Fanya GAERMAN; et al., Plaintiffs-Appellees, v. Martin C. ALEVY, Federal Bureau of Investigation Special Agent; et al., Defendants-Appellants, 134 F. App'x 150

MEMORANDUM Defendants Martin C. Alevy, George E. Chamberlin, Frank Heckendorn, Robert Stewart, and Monika Wasiewicz appeal the district court’s interlocutory

summary judgment order denying their motion for qualified immunity. We affirm the district court, but on different grounds. The district court concluded that Defendants were not entitled to qualified immunity because a genuine issue of material fact existed as to whether Defendants subjectively believed they had probable cause to arrest Plaintiff Fanya Gaerman. In reaching this conclusion, it appears that the district court may have used an incorrect standard.

In cases involving probable cause arrests, subjective intentions do not matter and instead the “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Consequently, when ruling upon Defendants’ motion for qualifled immunity, the district court should have considered only the objective reasonableness of Defendants’ actions. Nevertheless, a genuine issue of material fact exists as to whether it was objectively reasonable for Defendants to arrest Plaintiff. While Defendants had probable cause to arrest Plaintiffs grandson and her daughter,

summary judgment was not appropriate on the issue of whether it was objectively reasonable for the police to mistake Plaintiff, a ninety-four-year old woman, for her daughter.

Among the facts known to Defendants at the time they arrested Plaintiff were that 1) Ilya Adamidov, the primary suspect and plaintiffs grandson, screamed out at the time of his arrest that his 94-year old grandmother was in the car and to take care of her. 2) Plaintiff informed Defendant Wasiewicz, a Russian-speaking agent, before her arrest, that she was Fanya Gaerman, i.e., not Revekka Adamidov, Ilya Adamidov’s mother. 3) Plaintiff was carrying prescription medicine prescribed to Fanya Gaerman, which was taken from her and which she asked Defendant Wasiewicz to return.

Although it is true, as the dissent notes, “[tjhat Plaintiff identified herself by her own name and denied being Revekka and that Ilya called her his grandmother rather than his mother were not assertions which the officers were required to accept as true under the circumstances,” given the circumstances, as outlined above, the question remains whether the officers should have been put on inquiry notice to back off their preconceived conclusion that, in effect, Plaintiff was her own daughter, i.e., that Plaintiff was a generation younger than she actually was.

The objective reasonableness of Defendants’ conduct turns on whether their mistake of fact— that Plaintiff was Ilya’s mother and not his grandmother — was reasonable, a question best resolved by a jury, which will have the opportunity to assess Plaintiffs appearance. See Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.2003). Consequently, Defendants were not entitled to

summary judgment relief on their claim of qualified immunity. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.