Officers Not Entitled to Qualified Immunity for Using Threat of Force to Detain Group Suspected of Misdemeanor Committed Outside Officers' Presence

In Johnson v. BART, published July 30, 2013, the Ninth Circuit reviewed an order denying Bay Area Rapid Transit police officers qualified immunity from suit under 42 U.S.C. section 1983 and California Civil Code section 52.1 for a New Year's Eve incident in which one of the officers shot in the back a man who was laying on a platform, his hands behind his back.  The officers had heard that a group of african-american men had engaged in a fight on a BART car, a misdemeanor.  One of the officers found a group of african-american men talking on a platform; drew a taser to "intimidate" them; and when members boarded a train, the officer paced the train and threatened them with the taser until they got off.  Officers detained the men for an extended period after an officer shot one of them, charged some with resisting an officer, and released the others without charges.  The appellate court largely affirmed the district court's order, finding disputed issues of fact.  It ruled, however, that a defendant officer lacked probable cause to arrest the group based on a misdemeanor that occurred outside the officer's presence.  It found a triable issue on whether the detention ripened into an arrest.  It also found the use of threats of force to detain them improper.  It rejected the district court's interpretation of the earlier case of Dubner v. City and County of San Francisco to hold that each officer should be presumed to have been responsible for the group's overlong detention unless the officer proves otherwise.