: Lowry v.
Standard Oil Co. (1942) 54 CA2 782, 791 ["Notice of
intention to make an arrest may be indicated from the
circumstances and it is not necessarily a requirement that notice
of such intention be given by express statement before taking the
person into [custody]."].

[25] CAL: Pen. Code§ 841.

[26] CAL: P v.
Logue (1973) 35 CA3 1, 5 ["A police officer's uniform is
sufficient indicia of authority to make the arrest."].

[27] CAL: P v.
Kelley (1969) 3 CA3 146, 151 [notice requirement "does not
apply to an arrest made during the commission of the offense"].
BUT ALSO SEE: Catlin v.
City of Wheaton (7C 2009) 574 F3 361, 368 [the officers'
continuing failure to identify themselves after they forced Catlin
from his motorcycle seems to us more problematic"].

[28] USSC: Devenpeck
v. Alford (2004) 543 US 146, 155 ["While it is
assuredly good police practice to inform a person of the reason
for his arrest at the time he is taken into custody, we have never
held that to be constitutionally required."].

[29] CAL: Pen. Code§ 841.

[30] CAL: P v. Le (1985)
169 CA3 186, 193 ["it is not essential that the arresting officer
at the time of the arrest or search have a subjective belief that
the arrestee is guilty of a particular crime ... so long as the
objective facts, when fully determined, afford probable cause"];
P v. White (2003) 107 CA4 636, 641 ["an officer's
reliance on the wrong statute does not render his actions unlawful
if there is a right statute that applies to the defendant's
conduct"]; In re Justin K. (2002) 98 CA4 695, 699
[the officer's "subjective understanding of the statutory scheme
respecting stoplamps is not dispositive so long as his conduct was
objectively reasonable"]; P v. Rodriguez (1997) 53
CA4 1250, 1262 ["even if the trial court believed [that the
Bakersfield officer] only arrested defendant on the [Bakersfield]
case, the arrest was still valid because [the officer] had
probable cause to arrest defendant on the [Kern County] case"];
In re Donald L. (1978) 81 CA3 770, 775 ["The fact an
officer may place a person under arrest for the wrong offense does
not invalidate the arrest ... if the officer nevertheless had
probable cause to arrest the person for another offense."];
P v. Clark (1973) 30 CA3 549, 557-58 [arrest for
burglary was made without probable cause, but there was probable
cause to arrest for prowling]; P v. Howell (1973) 30
CA3 228, 234 ["A measure of uncertainty on the part of the officer
as to which offense has been committed does not necessarily
preclude a lawful arrest."]; P v. Lewis (1980) 109
CA3 599, 608 ["even if Officer Anderson did not have probable
cause to arrest defendant for burglary, he did for [defrauding an
innkeeper]."]. 9th CIR: US v.
Wallace (9C 2000) 213 F3 1216 [although the officer was
mistaken that all front-window tint is illegal," the issue is
"whether he had objective, probable cause to believe that these
windows were, in fact, in violation"]. OTHER: US
v. Eckhart (10C 2009) 569 F3 1263, 1272 ["An officer
need not be able to quote statutes, chapter and verse. Some
confusion about the details of the law may be excused"];
US v. Turner (10C 2009) 553 F3 1337, 1345
["the probable cause inquiry is not restricted to a particular
offense, but rather requires merely that officers had reason to
believe that a crime—any crime—occurred."].

[31] USSC:
County of Los Angeles v. Mendez (2017) __ US __ [137 S.Ct.
1539, 1546] [the reasonableness of the use of force "requires
balancing of the individual's Fourth Amendment interests against
the relevant government interests"]; Scott v.
Harris (2007) 550 US 372, 383 ["we must balance the nature
and quality of the intrusion on the individual's Fourth Amendment
interests against the importance of the governmental interests
alleged to justify the intrusion"]; Saucier v. Katz (2001)
533 US 194, 202 [use of force is contrary to the Fourth Amendment
if it is excessive under objective standards of reasonableness"];
Graham v. Connor (1989) 490 US 386, 396 ["Determining
whether the force used to effect a particular seizure is
'reasonable' under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing
governmental interests at stake."]. 9th CIR: Tekle
v. US (9C 2006) 511 F3 839, 845 ["we must balance
the force used against the need, to determine whether the force
used was greater than is reasonable under the circumstances"].

[32] QUOTE FROM:
Munoz v. City of Union City (2004) 120 CA4 1077, 1103.
CAL: Thompson v. County of Los Angeles (2006) 142
CA4 154, 165 [courts must view the facts "from the perspective of
the officer at the time of the incident and not with the benefit
of hindsight"]. OTHER: Phillips v. James (10C 2005)
422 F3 1075, 1080 ["What may later appear to be unnecessary when
reviewed from the comfort of a judge's chambers may nonetheless be
reasonable under the circumstances presented to the officer at the
time."]. COMPARE: Waterman v. Batton (4C 2005) 393
F3 471, 478 ["Of course, the critical reality here is that the
officers did not have even a moment to pause and ponder these many
conflicting factors."].

[33] 9th CIR:
Johnson v. County of Los Angeles (9C 2003) 340 F3 787, 793
["even though the suspect was not "actively resisting arrest," it
is "very difficult to imagine that any police officer facing a
moving, armed bank robbery suspect would have acted any
differently—at least not without taking the very real risk of
getting himself or others killed."]. OTHER:
Gaddis v. Redford Township (6C 2004) 364 F3 763, 775 [the
officer "used an intermediate degree of nonlethal force to subdue
a suspect who had previously attempted to evade arrest, was
brandishing a knife, showed signs of intoxication or other
impairment, and posed a clear risk of leaving the scene behind the
wheel of a car"]; Parker v. Gerrish (1C 2009) 547 F3 1, 10
["In some circumstances defiance and insolence might reasonably be
seen as a factor which suggests a threat to the officer."];
Lewis v. Downey (7C 2009) 581 F3 467, 477 ["In cases
upholding the use of taser guns, the victims [sic] have been
violent, aggressive, confrontational, unruly, or presented an
immediate risk of danger to themselves or others."];
Zivojinovich v. Barner (11C 2008) 525 F3 1059, 1073 ["a
difficult, tense and uncertain situation"].

[34] CAL: Pen. Code§ 834a;
P v. Gonzalez (1990) 51 C3 1179, 1219.
9th CIR: Arpin v.
Santa Clara Valley Transportation Agency (9C 2001) 261 F3
912, 921 ["An individual's limited right to offer reasonable
resistance is only triggered by an officer's bad faith or
provocative conduct."]; US v. Span (9C 1992)
970 F2 573, 580.

[35] USSC: Scott v.
Harris (2007) 550 US 372, 385 ["we are loath to lay down a
rule requiring the police to allow fleeing suspects to get away
whenever they drive so recklessly that they put other people's
lives in danger"]. CAL: Pen. Code§ 835a [the officer
"need not retreat or desist from his efforts by reason of the
resistance or threatened resistance"]; Munoz v.
City of Union City (2004) 120 CA4 1077, 1102. [officers
"need not desist in the face of resistance"].

[36] QUOTE FROM:
Graham v. Connor (1989) 490 US 386, 396-97. CAL:
Thompson v. County of Los Angeles (2006) 142 CA4 154, 165
[courts must view the facts "from the perspective of the officer
at the time of the incident and not with the benefit of
hindsight"]; Martinez v. County of Los Angeles (1996) 47
CA4 334, 343 ["We must never allow the theoretical, sanitized
world of our imagination to replace the dangerous and complex
world that policemen face every day."].

[37] 9th CIR: Glenn v.
Washington County (9C 2011) 661 F3 460, 471 ["Lukus was
obviously emotionally disturbed, a factor to which the officers
should have assigned greater weight."]; Deorle v.
Rutherford (9C 2001) 272 F3 1272, 1282-3 ["The problems
posed by, and thus the tactics to be employed against, an unarmed,
emotionally distraught individual who is creating a disturbance or
resisting arrest are ordinarily different from those involved in
law enforcement efforts to subdue an armed and dangerous criminal
who has recently committed a serious offense."]; Drummond
v. City of Anaheim (9C 2003) 343 F3 1052, 1058 ["a
detainee's mental illness must be reflected in any assessment of
the government's interest in the use of force"]. OTHER:
Sanders v. City of Fresno (E.D. Cal 2008) 551
FS2 1149, 1166 ["where it is or should be apparent that an
individual is emotionally or mentally unstable, that is a factor
that must be considered"]; Kuha v.
City of Minnetonka (8C 2003) 365 F3 590, 597-98 ["No
federal appeals court has held that a properly trained police dog
is an instrument of deadly force, and several have expressly
concluded otherwise." Citations omitted.].

[38] USSC:
Kingsley v. Hendrickson (2015) 576 US 389, 397 ["Rather,
the inquiry requires careful attention to the facts and
circumstances of each particular case. Those circumstances include
the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff 's injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff was
actively resisting."].

[39] QUOTE FROM: Mattos
v. Agarano (9C 2011) 661 F3 433, 441. USSC:
Scott v. Harris (2007) 550 US 372, 384 [the
suspect "posed an actual and imminent threat to the lives of any
pedestrians who might have been present, to other civilian
motorists, and to the officers involved in the chase"].
CAL: Thompson v.
County of Los Angeles (2006) 142 CA4 154, 164 [we must
consider "whether the suspect poses an immediate threat to the
safety of the officers or others"]. 9th CIR: Miller
v. Clark County (9C 2003) 340 F3 959, 965 [Miller
attempted "to flee from police by driving a car with a wanton or
willful disregard for the lives of others"].

[40] CAL: Thompson v.
County of Los Angeles (2006) 142 CA4 154, 163 [we consider
"the severity of the crime at issue"]; P v. Kraft (1970) 3
CA3 890, 899 [DUI is a very serious crime because it frequently
"victimizes innocent people and not infrequently wipes out whole
families."]. 9th CIR: Johnson v.
County of Los Angeles (9C 2003) 340 F3 787, 793 [though the
suspect was not "actively resisting arrest," it is "very difficult
to imagine that any police officer facing a moving, armed bank
robbery suspect would have acted any differently—at least not
without taking the very real risk of getting himself or others
killed."]; Tekle v. US (9C 2007) 511 F3 839,
844 ["Factors to be considered [include] the severity of the crime
at issue"]; Young v.
County of Los Angeles (9C 2011) 655 F3 1156, 1163 ["In
evaluating the government's interest in the use of force we look
to: "(1) the severity of the crime at issue"].

[41] USSC: Graham v.
Connor (1989) 490 US 386, 396 [courts must consider whether
the suspect "is actively resisting arrest"]. CAL:
Thompson v. County of Los Angeles (2006) 142
CA4 154, 164 [must consider "whether the suspect poses an
immediate threat to the safety of the officers"]. 9th CIR:
Miller v. Clark County (9C 2003) 340 F3 959,
964 [courts assess "whether the suspect was actively resisting
arrest or attempting to evade arrest by flight"]; Tatum
v. City and County of San Francisco (9C 2006) 441 F3
1090, 1097 [the arrestee "spun away from [the arresting officer]
and continued to struggle"]; Arpin v.
Santa Clara Valley Transportation Agency (9C 2001) 261 F3
912, 921 [the arrestee "stiffened her arm and attempted to pull
free"]; Mattos v. Agarano (9C 2011) 661 F3
433, 445 ["Brooks refused to get out of her car when requested to
do so and later stiffened her body and clutched her steering wheel
to frustrate the officers' efforts to remove her from her car [but
this] resistance did not involve any violent actions toward the
officers."]. OTHER: Catlin v.
City of Wheaton (7C 2009) 574 F3 361, 366 [the officers
"thought they were confronting an armed and dangerous felon who
has announced his intention to flee or fight rather than be
arrested"]; Gaddis v. Redford Township (6C
2004) 364 F3 763, 775 [the officer "used an intermediate degree of
nonlethal force to subdue a suspect who had previously attempted
to evade arrest, was brandishing a knife, showed signs of
intoxication or other impairment, and posed a clear risk of
leaving the scene behind the wheel of a car"].

[42] 9th CIR: Mattos v.
Agarano (9C 2011) 661 F3 433, 444 ["At most, the officers
may have found her uncooperative and her agitated behavior to be
potentially threatening"]; Drummond v.
City of Anaheim (9C 2003) 343 F3 1052, 1058 ["once Drummond
was on the ground, he was not resisting the officers; there was
therefore little or no need to use any further physical force"];
Meredith v. Erath (9C 2003) 342 F3 1057, 1061
[suspect "passively resisted" but "did not pose a safety risk and
made no attempt to leave"]. OTHER: Brown v.
City of Golden Valley (8C 2009) 574 F3 491, 499 ["force is
least justified against nonviolent misdemeanants who do not flee
or actively resist arrest and pose little or no threat to the
security of the officers or the public"]; Parker v.
Gerrish (1C 2008) 547 F3 1, 10 ["In some circumstances,
defiance and insolence might reasonably be seen as a factor which
suggests a threat to the officer. But here [the suspect] was
largely compliant and twice gave himself up for arrest to the
officers."]; Casey v.
City of Federal Heights (10C 2007) 509 F3 1278, 1282 ["we
are faced with the use of force—an arm-lock, a tackling, a
Tasering, and a beating—against one suspected of innocuously
committing a misdemeanor, who was neither violent nor attempting
to flee"].

[43] 9th CIR: Miller v.
Clark County (9C 2003) 340 F3 959, 966 ["we think it highly
relevant here that the deputies had attempted several less
forceful means to arrest Miller"].

[44] 9th CIR: Bryan v.
McPherson (9C 2010) 608 F3 614, 627.

[45] 9th CIR:
Miller v. Clark County (9C 2003) 340 F3 959, 964 ["we
assess the gravity of the particular intrusion on Fourth Amendment
interests by evaluating the type and amount of force inflicted"];
Deorle v. Rutherford (9C. 2001) 272 F3 1272, 1279 ["We
first assess the quantum of force used to arrest Deorle by
considering the type and amount of force inflicted."].
OTHER: Lee v. Ferraro (11C 2002) 284 F3 1188, 1198
[the amount of force used "must be reasonably proportionate to the
need for the force, which is measured by the severity of the
crime, the danger to the officer, and the risk of flight."].

[46] 9th CIR: Bryan v.
McPherson (9C 2010) 608 F3 614, 627; Glenn
v. Washington County (9C 2011) 661 F3 460, 474 ["it
is well settled that officers need not employ the least intrusive
means available so long as they act within a range of reasonable
conduct"]; Forrester v. City of San Diego (9C 1994) 25 F3
804, 807 ["Police officers are not required to use the least
intrusive degree of force possible. Rather, the inquiry is whether
the force used to effect a particular seizure was reasonable."];
Miller v. Clark County (9C 2003) 340 F3 959, 964.

[47] USSC: Graham v.
Connor (1989) 490 US 386, 396 ["Not every push or shove,
even if it may later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment."]. OTHER:
Myers v. Bowman (11C 2013) 713 F3 1319, 1327 ["Because a
police officer is entitled to use some force to arrest a suspect,
the application of de minimis force, without more, will not
support a claim for excessive force in violation of the Fourth
Amendment."]; Zivojinovich v. Barner (11C
2008) 525 F3 1059, 1072 ["De minimis force will only
support a Fourth Amendment excessive force claim when an arresting
officer does not have the right to make an arrest."].

[48] 9th CIR: Forrester
v. City of San Diego (9C 1994) 25 F3 804, 807 ["the
force consisted only of physical pressure administered on the
demonstrators' limbs in increasing degrees, resulting in pain"].

[49] 9th CIR: Johnson v.
County of Los Angeles (9C 2003) 340 F3 787, 793 ["hard
pulling and twisting applied to extract a moving armed robbery
suspect from a getaway car under these circumstances is a minimal
intrusion"]. OTHER: Zivojinovich v.
Barner (11C 2008) 525 F3 1059, 1072 ["using an
uncomfortable hold to escort an uncooperative and potentially
belligerent suspect is not unreasonable"].

[50] 9th CIR: Tatum v.
City and County of San Francisco (9C 2006) 441 F3 1090,
1097 ["Faced with a potentially violent suspect, behaving
erratically and resisting arrest, it was objectively reasonable
for [the officer] to use a control hold"].

[51] CAL: Thompson v.
County of Los Angeles (2006) 142 CA4 154, 167 [court notes
that "the great weight of authority" holds that the "use of a
trained police dog does not constitute deadly force"]; P
v. Rivera (1992) 8 CA4 1000, 1007 [officer testified
that he hoped that by using the police dog to "search, bite and
hold" a fleeing burglary suspect, he could "alleviate any shooting
circumstance"]. 9th CIR: Quintanilla v.
City of Downey (9C 1996) 84 F3 353, 358 ["the dog was
trained to release on command, and it did in fact release"];
Miller v. Clark County (9C 2003) 340 F3 959,
963 ["the risk of death from a police dog bite is remote"];
Smith v. City of Hemet (9C 2005) 394 F3 689,
703-4.

[52] QUOTE FROM: Bryan
v. McPherson (9C 2010) 608 F3 614, 628.
9th CIR: Glenn v.
Washington County (9C 2011) 661 F3 460, 467 ["The most
important factor is whether the individual posed an immediate
threat to the safety of the officers or others."]. OTHER:
Lewis v. Downey (7C 2009) 581 F3 467, 477
["In cases upholding the use of taser guns, the victims [sic] have
been violent, aggressive, confrontational, unruly, or presented an
immediate risk of danger to themselves or others."]. NOTE:
There are cases (see below) that say or imply that an imminent
threat is not required—that officers may use a taser if the
suspect is actively resisting. Although the California courts have
not yet addressed the issue, we think they will eventually join
the Ninth Circuit in requiring active resistance. See, for
example, Zivojinovich v. Barner (11C 2008)
525 F3 1059, 1073 ["in a difficult, tense and uncertain situation
the use of a taser gun to subdue a suspect who has repeatedly
ignored police instructions and continues to act belligerently
toward police is not excessive force"]; Draper v.
Reynolds (11C 2004) 369 F3 1270, 1278 [the suspect "was
hostile, belligerent, and uncooperative. No less than five times,
[the officer] asked [him] to retrieve documents from the truck
cab, and each time [he] refused to comply… [the suspect]
used profanity, moved around and paced in agitation, and
repeatedly yelled at [the officer]"].

[53] QUOTE FROM: Young
v. County of Los Angeles (9C 2011) 655 F3 1156,
1162.

[54] QUOTE FROM: Smith
v. City of Hemet (9C 2005) 394 F3 689, 705.
CAL: Thompson v.
County of Los Angeles (2006) 142 CA4 154, 165.
9th CIR: Quintanilla v.
City of Downey (9C 1996) 84 F3 353, 357. NOTE: In
Scott v. Harris (2007) 550 US 372, 384 the
Court indicated that something more than a "high likelihood" of
serious injury or death would be required.

[55] USSC: Tennessee v.
Garner (1985) 471 US 1, 11 ["Where the officer has probable
cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly
force."]; Scott v. Harris (2007) 550 US 372,
382, fn.9 ["The necessity described in Garner was, in fact,
the need to prevent serious physical harm, either to the officer
or to others."]. CAL: Thompson v.
County of Los Angeles (2006) 142 CA4 154, 164-65;
Munoz v. City of Union City (2004) 120 CA4
1077, 1103 ["An officer's use of deadly force is reasonable only
if 'the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury to
the officer or others."]; Martinez v.
County of Los Angeles (1996) 47 CA4th 334, 344 [man with a
knife, high on PCP, refused the officers' commands to drop the
weapon, and said "Go ahead kill me or I'm going to kill you," and
advanced on officers to within 10-15 feet]. 9th CIR:
Smith v. City of Hemet (9C 2005) 394 F3 689,
704 ["a police officer may not use deadly force unless it is
necessary to prevent escape and the officer has probable cause to
believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others"];
Quintanilla v. City of Downey (9C 1996) 84 F3
353, 357 ["the use of deadly force is reasonable only if: 1) it is
necessary to prevent escape; 2) the officer has probable cause to
believe that the suspect poses a significant threat of death or
serious physical injury to him or to others; and 3) if feasible,
the officer has given some warning"]; Reynolds v.
County of San Diego (9C 1996) 84 F3 1162, 1168 [apparently
deranged suspect suddenly swung a knife at an officer];
Billington v. City of Boise (9C 2002) 292 F3
1177, 1185 ["Hennessey was trying to get the detective's gun, and
he was getting the upper hand. Hennessey posed an imminent threat
of injury or death; indeed, the threat of injury had already been
realized by Hennessey's blows and kicks."]. OTHER:
Cole v. Hutchins (8C 2020) 959 F3 1127, 1133 ["Officer
Hutchins did not have probable cause to believe Richards posed an
immediate threat of serious physical harm to Underwood as Richards
was not pointing the weapon at Underwood or wielding it in an
otherwise menacing fashion."]; Thompson v.
Salt Lake County (10C 2009) 584 F3 1304, 1313 ["If a
particular use of force is considered deadly force, then an
officer's use of that force is reasonable only if a reasonable
officer in [the officer's] position would have had probable cause
to believe that there was a
threat of serious physical harm to themselves or to
others."]; McCormick v.
City of Fort Lauderdale (11C 2003) 333 F3 1234, 1246
[suspect in a violent felony, carrying a stick, advanced on an
officer—"pumping or swinging the stick"—then charged the officer
as he was falling]; Sanders v.
City of Minneapolis (8C 2007) 474 F3 523, 526 [suspect in a
vehicle was attempting to run down the arresting officers];
Waterman v. Batton (4C 2005) 393 F3 471, 478
[the suspect, after attempting to run an officer off the road,
accelerated toward officers who were standing in front of him
(although not directly in front"); Untalan v.
City of Lorain (6C 2005) 430 F3 312, 315 [man armed with a
butcher knife lunged at the officer]. NOTE
RE Pen. Code§ 196: The test for determining whether
deadly force was reasonable under the Fourth Amendment is
essentially the same as the test for determining whether officers
may be criminally liable for using deadly force that results in
the death of a suspect. Specifically, Pen. Code§ 196 has been
interpreted to mean that no criminal liability may result if (1)
"the felony for which the arrest is sought is a forcible and
atrocious one which threatens death or serious bodily harm," or
(2) "there are other circumstances which reasonably create a fear
of death or serious bodily harm to the officer or to another." See
Foster v. City of Fresno (E.D. Cal 2005) 392
FS2 1140, 1159; Ting v. US (9C 1991) 927 F2
1504, 1514; Kortum v. Alkire (1977) 69 CA3
325, 333. ALSO SEE: Tennessee v.
Garner (1985) 471 US 1, 7, fn.15 ["[Under the California
Penal Code] the police may use deadly force to arrest only if the
crime for which the arrest is sought was a forcible and atrocious
one which threatens death or serious bodily harm, or there is a
substantial risk that the person whose arrest is sought will cause
death or serious bodily harm if apprehension is delayed."].

[56] 9th CIR: Hayes v.
County of San Diego (9C 2011) 638 F3 688, 698 ["threatening
an officer with a weapon does justify the use of deadly force"].
COMPARE: Haugen v. Brosseau (9C 2003)
351 F3 372, 381 ["the mere fact that a suspect possesses a weapon
does not justify deadly force"]. ALSO SEE:
Plumhoff v. Rickard (2014) 572 US 765, 766 [deadly force to
stop a high-speed vehicle pursuit ("outrageously reckless
driving") was reasonable under the circumstances].

[57] QUOTE FROM:
Scott v. Harris (2007) 550 US 372, 382, fn.9 [deadly force
might be reasonably necessary "to prevent escape when the suspect
is known to have committed a crime involving the infliction or
threatened infliction of serious physical harm, so that his mere
being at large poses an inherent danger to society"].
USSC: San Francisco v. Sheehan (2015) 575 US 600,
613 [officers entered the room of a mentally disturbed woman who
had just threatened to kill a social worker; she then threatened
to kill the officers; pepper spray was ineffective and the woman,
still holding a knife, "kept coming at the officers until she was
only a few feet away"; one of the officers shot her multiple
times. Court: "At this point, the use of potentially deadly force
was justified"]. COMPARE: Tennessee v. Garner (1985)
471 US 1, 21 ["While we agree that burglary is a serious crime, we
cannot agree that it is so dangerous as automatically to justify
the use of deadly force."]; Cooper v. Sheehan (4C 2013) 735
F3 153, 159 ["the mere possession of a firearm by a suspect is not
enough to permit the use of deadly force [instead] deadly force
may only be used by a police officer when, based on a reasonable
assessment, the officer or another person is threatened with the
weapon"].

[58] OTHER:
Waterman v. Batton (4C 2005) 393 F3 471, 481 ["force
justified at the beginning of an encounter is not justified even
seconds later if the justification for the initial force has been
eliminated"].

[59] USSC: Tennessee v.
Garner (1985) 471 US 1, 11-12 ["some warning" must be given
"where feasible"]. 9th CIR: Quintanilla v.
City of Downey (9C 1996) 84 F3 353, 357.

[60] 9th CIR:
Mattos v. Agarano (9C 2011) 661 F3 433, 449 ["Here, the
taser was employed in dart-mode, which we have held constitutes an
intermediate, significant level of force."];
Bryan v. MacPherson (9C 2010) 630 F3 805, 809. NOTE:
Dart mode: "In dart-mode the taser uses compressed nitrogen
to propel a pair of 'probes'—aluminum darts tipped with stainless
steel barbs connected to the taser by insulated wires—toward the
target at a rate of over 160 feet per second. Upon striking a
person, the taser delivers a 1200 volt, low ampere electrical
charge. The electrical impulse instantly overrides the victim's
central nervous system, paralyzing the muscles throughout the
body, rendering the target limp and helpless."
Mattos v. Agarano (9C 2011) 661 F3 433, 449.

[61] 9th CIR:
Mattos v. Agarano (9C 2011) 661 F3 433, 443 ["the record is
not sufficient for us to determine what level of force is used
when a taser is deployed in drivestun move"]. NOTE:
Drive-stun mode: "When a taser is used in drive stun mode,
the operator removes the dart cartridge and pushes two electrode
contacts located on the front of the taser directly against the
victim. In this mode, the taser delivers an electric shock to the
victim [sic], but it does not cause an override of the victim's
central nervous system as it does in dart-mode."
Mattos v. Agarano (9C 2011) 661 F3 433, 443.

[62] OTHER: McCormick v.
City of Fort Lauderdale (11C 2003) 333 F3 1234, 1245
["Pepper spray is an especially noninvasive weapon and may be one
very safe and effective method of handling a violent suspect who
may cause further harm to himself or others."]; Vinyard
v. Wilson (11C 2002) 311 F3 1340, 1348 ["pepper
spray is a very reasonable alternative to escalating a physical
struggle with an arrestee"].

[63] 9th CIR: Young v.
County of Los Angeles (9C 2011) 655 F3 1156, 1161.

[64] 9th CIR: Young v.
County of Los Angeles (9C 2011) 655 F3 1156, 1161.

[65] 9th CIR: Glenn v.
Washington County (9C 2011) 661 F3 460, 467.

[66] USSC: Virginia v.
Moore (2008) 553 US 164, 171 ["In a long line of cases, we
have said that when an officer has probable cause to believe a
person committed even a minor crime in his presence, the balancing
of private and public interests is not in doubt."];
Carroll v. US (1925) 267 US 132, 156-57 ["The usual rule is
that a police officer may arrest without warrant one believed by
the officer upon reasonable cause to have been guilty of a felony,
and that he may only arrest without a warrant one guilty of a
misdemeanor if committed in his presence."]. CAL: Veh. Code
§ 40300.5; Pen. Code§ 836(a)(1) [an officer may arrest a
person without a warrant if the officer "has probable cause to
believe that the person to be arrested has committed a public
offense in the officer's presence"]; In re Alonzo C. (1978)
87 CA3 707, 712 ["the correct test for misdemeanors is whether the
circumstances exist that would cause a reasonable person to
believe a crime has been committed in his presence"] Green
v. DMV (1977) 68 CA3 536, 540 ["a warrantless arrest
for an offense other than a felony must be based on reasonable
cause to believe that the arrestee has committed the offense in
the officer's presence"]. 9th CIR: Arpin v.
Santa Clara Valley Transportation Agency (9C 2001) 261 F3
912, 920 ["the officers] arrived after the alleged battery
occurred [and] could therefore not lawfully arrest Arpin for the
battery"].

[67] CAL: P v. Burton (2013) 219
CA4 Supp. 9 [publication of Burton ordered by the
California Supreme Court]; P v. McKay (2002) 27 C4
601, 608 ["With the passage of Proposition 8, we are not free to
exclude evidence merely because it was obtained in violation of
some state statute or state constitutional provision."];
P v. Donaldson (1995) 36 CA4 532, 537. 9th CIR:
Venegas v. City of Pasadena (9C 2022) 46 F4 1159, 1165
["The requirement that a misdemeanor must have occurred in the
officer's presence to justify a warrantless arrest is not grounded
in the Fourth Amendment." [Citation omitted.] So to establish a
violation of the Fourth Amendment, it does not matter if Officer
Klotz was present when Vanegas committed the misdemeanor. Rather,
the crucial inquiry is whether Officer Klotz had probable cause to
make the arrest. Here, we hold that he did."]; Barry
v. Fowler (9C 1990) 902 F2 770, 772 [the "in the
presence requirement" is "not grounded in the Fourth Amendment"].
OTHER: US v. Jones (8C 2022) 55 F4 496, 501 ["And
our court has held that the offense need not even have been
committed in the officer's presence to satisfy the Fourth
Amendment—probable cause alone is sufficient to seize a person
suspected of a misdemeanor."]; Woods v.
City of Chicago (7C 2001) 234 F3 979 995 ["overwhelming
consensus" is that the "'in the presence' rule is not part of the
Fourth Amendment." Citations omitted.]. NOTE: The Supreme
Court has not yet determined whether the "in the presence" rule is
a requirement under the Fourth Amendment. Atwater
v. City of Lago Vista (2001) 532 US 318, 340, fn.11.
Watching a video recording: The question has arisen whether
a crime is committed in an officer's "presence" if he is watching
it on a video monitor. Although the issue is unsettled, one court
resolved the issue by ruling that the "presence" requirement will
be met if the officer was watching a live feed (but not a
recording); Forgie-Buccioni v. Hannaford Brothers, Inc. (1C 2005)
413 F3 175, 180 ["Although Officer Tompkins watched a partial
videotape of Plaintiff allegedly shoplifting, neither Officer
Tompkins nor any other police officer observed Plaintiff
shoplifting."].

[68] CAL: Padilla v.
Meese (1986) 184 CA3 1022, 1027 ["The requirement that the
crime be committed in the officer's presence is construed
liberally"]; P v. Welsch (1984) 151 CA3 1038, 1042
["interpreted liberally"]; In re Alonzo C. (1978) 87 CA3
707, 712 ["liberally construed"].

[69] QUOTE FROM:
In re Alonzo C. (1978) 87 CA3 707, 713. CAL:
Pate v. Muni Court (1970) 11 CA3 721, 725
["presence" is "not merely physical proximity but occurs when the
crime is apparent to the officer's senses."]; P v.
Sjosten (1968) 262 CA2 539, 543-44 ["since Mrs. Morales saw
appellant prowling in the neighborhood, the offense was committed
in her presence"]; P v. Lee (1984) 157 CA3 Supp. 9 [the
term "in the presence" has "historically been liberally construed"
and thus "neither physical proximity nor sight is essential"].

[70] CAL: Royton v.
Battin (1942) 55 CA2 861, 866 [officer saw fish and game
code violation by means of telescope]; P v.
Steinberg (1957) 148 CA2 855 [circumstantial evidence of
bookmaking]; P v. Lee (1984) 157 CA3 Supp. 9
[circumstantial evidence of shoplifting]; P v.
Cahill (1958) 163 CA2 15, 19 [officer overheard
solicitation of prostitution]; P v.
Chew (1956) 142 CA2 400, 403 ["in the presence" requirement
may be satisfied by the officer's "sense of smell"]; P
v. Bradley (1957) 152 CA2 527, 533 ["Knowledge of
the commission of an offense may be acquired through any of the
officer's senses."]; P v. Bloom (2010) 185
CA4 1496 [the 911 dispatcher could have made citizens arrest on
the harassing phone caller].

[71] CASE REFERRED TO:
Forgie-Buccioni v. Hannaford Brothers, Inc. (1C 2005) 413
F3 175, 180 ["Although Officer Tompkins watched a partial
videotape of Plaintiff allegedly shoplifting, neither Officer
Tompkins nor any other police officer observed Plaintiff
shoplifting."].

[72] CAL: Welf. & Inst. Code§
625; In re Samuel V. (1990) 225 CA3 511.