License-Plate Reader's Mistake Leads to Excessive Force Claims - U.S. Ninth Circuit
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License-Plate Reader's Mistake Leads to Excessive Force Claims

Technology fails. Computers crash, cell phone calls drop, and automated license-plate readers (ALPR) misread plates.

With that truism established, whose fault is it when a police officer (or six) stops a woman at gunpoint, holds her at gunpoint, handcuffed for twenty minutes, then realizes that the computer had a glitch?

The trial court called it a reasonable mistake, held that there was reasonable suspicion for a stop, and held that qualified immunity applied, but the Ninth Circuit reversed yesterday, holding that if all inferences were made in favor of the plaintiff, that there was a triable issue of fact over whether there was reasonable suspicion, whether excessive force was used and whether she was arrested, rather than subject to an investigatory stop.

An Undetected Glitch

The first officer's ALPR picked up a hit on the Lexus in front of him. He couldn't verify the plate visually, however, and because he had individuals in custody at the time, he radioed in the hit to the dispatcher, who noted that the stolen plate matched a grey GMC truck.

(If you think a GMC's plate on a Lexus is a red flag, the SFPD argued that it could've been someone trying to disguise a car with the wrong stolen plates. Hey, criminals can be that stupid, right?)

A second officer, Sergeant Kim, pulled in behind the suspect Lexus and followed it. Despite having multiple opportunities to verify the license plate, he never did, as he assumed that the previous officer already had. He eventually pulled off a "high risk" stop, with as many as six other officers as back-up, all with guns drawn, as he restrained an obviously unthreatening 45-year-old, 5'6" 250 pound woman with bad knees who needed help getting back up when she was released.

Who Checks the Camera?

At the time of the stop, there was no San Francisco Police Department policy on verifying the accuracy of an ALPR reading. While Kim argued, and the trial court held, that it was reasonable for him to rely on a lack of "I didn't check" disclaimers from the camera car (and such an assumption may now be reliable, since SFPD has adopted a policy requiring the camera car to verify first), the Ninth Circuit disagreed.

In summary judgment, all disputed facts are taken in favor of the plaintiff. With no policy in place, it's a disputed fact whether it was reasonable for Kim to rely upon the camera car operator's silence as affirmation of a verified plate, or whether it was his responsibility to verify independently.

Disputed facts mean jury questions. And if it wasn't reasonable to rely upon silence, the stop and search were unlawful. The Ninth also felt that the six gun salute, the handcuffed, on her knees, "investigatory" hold may have teetered close to the line of arrest, as lesser circumstances have previously been held to be an arrest rather than a simple stop.

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